THIRD SECTION

DECISION

Application no. 3145/17 Rolembergue SILVA CRUZ against Portugal

The European Court of Human Rights (Third Section), sitting on 30 June 2020 as a Committee composed of:

Helen Keller , President , María Elósegui , Ana Maria Guerra Martins, judges , and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 21 December 2016,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Rolembergue Silva Cruz, is a Brazilian national who was born in 1962 and lives in Tomar . He was represented before the Court by Mr Rei, a lawyer practising in Tomar .

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

3 . On 15 July 2006 the applicant started working as a minister of faith for the Portuguese Seventh-day Adventist Church (“the UPASD”).

4 . As a minister of faith he received a monthly income of 870.67 euros (EUR), plus an additional subsistence allowance; the UPASD also provided the applicant with housing in the Tomar region, where he was exercising his functions.

5 . On 29 September 2014 the UPASD informed the applicant that he had been removed from the list of ministers of faith of the UPASD, his credentials to exercise this function were to be revoked, and he was to have ceased all his ministerial functions by 20 October 2014. The UPASD paid the applicant a final amount of 1,392 EUR for his services.

6 . Following his dismissal, the applicant initiated liability proceedings against the UPASD for breach of an employment contract.

7 . On 21 April 2015 the Tomar Labour Court dismissed the claim, ruling that it did not have jurisdiction to assess the matter, because it did not fall under labour law.

8 . On 12 May 2015 the applicant lodged an appeal before the Évora Court of Appeal.

9 . The Évora Court of Appeal ruled on 7 July 2016 that the activity of a minister of faith did not fall within the scope of an employment contract and that there was no factual evidence in the applicant ’ s case to support the existence of an employment contract between the UPASD and the applicant.

10 . More specifically, the court held that section 16 of Law no. 16/2001 of 22 June 2001 on religious freedom (see paragraph 12 below) provided that the ministry of faith was considered a professional activity, where it provided a livelihood, for the sole purpose of conferring on ministers a right to social security and a residence permit, if required. This did not amount to an employment contract under Articles 11 and 12 of the Labour Code. The relevant parts of the judgment read as follows:

“ [Law no. 16/2001 of 22 June 2001] seeks to clarify that the activity of the ministry of faith is considered professional, if it provides a means of subsistence, for the objectives described therein: access to social security and in order to obtain a residence permit.

This was so in the case at stake.

No concrete facts were provided that could lead to the conclusion of the existence of legal subordination. The allocation of a monetary sum and a residence for the applicant are not in themselves sufficient to assume the existence of an employment contract between the applicant and the accused.”

11 . Articles 11 and 12 of the Labour Code (approved by Law no. 7/2009 of 12 February 2009), as in force at the relevant time, read as follows:

Article 11

“An employment contract is one by which a natural person undertakes, in exchange for remuneration, to render his or her activity to another person or other persons, under their organisation and authority.”

Article 12

“1. An employment contract is presumed when, in the relationship between the person who provides an activity and another or others who benefit from it, some of the following characteristics are demonstrated:

(a) The activity is carried out in a place belonging to its beneficiary or determined by him or her;

(b) The equipment and work instruments used belong to the beneficiary of the activity;

(c) The activity provider respects the start and end times of the service, determined by the beneficiary of the service;

(d) A certain amount is paid to the activity provider, at defined intervals, in exchange for the said activity;

(e) The activity provider performs management or leadership functions in the company ’ s organic structure.

...”

12 . Section 16 of Law no. 16/2001 of 22 June 2001 on religious freedom reads as follows:

“1. Ministers of faith are free to exercise their ministry.

...

3. The exercise of the ministry is considered the professional activity of the minister of faith if it provides him with a means of subsistence; proof of this serves as a guarantee by the respective church or religious community for the purposes of seeking a residence permit in the case of foreign ministers of faith.

4. Ministers of faith of churches and other registered religious communities are entitled to benefits under the social security system in accordance with the law, it being obligatory for the church or religious community to which they belong to register them, unless the exercise of their religious activity is only secondary and their main non-religious activity entails compulsory enrolment in a social security scheme.

...”

13 . In a judgment of 16 June 2004, the Supreme Court found as follows:

“...The minister of faith of a religious association has agreed to exercise his ministry in accordance with the religious purposes pursued by his congregation, integrating himself into the structural organisation, whose characteristics result from a statutory regime, and not from a contractual relationship.

...

It is proven that the applicant was a minister of faith from a religious association, and the fact that he received payment for the performance of this activity and contributed to the social security system cannot be invoked to classify the relationship between the parties as an employment contract, when it is clear that the remuneration and the social security contribution are enshrined in the law as inherent in the religious function and the performance of acts of worship.

The elements normally indicative of legal dependence arise from a statutory regime that is designed for the religious community and is accepted by those who agree to exercise the ministry in accordance with the religious purposes pursued by their congregation.”

COMPLAINTS

14 . Under Article 6 of the Convention, the applicant complained of a violation of his right to a fair trial. Under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 12, the applicant alleged that he had been discriminated against since, as a minister of faith in a church, he had not been entitled to the same labour protection as other employees.

THE LAW

15 . Relying on Article 6 of the Convention the applicant complained that the domestic court ’ s refusal to apply the Labour Code to his service as a minister of faith had violated his right to a fair trial. The Court, being master of the characterisation to be given in la w to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this complaint may raise an issue under the right of access to a court as guaranteed by Article 6 § 1 of the Convention, the relevant part of which reads as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

16 . The Court reiterates that for Article 6 § 1 in its “civil limb” to be applicable, there must be a dispute over a “right” which is recognised under domestic law, irrespective of whether that right is protected under the Convention. The Court may not develop a substantive right which has no legal basis in the State concerned ( see, for example, Roche v. the United Kingdom [GC], no . 32555/96, § 117, ECHR 2005 ‑ X, and Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012 ).

17 . The starting-point for deciding whether the “right” in question has a basis in domestic law are the provisions of the relevant domestic law and their interpretation by the domestic courts (see, for example, Al- Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, 21 June 2016). The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015 ).

18 . As regards the present case, the Court observes that the practice of the function of minister of faith is regulated under specific legislation, enshrined in section 16 of Law no. 16/2001 of 22 June 2001 on religious freedom (see paragraph 12 above). Furthermore, domestic courts have interpreted this practice as falling outside the scope of the Labour Code (see paragraph 13 above).

19 . In view of the foregoing, the Court finds that the legal basis of the applicant ’ s service as a minister of faith did not constitute a “right” which could be said, at least on arguable grounds, to be recognised in domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State (see Károly Nagy v. Hungary [GC], no. 56665/09, §§ 77-78, 14 September 2017).

The Court concludes that Article 6 does not apply to the facts of the present case. The complaint is therefore incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4.

20 . The applicant complained that the judgments delivered by the domestic courts in his case had discriminated against him compared with other employees. He relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 12.

21 . Having regard to the conclusion that the complaint raised under Article 6 of the Convention is incompatible ratione materiae with the Convention, the Court considers that Article 14 cannot apply in the instant case (see Gratzinger and Gratzingerova v. the Czech Republic ( dec. ), no. 39794/98, §§ 68 and 76, ECHR 2002 ‑ VII, and Woźny v. Poland ( dec. ), no. 70720/11, § 60, 15 December 2015). This part of the application should therefore also be declared inadmissible for being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 September 2020 . ure_p_2}

Olga Chernishova Helen Keller Deputy Registrar President