FOURTH SECTION
DECISION
Application no. 4976/23
Rogério Paulo DE JESUS LOURENÇO JÓIA
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 3 September 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 application (no. 4976/23) 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 23 January 2023 by a Portuguese national, Mr Rogério Paulo de Jesus Lourenço Jóia, who was born in 1966, lives in Póvoa de Santa Iria (“the applicant”) and was represented by Ms V. Costa Ramos and Ms M. Bulhosa, lawyers practising in Lisbon;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the refusal by the authorities to grant the applicant (a trainee at the Portuguese criminal investigation police office (Polícia Judiciária)) the status of military disabled person (estatuto de deficiente das forças armadas). He relied on Article 14 of the Convention and on Article 1 of Protocol No. 12 to the Convention.
2. On 9 October 1998 the applicant intervened in order to settle a violent dispute between two people involved in a traffic incident. In this context, the applicant was punched and kicked in the head, spine and perineal area, causing him serious bodily injuries leading to a permanent partial disability set at 23,5% in 2009 and at 37,8% in 2017. The Portuguese criminal investigation police office qualified the incident as an accident while on duty.
3. In July 2017 the applicant requested that the General Director of the Portuguese criminal investigation police grant him the status of a military disabled person in view of Decree no. 43/76 of 20 January 1976 that provided for certain social welfare benefits in case of reduced mental or physical capacity while carrying out military service or defending the national interests in dangerous circumstances. In particular, that Decree envisaged the recognition of that status if an accident occurred (a) during field service or in circumstances directly related to it or as a prisoner of war; (b) while maintaining the public order; (c) in humanitarian action; or (d) in the exercise of military duties of an aggravated risk. He also referred to Decree no. 275‑A/2000 of 9 November 2000 according to which such a status could be, likewise, granted to criminal investigation police agents.
4. In the absence of any decision regarding his request, the applicant lodged an administrative action and a request for injunction with the Lisbon Administrative Court (see paragraph 3 above). He claimed that on one hand his partial disability could further deteriorate his health, while the status sough would allow him to benefit from a special retirement, on the other hand.
5. With judgments of September 2019 the Lisbon Administrative Court dismissed the applicant’s claims holding that although he had been injured while performing his professional duties, the accident at issue did not involve an “aggravated risk” exceeding the general risk related to any police activity, as required by Decree no. 43/76 (see paragraph 3 above).
6. The applicant appealed against those judgments and challenged the interpretation provided by the Lisbon Administrative Court. In particular, he argued that the requirement of “aggravated risk” was not applicable in the present case. He also identified a colleague (V.P.) who had been recognised as a disabled person under the Decrees invoked, alleging that both had sustained injuries while “maintaining public order”.
7. With a judgment of 6 May 2021 the South Central Administrative Court upheld the lower court’s judgment and dismissed the applicant’s interpretation of Decree no. 43/76 according to which any accident during regular police activity without an aggravated risk, such as patrolling, would entail the recognition of military disability status to the victim, as contrary to the aim of that legislation.
8. With a judgment of 22 September 2022 (served on the applicant on 26 September 2022) the Administrative Supreme Court finally confirmed that the requirement of an “aggravated risk” was to be applied to all grounds enumerated in Decree no. 43/76 (see paragraph 3 above). In reaching this conclusion both the South Central Administrative Court and the Administrative Supreme Court relied on established domestic practice. Their assessment was confined to the points of law related to the interpretation of Decree no. 43/76 and not on the alleged inconsistent application which the applicant had brought, for the first time, before them.
9. Relying on Article 14 of the Convention and on Article 1 of Protocol No. 12 to the Convention, the applicant complained about the refusal by the domestic authorities to recognise him as military disabled person, unlike V.P., who had been granted such a status for injuries he had sustained in the performance of his duty entailing a permanent partial disability of 30% (see paragraph 6 above). The applicant argued that he had to continue performing his duties that had deteriorated his health. The status sought would have allowed him to retire and obtain a full pension.
THE COURT’S ASSESSMENT
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 first examine the complaint raised by the applicant from the standpoint of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention and with Article 8 of the Convention (see Beeler v. Switzerland [GC], no. 78630/12, §§ 47-72, 20 October 2020 and the cases cited therein).
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 in certain circumstances, 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; Domenech Aradilla and Rodríguez González v. Spain, nos. 32667/19 and 30807/20, § 81, 19 January 2023; and Valverde Digon v. Spain no. 22386/19, § 49, 26 January 2023).
13. In the present case, the domestic courts, including the Administrative Supreme Court, as the court of final jurisdiction, consistently held that the circumstances related to the accident at issue did not satisfy the requirement of an “aggravated risk”, which was to be applied to all grounds specified in the applicable rules. Accordingly, they held that the applicant did not meet the legal criteria for military disability (see paragraphs 5, 7 and 8 above).
14. 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, based on established domestic practice, is unreasonable, arbitrary, or blatantly inconsistent with the principles underlying the Convention (see, a contrario, Glor v. Switzerland, no. 13444/04, § 91, ECHR 2009).
15. In view of the foregoing, the Court concludes that the applicant did not have a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to be granted the above-mentioned status. Accordingly, the facts of the case do not fall within the ambit of this provision.
16. 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, in so far as Article 1 of Protocol No. 1 is concerned.
17. It follows that the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention, assuming to have been properly raised before the domestic courts, 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).
18. As regards the applicant’s complaint concerning the deterioration of his health in view of the performance of his tasks after the accident (see paragraph 9 above), the Court has previously held that private life includes a person’s physical and psychological integrity (see, mutatis mutandis, Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 261, 8 April 2021).
19. In the present case, notwithstanding the difficulties encountered by the applicant, the Court notes that he did not provide any relevant documents establishing a causal link between the performance of his duties after the accident and the alleged deterioration of his health. Accordingly, the facts of the case do not fall within the ambit of Article 8 of the Convention (see Beeler, cited above, §§ 47-72).
20. It follows that the complaint under Article 14 taken in conjunction with Article 8 of 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.
21. Regarding the applicant’s complaint under Article 1 of Protocol No. 12 to the Convention (see paragraph 9 above), according to the Explanatory Report, this provision applies to, inter alia, discrimination by a public authority in the exercise of discretionary power (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, §§ 103-04, 9 December 2010). The applicant complained about the refusal by the domestic authorities to grant him the status of a military disabled person, unlike V.P. (see paragraphs 6 and 9 above), and the Court is prepared to accept that such a distinction could fall within the scope of Article 1 of Protocol No. 12.
22. Nevertheless, assuming that the applicant’s complaint was properly raised before the domestic courts (see paragraphs 6 and 8 above), the applicant had to demonstrate that, having regard to the particular nature of his complaint, he was in a relevantly similar situation to V.P. (see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010). However, the mere fact that V.P. had been granted such a status for injuries he had sustained while “maintaining the public order” is not sufficient for the Court to conclude that the applicant had been discriminated. Indeed, the applicant did not show whether the relevant requirement of an “aggravated risk” was applied in V.P.’s case (see paragraphs 5 to 8 above). In sum, the applicant has not succeeded in showing that there had been another person in a relevantly similar or analogous position and who had been treated differently compared to him.
23. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and has to be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 September 2024.
Simeon Petrovski Tim Eicke
Deputy Registrar President