Notification of oral decisions
Right of appeal;
Counting time limits;
Need for procedural acts to be cognisable;
Right to fair process;
RULING No. 243/13
10 of May of 2013
If persons at whom procedural acts are directed are to be able to effectively exercise their rights to a defence, it is indispensable that they know exactly what those acts entail – i.e. that the acts be cognisable. The norms that govern informing people about such acts must ensure that the act of communication is itself effective enough that the intended recipients are given full knowledge of the procedural act in question, even in cases in which the recipients are present when a decision is read out and are thus immediately aware of it. If, at the moment of the reading, the recipients consider that they need a copy of the decision in order to fully comprehend its scope and meaning, then the act of communicating the decision must be deemed complete only when the copy is made available to them. It is only then that the notification of the decision actually occurs for the purpose of counting the time limit for an appeal. The right of appeal presupposes a complete knowledge of the content of the decision against which the appeal is to be lodged, or at least the possibility of obtaining that knowledge. Simply being present when a judicial decision is read out does not always ensure, nor should it lead to the assumption, that from that moment onwards the recipients are equipped to make a conscious, pondered judgement as to the possibilities, advantages and inconveniences of bringing an appeal against the decision.
The Constitutional Court took the view that, when interpreted in conformity with the Constitution, the current law requires that a copy of a decision must be given to the interested parties for the purposes of counting the time limit for an appeal. Starting this count any earlier – namely when the court’s decision is read out – constitutes an unjustified limitation on the right of appeal, inasmuch as it implies that the time limit would already be ticking at a point when the interested parties do not yet know whether they want to appeal (whether they have the grounds to do so), precisely because they are as yet unable (for a reason for which they cannot be held responsible) to analyse the text of the decision that affects them.
The Court thus held that the norms which presumed that the intended recipients of acts involving decisions possess knowledge of them, without surrounding the process with the precautionary measures needed to ensure that it is possible for a normally diligent recipient to effectively have that knowledge, were unconstitutional.
This concrete review case involved an appeal against a denial by the Lisbon Court of a request to lodge an appeal against a decision of a Family Court at first instance. Under the terms of the Law governing the Protection of Children and Young Persons in Danger (LPCJP), the Family Court decided to remove seven of a couple’s eight underage children from their care and entrust them to an institution with a view to their future adoption; it also ordered a number of ensuing measures, particularly preventing the parents from exercising their parental responsibilities in relation to the seven minors, and prohibiting the children’s biological family from visiting them.
This first-instance ruling was read out in court on the day on which it was signed. The persons present included the two parents, who were the appellants in the present constitutional review case. They appealed against that initial decision, but their appeals were denied on the grounds that they were lodged outside the legal time limit. This denial was subsequently confirmed by the Lisbon Court of Appeal. The time limit was counted under the terms of a norm which said that the limit for appealing against a court order applying a measure involving the promotion of adoption and the entrusting of a minor either to the care of a person or persons selected as adoptive parents, or to an institution with a view to adoption in the future, starts to run on the day the decision is read out, on condition that the interested parties are present at the reading, even if they are not represented by a lawyer and a copy of the decision is not given to them on the day of the reading, and regardless of the fact that they asked for one at the time. It should also be noted that, contrary to the provisions of the civil law in general, in this particular jurisdiction it is only obligatory for parents to be represented by a lawyer in the appeal phase.
Given the importance of the constitutional-law assets at stake, both the Public Prosecutors’ Office’s representatives at the Constitutional Court and the appellant parents argued that guarantees similar to those applicable in criminal procedure should apply in such cases.
The Constitutional Court noted that in all its jurisprudence it has considered that, although the Constitution does not expressly give indications regarding the infra-constitutional shaping of civil procedural norms which are as precise as those it imposes on criminal procedure, there can be no doubt whatsoever that procedural rules in general must bear constitutional values in mind. One of the key structural elements of a democratic state based on the rule of law is observance of just and fair proceedings for resolving disputes. This is the constitutional principle that most strongly binds the ordinary legislator’s choices when it decides how to shape legal procedure.
Inasmuch as it is through legal procedure and proceedings that the courts perform their jurisdictional function and citizens gain access to state protection of those of their rights and interests that are protected by law, every norm which shapes that procedure and those proceedings must reflect the key structural principles of the constitutional system. They must be shaped in such a way that they are materially informed by the material principles of justice. The effective nature of the right to a defence, the adversarial principle and the principle of equality of arms must all be guaranteed. Portuguese constitutional jurisprudence and the case law of the European Court of Human Rights on Article 6 of the European Convention on Human Rights both play an especially important part in rendering the principle of fair process operable.
Given that the rights in question must be present in any form of jurisdictional procedure and proceedings, reference can be made to Constitutional Court decisions on norms in any procedural branch of the law in order to ensure this operability, on condition that their underlying parameters are not principles that are specific to a different form of procedure to the one before the Court.
Even though the right of appeal is not unlimited, it is included in the constitutional guarantee of the right to access the courts in order to defend rights and interests that are protected by the law; and the right of appeal must itself include protection against jurisdictional acts. When more significant matters – matters that possess greater legal dignity – are at stake, cases must be considered by more than one instance, so that the probability of reaching a fair decision is enhanced.
The right to appeal in criminal proceedings is expressly set out in the text of the Constitution. However, the Court’s jurisprudence is that, even outside the criminal field, when the actions of a court directly affect any of a citizen’s fundamental rights, he/she must be recognised to possess the right to have the situation considered by another judicial instance. On the other hand, when the origin of the effect on his/her fundamental right lies in a decision taken by the Administration, the Constitution does not always require such a judicial reassessment. The Constitutional Court has always taken the stance that the constitutional guarantee of the right to appeal is not limited to the dimension in which the ordinary legislator is required to provide for at least one level of appeal. Taken in conjunction with other constitutional parameters, this guarantee presupposes that the legislator will not adopt arbitrary, disproportionate solutions that restrict the possibilities of appeal, even when the appeal in question is only provided for by the ordinary law and not imposed by the Constitution.
Although, unlike the requirement regarding administrative acts, the Constitution does not expressly provide for a right to be notified of judicial decisions, the duty to notify interested parties of decisions that they can challenge if they wish to do so is an integral element of the very principle of a democratic state based on the rule of law. Otherwise it would not be possible to satisfactorily ensure that persons at whom judicial decisions are directed are made aware of their content, namely so that they can use the appropriate procedural means to react.
The dual requirement that a decision must be cognisable and that the court must be diligent in ensuring that that decision is made known is valid in relation to both the interested party and his/her lawyer. In its jurisprudence the Constitutional Court has stated that in order for the right to appeal to be effective, the potential appellant must be placed in a position in which he/she can make an informed choice, with the possibility of either accepting the decision or challenging it. Only knowledge of the content of the decision and its underlying reasoning permits the conscious formation of the will to appeal. This in turn means that a peremptory time limit for lodging an appeal can only begin at the moment when the parties can be said to be required to possess that knowledge.
In the present constitutional review case, the issue was entrusting minors to third parties with a view to their future adoption, which is the most serious of the promotion and protection measures provided for in the LPCJP. The measure implies the dissolution in the long run of the legal bonds derived from biological parenthood, and requires immediate physical separation of the parents from their children, with no visitation rights. A constitutional norm expressly requires both that such a measure must be preceded by verification of the fact that the parents have failed in their fundamental duties to the children, and that the measure can only be decided by a court. The LPCJP provides for an appeal against that decision – again a constitutional imposition, given the significance of the rights at stake. All this also implies that it is even more important for infra-constitutional legislation to respect the appellants’ rights; and there is in particular no reason why the guarantees pertaining to those rights should be less than the ones that exist in the criminal procedural field.
In promotion and protection proceedings brought before the courts under the LPCJP, the parents are free to choose whether or not they are represented by the lawyer, except in the appeal phase, when it is obligatory. It is thus possible for a final decision to be read out by the presiding judge at the end of the pleadings, and for the parents to hear that reading of a decision that orders promotion and protection measures without ever having appointed a lawyer to represent them in the case. In such circumstances, and given that any appeal against the decision must be brought in the form of a request signed by a lawyer, it is necessary to provide a party who was not thus far legally represented with a reliable means of communicating the content of the decision to a lawyer, thereby ensuring that a decision on any appeal can be based on objective information. A simple description by the interested party of what happened during the pleadings and of the reading of the decision at which he/she was present is not sufficient.
The Court emphasised that decisions in promotion and protection cases are complex and must fulfil rigorous procedural steps that are imposed by law. For someone who is not a legal professional to merely be present when a decision is read out does not ensure that he/she fully understands what was decided and why. Moreover, even if the parent is already accompanied by a lawyer when the decision is read, the Court’s jurisprudence is that the ability to bring an appeal presupposes detailed analysis of the decision one wants to challenge – an analysis that cannot be made by simply calling on one’s memory of the reading of the sentence. The Court thus held the norms before it to be unconstitutional.
Rulings nos. 81/12 (09-02-2012); 545/06 (27-09-2006); and 186/04 (23-03-2004).