Information Note on the Court’s case-law 23

October 2000

Castanheira Barros v. Portugal - 36945/97

Judgment 26.10.2000 [Section IV]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Dispute over the career of a civil servant: Article 6 applicable

Reasonable time

Length of administrative proceedings: violation

Facts : At the material time, the applicant was a civil servant, initially at the Coimb ra Institute of Criminology and subsequently at the National Institute of Criminology, where he had the grade of senior assistant. In February 1989 he lodged an application for judicial review with the Judicial Division of the Supreme Administrative Court against a decision of the Minister of Justice refusing him an increment for the risk element in his job. That application was dismissed in November 1990. In December 1990 the applicant appealed against that decision to the full court of the Judicial Divisi on of the Supreme Administrative Court. On 11 December 1996 that court dismissed his appeal. An application for that decision to be set aside was also dismissed in March 1997. In the meantime, the applicant had lodged a constitutional appeal against certai n provisions of the decree by virtue of which the minister’s contested decision had been taken. In a judgment of 24 June 1997, the full court accepted the recommendation of its judge rapporteur and declared the constitutional appeal inadmissible. The appli cant appealed against that judgment, but his appeal was dismissed by the Constitutional Court in February 1998. The applicant complained of the length of the proceedings.

Law : Article 6 § 1 – As regards the applicability of Article 6 § 1, it could not be s aid that the right asserted by the applicant was not recognised in domestic law, since the proceedings brought by him had not been dismissed on a preliminary point, but after consideration of the merits by the domestic courts in duly reasoned decisions. It remained to be determined whether the right was “civil” within the meaning of Article 6 § 1, as the dispute concerned the career of an agent working for the civil service. In accordance with the criteria established by the Court in its leading decision in the Pellegrin case, it had to be noted that the evidence did not suggest that the applicant’s duties entailed sovereign functions. According to the commentary on the National Institute of Criminology regulations, the applicant, as a lawyer, would have bee n responsible primarily for scientific research into criminality. Those duties thus appeared to come within the category of “research for non-military purposes in public establishments” set out in the European Commission’s communication of 18 March 1988, a sphere in which, as a general rule, the exercise of the public prerogative and protection of the general interests of the State were not in issue. Article 6 was therefore applicable.

As regards the merits, the proceedings had lasted nine years and no pertinent explanation had been given as to why it had taken the full court of the Judicial Division of the Supreme Administrative Court six years to consider the applicant’s appeal. The fa ct that that court had an excessive workload could not constitute a satisfactory explanation.

Conclusion : violation (unanimously).

Article 41 – The Court awarded a certain sum to the applicant for pecuniary damage and an amount on account of costs and expe nses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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