On 31^st March 2020, the European Court of Human Rights (ECHR) rendered an important judgment concerning the admissibility of a request before the Portuguese Constitutional Court (PCC). The ECHR found a violation of the right to an effective remedy because the dismissal of claims before the PCC was deemed excessively formalistic (Dos Santos Calado a. o. v. Portugal, 2020, judgment only available in French).

The PCC is composed of thirteen judges, ten of which are elected by the Parliament and three by other judges. In order to challenge the constitutionality of a norm or the normative interpretation of a lower court before the PCC, one first has to submit one’s claim to a single judge who will decide on the admissibility of the request. If the single judge considers the request inadmissible, the applicant is able to challenge this decision before a three-judge committee, which includes the single judge who reviewed the challenged decision.

This is not the first time that the ECHR has reviewed a procedure before a national constitutional court. This first occurred in the 1992 Ruiz-Mateos case concerning the Constitutional Court of Spain, then again in 1996 in connection with the Federal Constitutional Court of Germany (Süssman v. Germany, 1996). It is now firmly established that no tribunal can escape the reach of article 6 paragraph 1 of the European Convention on Human Rights (see also for Czech and Hungarian constitutional courts (Kremer v. Czech Republic, 2000; Korbely v. Hungary, 2008)).

This recent jurisprudence also affords an opportunity to draw a parallel between the ECHR and the Court of Justice of the European Union (CJEU). One could argue that both contribute to the development of the rule of law in Europe through the principle of the independence of the judiciary.

Facts of the case

Several applicants had challenged the constitutionality of national norms before the Portuguese Constitutional Court (PCC) through different remedies. One action was a claim for a review of constitutionality of a norm, whereas the two other claims challenged the interpretation of lower jurisdictions regarding a norm or a principle enshrined in the Constitution. All those claims were dismissed at the admissibility stage.

The first application challenged the constitutionality of a decree providing for the limits of pensions. The applicant contested the amount of his pension considering the decree as contrary to the principle of equality and the democratic nature of the state as guaranteed by the Constitution. The claim was dismissed because the applicant did not mention the correct subparagraph of the organic law on the PCC.

The second application challenged the normative interpretation of lower courts regarding a decree on career advancement in the public service. The applicants, members of the national road management administration, argued that their function was covered by the decree. They challenged the interpretation of the national supreme administrative Court, arguing that it violated the principle of equality guaranteed in article 13 of the Constitution. This claim was also dismissed before the PCC because it relied on the interpretation of the national supreme administrative Court in another case.

The last application challenged the interpretation of lower criminal jurisdictions regarding a provision of the Portuguese criminal code, which the applicant considered as contrary to the non bis in idem principle enshrined in article 29 paragraph 5 of the Constitution. The PCC dismissed the claim, considering that the application referred to the conviction of the applicant and not to the normative interpretation of lower courts.

The ECHR decided to join the requests because of their similarities.

The constitutionality review procedure before the PCC addresses the question of the unconstitutionality of a norm or the unconstitutionality of the interpretation of a norm given by a lower tribunal. This is a normative procedure that must be distinguished from direct individual constitutional actions such as the Amparo (Spain) or the Verfassungsbeschwerde (Germany), which are admissible as soon as the applicants claim a breach of their fundamental rights.

The dismissal of the claims was based on the normative aspect of the procedure, which prohibits review of non-normative acts adopted by the state powers such as the judiciary. The constitutional review of the interpretation of lower courts is strictly limited to the ratio decidendi of the judgment. This was the argument raised by the Portuguese government, considering that the strict admissibility requirement of claims was justified by the normative aspect of the procedure.

Legal questions at stake

The first legal question was the compatibility of the strict admissibility requirement of the PCC with the right to an effective remedy as guaranteed in article 6, paragraph 1 of the Convention. Relying on the case-law of the ECHR regarding the right to an effective remedy before a higher court, which must “avoid an excess of formalism which would undermine the fairness of the procedure” (Walchli v France, 2007, available only in French, our translation), the applicants argued that the declaration of inadmissibility of their claims was based on an excessively formalistic interpretation of the PCC.

The second legal question was the compatibility of the three-judge committee with the right to a fair trial as guaranteed in article 6, paragraph 1 of the Convention. The applicants argued that the membership of the single judge in the three-judge committee endangered the impartiality of the formation of the Court.

Findings of the Court

Regarding the violation of the right to an effective remedy, the Court upheld two of the three applications holding that the dismissal of the claims was excessively formalistic. In the first application, the PCC considered the claim inadmissible because the applicant relied on the wrong subparagraph of the organic law on the PCC. In the second application, the claim was considered inadmissible because the question raised was different from the one raised before the PCC. The ECHR nonetheless stated that this difference resulted from a reversal of precedent in the case-law of the national supreme administrative Court that could have « surprised’ the applicants. It then considered that the reasoning of the PCC disproportionately limited the applicant’s right to have their constitutional actions examined on the merits. It, therefore, found a breach of the right to an effective remedy because of an excessively formalistic interpretation of this principle. Nevertheless, for the last application, the ECHR judged that there was no breach of the right to an effective remedy as the applicant was challenging the facts of the case, not the normative interpretation of the lower jurisdictions.

Regarding the composition of the three-judge committee, the ECHR considered the inclusion of the single judge (who had already decided on admissibility) in the three-judge committee as compatible with the right to a fair trial. The Court did not uphold the requests of the applicants, considering that the appreciation of the single judge was only at a preliminary stage of the whole procedure and could, therefore, not be perceived as affecting the objective impartiality of the formation of the Court. The decision on the admissibility of the single judge and its review by the three-judge committee are two stages of the same procedure. Therefore, the challenge of the first decision before the three-judge committee is not an appeal and does not preclude the participation of the single judge.

This part of the finding can be criticized if we read it in light of the Kress v. France case. In this case, the ECHR considered the procedure before the French Conseil d’Etat as contrary to the standard of protection guaranteed in article 6, paragraph 1 of the Convention because it allowed the participation of the Commissaire du gouvernement in the deliberation process. Although the principle at stake was different, namely the equality of arms, from a systemic perspective, the participation of the single judge in the three-judge committee also affects the deliberation process (although limited to the admissibility of the claim). Furthermore, the doctrine of appearances developed in the Kress v. France case could also come into play. One could argue that in publicly expressing his/her opinion through the first decision of admissibility, the single judge implicitly discourages the applicant from challenging it before the three-judge committee as soon as (s)he is aware of the fact that (s)he will be part of this committee.

Comments

The finding against Portugal only addresses the interpretation of the PCC and shall therefore not lead to substantial reform of the national procedure. Nevertheless, this judgment affects the workload of the PCC as soon as the admissibility stage of the constitutional review is reached. In terms of case management, the admissibility stage is a crucial part of the activity of national constitutional courts. According to a well-known expression within the constitutional world, adjudicating on admissibility attributes to constitutional courts “the power to decide what to decide” (D. M. O’BRIEN, Storm Center, 2005). By holding Portugal in breach for a too formalistic interpretation when it comes to the admissibility of a claim, the ECHR has told the PCC how to decide on what to decide.

Regarding the right to a fair trial, the ECHR adopted a more diplomatic approach. It is true that finding against Portugal on the composition of the three-judge committee would have had other implications. If the Court had considered the composition of the three-judge committee as contrary to the right to a fair trial, this would have led to a major reform of the procedure before the PCC. The compatibility of the composition of the three-judge committee is nevertheless debatable, particularly if you look at the previous case-law of the Court. The ECHR seems to have a case-by-case rather than a systemic approach to the independence of the judiciary when it comes to higher courts.

In that sense, its jurisprudence is less ideologically marked than that of the CJEU, which does not hesitate to rely on the rule of law to safeguard the independence of the judiciary (CJEU, Commission v. Poland, 2020, C‑791/19 R). A first explanation could be the absence of an integrative frame in the legal order of the Council of Europe. A second one could be its complementarity with the jurisprudence of the CJEU. Whereas the CJEU adjudicates through a general approach combining the principle of the independence of the judiciary (Article 19 TEU) and the rule of law (article 2 TEU), the ECHR adjudicates through a more procedural approach within the frame of article 6, paragraph 1 of the Convention.

While the CJEU cannot directly review the procedure before national courts because of the principle of national procedural autonomy of the member states, the ECHR can review the procedure before national courts within the frame of article 6, paragraph 1 of the Convention. In this respect, complementarity serves the effectivity of the independence of the judiciary in Europe.

 

Pierre-Emmanuel Pignarre is a Research Fellow at the Max Planck Institute Luxembourg for Procedural Law. He holds a PhD in public law from the University of Paris II, Panthéon-Assas. He wrote his thesis on the European Court of Justice as a constitutional court. He also holds a LL.M in German law from the University Johannes Gutenberg in Mainz. Since Fall 2018, he teaches constitutional law at the SciencesPo law school in Paris. His fields of expertise are European law and comparative constitutional review.