“Whenever you visit a country, it’s less important
to know which laws they have,
than to know if they execute them”
Several instruments of international law lay the “fair trial” principle in its various forms. Portugal, which has been pioneering and forward-looking in the consecration of Fundamental Rights, didn’t forget the need to carry these rights into the procedure.
This paper intends to make a study of the Right to a Fair Trial drawn upon the analysis of Article 6 of the European Convention on Human Rights.
This short journey, however, won’t be made through a direct approach to the provision of the Convention itself, but it will follow a pyramidal structure.
Starting from the base, we will approach the concept of the process tout court, followed by an analysis of the Right to a Fair Process by the various statements of Rights that the Portuguese State is a signatory.
We will then continue with a consideration about the European Convention on Human Rights, but not before making a brief note on the creation of the Council of Europe. This analysis is supplemented by an incursion into the Portuguese Constitutional Law, concluding with the most representative jurisprudence of the European Court of Human Rights that condemned Portugal for violation of article 6 of the Convention.
Here arrived, we propose to identify the critical points of the Portuguese Judicial System and also venture to find alternatives and suggest measures to improve the efficiency of that system.
1 – The Process
The process can be defined as a logical sequence of acts intended to the fair composition of a conflict by an impartial body of authority (the court)1.
The process is like a “peaceful war” that may take place in two main variants, according to two separate processes that influence, particularly on the strategy and tactics of the protagonist.
The classic form is described as accusatory because of the fact that the opening of the case, the determination of its purpose, the elements of the debate itself, and, somehow, its outcome, are entirely in the hands of the author: the accuser. As the position of accuser may change during the process, the accusatory system is, in essence, defined as a system where the process “belongs” to the parts.
The role of the judge in the conduction of the dispute is narrowing to the one of mere spectator. He must only determine if the action and reaction take place according to the rules of the game. In other words, the process is first of all, the opponents, not the judge himself. The only time when the judge is required to act is, after listening to both sides, to say the law, that is to say, to decide the case.
Another possible way is the inquisitorial process. Here what matters first and foremost is the realization of justice not as something of the parts, but as a public affair (res publica). The judge appears as an inquisitor in the sense that he is invested by the government’s mission to apply the law and justice: seek for injustice, disclose it and, once it done, decide.
It is noted that “inquisitorial” does not mean “discretional”. The judge is in charged of prosecuting crimes and giving punishment, with the help of police and authorities in criminal investigations, always respecting fundamental rules. The law transcends the judge.
The process, as a series of acts that are related according to certain logic, intends to get to the truth in the main disputes that it deals with. The procedural truth, however, may not have full correspondence with the material truth, which is something very common.
The procedural truth is the one that clears the process in accordance with its rules properly legitimised in the letter of the law, and therefore the meanders of the process end without a decision.
The procedural truth is the possible truth, the truth filtered by logical and rational criteria, tending to approach the materiality of the facts underlying the dispute.
Indeed, in the rule of law, the material truth is not an end that justifies the means. The process intends to rationalise the access to this truth, as well as the way it should be valuated. In this context, the fundamental rights are the cornerstone of the entire system of modern procedure, imposing limits in the means of production of evidence, and the valuation of prohibited evidence.
2 – The right to a fair trial in the ambit of the great Human Rights Declaration
“Human Rights” is a conception that comes from far civilizations. Even the Hammurabi Code, though in a very incipient way, made a short reference to the Human Rights.
However, the right to a fair trial started to get a bigger expression, as a fundamental right, just a few centuries ago.
Nowadays, the right to a fair trial is declared as a Human Right in many international Declarations.
One of the most important of those Declarations is the Universal Declaration of Human Rights, which is a reference for all the works in fundamental rights matters and the basis for many further binding international instruments created to provide the protection of the fundamental rights and freedoms.
In fact, the Universal Declaration of Human Rights foresees the right to a fair trial before an independent court safeguarding all the guarantees necessary for the defence, including the right to be presumed innocent until proved guilty according to law (articles 10 and 11).
Also the International Covenant on Court and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, foresees the right of all persons to be equal before courts and tribunals, and to be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, as well as the right to be presumed innocent until proved guilty (article 14).
At the time of these great Declarations of Rights, came out the European Convention on Human Rights. The historical context of this Convention is, in fact, a post-war context in which the Convention was impelled by the Council of Europe, in a time where the States benefited from their accumulated experience as democratic and pluralistic constitutional systems, as with the reactive experience against totalitarian regimes.
This kind of background provided for an improvement of warrants and the creation of a European Law for the Human Rights, not less important than the European Union Law.
The European Convention on Human Rights was created among the Council of Europe, and signed in Rome, 4th November 1950, entering into force on the 3rd September 1953.
The European Convention comparatively to other instruments of international law has a very important originality, since it foresees an effective judicial control of the rights by the European Court of Human Rights and its interpretation of the Convention and additional Protocols.
The European Court makes the interpretation of the Convention and its Protocols in a progressive, evolutionary and teleological way, considering it as a “living instrument” that must be analysed according to the actual conditions, looking forward for the improvement of the Human Rights.2
On the other hand, the European Convention has primacy concerning the constitutional acts (Open Door vs. Ireland, 29.10.1992 and Ruiz-Mateos vs. Spain, 23.06.1993).
The national authorities are free on the appreciation and application of the Convention when there aren’t absolute rights involved (Handyside vs. United Kingdom, 07.12.1996).
However, the European Court is called to verify the way the internal courts have applied and interpreted the Convention, and if they have respected their Principles (Scordino Vs. Italy, 27.03.2003).
Among the panoply of rights that the Convention foresees, there is also the right to a fair trial, contemplated on the article 6.
Finally, we must say that even in the European Union we can see a progressive improvement of the fundamental rights going on, culminating with the Charter of Human Rights of the European Union. This Charter puts the fundamental rights on the top of the hierarchy of the Community Law.
The right to a fair trial also has place on the article 47 of the Charter, that says that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law, and that everyone shall have the possibility of being advised, defended and represented.
3 – ANALYSIS OF THE ARTICLE 6 OF THE EUROPEAN CONVENTION ON THE HUMAN RIGHTS
3.1 – In the ambit of the conventional prevision
Concerning the Convention, asserting the right to an equitable process is not substantively asserting a subjective right. In the ambit of the convention, the right to an equitable process has a dimension of guarantee, in such a way that (and as it will be shown throughout the following pages) the ECtHR reveals a real preoccupation with the effectives of such right.
Such effectiveness is disclosed in the assertion that “the right to an equitable process has become the underlying principle of the ECHR and of a Democratia State”, and such an important disclosure may, since the very beginning, be found in the jurisprudence of the ECtHR that does not concede a restrictive interpretation of this article.
Concerning the subjective application, the article is valid to each and every physical or moral person, as well as foreigners and displaced persons over whom the subscriber State exerts its jurisdiction.
It is of great importance to check the sense in which the expression “Determination of their civil character rights and obligations” should be expounded, which has been a matter of concern to the entities of the Convention.
Being so, the determination implies that the right has been countered by an opponent, and such counter may lay in the existence of the right, its content, or any other real dimension of it.
Being such determination directed to the civil rights and obligations, it is utterly important do expose the following.
For the ECtHR it is important to check if the content of both rights and obligations has or has not a civil dimension, even if it has eventually been appreciated, limited or countered by a different discipline or administrative process.
Even when referring to the penal process, the ECtHR asserts a civil dimension of rights and, thus, an independent nature of the process in which it has been discussed.
That way, and as a conclusion, it can be asserted that the civil dimension of rights, concerning the ECHR and the ECtHR, shall be checked according to its real functions and its consequences, and shall not be checked according to the formal national nomenclature in which they have been performed and affected. And that leads us to an even wider conclusion. We may find this civil dimension, not only in juridical process, but also in bigger ones, since, and that is the essential condition, they shall present a direct repercussion in both rights and obligation of civil character.
3.2 – The equitable process
The right to an equitable process assumes two different dimensions:
- on the one hand, it constitutes the statement of existence of a Democratia State and the right’s pre-eminence as a common element to the subscriber States;
- on the other hand, it asserts the security value in the juridical decisions as a fundamental principle, which can, in a certain way, limit the legislative process.
That way, if the legislative process enrolls in the temptation of changing the nature of civil rights, or even directly attacks certain rights, the equitable process prevents such interference of the Legislative Power in the Juridical Power.
However, there are a few elements that integrate the concept of an equitable process:
- To begin with, both parts have the same rights and obligations.
The equitable process admits that both parts shall have the same probabilities of defending their own interests (even knowing that the concrete procedural position of each of them was taken into account) and, given that, the guarantee to expose the case in a trial in a condition that are not disadvantageous vis-à-vis of the counter part.
The court has the obligation to proceed to an effective exam of the means, the arguments and the elements of proof offered by both sides, respecting the contradictory and the equality principles. It is, thus, evident that the principal of the contradictory and the principal of equality of arms cannot be separated from the notion of equitable process.
Moreover, the contradictory principle implies that each part is called to deduce fact and right reasons, offer new evidence, control the opponents’ evidence and discuss the value given to it.
Still as a result of this principle both parts shall be notified about any element to the author and both parts shall pronounce themselves in a reasonable term even if the elements brought are in the ambit of the court’s power.
The harmony between the contradictory and the equality principles makes that both parts shall face a parity position, with similar opportunities and thus with identical possibility of obtaining a favorable juridical decision.
As it can be easily concluded, the harmony between these two principles exists not only at a civil juridical level but also at a penal juridical level.
Once again, the ECHR assumes a material interpretation of the principles, that is to say, according to the concrete case, checking in casu whether such equality was or was not observed, such equality assuming its character not in the law, but through the law, and thus, a law is not only a regulating instrument of equality but an instrument facing the substantiation with the goal of checking in casu such equality.
Apart from the contradictory and the equality principles, it is of extreme importance, concerning the existence of an equitable process, the motivation of decisions.
Such motivation with the indication of the facts and the right in which the decision lies, is not only a way to confer democratic legitimacy to the judicial power, but also and above all, a way to allow both sides to evaluate the legality of the decision taken, as well as analyze the possibility to successfully achieve the desired result by means of an appeal.
Also, the register of language used in a certain process can be taken into account when analyzing its equity. Being certain that ECHR does not concede the right to a linguistic freedom in justice, apart from the article 5 (Nr2) and 6 (Nr3 – a) and C)) of the penal process, we may not conclude that it is indifferent when assessing the sort of register used. It all depends on the concrete circumstances of the case.
Concerning the right of the parties to the present, it may differ according to whether it is a civil or a penal process.
At a civil level, the right to be present is not of great importance; however the ECtHR has affirmed that such idea cannot be stated in a generic way, given that in processes such as the regulation of parental control, the presence of both parts plays a fundamental role.
Concerning the criminal process, the right of the accused to be present has not yet been expressed, however such right is a result of the equity. Such right of the accused has to be appreciated and conjugated along with the interests of the criminal process and the behavior of the accused himself.
Still in the equity ambit, and with the creation of the European Union, some of its members were also subscriber states of the ECHR and this lead to a problem in the equitable process due to the right of the double degree of jurisdiction: when violated, would it or would it not be violator of that principle.
In terms of communitarian law, the ECtHR stated that there is no right to the communitarian instance or the reference for a preliminary ruling. However, such denial may be understood has violating the right to an equitable process, when it appears to be unjustified or arbitrary.
3.3 – The Right to the Examination of a Particular Cause
The judicial process must be public. Such publicity advertisement is not only a way to protect citizens from a secret justice system, but also an assumption of democratic legitimacy of those who work in the judicial instances.
Advertisement allows the equitability in the process and concedes it transparence.
The principle of advertisement must be limited when there are reasons to do so or when a good justice administration justifies it.
Some States have a certain freedom of choice about the means and the way the decision will become public: they may choose between reading the decision out loud or lodge it with the Registry, since they guarantee the protection of intimacy of both parts and, at the same time, guarantee an equitable process not restraining any of the guarantees of defense.
3.4 – Reasonable term
In the ECHR, the determination of the right to an examination of the case in a reasonable period of time consists in the affirmation of the idea of justice. In fact, one of the dimensions of justice is its efficacy and, thus, an utterly correct decision given out of time will never satisfy the necessity of both parts of seeing their rights defined.
The idea of reasonable term is an idea that has been being defined and that assumes different dimensions concerning the character of a process.
In civil matters, the period starts with the initiation of the proceedings in court and such idea must be faced in general terms, concerning mainly some preliminary administrative phases that are imposed by the State legislation as mandatory in view of to the subsequently presentation of the cause.
In criminal matters, the period starts when the applicant was accused.
However, the word accused is here used in its material meaning. Accused does not mean notified of accusation, it means that someone knew, in a certain moment, that the suspicions in a certain process could directly interfere with his rights.
Concerning the criminal process, it can be understood that the process ends up with a definite decision about the accusation, being it a sentence or filing the case.
That way, the most important criteria to evaluate the reasonability of the period are:
- The process complexity; the behavior of national authorities; the behavior of the applicant himself; what the applicant demands.
Only the delays that were due to the responsible authorities can be imputed to the States and that is why they are the only responsible for checking if article 6 (Nr 1) was or was not violated.
Concerning the judicial organization, States are sovereign and the ECHR does not impose any specific model on them, as long as their politics, legislations and functional boards obey by the principle of decisions in a reasonable term.
3.5 Independent and impartial court
The right to access to courts has to be conjugated with the existing limitations in the national realities of the States (mainly of economical character).
However, the existence of an independent and impartial court must be seen, once again, in its global and concrete dynamic.
It will be certainly easier to get to the idea by a negative sentence: the ECHR does not allow the existence of formal courts and thus it checks the existing procedural rules and their compatibility with the rights.
3.6 The Presumption of Innocence (consecrated in Nr 2 of Article 6)
From this principle, articulated with the principle in dubeo pro reo, and nulla penna sinne culpa, we may conclude other principles to take into account when referring to the criminal process, such as: Prohibition of the reversal of the burden of proof; preference for the decision of acquittal and not for filing the process; exclusion of fixing a penalty when the process is filed; no incidence of costs in the not-condemned defendants.
The presumption of innocence is also a manifestation of an equitable process and it binds the judge throughout the process. The judge shall reach a decision, with no influence from others and considering only the proofs in judgment, to decide on, according to them, the best verdict to make, concerning the question of culpability.
The Nr 3 of article 6 consecrates the rights of the accused:
a) To be informed as soon as possible, in an understandable register, about the nature of the accusation against him
b) To have time and the necessary means to prepare his defense properly
c) To defend himself, or have the assistance of the defense he chooses and, when he cannot afford to pay a lawyer, he has the right to have one when it is needed
d) To enquire the witnesses of accusation and obtain the questionnaire of the witnesses of defense in the same conditions as the accusation one
e) To be assisted by an interpreter, free of charge, when he cannot understand the language used in the process
4 – THE LEGAL AND CONSTITUTIONAL DISCLOSURES OF THE FAIR TRIAL PRINCIPLE IN THE PLANNING OF THE PORTUGUESE REPUBLIC
At an inner level, the right to an equitable process has a constitutional base in the article 20, Nr 4, of the Portuguese Republic Constitution according to which “everyone has the right to intervene in a cause where the decision is taken in a reasonable term considering the equitable process”.
Nevertheless, article 22 defines the civil responsibility of the State, its institutions and agents in the following terms:
“State and public institutions are civilly responsible, in a joint way with their executive bodies, employees or agents, for actions or omissions performed when executing their tasks or as a consequence of them and which lead to the violation of the rights, freedom and guarantees or prejudice somebody else”.
Concerning State’s non-contractual liability, the Decree-law nº 48051 of 21st of November 1967 ruled up to the present date and its article 2 clearly states that “State and collective persons shall answer in the presence of others for the offenses to their rights or for the legal dispositions aiming to protect their interests, as a result of illicit actions guiltily practiced by the respective bodies or administrative agents when performing their tasks or as a result of such performance”.
For a long time, the only jurisprudence relative to the right to an equitable process was restrained to the judgment of the Supreme Administrative Court delivered on the 7th of March 1989 that pointed out that the excessive duration of the process should be considered as an illegal act, meritorious of reparation. This judgment ended up being of extreme importance, in such a way that it directly applied, in the national juridical order, article 6 of the ECHR, given that its constitutional consecration only happened subsequently.
With the Supreme Administrative Court’s judgment of 15th of October 1998, that recognized the existence of a constitutional right to have a court’s decision in a reasonable term, another important step was given, since at a domestic law level the recognized constitutional right started to follow the jurisprudence of the ECtHR.
Nowadays, we may conclude from the jurisprudence of the ECtHR relating to the Portuguese State (namely about it guaranteeing or not the referred equitable process) that our judicial system has enough and effective means to provide for an efficient protection of the Human Rights stated in the ECHR.
However, the ECtHR keeps insisting that it is possible to introduce improvements through the normative rules in operation, also manifesting the confidence in the Administrative Courts which effective intervention may reveal itself essential for the reasonable term of the decision to be respected.
5 – The Most Representative Jurisprudence of the European Court of Human Rights condemning Portugal for the violation of Article 6 of the Convention
From now on we will make the analysis of some of the most important cases in which Portugal was condemned because of complaints from individuals made to the European Court of Humans Rights.
In most of those cases Portugal was condemned for the violation of article 6, paragraph 1, of the European Convection on Human Rights, mainly on what refers to the right to a decision in reasonable time.
Actually, that is the most negative aspect pointed out to the Portuguese legal system: the delay of justice.
With this study it is our goal to understand the reasons for such convictions, in order to search for solutions to avoid future condemnations for the Portuguese State.
Case Guincho vs. Portugal
Complaint No 8990 / 80
Decision: July 10, 1984
In this case, the applicant asked the condemnation of the Portuguese State for violation of art.6, paragraph 1 of the Convention, particularly on waht regards the right to obtain a judicial decision in reasonable time.
The plaintiff argued that the time between the lodging of the complaint at the court of Vila Franca de Xira. ( December 7, 1978) and the date of the final decision (25 October 1982 ), a total of 3 years, 10 moths and 18 days, represents a non- reasonable period of time for a decision on a single level of jurisdiction.
The Portuguese State contested on the grounds that, although the case was not substantially complex, it became complex because of the behaviour of the parties. In addition, the applicant could have accelerated the process by sending a complaint to the High Judicial Council. The State also argued that Portugal was undergoing a phase of sudden increase in the volume of litigation in the courts, because of the re-establishment of democracy, and the consequent process of decolonization.
The ECtHR considered that the applicant didn’t have the obligation to address any complaint to the High judicial Council and apart that, even if he so did, such a procedure would not be sufficient to shorten the duration of the process. The ECtHR also considered that the conduct of the parties has no direct consequences on the procedural delay.
Finally, concerning the argument regarding the effects of the restoration of democracy, and acknowledging the value of the argument, the ECtHR considered that, when ratifying the Convention, Portugal has obliged in organizing its judicial system in order to comply with basic principles enshrined in article 6, paragraph 1, of the European Convection on Human Rights. Further, according to the European Court stabilized jurisprudence, the increase of pending cases in a national court does not affect the international responsibility of the State under the Convention, and it concludes that the exceptional difficulties existing in Portugal didn’t give reason to the delay of the decision.
Therefore, the European Court sentenced the Portuguese Government for violation of art. 6, paragraph 1 of the European Convention on Human Rights, in the point of the applicant’s right to a judicial decision in reasonable time.
Note: This was the first conviction of Portuguese State for violation of Article 6 of the ECHR.
Case Farinha Martins vs. Portugal.
Complaint nº 53795/00
Decision: July 10, 2003
In this case, the applicant brought the Portuguese State before the European Court of Human Rights for violation of Article 6, paragraph 1 of the European Convention on Human Rights, under which any person has the right to see his claims sentenced within a reasonable time by a court, respecting, among others, the principle of the contradictory.
In order to sustain his position, the applicant claimed that the labour process that he brought to a Labour Court in Lisbon had a manifestly excessive duration due to the conduct of the Portuguese judicial authorities. Indeed, the process started on the 4th of June 1984 and ended only in February 27, 2002. The process dragged on the Portuguese courts (1st instance, Appeal, Supreme) for a period of 17 years and 9 months.
In its defence, the Portuguese State argued that the excessive length of proceedings was due to the performance of the applicant, who appealed against the decision of the court for several times, most of them for inadmissible or unfounded reasons.
However, to ascertain the violation of the reasonable period required by Article 6, paragraph 1 of the European Convention on Human Rights, the European Court considered the following aspects: conduct of the applicant, complexity of the case and the actions of Portuguese judicial authorities.
All circumstances considered, the European Court decided that the process had not a particular complexity. With regard to the conduct of the applicant, the European Court, while acknowledging that he laid several appeals, many of them inadmissible, considered that this fact alone does not justify the excessive duration of the process.
The ECtHR concluded that the court delay was due to the negligent performance of the Portuguese judicial authorities. Furthermore, being a labour dispute, authorities should have acted more quickly.
Accordingly, the Portuguese state was condemned for violation of Article 6, paragraph 1 of the European Convention on Human Rights, considering the right to a decision in a reasonable time.
Case Lobo Machado vs. Portugal
Complaint nº. 15764/89
Decision: September 16, 1996
In casu, the plaintiff filed a complaint before the European Court against the Portuguese state, demanding the conviction for violation of Article 6 paragraph 1, of the European Convention on Human Rights, on the following grounds:
- The applicant claimed that he had not been notified, in prior time to the judgement, of the written opinion prepared by the public prosecution within the Supreme Court, and that he was prevented from exercising his right to contradictory:
- Moreover, the defendant argued that being a public company where the state is the main shareholder, the presence of the prosecutor in the deliberations of the Supreme put into question the principle of equality of arms, and the independence of the court;
- Finally, he questioned the impartiality of the public prosecutor, since in the disputes arising from acts of private management of the assets, he acts as representative of the state.
In its defence, the Portuguese state argued that both the claimant and the defendant exercised their rights throughout the process in absolute equality, both being represented by lawyers. The State also argued that the prosecutor acted solely in the strict defence of legality and objectivity, as it is its prerogative. Thus, the State denied the argument put forward by the applicant that the prosecutor would have acted in these file imbued with a spirit of partiality, defending the interests of the defendant.
In its decision, the European Court considered, first, that the failure in granting the applicant the opportunity to comment, in time prior to the judgement of the Supreme Court, on the opinion prepared by prosecutors represented a clear violation of the right to a fair trial.
Indeed, this court considers that the principle enshrined in Article 6, paragraph 1 of the European Convention on Human Rights states that during a civil or criminal proceeding both parts shall have access to all procedural documents presented in court that may influence the decision of Judge, even if they came from Magistrates of the Public Ministry. The European Court also considered that the public prosecutor benefited from his participation in the Supreme Court deliberations, which gave him the opportunity - not granted to the applicant - to better fundament his opinion. The prosecution had, thus, access to something that the applicant did not have and the substantial equality between parties was violated.
Therefore, the European Court condemned the Portuguese state for violation of Article 6, paragraph 1 of the European Convention on Human Rights.
Case Baraona vs Portugal
Complaint nº. 10092/82
Decision: July 8, 1987
This process came from a complaint filed by the applicant in the European Court, alleging the violation of Article 6, paragraph 1 of the European Convention on Human rights by the Portuguese state, due to the excessive duration of an action for non-contractual liability, which proceedings were set precisely against the Portuguese State in the Administrative Court of Lisbon.
Indeed, this process began inn July 30, 1981, and in 1987 it was still pending at the Court of 1st Instance.
The applicant considered that the article 6, paragraph 1 of the Convention was applicable to this case, since this complaint was based on a process aiming at repairing damage caused by an act done by a civil servant exercising his functions that illegally restricted the applicant’s right to freedom and to property.
With regard to the defence, the Portuguese state has rejected any responsibility, since the act causing the damage was performed during a period of revolution before the establishment of the rule of law, the Article 6 of the European Convention on Human Rights being, therefore, inapplicable to this case. Regarding the judicial delay, the Portuguese state justified it with the great complexity of the case.
Deciding, the European Court considered that the case could be under the umbrella of Article 6, paragraph 1 of the Convention, since the influence of the revolutionary events resulting from the activities in April 1974, in Portugal, was of the exclusive competence of the Portuguese courts. Thus, the European Court held that this argument was not relevant for a possible condemnation of the Portuguese State for violating the above statutory provision.
To assess the responsibility of the Portuguese State in the excessive length of the proceedings, the Court considered the complexity of the case, the behaviour of the applicant, and the actions of the competent authorities, and concluded that the cause was not that complex to justify the judicial delay occurred. It held, also, that the conduct of the applicant has not contributed to the slowness of the process.
The excessive length, beyond what is reasonably accepted, was mainly due to the way the Portuguese authorities led the affair, maxime, the attitude of the prosecutors who made 5 requests for extension of time limit during the process.
Therefore, the European Court held the Portuguese State responsible for the violation of the applicant’s to a decision in reasonable time, according to Article 6, paragraph 1 of the CEDH.
Case Maria de Lourdes
In the case under review, Maria de Lourdes Torrado, filed a complaint in the ECHR against the Portuguese State, for alleged violation of art.6 of the ECHR, more precisely, by disregarding the right of citizens to a decision in reasonable time. With regard to the defence, the Portuguese state invoked the exception of non-exhaustion of domestic resources, on the basis of the evolution of jurisprudence of the Portuguese Administrative Courts, from which emerged a growing number of convictions of the Portuguese state to compensate the victims because of the excessive length of proceedings.
Deciding, the European Court concluded that the complainant didn’t start the proceedings, in the Portuguese Administrative Courts, for non-contractual liability of the State provided for in Decree-Law nº48051, which is an effective internal means, appropriate and accessible to punish the excessive duration of a trial. As such, the applicant has not exhausted the remedies granted by Portuguese law. Accordingly, the European Court ruled that the complaint was inadmissible, and did so in accordance with art.35, paragraph 1 of the Convention, which prescribes that the European Court can only hear and consider the matter in question after the exhaustion of all legal remedies at national level.
This decision marked a turning point on the approach of the European Court, since it always considered the non-contractual liability of the State, enshrined in Decree-Law nº48051, a non-effective and inappropriate means to repair the of violations of the right of the victims to a decision in reasonable time. For that reason, the European Court always “ignored” the exception of non-exhaustion of domestic remedies invoked, in many cases, by the Portuguese State, this way allowing the complainants to directly address their claim to the European Court without appealing first to the Portuguese Administrative Courts3.
From this decision on, the non-contractual liability of the State became considered as an appropriate and effective internal means.
The basis for this changing in the orientation of the European Court was, without any doubt, the jurisprudence of the Portuguese Supreme Administrative Court that since 15 October 1998, the date of the judgement Pires Neno, is assuming that the excessive length of proceedings can generate the responsibility of the Portuguese state for violation of article 6 of ECHR.
6 – Proposals and solutions to the improvement of the Portuguese Judicial System, attending to the condemnations based on the violation of the Article 6 of the European Convention of Human Rights
Nowadays, it is common to hear that the Judicial Systems are in a deep crisis. Some authors, like Lipovetsky, who have written about “the crisis of modernity”, question if the crisis of justice is not itself a reflection of a larger crisis which affects the societies of our days.
Independently of the motives there are on the basis of the crisis, the truth is that, in these days, the justice is more vulnerable, because it is more exposed and less efficient.
In fact, the judicial system still is a hermetic and mysterious system to the ordinary citizen.
On the other hand, nowadays, the system has problems in dealing with the phenomenon of massive litigation, answering with heavy and non efficient procedures to face the new challenges of modern societies.
The slowness is the principal “sin” pointed at a system in which the abeyance is a generalized preoccupation.
Some measures have been taken, and some others are in project and a few more are being implemented.
In 2007, the Portuguese Government created a program for the relieving of congestion of the Portuguese Courts4, aiming at improving their efficiency.
On the other hand, some other measures had already been introduced, like the computerisation of courts with the creation of the “Citius” software (for magistrates) and the improvement of the “Habilus” software (for clerks of the court).
It has been intensified the idea of the creation and improvement of alternative ways of resolution of litigation, as the arbitrage centres, and others, though in this particular matter the jurisprudence of the Portuguese Supreme Court5 defends that the submission of the litigation to the Justices of the Peace is not mandatory.
Other ways of actuation are also claimed: the implementation and promotion of the law that regulates the Criminal Mediation (Law nº21/2007, 12.07) and it’s enlarged application to all the Portuguese territory; the non-formalization of the Civil Procedure and the real evaluation of the results of “Experimental Civil Procedure” (DL nº108/2006, 8/07); the “unblocking” of the execution of civil sentences and the effective functioning of the mechanisms of “procedure’s acceleration”.
To analyse these and other questions we asked for the help and opinion of a group of recognized jurists who are experts in the necessities of the Portuguese Judicial and Legal Systems, and therefore persons with great authority to pronounce themselves about our subject. Namely:
- Carlos Pinto de Abreu, Lawyer, President of the Commission of Human Rights – Portuguese Bar Association;
- João Manuel da Silva Miguel, Agent of the Portuguese Government – European Court of Human Rights;
- José Miguel Pereira dos Santos, Vice Ombudsman;
- Carlos Francisco Oliveira Lopes do Rego, Prosecutor of the Portuguese Constitutional Court;
- Commission of the Constitutional Matters – Rights, Freedoms and Guaranties of the Portuguese Parliament:
o Osvaldo Alberto Rosário Sarmento e Castro – President
o António Edmundo Barbosa Montalvão Machado – Vice-President
o António Filipe Gaião Rodrigues – Vice-President
- Maria Isabel Ferraz Pinto Magalhães – Judge – Civil Court of Lisbon and teacher of the Centre for Judicial Studies (Portuguese Magistrates’ School).
In the present work, we reunited the critiques and the solutions to improve the Portuguese Criminal and Civil Systems gave by these great jurists.
Critical points of the Portuguese Civil and Criminal Systems
Several critical points were detected in the criminal system. Those points contribute for a decrease of the efficiency of the system.
To start with, we can enunciate the abuse, by the Prosecution, in delegating their functions on the police, with a denegation of their investigation responsibilities, even when the complexity of the files claimed another attitude.
Another critical point is the abuse, by some of the interested parts on the delay of the decisions, in using the “Instruction Phase” (phase of the Portuguese Criminal Procedure after the inquiry phase and before the judgement phase, presided by a Judge who verifies the necessity of submission of the cause to judgement).
On the other hand, the mechanism of the “procedure’s acceleration” could be a good solution in what concerns to celerity. However, it was not as successful as it was thought, rarely showing visible effects.
Concerning Civil Procedure, everyone agrees that the biggest problem of the system is the excessive slowness of the pronouncement of Curative Acts (“Despacho Saneador”) and Sentences.
On what concerns to the execution of civil verdicts, it was detected that the “Execution Agent” has an excessive power and control, which delays the procedure.
Another problem to the functioning of the Portuguese Courts is the juridical preparation of the clerks of the court, who need more preparations to deal with the everyday files.
But, we can indicate other responsible people like lawyers, magistrates, who, for sometimes, are not able to have a “helicopter view” of the procedure, wasting time with formalities that could be shortened.
Proposals for the improvement of the Portuguese Judicial System
After the analysis of the critical points, several solutions were exposed by our interlocutors in this work, in way to a general improvement of the system. Some of those solutions are particularly audacious, according to the Portuguese Judicial tradition.
Regarding Civil Procedure, and despite the position of the Portuguese Supreme Court, we believe that the Portuguese system won’t have other alternative unless giving obligatory competence to the Justices of Peace (even in what concerns the criminal matters, at least to simpler criminality).
It would be especially important the generalized reintroduction of the “preliminary order” after the writ of summons, which permits a filtration of the actions in an initial phase.
Regarding the execution of civil sentences, it has been defended not just a greater intervention of the judge in the procedure, but also the possibility of the intervention of lawyers as “execution agents”.
Beyond these aspects of the civil procedure, some others have been suggested in order to reconstruct the system, improving its efficiency and celerity, namely: the creation and improvement of the alternative ways of the resolution of conflicts, a better divulgation of the jurisprudence of the European Court of Human Rights and a greater weighting of the implementation of legislative measures (with more reflection and discussion and with the establishment of bigger periods between the publication of laws and the production of their effects).
In an equal manner, a bigger control of the judge in the organization of services has been suggested (especially in what concerns the files distributed to the judge), as well as the creation of assessor’s services (to help judges in the most technical files), the revision of the distribution of courts along the territory (with the elimination of courts with short abeyance), and the specialisation of magistrates.
Making a short conclusion, we must say, like the Portuguese General Prosecutor said at the beginning of the “Portuguese judicial year”: everyone in the system has a guilty conscience: magistrates, lawyers, clerks and parts, they all contribute to the efficiency of the system”.
7 – Conclusion
The principle of a fair trial is a matrix basis of the democratic rule of law. It is not a mere whim of the legislature or an eccentricity of doctrine, but a fundamental requirement that must be religiously observed on the days of our courts.
The achievement of this principle is pressing the courts to provide all the technical, human and computerised means. Unanimous is also the idea that the revitalization of the system of justice requires an adequate training of its entire staff, from the magistrates to lawyers and clerks. A fair trail is a minus to which every citizen is entitled when using the courts.
The Portuguese State must eradicate once and for all the judicial delay, the processes that lay forever in the shelves of the courts. Indeed, the delay of justice and the disrespect for the right to a decision in a reasonable time remains the main source of convictions of the Portuguese State by the European Court f Human Rights. The non-decision has adverse consequences. All in all, it is preferable to have a bad decision, subject to legal remedy, than no decision at all.