The difference of position between the “party” represented by the public prosecutor (i.e. the State) and the other “party” with regard to the burden of specific challenge (the facts that one party does not contest are considered to be proven, unless the party in question is the public prosecutor)
Right of access to the law
Principle of equality of arms
RULING Nº 529/94
28 of September of 1994
The right of access to the law and to the courts laid down in the Constitution requires efficient and effective judicial protection.
The right of access to the courts derives from the principle of a democratic State governed by the rule of law (and consequently also from the principle of equality) and entails in order to guarantee a fair trial the principles of the equality of the parties and of the inter partes procedure.
A constitutional appeal was referred to the Court by a member of the public who submitted that the provision of the Code of Civil Procedure establishing a difference of position between the «party» represented by the public prosecutor (i.e. the State) and the other «party» in respect of ónus impugnação especificada (the facts not contested by one party are considered to be proven, unless the party in question is public prosecutor) violated the on the right of access to the law and to the courts as well as the principle of equality of the parties in civil proceedings and Article 6 ECHR.
The Court maintained that the duties and the status of the prosecuting authorities justified their exemption from the rule that uncontested facts were considered to be proven. The aforementioned discrimination was therefore neither arbitrary nor unjustified.
Most of the Court's huge body of case-law on procedural safeguards concerns criminal procedure.