CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 juin 2024

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s3E39F0D2 { width:24.22pt; display:inline-block } .sED722BC { width:153.78pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s71A9384F { width:100.34%; border-collapse:collapse } .sE6AA09D { width:4.52%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s11B63CA0 { width:11.2%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sBA115783 { width:23.36%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s7277B24C { width:18.58%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s37DB148A { width:18.46%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sFBBA9287 { width:23.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sA237F0B6 { width:4.52%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s7BE0E9BD { width:11.2%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sEBBB71DB { width:23.36%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s7E2F6F42 { width:18.58%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s4629D69F { width:18.46%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s657899AA { width:23.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sBA32C63A { margin-top:12pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } FOURTH SECTION DECISION Application no. 56456/17 Ana Paula SALGUEIRO FERREIRA and Others against Portugal and 2   other applications (see list appended)   The European Court of Human Rights (Fourth Section), sitting on 18   June 2024 as a Committee composed of:   Tim Eicke , President ,   Armen Harutyunyan,   Ana Maria Guerra Martins , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the applications 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”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Portuguese Government (“the Government”) represented by their Agent, Ms   M.F.   da   Graça Carvalho, Deputy Attorney General and, after 1   September 2022, Mr Ricardo Bragança de Matos, Public Prosecutor; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The applicants are public prosecutors. The case concerns an alleged discrimination of the applicants who were not remunerated for carrying out additional work-related duties (“accumulation of functions” ( acumulação de serviço )) unlike other public prosecutors who were paid for such accumulated functions. Relying on Article 14 of the Convention and Article   1 of Protocol No.   12 to the Convention, the applicants complained that the mentioned difference in payment was unjustified and amounted to discrimination. 2.     At the material time, the first, second, third and fifth applicants (the   latter since 1 September 2008) held positions at the Lisbon Criminal Court, and the fourth and fifth applicants (the latter until 31   August 2008), at the Lisbon Misdemeanour Offences Criminal Court. 3 .     On the basis of orders by the District Attorney General of Lisbon and the Public Prosecution’s Office at Lisbon Misdemeanour Criminal Offences Court, the applicants were assigned, in addition to their regular functions, to take part in investigations carried out by the Public Prosecution Office of Lisbon Department for Investigation and Criminal Action of Lisbon (DIAP) in different periods between 1999 and 2010. 4 .     The five applicants lodged administrative actions claiming that they were accumulating functions and that consequently their salaries should include an increment, as provided for in section 79 § 1, read in conjunction with 136 §   1 of the Public Prosecutor’s Statute. Under the former, an “accumulation” consisted of the exercise of functions in more than one court, prosecutor’s office or section of a department in the same district. It was determined by the Superior Council for the Public Prosecution, preceded by a hearing of the magistrate, characterised as exceptional in nature and reviewed every six months. Under section 136 § 1, for an accumulation of functions exceeding thirty consecutive days or ninety interpolated days in the same judicial year, the amount of the increment was to be determined by the Government official responsible for justice, after consulting the Superior Council for the Public Prosecution. 5 .     On 24 October 2012 and 30 November 2015 the Administrative Court of Lisbon ruled in favour of the first, second, third and fourth applicants. On   30 January 2020 the same court dismissed the fifth applicant’s claim on the grounds that her situation did not constitute an accumulation of functions within the meaning of the Public Prosecutor’s Statute, but rather work distribution ( distribuição de serviço ) ordered by the hierarchy. The Ministry of Justice and the fifth applicant challenged those judgments. Before the Central Administrative Court, the applicants also submitted that they had been treated differently in relation to other public prosecutors who were considered to have accumulated functions for which they were paid. 6 .     With judgments of 6 June 2016, 18 July 2016 and 23   June 2020 the Central Administrative Court ruled against all applicants. It considered that there had been a de facto accumulation of functions, but that it had not met the necessary characteristics to be regarded a legal accumulation of functions entailing the payment of an increment, as provided for in the Public Prosecutor’s Statute (see paragraph 4 above). In particular, there had been no previous agreement by the Superior Council for the Public Prosecution concerning the payment and amount of the increment. Furthermore, it found that there was no factual basis sustaining the invoked difference in treatment. 7 .     With judgments of 26 January 2017 (served on the applicants concerned on 1   February 2017), 6 February 2017 and 14 January 2021, the Administrative Supreme Court rejected the applicants’ appeals for a judicial review. In doing so, it relied on its well-established case-law rejecting identical claims in similar cases. 8 .     The applicants claimed that they had accumulated functions within the meaning of the Public Prosecutor’s Statute without being paid for. Relying on Article   14 of the Convention and Article 1 of Protocol No.   12 to the Convention, they complained being discriminated in relation to other public prosecutors who were considered to have accumulated functions for which they were paid. THE COURT’S ASSESSMENT 9.     Having regard to the similar subject matter of the applications, the   Court finds it appropriate to examine them jointly in a single decision. 10.     The Court, being the master of the characterisation to be given in law 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), will examine the complaint raised by the applicants from the standpoint of Article 14 of the Convention read in conjunction with Article 1 of Protocol No.   1 to the Convention (see, Fábián v. Hungary [GC], no. 78117/13, § 100, 5   September 2017). 11.     The Court must first determine whether Article 1 of Protocol No.   1 is applicable in the instant case. In this connection it reiterates that a claim may be regarded as an “asset” and enjoy the protection of Article 1 of Protocol No.   1 to the Convention only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no.   44912/98, § 52, ECHR 2004-IX; Anheuser-Busch Inc. v. Portugal [GC], no.   73049/01, § 65, ECHR 2007-I; and Saumier v. France , no.   74734/14, §   45, 12 January 2017). 12.     However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký , cited above, § 50; Anheuser-Busch Inc , cited above, § 65. 13.     The specific regime of the accumulation of functions is provided for in the Public Prosecutor’s Statute and follows certain requirements and formalities within the competence of certain authorities within the Public Prosecution structure and the Ministry of Justice. Furthermore, it is exceptional and temporary in nature (see paragraph 4 above). 14.     Turning to the present case, the applicants were ordered by their hierarchical superiors to perform additional functions. More precisely, they were ordered, in addition to their regular functions, to be in charge of part of the investigation proceedings attributed to the DIAP (see paragraph 3 above). This situation was not determined by the Superior Council for the Public Prosecution and the government did not intervene. It appears that it was not preceded by a hearing of the applicants, as required by the Statute. Furthermore, it was extended in time without being reviewed (see paragraph   4 above). 15.     According to the domestic courts, the applicants’ situation did not fulfil the requirements of an accumulation of functions within the meaning of the Public Prosecutor’s Statute, but rather amounted to a work distribution within the organisational powers of the Public Prosecutor’s hierarchy. In addition, the Administrative Supreme Court stressed that there was no established practice in support of the applicants’ point of view (see   paragraphs 6 and 7 above). 16.     The Court reiterates that the interpretation of domestic law is a matter for the domestic courts, which are the best placed to interpret and apply domestic law. The Court’s supervisory jurisdiction is limited to ensuring that that application and interpretation are compatible with the requirements of the Convention (see García Ruiz v. Spain [GC], no. 30544/96, §§   28-29, ECHR 1999-I and Pla and Puncernau v. Andorra , no. 69498/01, § 46, 13   July 2004). In the present case it does not find that the interpretation made by the domestic courts is unreasonable, arbitrary or blatantly inconsistent with the principles underlying the Convention (see, a contrario , Glor v.   Switzerland , no.   13444/04, § 91, ECHR 2009). 17.     In view of the foregoing, the Court concludes that the applicants did not have a “legitimate expectation” within the meaning of Article   1 of Protocol No.   1 to the Convention to receive the increment sought. In addition, and for the reasons given by the Administrative Supreme Court (see   paragraph 7 above) no such expectation could be said to have been based on established practice. Accordingly, the facts of the case do not fall within the ambit of this provision. 18.     In view of this conclusion and noting that Article 14 of the Convention has no independent existence, the Court considers that Article   14 cannot apply in the instant case. 19.     It follows that the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article   35 § 3 (a) and must be rejected, pursuant to Article   35 §   4 of the Convention (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no.   39794/98, §§ 68 et 76, ECHR 2002 VII, and Dobrowolski and Others v.   Poland (dec.) nos. 45651/11, 68650/11 and others, § 31, 13 March 2018). For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 11 July 2024.     Simeon Petrovski   Tim Eicke   Deputy Registrar   President   Appendix List of cases No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 56456/17 Salgueiro Ferreira and Others v.   Portugal 24/07/2017 Ana Paula SALGUEIRO FERREIRA 1961 Lisbon Portuguese Ana Paula MORAIS DE AMARAL FRANCO 1956 Lisbon Portuguese José António VAZ PIRES 1968 Lisbon Portuguese Joana MAGALHÃES SILVA 2. 57755/17 Neves Nobre Hipólito v.   Portugal 31/07/2017 Lídia Esmeralda NEVES NOBRE HIPÓLITO 1964 Lisbon Portuguese Joana MAGALHÃES SILVA 3. 25919/21 Vieira Alves Janeiro v.   Portugal 14/05/2021 Cristina Maria VIEIRA ALVES JANEIRO 1958 Lisbon Portuguese Joana MAGALHÃES SILVA