“FAIR BALANCE” BETWEEN THE GENERAL INTEREST OF THE COMMUNITY AND THE RIGHTS OF THE APPLICANTS

In a judgment delivered at Strasbourg on 04. 08.2004 in the case of Perdigo v. Portugal (application no.24768/06), the Court held by five votes to two that there had been a violation of Article 1 of Protocol No. 1 to the European Convention on Human Rights (protection of property), as the legal costs payable by the applicants following proceedings concerning the expropriation of land belonging to them exceeded the amount awarded to them in compensation.

Principal facts

The applicants, João José Perdigao and Maria José Queiroga Perdigao, are Portuguese nationals who were born respectively in 1932 and 1933 and live in Lisbon. A 130,000 m² piece of land they owned was expropriated in 1995 to build a motorway. The applicants claimed over 20 million euros in compensation for the expropriation, to cover the profit they claimed they could have made by exploiting a quarry on the land. In July 2003 the Evora Court of Appeal rejected their claim, considering that the potential profits from the quarry should not be taken into account, and set the compensation at just over 197,000 euros. However, the legal costs the applicants were required to pay (as the losing party) in those proceedings exceeded the amount of the award. As a result, not only did the amount awarded in compensation eventually revert to the State, but the applicants had to pay another EUR 15,000, which they did in February 2008. 

Decision of the Court

The Court was not persuaded by the Government’s argument that the applicants had only themselves to blame since the high level of the legal costs, which under Portuguese law were based on the value of the subject matter of the case, had been due to the fact that the applicants had over‑estimated that value. In the Court’s view, the applicants could not be criticized for having endeavored to persuade the court, using the procedural means available to them, to include in the award elements which they deemed to be essential (in this case the profits they could have made by exploiting the quarry situated on the land).

 It was not the Court’s task to conduct an overall examination of the Portuguese system for determining and fixing legal costs. However, the implementation of that system in practice in the case of Mr and Mrs Perdigao had resulted in their receiving no compensation whatsoever for the deprivation of their property. Accordingly, a “fair balance” had not been struck between the general interest of the community (in the funding of the justice system) and the rights of the applicants.

 The Court therefore found a violation of Article 1 of Protocol No. 1

Source: ECHR press release

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