REPORT ON THE EXCHANGE AND SUMMARY

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Brice Golden
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REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN (exchanges@ejtn.eu) within one month after the exchange. 2.

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Country of exchange: Portugal Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: Dutch Functions: Judge Length of service: 8 years Identification of the exchange Hosting jurisdiction/institution: Tribunal Administrativo de Círculo de Lisboa City: Lisbon Country: Portugal Dates of the exchange: 10 October untill 29 October Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) Introduction REPORT I participated at the exchange program for judicial authorities 2011 in Lisbon, Portugal, during the period from 16 to 29 of October The hosting tribunal was the Tribunal Administrativo de Círculo de Lisboa (hereafter: TAC). I took part at an individual program. My host judge had made me a program for the two weeks of my stage. I had access to several files of cases which were brought before the TAC. I also had the opportunity to assist to several court sessions and to discuss with my host judge and other judges of the TAC some interesting issues. Below I will first make a few remarks about the reform of the Portuguese administrative justice system which was implemented as from Then I will comment shortly on a few examples of cases which were brought before the court (TAC) in which the alterations implemented by the reform can be seen. Furthermore I will briefly comment on the organisation of the work of administrative judges in the TAC. Finally I will make a few conclusive remarks.

3 Reform of the Portuguese system of administrative justice Before the exchange I was curious how the Portuguese system of administrative justice is organized, in particular after the revolution in 1974 and how it is positioned amongst other fields of justice. After the revolution in 1974 the Portuguese administrative litigation wasn't been subjected to serious alterations up until The public administration had a privileged position and the protection offered by administrative justice was ineffective. There were limited possibilities of requesting judicial review, and the decision-making powers of administrative judges were weak. Administrative processes were judged in the first instance at the Central Administrative Court. Appeal was possible at the Supreme Administrative Court. In 2004 the Portuguese justice system was submitted to a major reform. A new Statute of Administrative and Fiscal Courts ( ETAF ) was approved. It resulted also in the adoption of the Code of Administrative Court Procedure ( CPTA ). One of the main innovations in the new system is equality of parties. Under the system existing prior to the reform in 2004, the list of remedies was limited. After the reform the CPTA accepts in principle all remedies which may be needed to guarantee the rights of private parties. Another important innovation in the new system is the effective judicial protection. An example is the possibility of presenting various claims in a single action. Previously it was necessary to apply for the annulment of an administrative act, and, only thereafter, to claim for damages. One can imagine that it could take many years before both actions were decided before court. This aspect was also considered to be one of shortcomings of the administrative judicial system. Furthermore under the new system the scope of provisional and urgent judicial protection was significantly extended. The reform in 2004 introduced also a new model for territorial organization of the administrative jurisdiction. All the administrative and tax processes were attributed to courts of first instance and appeal courts were introduced other than the Supreme Court. The courts of first instance are located in the metropolitan area of Lisbon (five), in the metropolitan area of Porto (two) and in a few smaller cities (Braga, Mirandela, Coimbra, Viseu, Castelo Branco, Leiria, Beja and Loulé). The larger courts of first instance (such as the TAC) have separate sections for administrative and tax cases. The judges are assigned separately to each of these two types of processes. There a two courts of appeal ('Tribunal Central Administrativo'), located in Lisbon and in Porto. There is a Supreme court for Administrative law, 'Supremo Tribunal Administrativo', situated in Lisbon. The Portuguese administrative jurisdiction has its own Superior Council ('Conselho Superior dos Tribunais Administrativos'). As a consequence of the reform in 2004 the number of administrative judges (including tax judges) had to be increased substantially. Administrative proceedings A significant difference between the Portuguese and Dutch administrative litigation is that in Portuguese litigation a large part of the cases are submitted to civil procedural law ( Código processual civil ). This is the case in litigations concerning an ordinary administrative act ( acção administrativa comum ). In these type of cases the public administration doesn t necessarily act in the quality of a public entity with powers attributed by law. An example of a case of this type is a process in which two parents held responsible the municipality of Lisbon for the death of their son. They requested simultaneously for an indemnification of

4 euro s. So they presented two claims in a single action. The son, conducting a motorcycle, had lost control over his vehicle while passing a drain cover on the pavement and got deadly injured. The parents requested for the recognition of the civil responsibility of the municipality of Lisbon for not restoring the drain cover. It was not in dispute that the drain cover was damaged. The TAC, who considered the claim as an action for the recognition of extra contractual responsability, rejected the claim. The claim was rejected on the ground that no proof was been presented by the parents for the causality between the death of their son and the damaged drain cover. The TAC based his decision principally on testimonial evidence. The process in this type of Portuguese administrative judicial litigation has an accusatory character. The parties have to present to the judge their own truth ( clash of opinions ). The judge fulfils a more passive role in the process such as is the case in the civil litigation practice. It is not the judge s principle task to seek the truth himself. The public administration acts on the same level as the citizen. The equivalence of parties is presupposed in this kind of proceedings. In the Netherlands a claim like this should be brought exclusively before a civil court. Another type of Portuguese administrative judicial litigation concerns the special administrative act ( acção administrativa especial ). On this type of litigation administrative procedural law is applicable ( Código processual administrativo ). This type of judicial litigation has an inquisitory nature. This is based upon the presupposition of inequivalence of parties. I studied a case of this type of litigation too. The case was about a request by an Ukrainian woman residing in Portugal to obtain the Portuguese nationality. The Public Ministry opposed to this and set up an action before the TAC. The Ministry argued that the bonds of the applicant with the Portuguese society weren t strong enough to justify the acquisition of the Portuguese nationality. The TAC didn t agree with the Public Ministry. The TAC investigated the facts and therefore invited/convoked five persons to give a testimonial. In the opinion of the TAC the applicant had built up effective and lasting personal bonds with the Portuguese society. For his decision the TAC considered factual circumstances as decisive (e.g. understanding and speaking the Portuguese language, having Portuguese friends, visiting Portuguese culture, etc.). This type of administrative judicial litigation resembles the Dutch system. It shows that the administrative judge fulfils an active role in the process as he, basically speaking, is seeking for the truth himself. Another case I want to mention concerns a case of a request by a Portuguese citizen living in Goa (India) to the Portuguese Ministry of Foreign Affaires for the factual release with immediate effect of a document to travel to Portugal to obtain an identity document ( cartão de cidadão ) since her Indian nationality was taken from her. As a result she didn t have any official identity document. Because of the urgent character of the request I believe this is an example of effective judicial protection introduced by the reform of the justice system in Furthermore it's important to realize that the request was receptive even though no request for annulment of an administration's act was pending simultaneously. It s clear that as a result of dealing both with administrative and civil procedural law Portuguese administrative judges must possess a vast knowledge of procedural law. This can be considered as challenging. At the same time I believe the Portuguese administrative judge is confronted with a heavy task. Remaining remarks

5 Administrative judges in the TAC don't have juridical assistance (clerks) in preparing cases and drafting sentences. During a court session the judge has no assistance by a registrar or clerk in writing down the content of the session. However, court sessions are recorded on tape. Depending of the type of cases in general it takes in average between six months (special administrative act) up to one ore two years (ordinary administrative act) before a case is sentenced. It doesn t need further explanation that for efficiency means juridical assistance to judges will shorten the length of the processes and will increase the number of cases sentenced annually as well. In the Netherlands administrative judges are assisted by legal professionals (clerks). In Portugal every five years a judge of the TAC is visited by a judge from a court of appeal or the Supreme court for Administrative law. The scope of this visit is not to investigate if the judge came to the right decision ( the merites of the case ), but to investigate the way the judge organized his or her work (i.e. the number of cases treated, the length of the proceedings). In the Netherlands such a kind of judicial visition doesn t exist. According to Portuguese administrative judicial litigation it is not required to ask the public administration for a review of the administrative act before bringing it before the court. In the Dutch administrative judicial litigation, in principal, it is compulsory to do so. It gives the public administration the opportunity to reconsider its decision. It s obvious that introducing in Portugal the possibility of an appeal at the public administration may reduce the burden for the administrative judicial system. On the other hand one must be aware that this administrative appeal doesn t lead to an unacceptable delay in bringing a case before court. I spent one day at the centre of judicial studies in Lisbon. At his institution judges (including administrative and tax judges) and public prosecutors are trained. The training is both initial (aspirant judges and public prosecutors) as well as a supplementary. A judge-trainee is obliged to obtain a minimal quantum of study-points each year. In general it takes approximately three years study and training before a judge-trainee in Portugal can be nominated. Aspirant judges and prosecutors follow from the beginning a separate training course. This is different in the Netherlands since only after the third year of training a trainee (aspirant judge or aspirant prosecutor) has to opt for a career as a judge or public prosecutor. Moreover the system of judicial training and studies in Portugal has resemblances with the Dutch system. I also spent one day at the tribunal for criminal law ('Varas criminais'). At this court various chambers with each three judges treat offenses with imprisonment for more than five years. I attended a few court sessions. Interesting was that in one case (robbery) a civil request of the victim for indemnification was treated simultaneously. The court accepted the request and the defendant had to pay the victim an amount of euro's as an indemnification for immaterial (psychological) damage. A majority of the cases before the TAC, as well as before administrative courts of first instance in the Netherlands, is treated by a single judge ( unus ).

6 SUMMARY The exchange program gave me a good opportunity to gain theoretical and practical knowledge as well about the Portuguese administrative judicial system after the reform in It gave me a view on the different kind of disputes in the Portuguese administrative legal processes and enabled me to check differences between the Portuguese and the Dutch administrative judicial system. I mentioned a few of the differences, but obviously I did not have the intention to be exhaustive. I had various conversations with and explanations from judges of the TAC who helped me understand more about the Portuguese administrative judicial system. I am grateful for having these conversations and for getting the explanations and for the time they spent in doing so. Finally I want to mention that participating at the EJTN exchange program makes a participant to look critically to his own work as a judge. It is this introspective aspect too that makes the EJTN exchange program challenging and interesting.

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?

REPORT ON THE EXCHANGE AND SUMMARY

REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN (exchanges@ejtn.eu) within one month after the exchange. 2. Please use the template below to write your report (recommended