The principle of the plenitude of the administrative jurisdictional guarantee; suspension of the effect of an administrative decision against which an appeal has been lodged
Enforceability of administrative decisions
Status of judges
Suspensive effect of appeals
Effective judicial protection
RULING Nº 412/2000
4 of October of 2000
The guarantee of access to the courts enshrined in Article 20.1 of the Constitution is intended to secure the defence of legally protected rights and interests. The effectiveness of this guarantee depends heavily on justice being administered within a reasonable time. After the Constitution was revised in 1997, it was agreed that the legislature must organise fast-track court proceedings so that citizens could have effective protection, in good time, against threats to, or violations of, personal rights, freedoms and guarantees.
Suspension of the effect of an administrative decision against which an appeal has been lodged is a preventive procedure that is dependent on the appeal to set aside the administrative decision and takes the form of emergency proceedings. Suspension of the effect of an administrative decision against which an appeal has been lodged is, in some circumstances, essential in order to anticipate the success of the appeal, since in a system of executive administration such as the Portuguese system, an appeal against an administrative decision does not, as a rule, have suspensive effect. This is because the authoritative nature of an administrative decision means that, despite the appeal, the decision can, in principle, be enforced.
Article 268.4 of the Constitution shows clearly that the principle whereby effective court protection is guaranteed in all administrative matters includes an obligation on the legislature to make provision for procedural means which enable the citizen to require the authorities to take the administrative decisions they are supposed to take by law and, if necessary, to request appropriate preventive measures. The principle also provides for the traditional right of appeal against administrative decisions and the right of access to administrative justice for the purpose of upholding legally protected rights or interests. However, Article 268.4 of the Constitution does not prevent the law setting criteria that might limit the courts' scope to suspend the effect of an administrative decision, according, in particular, to whether enforcement of the decision is likely to cause damage that is difficult to redress.
It is the case law of the European Convention on Human Rights (ECHR), in particular, which develops the concept of a "fair hearing". Indeed, the 1997 revision of the Portuguese Constitution was designed to transcribe, in an explicit way, the "right to a fair hearing" as recognised by Article 6 ECHR, by taking into account all the work of the European Court of Human Rights. With the judgment in the case of Lobo Machado v. Portugal of 20 February 1996 (Reports of judgments and decisions 1996 - I, p. 195 et seq.; Bulletin 1996/1 [ECH-1996-1-003]), the European Court of Human Rights established case law according to which the right to a fair hearing encompasses the right to an adversarial trial. This implies, in principle, that the parties involved in a trial, criminal or civil, have the right to inspect and discuss all the information or observations submitted to the judge, even by an independent magistrate, with a view to influencing the decision. This case law was unvaryingly confirmed in subsequent judgments.
Respect for the principle of a fair trial presupposes conditions of objectivity. It is difficult to see how this could be the case where the external members of the judges' bench, whose task is to settle disputes, may take part in the discussion and attend confidential deliberations, at a stage in the proceedings when any intervention appears to have an especially decisive effect because it takes place immediately before the decision is taken.
The Court ruled on the constitutionality of two provisions of the Law on Proceedings in the Administrative Courts ("the Law"), and also of a provision of the Regulations on Court Judges (which lay down certain special rights for Court Judges).
Regarding the provisions of the Regulations on Court Judges, the Court concluded unanimously that judges' exemption from advances and expenses cannot be regarded as a privilege. It is, rather, a special right, the recognition of which is intended to create conditions of objectivity enabling the judge to carry out the task of handing down a judgment with independence and impartiality. This exemption is therefore valid only for proceedings to which the judge is party by virtue of his/her duties.
Under the first of the provisions in the Law - relating to suspension of the effect of administrative decisions - the decision to suspend the effect of the administrative decision may be taken only if there is a possibility that enforcement of the decision will cause damage which is difficult to redress. The Court ruled that this provision was not unconstitutional, since it does not limit the right of appeal to the courts. It governs only the exercise of this right in reasonable and proportionate terms and, accordingly, in terms necessary for the protection of the public interest. Moreover, it is not unconstitutional in terms of violation of the judicial guarantee enshrined, since the revision of the constitution in 1997, in Article 268.4 of the Constitution.
On the question of appeal to the courts, although the public prosecutor's office has the right to appeal against any administrative decision, and although there is also a set of measures for ensuring that such decisions are lawful, the challenged provision of the Law is unconstitutional because, in allowing a representative of the public prosecutor's office to attend hearings and speak during discussions, it violates the right to a fair trial enshrined in Article 20.4 of the Constitution.
Bearing in mind the grounds put forward by the European Court and Commission of Human Rights and the clear history of willingness on the part of those who drafted the Portuguese Constitution to follow the example of European case law relating to the promotion of fundamental rights such as the right to judicial protection, the Constitutional Court departed from the case law that predated the 1997 revision of the Constitution.
The Court considered, firstly, that the arguments presented by the French government were not valid in the case in question, because the presence of a government commissioner at the deliberations of the Conseil d'Etat - comparable to the Portuguese Supremo Tribunal Administrativo (Kress v. France case) - was still compatible with the requirements of a fair trial; and, secondly, that there was no parallel with the Order of 4 February 2000 of the Court of Justice of the European Communities in case C-17/98, regarding the inadmissibility of the written observations submitted by the parties in response to the Advocate General's conclusions.
Although that Judgment, no. 412/2000, relates to the review of the constitutionality of specific provisions, it was examined by the plenary assembly, by a decision of the President of the Court, pursuant to Section 79-A of the law on the Constitutional Court. Several judges delivered divergent or interpretative opinions.