FERREIRA BASTO v. PORTUGAL
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
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. 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 (Direção-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. 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 (Ministério 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 LawDecree 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. 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 (juízo 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. 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 (acórdão de fixação de jurisprudência) 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.”