FOURTH SECTION

DECISION

Application no. 27860/21 Manuel GONÇALVES BARBOSA AND OTHERS against Portugal

The European Court of Human Rights (Fourth Section), sitting on 7 February 2023 as a Committee composed of:

Tim Eicke, President, Branko Lubarda, Ana Maria Guerra Martins , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 27860/21) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 May 2021 by the applicants listed in the appended table (“the applicants”), who were represented by Mr T. Mariz, a lawyer practising in Coimbra;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicants are civil servants attached to the Ministry of Internal Affairs. The case concerns the alleged failure to make regulations implementing Law no. 112/2001 of 6 April 2001, concerning their careers.

2. On 6 March 2015 the Central Administrative Court of the North recognised that civil servants in a similar professional situation to the applicants had a right to pecuniary compensation from the Ministry of Internal Affairs based on the failure to make the implementing regulations referred to in section 14 of Law no. 112/2001 of 6 April 2001.

3. Under Article 161 of the Administrative Courts Code, the applicants lodged an action with the Coimbra Administrative Court, claiming that they should benefit from the effects of the judgment of the Central Administrative Court of the North dated 6 March 2015.

4 . On 2 November 2017 the Coimbra Administrative Court dismissed the applicants’ claim on the grounds that the situation of the applicants was not the same as that of those who had brought the previous court action, since the law in respect of which no implementing regulations had been made had been repealed by the time the applicants brought their action. The Coimbra Administrative Court also found that the applicants had failed to cite five previous judgments to the same effect from the higher courts, as they were required to do in order to benefit from the same case-law.

5 . Applicants nos. 1, 2, 3, 4, 6, 7, 10, 14, 16 and 19 appealed against that decision to the Central Administrative Court of the North. On 15 March 2019 the appeal was dismissed. Applicants nos. 1, 2, 3, 4, 7, 10, 16 and 19 appealed to the Supreme Administrative Court, which dismissed their appeal as inadmissible on 4 March 2020. That decision was served on the applicants on 6 March 2020.

6 . Applicant no. 2 lodged a further appeal with the Constitutional Court, which dismissed it on 15 October 2020 in a single-judge decision ( decisão sumária ) on the grounds that it did not fulfil the admissibility criteria for an appeal as provided for by sections 70(1)(b) and 72(2) of the Law on the Organisation, Functioning and Procedure of the Constitutional Court, because:

(i) the court against whose decision the applicant was appealing had not applied the legal provision alleged to be unconstitutional;

(ii) the applicant was raising the unconstitutionality of a judicial decision and not of a legal provision; and

(iii) part of the issues of unconstitutionality now being raised by the applicant had not been previously raised during the course of the proceedings.

Following an objection from applicant no. 2, the decision of 15 October 2020 was confirmed on 25 November 2020 by a bench of three judges ( conferência ), one of whom had previously sat as the single judge who had given the decision of 15 October 2020. That decision was served on applicant no. 2 on 28 November 2020.

7. Relying on Articles 6 and 13 of the Convention, the applicants complained of excessive formalism in the Constitutional Court’s application of the admissibility criteria for an appeal, leading to a violation of the right to a fair hearing and to an effective remedy.

8. Under Article 6, the applicants alleged that the bench of three judges of the Constitutional Court had not been impartial in so far as it had included the judge of the Constitutional Court who had given the single-judge decision as to inadmissibility.

9. Relying on Article 13 of the Convention, the applicants alleged that the interpretation and application by the domestic courts of Article 161 of the Administrative Courts Code had breached their right to an effective remedy in that it had deprived them of the right to an effective appeal.

10. Relying on Article 14 of the Convention and Article 1 of Protocol No. 12, the applicants also complained of a violation of the principle of equal treatment of persons in the same situation.

THE COURT’S ASSESSMENT

11. The Court notes that applicants nos. 5, 6, 8, 9, 11, 12, 13, 14, 15, 17 and 18 did not appeal to the Central Administrative Court of the North against the decision of the Coimbra Administrative Court of 2 November 2017 (see paragraphs 4 and 5 above) and that applicants nos. 6 and 14 did not appeal to the Supreme Administrative Court against the decision of the Central Administrative Court of the North (paragraph 5 above).

12. Accordingly, in so far as applicants nos. 5, 6, 8, 9, 11, 12, 13, 14, 15, 17 and 18 are concerned, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

13. The Court notes that applicant no. 2 submitted that his appeal to the Constitutional Court (paragraph 6 above) had been lodged on behalf of applicants nos. 1, 3, 4, 7, 10, 16 and 19. However this statement is not substantiated in the file, nor is it mentioned in any of the Constitutional Court’s decisions.

14. Therefore, the Court cannot but conclude that applicants nos. 1, 3, 4, 7, 10, 16 and 19 did not appeal to the Constitutional Court. The final decision within the meaning of Article 35 § 1 in respect of those applicants is therefore the judgment of the Supreme Administrative Court of 4 March 2020, which was served on them on 6 March 2020 (paragraph 5 above).

15. Given that the present application was lodged with the Court on 13 May 2021, in so far as applicants nos. 1, 3, 4, 7, 10, 16 and 19 are concerned this was more than six months after the decision of the Supreme Administrative Court. It follows that their complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

16. As regards the complaint concerning the lack of impartiality of the bench of three judges of the Constitutional Court (see paragraph 8 above), the Court refers to Dos Santos Calado and Others v. Portugal (no. 55997/14 and 3 others, 31 March 2020), in which it found that that bench could not be seen as an appellate body in respect of a previous single-judge decision by one of its members finding the case inadmissible, since jurisdiction to rule on the admissibility of the appeal lay with the bench of judges and the prior intervention of the single judge was only a preliminary step in the lawfully established procedure (ibid., §§ 141-44). This complaint is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

17. Concerning the alleged excessive formalism of the Constitutional Court, and analysing this complaint solely under Article 6 § 1 of the Convention (access to a court), the Court accepts that, in view of the specific nature of an appeal to the Constitutional Court (see Dos Santos Calado , cited above, §§ 78-80), the conditions of access to that court may be more rigorous so as to achieve legal certainty and the proper administration of constitutional justice at the highest level of the judicial hierarchy. It also notes that Constitutional Court does not intervene except as a last resort, after questions of constitutionality have been examined by the lower courts within the judicial hierarchy (see Albuquerque Fernandes v. Portugal , no. 50160/13, §§ 68 and 75, 12 January 2021).

18. In the present case, the Constitutional Court declared the appeal lodged by the second applicant inadmissible under sections 70(1)(b) and 72(2) of the Law on the Organisation, Functioning and Procedure of the Constitutional Court and Article 280 § 1 (b) of the Portuguese Constitution (see paragraph 6 above). It is not Court’s task to ascertain whether the domestic law was correctly interpreted and applied, provided that the decisions taken are not arbitrary or manifestly unreasonable, which was not the case in this instance. Furthermore, there are no reasons to conclude that the Constitutional Court’s approach was excessively formalistic to the point of impairing the essence of the right of access to a court provided by Article 6 § 1 of the Convention.

19 . Thus, this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

20. In view of the foregoing conclusions (paragraph 19 above), the Court finds that the decisions of the Constitutional Court cannot be taken into account for the purposes of establishing the starting-point for the running of the six-month rule (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016; Rezgui v. France (dec.), no. 49859/99, 7 November 2000; and Traina v. Portugal (dec.), no. 59431/11, § 29, 21 March 2017). Accordingly, the final decision within the meaning of Article 35 § 1 of the Convention is the judgment issued by the Supreme Administrative Court on 4 March 2020 and served on the second applicant on 6 March 2020 (paragraph 5 above).

21. Having been lodged on 13 May 2021, in so far as applicant no. 2 is concerned, the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 March 2023.

Crina Kaufman Tim Eicke Acting Deputy Registrar President

Appendix

List of applicants

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Manuel GONÇALVES BARBOSA

1952Portuguese

Amadora

2.Hélder António APARÍCIO MARQUES

1960Portuguese

Abrantes

3.José Manuel CAMPOS LOUREIRO

1960Portuguese

Porto

4.Mário CORREIA LIMA

1948Portuguese

Coimbra

5.José Martinho DE SOUSA E SILVA

1961Portuguese

Vila Real

6.Carlos Manuel DOS SANTOS PEREIRA

1947Portuguese

Viseu

7.António DUARTE RODRIGO

1949Portuguese

Amora

8.Armando Hermínio FELGUEIRAS

1960Portuguese

Mirandela

9.José Domingos FERRAZ FERNANDES

1954Portuguese

Póvoa de Varzim

10.Sílvio GONÇALVES DE SOUSA

1956Portuguese

Soure

11.Jesuína Maria MACHADO E CASTRO QUINTAIS E SILVA

1963Portuguese

Porto

12.Rui MARTINS DOS REIS

1949Portuguese

Lisbon

13.Ana Maria MATOS DE SÃO PEDRO MELO

1957Portuguese

V.N. Gaia

14.Manuel MENDES DOS SANTOS

1942Portuguese

Montemor-o-Velho

15.Francisco Jaime MOUTINHO PEREIRA

1956Portuguese

Póvoa de Varzim

16.José Paulo NUNES VIÇOSO

1947Portuguese

Aveiro

17.Olívia Maria RIBEIRO CASCÃO

1956Portuguese

Póvoa de Varzim

18.António SILVA E SOUSA

1953Portuguese

Maia

19.Carlos Alberto SOUSA VICENTE

1954Portuguese

Santa Marta de Penaguião