Gabriela Knaul, UN special rapporteur on the independence of judges and lawyers in Portugal, announced her initial findings in February this year and now has released the 'Report of the Special Rapporteur on the independence of judges and lawyers' dated June 10, 2015.
Knaul’s interim comments on Portugal’s judicial system had described a system that was "slow, expensive and difficult to comprehend," with criticism of the new Citius court management system launched in September 2014 that ended in chaos after being forced to close down for six weeks.
The special rapporteur said that Justice in Portugal is independent of political power, but that budgetary issues hamper development and access to justice must be guaranteed in the same way for the entire population - which simply is not happening.
Knaul noted that legal aid exists in Portugal, but that many who need it are not receiving it because of the "stringent criteria", so she advocated as "fundamental" a review of the methods for granting legal aid.
"Applications for legal aid have to go through three entities - the Social Security Institute, the Bar Association and the Ministry of Justice - which greatly complicates the process for people who need it to access justice.
"It can take up to a year for a person to get a lawyer," Knaul noted.
Knaul regrets the rush to implement the CITIUS management system which "did not support the migration of data in the way it was done," adding that "the system had obvious problems and was not able completely to change the operation so rapidly."
The long-awaited final report submitted to the UN reinforced her earlier remarks and condemns the prejudice and miscommunication found in the Portuguese justice system.
Comments were made concerning cases of domestic violence, poor training in Judicial Studies Centers, decisions of the constitutional court and the chaotic introduction of the Citius programme.
"Judicial magistrates and prosecutors should avoid bias in judicial decisions," she said adding that the training provided by Judicial Studies Centres is very formal and human rights training is restricted.
Domestic violence cases were targeted as victims do not receive adequate attention during the legal process and have limited access to specialised professionals, she said.
But it was the shambles surrounding the launch of the Citius computer system that came in for the harshest criticism as its failure represented "perhaps the most worrying indicator of excessive haste in carrying out judicial reform," said Knaul.
One brighter note was the independence of the Constitutional Court where several decisions were made that blocked government proposals as the suggested new laws were ‘unconstitutional.
This, however was the only compliment in a report that shows that underneath nothing much has changed in the Portugal’s slow, biased and underfunded judicial system which favours the rich over the poor and whatever the income level of the claimant, the time taken to wade through a vast backlog of cases means that many will due before getting their day in court.
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Portugal's response to the full report was as follows:
Addendum to the Report of the Special Rapporteur on the independence of judges and lawyers on her official visit to Portugal (27 January – 3 February 2015)
The Portuguese Government’s reaction to the Report of the Special Rapporteur on the independence of judges and lawyers on her official visit to Portugal (27 January – 3 February 2015)
1. In accordance with Portugal’s standing invitation to all the Special Procedures of the Human Rights Council, the United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, conducted a working visit to Portugal from 27th January to 3rd February 2015, at the Portuguese Government’s invitation.
2. The defence of the independence of the judiciary as a structuring value pertaining to the Rule of Law and to Democracy is a fundamental principle to which Portugal is deeply committed. Portugal is determined to promote this value in the United Nations framework, in particular in the United Nations Human Rights Council, a body to which Portugal was elected for the 2015-2017 term.
3. Before, during and after the Special Rapporteur’s visit, the Portuguese Government responded to all requests in a spirit of constructive cooperation and dialogue, whilst fully respecting the independence of Ms. Knaul’s mandate. This was acknowledged in the Special Rapporteur’s Report
4. Portugal is fully committed to respecting the independence of the judges, as it has been done so far. In light of the Special Rapporteur’s report, Portugal should like to recall that it is undergoing a period of severe budgetary constraints which make the management of the judicial system more difficult, as indeed happens with all the remaining areas.
5. During her visit, the Special Rapporteur met with members of the Portuguese Government, members of Parliament and representatives of several stakeholders of the judicial system. In the overall report on the visit and in the press release, the Special Rapporteur expressed some concerns that, in her view, may jeopardize the effectiveness of the principle on the independence of the judiciary. These concerns are also reflected in the draft Report to be submitted to the Human Rights Council.
6. Hence, and briefly, the concerns of the Special Rapporteur focused on the following:
i) the unexpected consequences of the implementation of the reforms, in particular, the legal instability, the security of the electronic system, in particular the processing of cases;
ii) the courts’ and judges’ lack of autonomy, especially as concerns the need to improve training for judges and prosecutors,
iii) citizens’ access to justice;
iv) assistance provided to victims of domestic violence.
7. Regarding the implementation of reforms to the justice system, it should be mentioned that restructuring the fundamental components of the judicial system, such as the judicial map always imply, due to its dimension and scope, difficulties in implementation.
8. The reforms that have been implemented in the last years do not focus on partial aspects of the justice system. The reforms have restructured the whole system in order to make it more efficient, rational and closer to the citizens. Thus, while recognizing problems inherent to the implementation of reforms, in particular of the new judicial map and the physical and computer infrastructures, the Government has speared no efforts in order to achieve the progressive normalization of the situation, which has occurred.
9. The computer program CITIUS related to case processing is already in full operation since the end of 2014 and improvements of infrastructures affected by the restructuring process are ongoing. Thus, the normal operation of the judicial system has been restored.
10. The debate on the reform of the judicial map lasted several years and was widely participated. During the entire process several entities were heard and their opinions taken into account, such as the High Council for the Judicature, the High Council of the Public Prosecution, the Bar Delegations, the Chamber of Solicitors, the Judges’ and the Prosecutors’ Unions, the Court Officials’ Union and Local Governments as well as the National Association of Municipalities.
11. The reform is based on the extension of the territorial basis of courts, thereby enhancing their specialization through a new management model., The current organization deepens and extends to the entire country specialized courts, thereby streamlining the distribution and case processing, facilitating the allocation and mobility of human resources and the autonomy of the courts’ structures.
12. Regarding training of judges and prosecutors, a considerable effort has been made in order to ensure the specialization of these professionals thereby enabling the implementation of a key aspect of the judicial organization reform: an increase of the degree of specialization of several courts.
13. The Centre for Judicial Studies has paid special attention to human rights training, through the traditional training methods and through publications, in particular electronic publications.
14. The Special Rapporteur’s Report raises some concerns on the mechanisms of accessing to justice. This mechanism is crucial to guarantee, to the public in general, the effectiveness of the universal right of access to justice and to courts.
15. The Portuguese Government is aware that this mechanism can be improved. Hence, a study designed to identify the main aspects of the system that can be improved is currently ongoing. The objective is, to guarantee that all persons needing legal protection to have access to justice and to courts are better protected. When the outcome of the assessment study is finalized, the Portuguese Government will take the necessary measures so that the problems detected can be definitely corrected and, thereby, improve citizens’ rights and access to justice.
16. Regarding the concerns expressed on the courts’ lack managerial autonomy , the Portuguese Government has deepened, through the judicial organization reform, the courts’ managerial autonomy. In order to increase the efficiency of the county courts, objectives are now set for a three-year period which is established by the county court, the High Council of Judicature and the General Prosecution Office together with the Ministry of Justice. This autonomy aims to introduce the concept of management by objectives. The purpose is that the court’s managerial autonomy may constitute an incentive to improve the application of justice and its efficiency.
17. Assistance to victims of violence, even though not specifically connected with the independence of the courts, is a main priority of the Portuguese Government. In this context, it is necessary to distinguish two aspects: the persons detained in prisons/the victims of violence, in particular domestic violence, and the means for the prevention of recidivism.
18. As to the former, the concerns focused on the duration of pre-trial detention, on ill treatment, on the overcrowding in prisons and on the access to a lawyer. In this regard, the authorities have been developing measures to tackle these problems.
19. As to the duration of pre-trial detention, strict deadlines were established for this preventive measure that may only be extended in exceptional circumstances, duly justified and confirmed. These deadlines cannot be surpassed and if there is not a charge/conviction (according to the procedural phase) the defendant/ accused person has to be released.
20. As concerns violence against detained persons, there are internal mechanisms (Audit and Inspection Service of the Directorate General for Rehabilitation and Prison Services) and external ones (General Inspectorate of the Justice Services) that inquire into any allegations of violation, draw legal consequences and improve proceedings as regards the use of proportional force in a prison context.
21. There are several entities (Ombudsman – including in its capacity as National Preventive Mechanism under OP-CAT) members of Parliament, the Bar and representatives of international bodies) that may visit the prisons and detention centres without authorization from the competent authorities. This shows that Portugal is ruled by the principle of transparency and of collaboration with national and international entities in charge of the defence and promotion of the fundamental rights.
22. On the guarantees provided to detained persons, it should be mentioned that legislation, which is scrupulously complied with by the competent authorities, requires that in no circumstances can the detainee be deprived of his right to contact with his lawyer, not even when he is confined to a cell or to a disciplinary cell.
23. Regarding overcrowding in prisons, the Portuguese Government has been developing a broad range of measures designed to tackle this problem. These include the adoption of alternative measures to imprisonment that aim, first of all, to combat the excessive number of pre-trial detainees, enabling this pre-trial detention to be served in other ways than the prison establishment. These alternative measures (such as the electronic bracelet) are also used in the context of programmes designed to prevent recidivism of offenders in specific cases, such as domestic violence.
To conclude,
24. Portugal values, guarantees and praises the independence of the judiciary. Wherever deficiencies are identified, they will be suppressed. This independence requires a judicial managerial system that privileges the efficiency, the autonomy, the quality and the management by objectives.
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