FIRST SECTION

DECISION

Application no . 20980/11 Maria Adelina FERREIRA BASTO against Portugal

The European Court of Human Rights (First Section), sitting on 19 May 2015 as a Chamber composed of:

Isabelle Berro, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Paulo Pinto de Albuquerque, Dmitry Dedov, judges,

and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 25 March 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Maria Adelina Ferreira Basto, is a Portuguese national, who was born in 1954 and lives in Porto. She was represented before the Court by Mr J. Dinis, a lawyer practising in Porto.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

1. The applicant is the owner of a restaurant in Porto. At the relevant time the restaurant was operating with a health and safety licence ( alvará sanitário ).

2. On 22 November 1993 three inspectors from the General-Directorate for Primary Healthcare ( Dire çã o-Geral de Cuidados de Saúde Primários ) conducted an inspection of the applicant ’ s restaurant during the lunch hour, when the restaurant was crowded.

3. During the inspection, one of the inspectors publicly addressed the applicant ’ s husband and claimed that the restaurant did not meet statutory health and safety standards and should therefore be closed down.

4. According to the applicant, on account of that criticism the restaurant lost clients.

2. Tort action against the State

5. On an unspecified date in 1995 the applicant brought a tort action against the State before the Porto Administrative Court ( Tribunal Administrativo do Porto ) seeking damages for the conduct of the health inspectors. The State was represented by the Attorney General ’ s Office ( Minist é rio Público ) during the course of the proceedings.

6. In order to bring the proceedings before the Porto Administrative Court, the applicant applied for legal aid. Pursuant to section 28 of Law ‑ Decree no. 387-B/87 of 29 December, the Attorney General ’ s Office was called upon to issue an opinion on the applicant ’ s request. On 27 September 1996 the latter considered that the request should be refused on grounds of the applicant ’ s average daily income, stating as follows:

“The plaintiff admits that she has an average daily income of 30,000.00 Portuguese escudos (PTE), which had previously been PTE 60,000.00. Her monthly salary exceeds, therefore, the amounts considered to constitute a presumption of economic need, according to the legislator. I am therefore of the opinion that the plaintiff ’ s legal aid request should be refused.”

7. In its judgment of 23 August 1998 the Porto Administrative Court held that the conduct of the three inspectors from the Directorate-General for Primary Healthcare during the impugned inspection had been illegal and had caused damage to the applicant. Furthermore, it awarded the applicant PTE 350,000.00 (1,745.79 euros (EUR)) in respect of non-pecuniary damage and an amount in respect of pecuniary damage that remained to be determined during the proceedings for the enforcement of the judgment.

8. On an unknown date the Attorney General ’ s Office lodged an appeal against the judgment with the Supreme Administrative Court ( Supremo Tribunal Administrativo ). On 9 April 2002 the Supreme Court dismissed the appeal.

3. Proceedings for the enforcement of the judgment and calculation of pecuniary damage

9. On an unknown date the applicant instituted proceedings before the Porto Administrative Court for the enforcement of the Supreme Administrative Court ’ s judgment and the calculation of the amount to be awarded in respect of pecuniary damage. She claimed damages of EUR 603,004.40, corresponding to the pecuniary losses allegedly suffered as a result of the inspectors ’ conduct from the day of the inspection until such time as the action had been brought.

10. On 26 February 2004 the Attorney General ’ s Office contested the amount claimed by the applicant as excessive. It argued that any pecuniary damages should be limited to the loss sustained as a consequence of the reduction in the applicant ’ s daily income, in accordance with the facts that had been established by the first-instance court and pursuant to the Supreme Administrative Court ’ s judgment of 9 April 2002.

11. On 19 October 2009 the Porto Administrative Court adopted a decision in which it awarded the applicant EUR 9,010.50 in respect of pecuniary damage. The domestic court ’ s decision was based on the evidence provided by the parties, namely the applicant, and on an expert assessment that had been requested by the court to estimate the damage suffered.

12. The applicant appealed against the decision before the Supreme Administrative Court, contesting the amount awarded. She argued that the witnesses ’ statements and the evidence provided had been wrongly assessed. She also disputed the legality of the first-instance court ’ s refusal to grant a request she had lodged for the clarification of the expert assessment during the course of the proceedings before the first-instance court. The applicant further complained that the Attorney General ’ s Office had been allowed to have two contradictory legal positions in the proceedings without suffering any sanction, by making reference to its opinion on her legal aid request during the tort proceedings and the fact that it had disputed the amount she had claimed for pecuniary damage.

13. The Supreme Court judgment was adopted on 23 September and notified to the applicant on 30 September 2010.

14. In its judgment the Supreme Court held that the expert ’ s opinion had been inconclusive and considered that the amount awarded on that account had not been sufficiently justified. It further noted that the expert ’ s opinion had been requested under a legal provision which was not applicable to the case at hand. The Supreme Court, therefore, dismissed the expert ’ s assessment and made a new assessment of the evidence in order to evaluate the extent of the damage suffered by the applicant. With reference to the witnesses ’ statements heard and the evidence provided, namely by the applicant, the higher court considered that it could not establish a loss in the amount claimed by the applicant. Thus, the Supreme Court decided that the pecuniary damages should be calculated on the basis of equity ( ju í zo de equidade ), taking into account the facts that had been established in the course of the proceedings. Accordingly, it awarded the applicant EUR 9,000 in respect of pecuniary damage, to be paid by the State.

B. Domestic law and Supreme Court case-law

15. At the material time, legal aid was regulated by Law-Decree no. 387-B/87 of 29 December 1987. Requests for legal aid were decided by the judicial authority in charge of the proceedings for which they had been submitted. Pursuant to section 28 the Attorney General ’ s Office was called upon to submit an opinion on that regard.

16. In judgment no. 287/99.0TABJA-B.E1-A.S1 of 16 December 2010, the Supreme Court considered the possibility of reconciling a discrepancy between two discordant positions of the Attorney General ’ s Office, when acting in the capacity of a public prosecutor in criminal proceedings. The Supreme Court ’ s judgment seeking to harmonise the judicial approach to that question ( ac ó rd ã o de fixa çã o de jurisprud ê ncia ) contains the following passages:

“The Attorney General ’ s Office, which assumes, at any stage of the proceedings, a legal position as to the innocence or guilt of the accused, cannot subsequently modify its position, claiming a better judgment, to the possible detriment of the defendant ’ s position.

...

Consequently it follows, inexorably, that conflicting and contradictory procedural interventions which are not a demand for truth and justice, but derive solely from the need to express subjective opinions, are inadmissible.

...

In view of the combined provisions of Articles 48 to 53 and 401 of the Code of Criminal Procedure, the Attorney General ’ s Office has no interest in appealing against decisions that are consistent with its previously held position in the proceedings.”

COMPLAINTS

17. Invoking Article 6 of the Convention, the applicant submitted that the principle of equality of arms had been breached in the enforcement proceedings instituted following the judgment of the Supreme Administrative Court of 9 April 2002. She complained that the Attorney General ’ s Office had been allowed to have two opposing legal positions during the course of the two sets of proceedings by issuing an opinion with regard to her request for legal aid which was in contradiction with its opinion on her claim in the enforcement proceedings, without suffering any sanction. In particular, and according to the applicant, the Attorney General ’ s Office had initially conceded that she had suffered a daily loss of PTE 30,000.00 but at a later stage had contested the amount claimed by her in respect of pecuniary damage.

18. The applicant further complained that the principle of equality of arms had been breached because the Porto Administrative Court had dismissed her request for clarification of the expert ’ s opinion, which had been lodged when the second set of proceedings had been pending before the first-instance court.

T HE LAW

19 . In complaining of a lack of equality of arms in the proceedings, the applicant relied on Article 6 § 1 of the Convention, which reads, as far as relevant, as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

20 . The Court reiterates that the principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. It requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present its case under conditions that do not place them at a disadvantage vis- Ã -vis their opponent or opponents (see, among many authorities , Ankerl v. Switzerland , 23 October 1996, § 38 , Reports of Judgments and Decisions 1996 ‑ V ; Nideröst-Huber v. Switzerland , 18 February 1997, § 23 , Reports 1997 ‑ I ; and Kress v. France [GC], no. 39594/98, § 72 , ECHR 2001 ‑ VI ).

21 . The Court ’ s task under the Convention is to ascertain whether the proceedings as a whole were fair, including whether evidence was presented in such a way as to guarantee a fair trial ( see Blücher v. the Czech Republic , no. 58580/00, § 52 , 11 January 2005 ).

22 . Turning to the instant case, the Court notes at the outset that in the judgment of the first-instance court in the enforcement proceedings, the Porto Administrative Court took into account both the opinion of an expert and the evidence adduced before it. On that basis, it concluded that the applicant should be awarded EUR 9 , 010 . 50 with respect to pecuniary damage, an amount considerably lower than what she had claimed.

23 . The Court observes that, on appeal, the Supreme Administrative Court considered that the expert ’ s opinion had not been conclusive; indeed, it had been neither needed nor applicable to the case at hand. Therefore, the Supreme Administrative Court reassessed the evidence produced by the applicant, concluding that she had not proved that she had sustained the losses for which she was claiming damages (see paragraph 14 above). The court went on to say that equity criteria, based on the established facts of the case, should be used to calculate the extent of pecuniary damage suffered by the applicant. On that point, it held that the applicant should be awarded EUR 9,000 in compensation and dismissed the appeal.

24 . With regard to the alleged contradictory legal positions of the Attorney General ’ s Office , the Court ’ s task is to determine the nature of the two sets of proceedings in question and the capacity of the Attorney General ’ s Office in those proceedings. The Court must then assess whether the impugned legal positions were in fact contradictory and thus had the potential to affect the principle of equality of arms, in accordance with the case-law established in the Portuguese Supreme Court ’ s judgment of 16 December 2010 in proceedings no. 287/99.0 TABJA-B.E1-A.S1 which, although adopted in the context of criminal proceedings , clearly ruled against the practice of the Attorney General ’ s Office having contradictory legal positions in the same proceedings (see paragraph 16 above).

25 . Turning back to the applicant ’ s case , the Court observes that the two sets of proceedings in question were substantially different. Whereas in the enforcement proceedings the issue was the extent of pecuniary damage suffered by the applicant, in the course of the legal aid proceeding s the question was whether she was in a low-income situation.

26 . The Court notes that at the material time the Attorney General ’ s Office wa s first called upon to provide an opinion in the course of the legal aid proceedings (see paragraph 6 above) in order to ensur e that all the criteria for granting legal aid had been met. On the other hand , the role of the Attorney General ’ s Office in the tort proceedings, including the enforcement stage, was to defend the State ’ s interests in the particular case . It was thus a party to the proceedings on behalf of the State. Therefore, while in the former set of proceedings the Attorney General ’ s Office did not take part in the proceedings, in the latter it participated actively as a party. Accordingly, it did not act in the same capacity in th o se different stages of the two sets of proceedings.

27 . Consequently, the Court is of the opinion that the contested interventions of the Attorney General ’ s Office in both set of proceedings were neither contradictory , nor capable of raising an issue in terms of the principle of equality of arms.

28 . The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28 , ECHR 1999 ‑ I ).

29 . In this regard, the Court notes that at the various stages of the proceedings the applicant was able to submit the arguments and evidence she considered relevant to the case. The Court also takes note that the factual and legal reasons for the decisions dismissing the applicant ’ s claim were set out at length.

30 . As to the complaint concerning the Porto Administrative Court ’ s refusal to grant the applicant ’ s request for clarification of the expert ’ s opinion, the Court observes that the applicant has provided no details in that regard. The application merely contains a brief statement declaring that such a violation occurred. The Court is therefore not in a position to analyse this complaint and dismisses it as being unsubstantiated.

31 . Against the above background, the Court concludes that the principle of equality of arms has been respected in the proceedings at issue. It follows that the complaints must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 11 June 2015 .

Søren Nielsen Isabelle Berro Registrar President