Human Rights: Portugal breaches the right to a fair trial

The European Court of Human Rights in case 21976/09, Gramaxo Rozeira V. Portugal, by recent judgement of 21 January 2014, declared that Portugal breached Article 6 of the European Convention on Human Rights (Convention), regarding the right to a fair trial, in a judicial proceeding before the Portuguese Constitutional Court.

This case regards the failure to communicate a document in the course of proceeding before the Portuguese Constitutional Court. In March 2002 the plaintiff was recruited as a lecturer by a Polytechnic Institute for an initial one-year contract, renewable for two biannual periods. In March 2005 the Institute informed the plaintiff that his contract had expired, and that the Institute’s scientific board had not agreed to re-appoint him.

The ordinary appeals lodged by the plaintiff before the Portuguese administrative courts were unsuccessful. He then lodged an appeal with the Portuguese Constitutional Court, alleging that Article 12 of the Staff Regulations for teachers in polytechnic higher education was unconstitutional.

In the course of the proceedings, a letter and respective annexes from the government, in reply to an ex officio request for information from the Constitutional Court judge-rapporteur on the disputed issue of whether or not trade unions had taken part in drawing up Article 12 of the Staff Regulations, was not transmitted to the applicant in the proceeding before the Constitutional Court, or to the respondent party. On 11 February 2009 the Constitutional Court, by judgment no. 74/2009¹, dismissed the applicant’s appeal, sustaining that Article 12 of the Staff Regulations was constitutional.

In 2009 the Portuguese citizen lodged a complaint before the European Court of Human Rights alleging that the non-disclosure of the letter sent by the government to the Constitutional Court, following the judge-rapporteur request, and the fact that it had been impossible for him to respond to it in the course of the Constitutional Court proceedings, had infringed his right as guaranteed by Article 6, § 1, of the Convention. The legal provision states that: “In the determination of his civil rights and obligations (...) everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The European Court Of Human Rights in the assessment of the complaint against Portugal recalled its settled case law which establishes that the notion of fair trial implies the right of parties to have knowledge off all observations submitted to court, aimed at influencing the judicial decision and to comment such elements², as the parties must be able to comment on the observations, irrespective of their actual effect on the court, and even if the observations do not present any fact or argument which has not already appeared in the impugned decision in the opinion of the appellate court³.

Moreover, according to the European Court Of Human Rights judicial acquis the parties to a dispute should be given in a judicial procedure the possibility to state their views as to whether or not a document calls for their comments – considering that it is particularly at stake litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file⁴.

Thus, the European Court Of Human Rights concluded that the respect for the right to a fair trial, guaranteed by Article 6 § 1 of the Convention, required that the applicant before the Portuguese Constitutional Court was informed and given the opportunity to comment on the letter of the government. However, the applicant was not afforded such possibility. That finding led the European Court of Human Rights to denote a breach of Article 6, § 1, of the Convention by Portugal in the procedure before the Constitutional Court.

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