Meeting of the working group Independence and Effectiveness
in Beaulieu sur mer on 9th and 10th October 2009
Subject: Fastening of procedures before administrative courts and possible tensions with fundamental rights: questionnaire
1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights.
In the urgent procedures the stated periods established for the Portuguese law are in rule fulfilled. They delay between 2-3 months to 1 year to be concluded.
Relating to the not urgent cases, its duration is superior to the indicated one by the European Court in percentage that we suppose to be around 40%.
The causes of delay
2. Is the number of cases judged by the administrative courts increasing each year? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court?
The number of cases judged by the administrative courts is increasing each year.
Between 1992 and 2001, the statistical data concerning the administrative jurisdiction shows that the number of new cases, per year, in all the administrative courts, has increased to over the double.
The new Statute of the Administrative and Tax Courts (ETAF), approved by the Law nº 13/2002, of 19 February, came into force on 1 January 2004, and the new Administrative Courts Procedure Code (CPTA), approved by the Law nº 15/2002, of 22 February, and which coming into force coincided with the one of the ETAF. This reform is based on a complete reformulation of the procedure in the administrative courts in order to bring it closer to the civil procedure and to reinforce the guarantees of access to the justice and of procedural equality inter pares,
See Table I.
3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year?
See Tables I and II.
3.2. The number of judges is increasing or not ?
Since 2004 that the number of judges has come to increase. In the year of 2009 30 new judges had entered.
3.3. Is there inadequate support staff? The judges have assistants or not?
In first instance does not exist assessors, nor personal of administrative or technician support to the judges.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead?
Yes, for example document copies.
4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions?
There are 16 administrative and tax courts of first instance in the mainland, Madeira and Azores, 2 central administrative courts in Oporto and in Lisbon and one Supreme Administrative Court, located in Lisbon.
The first instance courts with bigger overload of processes for judge are Lisbon, Porto and Loulé (Algarve).
5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).
In Portugal, in the vast majority of cases, the trial in first instance and the judgment decision is done collectively by law imposition. That is, in fact, a source of delay.
Whenever the case consists of a special administrative action and if it has a value above the threshold for the administrative courts (€5.000,00), we perform trials with a group of three judges, instead of a single judge.
5.2. Is there a specialisation of courts or of judges in your country? Is it a way of avoiding delays?
Although the existing law (CPTA) establishes the possibility of the specialization of judges in the administrative courts, this specialization still was not implemented.
The only existing specialization is between the Administrative Courts and the Tax Courts.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?
Yes. The time given by the law for the parties to practice the procedural acts is extensive in same cases. For example, in every special administrative actions the parties have 20 days, each one, to settle the final allegations (1).
(1) After 2004, there are, now, two main procedural means: the common administrative action, which object corresponds to all the disputes within the scope of the administrative jurisdiction that do not follow the special administrative action (CPTA, art. 37º and forth), and the special administrative action, which object consists of objecting to administrative acts, condemnation for the practise of the due administrative acts, and requests for the declaration of unlawfulness or omission of rulings (CPTA, art. 46º and forth).
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they preponderantly devoted to take evidence (witnesses and experts) or to the question of law?
With the legislation of 2004 they were increased the oral audiences that are possible in any process. The oral hearings are devoted exclusively to produce proof.
6.3. In order to accelerate proceedings; do you think that the using of witnesses and experts ought to be encouraged?
The using of witnesses and experts must only be used if the existent documental proof is not adequate/sufficient.
The experience has demonstrated that using of witnesses also is a source of delay.
6.3.1. Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure?
Witnesses are heard by the courts.
In the previous administrative procedure the person is also entitled to an audition.
6.3.2. Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration?
The administrative action follows, in this matter, the terms of the civil procedure.
The court can nominate experts of its own (from preexisting lists) or they can be indicated by the Administration or by the private parties.
6.3.3. Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)?
Civil servants as well as independent experts.
6.3.4. Which kind of experts are nominated by the court?
The same answer as 6.3.3.
6.3.4. Who has to cover the costs of all these experts?
The costs of these experts are included in the final bill of the process and have to be paid by the parties.
6.3.5. Are there rulings concerning recovery of these costs if the administration or the party wins the case?
Yes there are. Is the same system as in civil procedure.
6.3.6. Can such costs be covered for parties who enjoy themselves of legal aid.
The parties that do not have economical ways, benefit of judiciary support – legal aid - and have the same procedural rights.
6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be?
The appeal for the court of appeal always depends on application of the parts.
The Supreme Administrative Court takes on the role of ruler of the system, with the power to appreciate, as a rule, questions of legal or social relevance, namely:
a) Appeals for the uniformity of court decisions (CPTA, art. 152º, ETAF, art. 25º, n. º 1, b));
b) Appeals of review of Central Administrative Courts decisions pronounced at second instance, whenever the subject at stake is, by its legal or social relevance, fundamental or if the admission of the appeal is required to a better application of the Law;
c) Per saltum appeal of review of administrative courts, whenever the value of the cause is over three million euros and if only questions of law arise during the allegations (CPTA, art. 151º, and ETAF, art. 24º, nº 2);
d) Preliminary ruling of pending cases at administrative courts whenever a new question of law is put before these courts that may arise serious difficulties (CPTA, art. 93º and ETAF, art. 25º, nº 2) and appear in future disputes;
e) Conflicts of jurisdiction between administrative and tax courts (CPTA, art. 135º and forth and ETAF, art. 24º, nº 1 h)).
In what concerns new cases at the first instance, the CPTA establishes, in article 16º and fourth, the criteria of jurisdiction that, clearly and objectively, ascertains which is the competent court.
6.5. What kinds of restrictions of judicial review are existing:
a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice?
There are no restrictions.
It is admissible to present before the administrative courts all sorts of requests aiming at the protection of the legal rights and interests of the claimant, as is adopted in the civil procedure.
The CPTA leaves clearly behind the traditional concept of definitiveness; it allows the objection to any act with external efficacy even if it finds itself within an administrative proceeding.
As for the appeal to the court of appeal, the only restriction is referred to the value of the cause (must be over €30.000,00).
6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise.
The reduction of the time given to the parties to practice same procedural acts, but mainly the establishment of a more flexible and simplified procedure.
Regarding the judge powers, he has the power to impose the presence in the court of the witnesses, namely by using police force (detention to be presented in Court) or by fines.
Judge also has the power to determine the time limits for the experts to deliver their expertise and, if necessary, to enforce sanctions. It is also the judge that determines the expert’s payments.
7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)?
Only the Superior Council of the Administrative and Tax Courts can do it.
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects ? The custody of mentally ill, children, drug or alcohol misuses, immigration cases...
There are time limit rules laid down by law for the judge to decide urgent cases, but there is no time limit for the duration of the procedure.
The Portuguese law lay down the following limits for decision in urgent procedures:
provisional remedies: 5 days;
Elections: 5 days;
judicial notice for information, examination of documents or issuing of certificates – 5 days;
judicial notice for the defence of rights, freedoms and guarantees: 5 days or, in cases of special urgency, immediately (maximum 48 hours);
Pre-contractual litigious matters (corresponds, in essence, to the contents of Decree-Law nº 134/98, 15 March, with the adaptations long claimed by the Communitarian Law) – 10 days.
7.3. If yes, what happens when the time limits are not followed?
When the time limits are not followed, the judge can be disciplinary punished or prosecuted for civil responsibility.
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.
8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.
9. The matter of the responsibilities of the president of the court (or other entities within the courts).
9.1. What may or must they do in order to fasten procedures?
The presidency of the administrative courts has been created by law at 2004. All courts have a President who is designated by the Superior Council of the Administrative and Tax Courts between judges of the Supreme Court.
See answer given to question 9.2.
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly?
No. The president as no legal power to remove a case from a judge. The attribution of a case to a judge has constitutional protection.
9.3. If yes, can this be done without interference with the independence of the judge?
9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted?
Example: The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge.
If it comes to a conclusion that a judge is responsible for the delay (after an inspection by the Superior Council for the Administrative and Tax Courts), the judge can be civil and disciplinary prosecuted.
10. Is there a legal remedies against delays in the sense of article 13 EMRK in the respective national procedural laws (see the ECHR’s cases Kudla/Poland and Sürmely/Germany). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges?
No, there are no special remedies against delays. Although, the parts can submit a complaint to the Portuguese Ombudsman and/or expose the situation to the Superior Council for the Administrative and Tax Courts.
Judges remunerations and its evolution in the new economical context
11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations?
The judges remunerations system depends on the antiquity and evaluation.
The remuneration of a judge in the beginning (1st level) is about €2.549,91 and at the end (last level at the fist instance), about €5.099,82.
A judge of the Supreme Court at the last level earns about €6.129,97 (the limit imposed by lay for a public servant).
12. Is there an evolution now because of the economical crisis? Laws or other texts had been adopted recently or are in discussion in your country?
No, but the politicians, on their speeches/programs, always talk about it, as a measure to accelerate the decision of the cases. Nowadays, as there will be elections to the parliament at the end of September, the subject has been brought to the public discussion.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence?
The public position of the Representative Association of Portuguese Judges is that "bonus systems" and “individual subjective salaries” are incompatible with the judge’s independence.