Portugal/ Supreme Court of Justice/ Judgement 99/17.0JBLSB-K.L1-A.S1

Country

Portugal

Title

Portugal/ Supreme Court of Justice/ Judgement 99/17.0JBLSB-K.L1-A.S1

View full case

Year

2023

Decision/ruling/judgment date

Monday, October 02, 2023

Incident(s) concerned/related

Discrimination

Related Bias motivation

Nationality

Groups affected

Other

Court/Body type

National Court

Court/Body

Supreme Court of Justice (Supremo Tribunal de Justiça)

Key facts of the case

The defendants A. and B. requested the dismissal a judge. Both defendants claimed that from the moment Portugal took part in the invasion of Iraq, an unspeakable "Islamophobia" was instilled in all Portuguese people, including judges, and that the chosen judge couldn't be impartial, which violated the principle of the natural judge (foreseen in the Criminal Procedure Code) and due process rules foreseen in the Portuguese Constitution and the European Convention on Human Rights.

Main reasoning/argumentation

The court began by explaining that in the balance between the principle of the natural judge, the guarantee of the judge's independence, the defendant's rights, and the guarantee of impartiality (as enshrined in Article 6 of the European Convention on Human Rights), the Code of Criminal Procedure found the appropriate proportionality, through foreseeing as a requirement for dismissal of a judge "a serious and grave reason, adequate to generate suspicion about his/her impartiality". However, the court found that, in this specific case, no fact, evidence or element of a personal or functional nature affects the objective impartiality, or the public perception of such impartiality, of the chosen judge. The judge in question had no contact with the defendants, had not intervened in the proceedings at any of its stages, and has not been accused of any actions, opinions or relationships that would diminish her impartiality or her appearance of impartiality at the time of judgement.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The key issue was to decide on the impartiality of the chosen judge, due to a supposed generalised "Islamophobia" instilled in all Portuguese people after the invasion of Iraq.

Results (sanctions, outcome) and key consequences or implications of the case

The Court decided to dismiss as manifestly unfounded the request for dismissal presented by A. and B.

Key quotation in original language and its unofficial translation into English with reference details

"Com efeito, a jurisprudência constante do TEDH, desde o acórdão Piersack v. Bélgica, de 1982. tem trilhado o caminho da determinação da imparcialidade pela sujeição a um teste subjetivo, incidindo sobre a convicção pessoal e o comportamento do concreto juiz, sobre a existência de preconceito ou bias face a determinado caso, e a um teste objetivo que atenda à perceção ou dúvida externa legítima sobre a garantia de imparcialidade." "In fact, the ECtHR's settled case law, since the 1982 Piersack v. Belgium judgment, has followed the path of determining impartiality by subjecting it to a subjective test, focusing on the personal conviction and behaviour of the specific judge, on the existence of prejudice or bias about a given case, and to an objective test that takes into account the perception or legitimate external doubt about the guarantee of impartiality."

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.