਍ഀ In the case of Lobo Machado v. Portugal (1),਍ഀ ਍ഀ The European Court of Human Rights, sitting, in਍ഀ accordance with Rule 51 of Rules of Court A (2), as a Grand਍ഀ Chamber composed of the following judges:਍ഀ ਍ഀ Mr R. Ryssdal, President,਍ഀ Mr R. Bernhardt,਍ഀ Mr R. Macdonald,਍ഀ Mr A. Spielmann,਍ഀ Mr S.K. Martens,਍ഀ Mrs E. Palm,਍ഀ Mr I. Foighel,਍ഀ Mr R. Pekkanen,਍ഀ Mr A.N. Loizou,਍ഀ Mr J.M. Morenilla,਍ഀ Mr F. Bigi,਍ഀ Sir John Freeland,਍ഀ Mr M.A. Lopes Rocha,਍ഀ Mr L. Wildhaber,਍ഀ Mr J. Makarczyk,਍ഀ Mr D. Gotchev,਍ഀ Mr K. Jungwiert,਍ഀ Mr P. Kuris,਍ഀ Mr U. Lohmus,਍ഀ ਍ഀ and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy਍ഀ Registrar,਍ഀ ਍ഀ Having deliberated in private on 1 September 1995 and਍ഀ 22 January 1996,਍ഀ ਍ഀ Delivers the following judgment, which was adopted on the਍ഀ last-mentioned date:਍ഀ _______________਍ഀ Notes by the Registrar਍ഀ ਍ഀ 1. The case is numbered 21/1994/468/549. The first number is਍ഀ the case's position on the list of cases referred to the Court਍ഀ in the relevant year (second number). The last two numbers਍ഀ indicate the case's position on the list of cases referred to the਍ഀ Court since its creation and on the list of the corresponding਍ഀ originating applications to the Commission.਍ഀ ਍ഀ 2. Rules A apply to all cases referred to the Court before the਍ഀ entry into force of Protocol No. 9 (P9) (1 October 1994) and਍ഀ thereafter only to cases concerning States not bound by that਍ഀ Protocol (P9). They correspond to the Rules that came into force਍ഀ on 1 January 1983, as amended several times subsequently.਍ഀ _______________਍ഀ ਍ഀ PROCEDURE਍ഀ ਍ഀ 1. The case was referred to the Court by the European਍ഀ Commission of Human Rights ("the Commission") and by the਍ഀ Government of the Portuguese Republic ("the Government") on਍ഀ 7 July and 5 September 1994, within the three-month period laid਍ഀ down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)਍ഀ of the Convention for the Protection of Human Rights and਍ഀ Fundamental Freedoms ("the Convention"). It originated in an਍ഀ application (no. 15764/89) against Portugal lodged with the਍ഀ Commission under Article 25 (art. 25) by a Portuguese national,਍ഀ Mr Pedro Lobo Machado, on 2 November 1989.਍ഀ ਍ഀ The Commission's request referred to Articles 44 and 48਍ഀ (art. 44, art. 48) and to the declaration whereby Portugal਍ഀ recognised the compulsory jurisdiction of the Court (Article 46)਍ഀ (art. 46); the Government's application referred to Article 48਍ഀ (art. 48). The object of the request and of the application was਍ഀ to obtain a decision as to whether the facts of the case਍ഀ disclosed a breach by the respondent State of its obligations਍ഀ under Article 6 (art. 6) of the Convention and Article 1 of਍ഀ Protocol No. 1 (P1-1).਍ഀ ਍ഀ 2. In response to the enquiry made in accordance with਍ഀ Rule 33 para. 3 (d) of Rules of Court A, the applicant stated਍ഀ that he wished to take part in the proceedings and designated the਍ഀ lawyer who would represent him (Rule 30).਍ഀ ਍ഀ 3. The Chamber to be constituted included ex officio਍ഀ Mr M.A. Lopes Rocha, the elected judge of Portuguese nationality਍ഀ (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the਍ഀ President of the Court (Rule 21 para. 3 (b)). On 18 July 1994,਍ഀ in the presence of the Registrar, the President drew by lot the਍ഀ names of the other seven members, namely Mr N. Valticos,਍ഀ Mr S.K. Martens, Mrs E. Palm, Mr I. Foighel, Mr F. Bigi,਍ഀ Mr J. Makarczyk and Mr K. Jungwiert (Article 43 in fine of the਍ഀ Convention and Rule 21 para. 4) (art. 43). Subsequently਍ഀ Mr A. Spielmann, substitute judge, replaced Mr Valticos, who was਍ഀ unable to take part in the further consideration of the case਍ഀ (Rules 22 para. 1 and 24 para. 1).਍ഀ ਍ഀ 4. As President of the Chamber (Rule 21 para. 5),਍ഀ Mr Ryssdal, acting through the Registrar, consulted the Agent of਍ഀ the Government, the applicant's lawyer and the Delegate of the਍ഀ Commission on the organisation of the proceedings (Rules 37਍ഀ para. 1 and 38). Pursuant to the order made in consequence, the਍ഀ Registrar received the applicant's memorial on 18 November 1994਍ഀ and the Government's memorial on 21 November. On 1 December the਍ഀ Secretary to the Commission informed the Registrar that the਍ഀ Delegate would submit his observations at the hearing.਍ഀ ਍ഀ 5. On 2 February 1995 the President decided in the interests਍ഀ of the proper administration of justice that the instant case and਍ഀ the case of Vermeulen v. Belgium (58/1994/505/587) should be਍ഀ heard on the same day. Consequently, after consulting the਍ഀ Chamber, he decided to adjourn the hearing in the instant case਍ഀ from 20 March 1995, the date originally scheduled, to 30 August.਍ഀ ਍ഀ 6. On 22 March 1995, under Rule 37 para. 2, the President਍ഀ decided to grant a request from the Belgian Government to submit਍ഀ written observations on certain aspects of the case. In a letter਍ഀ received at the registry on 18 April 1995 counsel for the਍ഀ applicant made comments on questions concerning the scope of the਍ഀ aforementioned Government's intervention as an amicus curiae.਍ഀ On 24 May 1995 the Registrar received the observations.਍ഀ ਍ഀ 7. Likewise on 24 May 1995 the Chamber relinquished਍ഀ jurisdiction in favour of a Grand Chamber (Rule 51). In਍ഀ accordance with Rule 51 para. 2 (a) and (b), the President and਍ഀ the Vice-President (Mr Ryssdal and Mr R. Bernhardt), together਍ഀ with the other members of the original Chamber, became members਍ഀ of the Grand Chamber. On 8 June 1995, in the presence of the਍ഀ Registrar, the President drew by lot the names of the additional਍ഀ judges, namely Mr R. Macdonald, Mr R. Pekkanen, Mr A.N. Loizou,਍ഀ Mr J.M. Morenilla, Sir John Freeland, Mr L. Wildhaber, Mr D.਍ഀ Gotchev, Mr P. Kuris and Mr U. Lohmus.਍ഀ ਍ഀ 8. In accordance with the decision of the President, who had਍ഀ given the applicant's lawyer leave to address the Court in਍ഀ Portuguese (Rule 27 para. 3), the hearing took place in public਍ഀ in the Human Rights Building, Strasbourg, on 30 August 1995. The਍ഀ Court had held a preparatory meeting beforehand.਍ഀ ਍ഀ 9. There appeared before the Court:਍ഀ ਍ഀ (a) for the Government਍ഀ ਍ഀ Mr A. Henriques Gaspar, Deputy Attorney-General਍ഀ of the Republic, Agent,਍ഀ Mr O. Castelo Paulo, former President of the Employment਍ഀ Division of the Supreme Court, Adviser;਍ഀ ਍ഀ (b) for the Commission਍ഀ ਍ഀ Mr H. Danelius, Delegate;਍ഀ ਍ഀ (c) for the applicant਍ഀ ਍ഀ Mr J. Pires de Lima, advogado, Counsel,਍ഀ Mr J.M. Lebre de Freitas, Professor of Law਍ഀ at the University of Lisbon, advogado,਍ഀ Mr M. Nobre de Gusmão, advogado, Advisers.਍ഀ ਍ഀ The Court heard addresses by Mr Danelius, Mr Pires de਍ഀ Lima, Mr Lebre de Freitas, Mr Henriques Gaspar and Mr Castelo਍ഀ Paulo.਍ഀ ਍ഀ AS TO THE FACTS਍ഀ ਍ഀ I. Circumstances of the case਍ഀ ਍ഀ 10. Mr Pedro Lobo Machado is a Portuguese national who lives਍ഀ in Lisbon. In 1955 he joined the Sacor company as an engineer.਍ഀ Following its nationalisation in 1975, Sacor was absorbed into਍ഀ Petrogal-Petróleos de Portugal, EP ("Petrogal"), a State-owned਍ഀ concern. On 4 April 1989 Petrogal became a public limited਍ഀ company, in which the State is still the majority shareholder.਍ഀ In the meantime, on 1 January 1980, the applicant had retired.਍ഀ ਍ഀ 11. On 5 February 1986 Mr Lobo Machado brought proceedings਍ഀ against Petrogal in the Lisbon industrial tribunal; the company਍ഀ was represented by a lawyer appointed by the chairman of its਍ഀ board of directors. Mr Lobo Machado sought recognition of the਍ഀ occupational grade of "director-general" instead of that of਍ഀ "director" which had been assigned to him by his employer. As਍ഀ that classification had an effect on the amount of his retirement਍ഀ pension, he also sought payment of the sums that, under the਍ഀ collective labour agreement (acordo colectivo de trabalho),਍ഀ should have been paid him since 1980.਍ഀ ਍ഀ 12. The Lisbon industrial tribunal dismissed his claims in a਍ഀ judgment of 7 October 1987. That decision was upheld by the਍ഀ Lisbon Court of Appeal in a judgment of 1 June 1988.਍ഀ ਍ഀ 13. The applicant appealed to the Supreme Court (Supremo਍ഀ Tribunal de Justiça).਍ഀ ਍ഀ 14. After the parties had exchanged pleadings, the case file਍ഀ was sent to the representative of the Attorney-General's਍ഀ department at the Supreme Court, a Deputy Attorney-General, on਍ഀ 20 February 1989. On 28 February 1989 that representative਍ഀ delivered an opinion in which he recommended that the appeal਍ഀ should be dismissed, as follows:਍ഀ ਍ഀ "1. Seen.਍ഀ ਍ഀ 2. The appellant reiterates the arguments already਍ഀ presented to the Court of Appeal and seeks to have that਍ഀ court's judgment and the one of the court of first਍ഀ instance set aside and to have his action allowed. Those਍ഀ arguments, however, were duly considered in the judgment਍ഀ appealed against, which is sufficient in itself as਍ഀ regards the reasons given for it. No further਍ഀ consideration is therefore necessary.਍ഀ ਍ഀ 3. I am consequently of the opinion that the appeal must਍ഀ be dismissed."਍ഀ ਍ഀ 15. On 19 May 1989 the Supreme Court, sitting in private,਍ഀ considered the appeal. Three judges, a registrar and the member਍ഀ of the Attorney-General's department were present at the਍ഀ deliberations. The parties had not been asked to attend. At the਍ഀ end of the deliberations the court adopted a judgment in which਍ഀ it dismissed the appeal and this was served on the applicant on਍ഀ 22 May 1989.਍ഀ ਍ഀ II. Relevant domestic law਍ഀ ਍ഀ A. The Constitution਍ഀ ਍ഀ 16. The independence and status of the Attorney-General's਍ഀ department are similar to those of the judiciary. In Article 221਍ഀ paras. 1 and 2 of the Constitution its functions are laid down਍ഀ as follows:਍ഀ ਍ഀ "1. The duties of the Attorney-General's department are਍ഀ to represent the State, to act as prosecuting authority਍ഀ and to uphold the democratic legal order and the਍ഀ interests determined by law.਍ഀ ਍ഀ 2. The Attorney-General's department shall have its own਍ഀ status and shall be autonomous, in accordance with law."਍ഀ ਍ഀ B. The Institutional Law governing the Attorney-General's਍ഀ department਍ഀ ਍ഀ 17. Law no. 47/86 of 15 October 1986 defines the scope of the਍ഀ powers of the Attorney-General's department and lays down the਍ഀ manner in which it is to intervene - as plaintiff or defendant਍ഀ or else in an "associated" (acessória) capacity - in judicial਍ഀ proceedings. The following provisions are relevant to the਍ഀ instant case:਍ഀ ਍ഀ Section 1਍ഀ ਍ഀ "By law, the Attorney-General's department is the body਍ഀ responsible for representing the State, acting as਍ഀ prosecuting authority and upholding the democratic legal਍ഀ order and the interests assigned to it by law."਍ഀ ਍ഀ Section 3 (1)਍ഀ ਍ഀ "It shall be the duty of the Attorney-General's਍ഀ department in particular to:਍ഀ ਍ഀ (a) represent the State ...;਍ഀ ਍ഀ (b) act as prosecuting authority;਍ഀ ਍ഀ (c) represent workers and their families in defence of਍ഀ their social rights;਍ഀ ਍ഀ (d) uphold the independence of the courts, within the਍ഀ limits of its responsibilities, and ensure that the਍ഀ judicial function is discharged in accordance with the਍ഀ Constitution and statute law;਍ഀ ਍ഀ (e) further the execution of court decisions in respect਍ഀ of which it is so empowered;਍ഀ ਍ഀ (f) direct criminal investigations, even where they are਍ഀ carried out by other bodies;਍ഀ ਍ഀ (g) promote and cooperate in campaigns for the prevention਍ഀ of crime;਍ഀ ਍ഀ (h) monitor the constitutionality of legislation;਍ഀ ਍ഀ (i) intervene in bankruptcy and insolvency proceedings਍ഀ and in any other proceedings of public interest;਍ഀ ਍ഀ (j) act in an advisory capacity, as provided in this Law;਍ഀ ਍ഀ (l) supervise police proceedings;਍ഀ ਍ഀ (m) lodge appeals against decisions resulting from਍ഀ collusion between the parties with the intention of਍ഀ evading the law or which have been given in breach of an਍ഀ express statutory provision; and਍ഀ ਍ഀ (n) discharge all the other functions assigned to it by਍ഀ statute."਍ഀ ਍ഀ Section 5਍ഀ ਍ഀ "1. The Attorney-General's department shall intervene in਍ഀ proceedings as plaintiff or defendant:਍ഀ ਍ഀ (a) where it represents the State;਍ഀ ਍ഀ ...਍ഀ ਍ഀ (d) where it represents workers and their families in਍ഀ defence of their social rights;਍ഀ ਍ഀ ...਍ഀ ਍ഀ 4. The Attorney-General's department shall intervene in਍ഀ proceedings in an `associated' capacity:਍ഀ ਍ഀ (a) where none of the cases provided for in਍ഀ subsection (1) applies and where the parties concerned in਍ഀ the case are autonomous regions, local authorities, other਍ഀ public entities, charities and other institutions਍ഀ promoting the public interest, persons lacking legal਍ഀ capacity or missing persons; and਍ഀ ਍ഀ (b) in all other cases provided for by law."਍ഀ ਍ഀ Section 6਍ഀ ਍ഀ "1. Where the Attorney-General's department intervenes in਍ഀ an `associated' capacity, it shall watch over the਍ഀ interests entrusted to it by taking all necessary਍ഀ measures.਍ഀ ਍ഀ 2. The intervention shall be made in the manner laid਍ഀ down in procedural law."਍ഀ ਍ഀ Section 11 (2)਍ഀ ਍ഀ "[The Attorney-General's department] shall be represented਍ഀ [in the supreme courts] by Deputy Attorneys-General ..."਍ഀ ਍ഀ Section 59਍ഀ ਍ഀ "The Minister of Justice may:਍ഀ ਍ഀ (a) give specific instructions to the Attorney-General਍ഀ concerning civil cases in which the State has an਍ഀ interest;਍ഀ ਍ഀ (b) authorise the Attorney-General's department ... to਍ഀ admit the other side's case, conclude settlements or਍ഀ discontinue proceedings in civil cases to which the State਍ഀ is a party;਍ഀ ਍ഀ ..."਍ഀ ਍ഀ C. The Code of Civil Procedure਍ഀ ਍ഀ 18. The relevant provisions of the Code of Civil Procedure,਍ഀ which are also applicable to cases falling within the਍ഀ jurisdiction of the industrial tribunals, are the following:਍ഀ ਍ഀ Article 20਍ഀ ਍ഀ "1. The State shall be represented by਍ഀ the Attorney-General's department.਍ഀ ਍ഀ 2. If the case concerns State property or State rights਍ഀ but the property is managed or the rights exercised by਍ഀ autonomous bodies, the latter may instruct counsel, who਍ഀ shall act conjointly with the Attorney-General's਍ഀ department in the proceedings. In the event of਍ഀ disagreement between the Attorney-General's department਍ഀ and counsel, the view of the Attorney-General's਍ഀ department shall prevail."਍ഀ ਍ഀ Article 709਍ഀ ਍ഀ "1. After inspecting the case file, each judge shall਍ഀ append his signature and the date, together with any਍ഀ comments. At the end of this process, the registry shall਍ഀ enter the case in the court's list.਍ഀ ਍ഀ 2. On the day on which the court sits to adopt its਍ഀ judgment, the reporting judge shall read out the draft਍ഀ judgment, after which each of the other judges shall vote਍ഀ in the order in which they have inspected the case file.਍ഀ Where possible, a photocopy or a manuscript or typescript਍ഀ copy of the draft judgment shall be distributed to the਍ഀ presiding judge and the other judges of the court at the਍ഀ beginning of the sitting.਍ഀ ਍ഀ 3. ..."਍ഀ ਍ഀ Article 752 para. 1਍ഀ ਍ഀ "Where the Attorney-General's department must intervene਍ഀ [in proceedings], the case file shall be sent to it [for਍ഀ observations] for a period of seven days, after which the਍ഀ file ... shall be sent to the reporting judge and the਍ഀ other non-presiding judges for the purposes of a final਍ഀ decision; the reporting judge may keep the file for਍ഀ fourteen days and the other judges for seven days."਍ഀ ਍ഀ 19. Under the Constitution and the Institutional Law਍ഀ governing the Attorney-General's department, the latter must਍ഀ intervene in all proceedings in which the public interest਍ഀ (interesse público) is at stake.਍ഀ ਍ഀ In labour-law cases the practice of the Employment਍ഀ Division of the Supreme Court is for the representative of਍ഀ the Attorney-General's department at that court (a਍ഀ Deputy Attorney-General) to be given the file so that he can਍ഀ express an opinion on the merits of the appeal. As a general਍ഀ rule, that representative also takes part in the sitting held to਍ഀ consider the appeal.਍ഀ ਍ഀ D. The Code of Labour Procedure਍ഀ ਍ഀ 20. The Government cited the following provisions of the Code਍ഀ of Labour Procedure:਍ഀ ਍ഀ Article 8਍ഀ ਍ഀ "The representatives of the Attorney-General's department਍ഀ must automatically represent:਍ഀ ਍ഀ (a) workers and their families;਍ഀ ਍ഀ (b) ..."਍ഀ ਍ഀ Article 10਍ഀ ਍ഀ "Where a legal representative is appointed, the automatic਍ഀ representation by the Attorney-General's department shall਍ഀ cease, without prejudice to that department's਍ഀ intervention in an `associated' capacity."਍ഀ ਍ഀ PROCEEDINGS BEFORE THE COMMISSION਍ഀ ਍ഀ 21. Mr Lobo Machado applied to the Commission on਍ഀ 2 November 1989. Relying on Article 6 para. 1 (art. 6-1) of the਍ഀ Convention, he complained, firstly, that there had been no fresh਍ഀ assessment by the Court of Appeal of the evidence relating to਍ഀ facts held to have been established by the court of first਍ഀ instance and no public hearing in either the Court of Appeal or਍ഀ the Supreme Court; he further complained of the role assigned to਍ഀ the Attorney-General's department in the proceedings before the਍ഀ Supreme Court, which he said had infringed his right to a fair਍ഀ trial by an independent and impartial tribunal and had offended਍ഀ the principle of equality of arms. He also alleged a breach਍ഀ of Article 1 of Protocol No. 1 (P1-1) on account of the adverse਍ഀ financial consequences of the failure of his action.਍ഀ ਍ഀ 22. On 29 November 1993 the Commission declared admissible਍ഀ the complaints relating to the participation of਍ഀ the Attorney-General's department in the proceedings before the਍ഀ Supreme Court and the infringement of the applicant's right to਍ഀ the peaceful enjoyment of his possessions. It declared the਍ഀ remainder of the application (no. 15764/89) inadmissible. In its਍ഀ report of 19 May 1994 (Article 31) (art. 31), it expressed the਍ഀ opinion by fourteen votes to nine that there had been a breach਍ഀ of Article 6 para. 1 (art. 6-1) of the Convention and by਍ഀ twenty-two votes to one that no separate issue arose਍ഀ under Article 1 of Protocol No. 1 (P1-1). The full text of the਍ഀ Commission's opinion and of the three separate opinions contained਍ഀ in the report is reproduced as an annex to this judgment (1).਍ഀ _______________਍ഀ Note by the Registrar਍ഀ ਍ഀ 1. For practical reasons this annex will appear only with the਍ഀ printed version of the judgment (in Reports of Judgments and਍ഀ Decisions - 1996), but a copy of the Commission's report is਍ഀ obtainable from the registry.਍ഀ _______________਍ഀ ਍ഀ FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT਍ഀ ਍ഀ 23. In their memorial the Government asked the Court "to hold਍ഀ that there had been no violation of Article 6 para. 1 (art. 6-1)਍ഀ of the Convention".਍ഀ ਍ഀ AS TO THE LAW਍ഀ ਍ഀ I. ALLEGED VIOLATION OF Article 6 Para. 1 (art. 6-1) OF THE਍ഀ CONVENTION਍ഀ ਍ഀ 24. Mr Lobo Machado alleged a breach of Article 6 para. 1਍ഀ (art. 6-1) of the Convention, which provides:਍ഀ ਍ഀ "In the determination of his civil rights and obligations਍ഀ ..., everyone is entitled to a fair ... hearing ... by an਍ഀ independent and impartial tribunal ..."਍ഀ ਍ഀ He complained, firstly, that he had not been able, before਍ഀ the Supreme Court had given judgment, to obtain a copy of the਍ഀ Attorney-General's department's written opinion or, therefore,਍ഀ to reply to it; and, secondly, that the Attorney-General's਍ഀ department had been represented at the Supreme Court's਍ഀ deliberations, held in private, although it had previously਍ഀ endorsed the arguments of Petrogal. Its presence at the਍ഀ deliberations was thus, he submitted, contrary to the principle਍ഀ of equality of arms and called the court's independence in਍ഀ question. Furthermore, as he had brought his action against a਍ഀ State-owned concern, he was entitled to doubt the impartiality਍ഀ of the Attorney-General's department as a representative of the਍ഀ State in private disputes of a pecuniary nature.਍ഀ ਍ഀ There was nothing, he continued, to justify the਍ഀ Deputy Attorney-General's being present at the deliberations.਍ഀ His role had not been to advise the court or to ensure the਍ഀ consistency of its case-law. Nor, in the instant case, was his਍ഀ presence explained by the need to uphold the public interest,਍ഀ since he had taken the side of the employer.਍ഀ ਍ഀ The duties of the Portuguese Attorney-General's਍ഀ department were such that in the instant case its representative਍ഀ could have received instructions from the Minister of Justice਍ഀ regarding his final submissions and his role when the appeal was਍ഀ being considered by the Supreme Court. As a consequence, it਍ഀ could not conceivably be said, as regards Portugal, that an਍ഀ infringement of the principle of fairness in civil proceedings,਍ഀ by reason of the non-adversarial intervention of਍ഀ the Attorney-General's department, was less serious than a਍ഀ comparable infringement in criminal proceedings.਍ഀ ਍ഀ 25. The Commission shared this view for the most part and਍ഀ considered that the principles laid down in the Borgers਍ഀ v. Belgium judgment of 30 October 1991 (Series A no. 214-B)਍ഀ applied mutatis mutandis in civil proceedings. At the hearing਍ഀ its Delegate said that the breach arose from the combination of਍ഀ the fact that Mr Lobo Machado had been unable to reply to the਍ഀ written observations of the Attorney-General's department and the਍ഀ fact that a member of that department had been present at the਍ഀ deliberations.਍ഀ ਍ഀ 26. The Government pointed out that the parties - the਍ഀ applicant and Petrogal - had exercised their procedural rights਍ഀ on an equal footing through their counsel. In such proceedings਍ഀ the Deputy Attorney-General, one of the members of਍ഀ the Attorney-General's department in the highest grade, could not਍ഀ be equated with a party. Given the special features of the਍ഀ system of intervention by the Attorney-General's department at਍ഀ the Supreme Court in employment cases, the considerations set out਍ഀ in the Borgers judgment were not applicable in the instant case.਍ഀ The member of the Attorney-General's department in its capacity਍ഀ as an institution of the judicial system had no other duty than਍ഀ to assist the court by giving a completely independent, objective਍ഀ and impartial written opinion super partes on the legal issues਍ഀ raised. In this way he contributed to ensuring good਍ഀ administration of justice. The objective function of amicus਍ഀ curiae discharged by the Deputy Attorney-General as a guarantor਍ഀ of the consistency of the Supreme Court's case-law and protector਍ഀ of the public interest in employment cases was known to the਍ഀ public and especially to lawyers. It could not be said that਍ഀ because he drew up an opinion based strictly on the law, the਍ഀ Deputy Attorney-General became "objectively speaking" an "ally"਍ഀ or an "opponent" (see the Borgers judgment previously cited,਍ഀ p. 32, para. 26). The fact that one of the parties was a਍ഀ State-owned concern that had subsequently become a public limited਍ഀ company in which the State was the majority shareholder had no਍ഀ bearing on the assessment of whether the principle of a fair਍ഀ trial had been complied with. Petrogal had its own organs. In਍ഀ cases such as the instant one, section 59 of the Institutional਍ഀ Law governing the Attorney-General's department (see paragraph 17਍ഀ above), which had been cited by the applicant, did not authorise਍ഀ the Minister of Justice to give instructions concerning the task਍ഀ of the Attorney-General's department.਍ഀ ਍ഀ In the instant case, that department had confined itself਍ഀ to giving a brief written opinion and had had no kind of say,਍ഀ whether advisory or any other, in the process whereby the court਍ഀ reached its decision when sitting in private (contrast the਍ഀ Borgers judgment previously cited).਍ഀ ਍ഀ 27. The Belgian Government submitted (see paragraph 6 above)਍ഀ that the fundamental differences between criminal and civil਍ഀ proceedings before a supreme court dictated that the Borgers਍ഀ precedent (see the judgment previously cited) should not be਍ഀ followed where civil proceedings were concerned. At all events,਍ഀ the special features of each case and of the relevant national਍ഀ law had to be taken into consideration so as to avoid uniformly਍ഀ condemning, as being contrary to Article 6 para. 1 (art. 6-1),਍ഀ an institution which both in Belgium and in Portugal had proved਍ഀ beneficial.਍ഀ ਍ഀ 28. The Court notes, firstly, that the dispute in question਍ഀ related to social rights and was between two clearly defined਍ഀ parties: the applicant, as plaintiff, and Petrogal as defendant.਍ഀ In that context the duty of the Attorney-General's department at਍ഀ the Supreme Court is mainly to assist the court and to help਍ഀ ensure that its case-law is consistent. Given that the rights਍ഀ were social in nature, the department's intervention in the਍ഀ proceedings was more particularly justified for the purposes of਍ഀ upholding the public interest.਍ഀ ਍ഀ It must be observed, secondly, that Portuguese਍ഀ legislation gives no indication as to how the representative of਍ഀ the Attorney-General's department attached to the Employment਍ഀ Division of the Supreme Court is to perform his role when that਍ഀ division sits in private (contrast the Borgers judgment਍ഀ previously cited, p. 28, para. 17, and p. 32, para. 28).਍ഀ ਍ഀ 29. As in its judgment in the Borgers case (p. 32, para. 26),਍ഀ the Court considers, however, that great importance must be਍ഀ attached to the part actually played in the proceedings by the਍ഀ member of the Attorney-General's department, and more਍ഀ particularly to the content and effects of his observations.਍ഀ These contain an opinion which derives its authority from that਍ഀ of the Attorney-General's department itself. Although it is਍ഀ objective and reasoned in law, the opinion is nevertheless਍ഀ intended to advise and accordingly influence the Supreme Court.਍ഀ In this connection, the Government emphasised the importance of਍ഀ the department's contribution to ensuring the consistency of the਍ഀ court's case-law and, more particularly in the instant case,਍ഀ upholding the public interest.਍ഀ ਍ഀ 30. In its judgment of 17 January 1970 in the Delcourt਍ഀ v. Belgium case the Court noted in its reasons for holding਍ഀ that Article 6 para. 1 (art. 6-1) was applicable that "the਍ഀ judgment of the Court of Cassation ... may rebound in different਍ഀ degrees on the position of the person concerned" (Series A਍ഀ no. 11, pp. 13-14, para. 25). It has reiterated that idea on਍ഀ several occasions (see, mutatis mutandis, the following਍ഀ judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64,਍ഀ p. 17, para. 36; Pham Hoang v. France, 25 September 1992,਍ഀ Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain,਍ഀ 23 June 1993, Series A no. 262, p. 25, para. 63). The same਍ഀ applies in the instant case, since the outcome of the appeal਍ഀ could have affected the amount of Mr Lobo Machado's retirement਍ഀ pension.਍ഀ ਍ഀ 31. Regard being had, therefore, to what was at stake for the਍ഀ applicant in the proceedings in the Supreme Court and to the਍ഀ nature of the Deputy Attorney-General's opinion, in which it was਍ഀ advocated that the appeal should be dismissed (see paragraph 14਍ഀ above), the fact that it was impossible for Mr Lobo Machado to਍ഀ obtain a copy of it and reply to it before judgment was given਍ഀ infringed his right to adversarial proceedings. That right means਍ഀ in principle the opportunity for the parties to a criminal or਍ഀ civil trial to have knowledge of and comment on all evidence਍ഀ adduced or observations filed, even by an independent member of਍ഀ the national legal service, with a view to influencing the਍ഀ court's decision (see, among other authorities and mutatis਍ഀ mutandis, the following judgments: Ruiz-Mateos, previously cited,਍ഀ p. 25, para. 63; McMichael v. the United Kingdom,਍ഀ 24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and਍ഀ Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16,਍ഀ para. 42).਍ഀ ਍ഀ The Court finds that this fact in itself amounts to a਍ഀ breach of Article 6 para. 1 (art. 6-1).਍ഀ ਍ഀ 32. The breach in question was aggravated by the presence of਍ഀ the Deputy Attorney-General at the Supreme Court's private਍ഀ sitting. Even if he had no kind of say, whether advisory or any਍ഀ other (see paragraphs 26 and 28 above), it afforded him, if only਍ഀ to outward appearances, an additional opportunity to bolster his਍ഀ opinion in private, without fear of contradiction (see the਍ഀ Borgers judgment previously cited, p. 32, para. 28).਍ഀ ਍ഀ The fact that his presence gave the Attorney-General's਍ഀ department the chance to contribute to maintaining the਍ഀ consistency of the case-law cannot alter that finding, since਍ഀ having a member present is not the only means of furthering that਍ഀ aim, as is shown by the practice of most other member States of਍ഀ the Council of Europe.਍ഀ ਍ഀ There has therefore been a breach of Article 6 para. 1਍ഀ (art. 6-1) in this respect also.਍ഀ ਍ഀ 33. These conclusions make it unnecessary for the Court to਍ഀ rule on the complaint that the Supreme Court was neither਍ഀ impartial nor independent.਍ഀ ਍ഀ II. ALLEGED VIOLATION OF Article 1 OF Protocol No. 1 (P1-1)਍ഀ ਍ഀ 34. Before the Commission the applicant alleged a violation਍ഀ of Article 1 of Protocol No. 1 (P1-1), but he did not reiterate਍ഀ that complaint before the Court.਍ഀ ਍ഀ 35. The Court does not consider that it must raise the issue਍ഀ of its own motion.਍ഀ ਍ഀ III. APPLICATION OF Article 50 (art. 50) OF THE CONVENTION਍ഀ ਍ഀ 36. Article 50 (art. 50) of the Convention provides:਍ഀ ਍ഀ "If the Court finds that a decision or a measure taken by਍ഀ a legal authority or any other authority of a High਍ഀ Contracting Party is completely or partially in conflict਍ഀ with the obligations arising from the ... Convention, and਍ഀ if the internal law of the said Party allows only partial਍ഀ reparation to be made for the consequences of this਍ഀ decision or measure, the decision of the Court shall, if਍ഀ necessary, afford just satisfaction to the injured਍ഀ party."਍ഀ ਍ഀ A. Damage਍ഀ ਍ഀ 37. Mr Lobo Machado said that quite apart from the effects of਍ഀ the outcome of the proceedings on his professional life, the਍ഀ doubts about the judicial system that had been raised by the਍ഀ instant case had impaired for ever his confidence in democratic਍ഀ institutions. The non-pecuniary damage sustained could not be਍ഀ less than 3,500,000 escudos (PTE).਍ഀ ਍ഀ 38. The Government submitted that there was no causal link਍ഀ between the breach and the alleged damage.਍ഀ ਍ഀ 39. The Delegate of the Commission did not express an਍ഀ opinion.਍ഀ ਍ഀ 40. The Court considers that the finding of a breach਍ഀ of Article 6 (art. 6) constitutes in itself sufficient just਍ഀ satisfaction under this head.਍ഀ ਍ഀ B. Costs and expenses਍ഀ ਍ഀ 41. The applicant also sought PTE 1,500,000 in respect of਍ഀ costs and expenses incurred for his representation before the਍ഀ Convention institutions.਍ഀ ਍ഀ 42. No view was expressed by either the Government or the਍ഀ Delegate of the Commission.਍ഀ ਍ഀ 43. The Court allows Mr Lobo Machado's claim and therefore਍ഀ awards him the sum sought, from which 21,724 French francs paid਍ഀ by the Council of Europe by way of legal aid fall to be deducted.਍ഀ ਍ഀ C. Default interest਍ഀ ਍ഀ According to the information available to the Court, the਍ഀ statutory rate of interest applicable in Portugal at the date of਍ഀ adoption of the present judgment is 10% per annum.਍ഀ ਍ഀ FOR THESE REASONS, THE COURT UNANIMOUSLY਍ഀ ਍ഀ 1. Holds that there has been a breach of Article 6 para. 1਍ഀ (art. 6-1) of the Convention;਍ഀ ਍ഀ 2. Holds that it is unnecessary to consider the case under਍ഀ Article 1 of Protocol No. 1 (P1-1);਍ഀ ਍ഀ 3. Holds that this judgment constitutes in itself sufficient਍ഀ just satisfaction as to the alleged damage;਍ഀ ਍ഀ 4. Holds਍ഀ ਍ഀ (a) that the respondent State is to pay the applicant,਍ഀ within three months, 1,500,000 (one million five hundred਍ഀ thousand) escudos, less 21,724 (twenty-one thousand seven਍ഀ hundred and twenty-four) French francs, to be converted਍ഀ into escudos at the rate of exchange applicable at the਍ഀ date of delivery of this judgment, for costs and਍ഀ expenses;਍ഀ ਍ഀ (b) that simple interest at an annual rate of 10% shall਍ഀ be payable on these sums from the expiry of the਍ഀ above-mentioned three months until settlement;਍ഀ ਍ഀ 5. Dismisses the remainder of the claim for just਍ഀ satisfaction.਍ഀ ਍ഀ Done in English and in French, and delivered at a public਍ഀ hearing in the Human Rights Building, Strasbourg, on਍ഀ 20 February 1996.਍ഀ ਍ഀ Signed: Rolv RYSSDAL਍ഀ President਍ഀ ਍ഀ Signed: Herbert PETZOLD਍ഀ Registrar਍ഀ ਍ഀ In accordance with Article 51 para. 2 (art. 51-2) of the਍ഀ Convention and Rule 53 para. 2 of Rules of Court A, the਍ഀ concurring opinion of Mr Lopes Rocha is annexed to this judgment.਍ഀ ਍ഀ Initialled: R. R.਍ഀ ਍ഀ Initialled: H. P.਍ഀ ਍ഀ CONCURRING OPINION OF JUDGE LOPES ROCHA਍ഀ ਍ഀ (Translation)਍ഀ ਍ഀ I concur in the finding that there has been a breach of਍ഀ Article 6 para. 1 (art. 6-1) of the Convention, but I cannot਍ഀ agree with all of the reasons set out in paragraphs 31 and 32 of਍ഀ the judgment.਍ഀ ਍ഀ As is clear from paragraph 14, the opinion of the਍ഀ Deputy Attorney-General, which the plaintiff was unaware of, did਍ഀ not adduce any new argument in support of dismissing the appeal.਍ഀ It did no more than point out that the plaintiff's arguments had਍ഀ already been considered in the Court of Appeal's judgment, which਍ഀ was sufficient in itself as regards the reasons given for it, and਍ഀ that any further consideration was therefore unnecessary.਍ഀ ਍ഀ The fact, on its own, that it was impossible for the਍ഀ applicant to have knowledge of the content of the਍ഀ Deputy Attorney-General's opinion before judgment was delivered਍ഀ and to reply to it does not suffice for it to be found that there਍ഀ has been a breach of Article 6 para. 1 (art. 6-1) as is held in਍ഀ paragraph 31.਍ഀ ਍ഀ The finding of a breach should, rather, be based on all਍ഀ the circumstances of the case.਍ഀ ਍ഀ What must be assessed from the point of view of a breach਍ഀ of the right to a fair hearing is the fact that the member of the਍ഀ Attorney-General's department attended the Supreme Court's਍ഀ private sitting without the plaintiff's being able to be present,਍ഀ which afforded him an additional opportunity to bolster his਍ഀ opinion in private without fear of contradiction.਍ഀ ਍ഀ Admittedly the member of the Attorney-General's਍ഀ department was not a "party" in the technical meaning of the term਍ഀ in procedural law. But his intervention in support of the Court਍ഀ of Appeal's decision, combined with the fact of his presence at਍ഀ the Supreme Court's sitting, even if he had no kind of say,਍ഀ whether advisory or any other, must amount to a procedural਍ഀ disadvantage for the plaintiff. The latter found himself in the਍ഀ position of having to argue simultaneously against the opposing਍ഀ side and a public entity, both united in denying the right that਍ഀ he was seeking to claim in the Supreme Court; that situation਍ഀ reflected a manifest inequality and thus infringed the right to਍ഀ a fair hearing, seeing that in law fairness is a concept which਍ഀ takes account of the spirit of the law rather than the letter of਍ഀ it. Furthermore, the concepts of fairness and equality are਍ഀ equipollent.਍ഀ ਍ഀ In short, the situation of inequality was incompatible਍ഀ with the requirements of fair proceedings within the meaning਍ഀ of Article 6 para. 1 (art. 6-1) of the Convention.਍ഀ