Guarantees of the right to a defence in civil proceedings.
Right to a hearing
RULING Nº 19/2010
13 of January of 2010
For a process to be fair, the right to a defence must be effectively upheld by ensuring that the guarantees of the adversarial principle and of equality of arms are respected. However, fairness does not necessarily require a right to active participation in the process, such that the parties must debate all the possible legal ramifications of any solution before the judge adopts it, or that that solution must always be predictable because it must necessarily have already been weighed up by the subjects in the case.
In an appeal that opposed a professional footballer (the appellant in that case) and the Portuguese Professional Football League (LPFP, the respondent), the Supreme Court of Justice (STJ) declared the nullity of a norm contained in a collective labour agreement on the grounds that it was organisationally unconstitutional, because it breached the Assembly of the Republic’s exclusive legislative competence. The LPFP challenged the STJ’s decision, which it said was procedurally null, on the grounds that it (the LPFP) had not been heard with regard to the legal solution which the STJ adopted, which had not been discussed by the parties during the proceedings. It said that those proceedings had been limited to the question of whether the norm was materially unconstitutional because it was in breach of the constitutional rights to choose one’s profession and to work, and that therefore the decision on the grounds of organisational unconstitutionality was a surprise.
In response to this challenge the Supreme Court of Justice considered that the question of unconstitutionality that had been raised by the appellant was not restricted to the material unconstitutionality of the norm in question. The STJ said that constitutional precepts could be breached as the result of three types of unconstitutionality – material, organisational or formal. Given that the appellant had not invoked any of those defects in particular, the STJ felt that the question which the appellant had brought before it was capable of encompassing all three aspects of unconstitutionality. It therefore considered that there was no surprise decision, and that there was thus no need to invite the respondent to exercise its adversarial right before the ruling was handed down.
The Portuguese Professional Football League then appealed to the Constitutional Court, which it asked to consider the constitutionality or otherwise of the complex of Code of Civil Procedure (CPC) norms that place a duty on the judge to comply with the adversarial principle, and to cause it to be complied with, in such a way that, except in cases in which it is manifestly unnecessary to do so, the judge cannot lawfully decide questions of fact or of law – even questions he is entitled to address on his own initiative – unless the parties have had the opportunity to pronounce themselves on those questions, when those norms are interpreted such that there is no requirement for the parties to be heard before the court holds a clause in a collective labour agreement to be null due to its organisational unconstitutionality, in a case in which discussion had thus far been limited to whether that same clause was invalid on the grounds of its material unconstitutionality.
In support of its appeal, the LPFP alleged that the adversarial principle is a manifestation of both the fundamental right to jurisdictional protection and the fundamental right to fair process. It said that the constitutional dimension of this adversarial principle should prevent any question – even one which the court is entitled to address on its own initiative – from being the object of a judicial decision unless the parties are first given a procedural opportunity to pronounce themselves on it. The LPFP also argued that each binomial “norm applied vs. constitutional norm breached” constitutes a different “question of constitutionality”, and that when a court – even on its own initiative – invokes the unconstitutionality of the same legal norm because it is in breach of constitutional norms or principles other than that originally raised, it is invoking a new normative “question of constitutionality” in relation to which it must ensure compliance with the adversarial principle.
Both the jurisprudence and the legal theorists have sought to make the concept of fair process more concrete, essentially: via the right to the equality of arms or to equal positions in the process; by a combination of prohibiting the absence of a defence and ensuring the right to an adversarial process, which fundamentally involves each party enjoying the possibility of invoking factual and legal arguments, offering evidence, controlling the admissibility and the production of the other party’s evidence, and pronouncing itself on the value and consequences of both arguments and evidence; via the right to reasonable time limits for bringing suits and lodging appeals, with a prohibition on deadlines that are too short; and via the right to know the grounds on which decisions are taken, the right to a decision within a reasonable period of time, the right to know the contents of the dossier, the right to the evidence, and the right to proceedings which are directed towards achieving material justice.
The right of access to the courts is in particular the right to a legal solution to conflicts, which must be reached within a reasonable period of time, and with fulfilment of the guarantees of impartiality and independence, via the correct operation of the adversarial rules. In its role as a practical implementation of the principle of fair process and a corollary to the principle of equality, the right to an adversarial process essentially entails allowing each party to “deduce” its reasons (factual and legal), to “offer its evidence”, to “control its adversary’s evidence”, and to “hold forth on the consequences of all of the above”.
However, the legislator possesses significant leeway when it comes to the concrete way in which the process is modelled, and is particularly responsible for weighing up the different rights and interests that are important in constitutional terms, including the interests of both parties.
But the Constitutional Court said that in the absence of any consensus (even within constitutional jurisprudence) as to whether the same question of law is at stake when different grounds for unconstitutionality are invoked in relation to the same norm, the position which the Supreme Court of Justice took in the present case was one of the plausible legal solutions available to it, and there can be no doubt that it is not the Constitutional Court’s job to superimpose itself on the court against whose decision the present appeal was lodged when it comes to verifying whether or not the procedural situation ought to have justified hearing the parties in accordance with the pertinent Code of Civil Process norms.
The Constitutional Court therefore decided not to hold the norm whose constitutionality it was reviewing unconstitutional.
The Ruling is accompanied by two concurring and two dissenting opinions, one of the latter that of the initial rapporteur. The dissenting opinions are essentially based on the fact that, within the object of the case, whichever format it takes, unconstitutionality is a quaestio juris which the court is empowered to address on its own initiative and is not restricted to the grounds or parameters invoked by the parties. Having said this, neither this empowerment, nor the principle of jus novit curia justify deciding questions of constitutionality without giving the parties the effective possibility of contributing to the formation of the court’s decision. The issue is not one of requiring that the judge systematically communicate his thinking in relation to, and assessment of, the case before he takes a decision, or of subjecting him to a duty to consult the parties in the event of the slightest variation in the normative preconditions for the decision, compared to that which has already been discussed, but rather of placing the parties in a position in which they can influence the decision-making process by calling on them to pronounce themselves on any legal aspects that have not yet been discussed. In the light of this, the dissenting Justices felt that it is incompatible with the guarantee of fair process to say that when the constitutional conformity of a given norm has been challenged in a case, the court is ipso facto empowered to decide the norm is unconstitutional on different grounds (i.e. other than those given in the challenge), without first having to hear the parties.