Supreme Court of Justice

1289/13.0T3AVR.PL

03.02.2016

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Although the decision mentions the ECtHR's understanding of impartiality, it does not, however, refer to any specific decision in its case law.

This case concerns the circumstances in which a judge can recuse herself. According to the Portuguese Code of Criminal Procedure, the grounds for the recusal of a judge are: of her intervention in the case runs the risk of being considered suspicious; for serious and grave reasons suitable to generate distrust as to her impartiality. The question here is whether any of these situations apply to the specific case.

In this case, it was decided that the appeal should be considered to be unfounded on the grounds that it is not based on the existence of any prior circumstance that might place in question the judge's impartiality in deciding the appeal, but rather on the decisive act itself - the appeal - which, in principle, would be the procedural intervention that the incident would seek to prevent, through the imputation of flaws in the appealed decision. The flaws imputed to the appealed decision may reveal, where appropriate, a deficient appellate assessment, but are not in themselves grounds for affirming the existence of a distrust of the judge's impartiality.

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No

Article 43(1) and (4) of the Portuguese Code of Criminal Procedure

This is a case in which the applicant believes that there are serious grounds for doubting the impartiality of the judges who intervened in the case as rapporteur and deputy. The claimant, disagreeing with the decision handed down at first instance, which he considered to be lacking in impartiality, poorly reasoned, cutting out from its reasoning aspects relevant to a fair and equitable decision, appealed to the second instance, formulating his conclusions. In analysing the appeal, the judges ignored the conclusions presented by the appellant and did not base their analysis of the appeal on them. They also failed to notify the applicant in accordance with the law to improve the conclusions of the appeal. The applicant considered that the type of language used in the selected arguments revealed a lack of impartiality.

For the applicant, the ruling did not analyse the contested decision which, in his opinion, was null and void due to a manifest lack of reasoning and insupportable contradictions, but sought to cover up the shortcomings of the first instance decision. It took the view that the defendants acted with a lack of impartiality and in order to avoid an embarrassing situation for the magistrate. As a result, the applicant expressed his intention to file a complaint with the Superior Council of the Judiciary. When they learnt of this episode, even though they were not aware of its materialisation, the applicant felt that the judges were not in a position to continue to intervene in the case.

For the court, the purpose of the refusal is to prevent the judge from intervening in the proceedings because there is doubt about his impartiality. When that intervention is limited to the intervention of a judge in an appeal, as in this case, the aim is for that specific judge not to decide on the appeal, since that, and no other, is the procedural act for which he is mobilised in the case.

The fact is that in the case in point, the refusal is based not on the existence of any prior circumstance that might call into question the judge's impartiality in deciding the appeal, but on the very act of decision - the appeal - which in principle would be the procedural intervention the incident would seek to obstruct.

It is not formally correct to seek to obstruct the intervention of the judge on the basis of the content of the only act that the statement of objection would seek to obstruct.
On the other hand, the objection to the refusal is based on the imputation of defects in the contested decision, which are procedural pathologies that should be challenged in the appropriate procedural forum.  They may reveal, where appropriate, a deficient appellate assessment, but they are not in themselves grounds for claiming that there is a lack of confidence in impartiality. In other words, it is not a question of mistrust generated by exogenous factors, with repercussions on doubts about the judge's impartiality, but something endogenous to the process itself, i.e. it is the decision that justifies a judgement of suspicion.

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There is a consistent interpretation in that, for the purposes of its decision, the Court adopted the understanding of impartiality as developed by the ECtHR, despite not citing any specific decision in this regard.

For the purposes of understanding the cases of refusal, the Court cited another of its previous rulings on the same matter.

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In this case, it was a question of interpretation - namely, knowing the meaning, extent and scope of the cases of refusal, as set out in the Portuguese Code of Criminal Procedure, in order to subsequently check whether the case related to any of these situations

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http://www.dgsi.pt/jstj.nsf/-/F096655A7CE4FF1080257F5D00362F9B

Tiago Fidalgo de Freitas, Lisbon Centre for Research in Public Law (CIDP)