Information Note on the Court’s case-law 250

April 2021

Brandão Freitas Lobato v. Portugal (dec.) - 14296/14

Decision 11.3.2021 [Section III]

Article 1

Jurisdiction of States

No jurisdictional link arising from the participation of Portuguese judges in the Timorese courts which ruled on a criminal charge against the applicant: inadmissible

Facts – The applicant, a former Minister of Justice in East Timor, had been sentenced to imprisonment at the close of criminal proceedings in this South-East Asian country. She complained of a lack of fairness in the proceedings, in which seconded Portuguese judges had taken part.

Law – Article 1: At the relevant time three Portuguese judges had been seconded to the courts in East Timor and had taken part in the contested criminal proceedings.

Under the memorandum of understanding, the task of Portuguese judges seconded to the judicial authorities in East Timor was, firstly, to hold office in the Timorese courts and, secondly, to introduce programmes to strengthen the judicial system. This judicial cooperation programme came to an end on 20 November 2013, and the last Portuguese judges left the country on 3 November 2014.

Under this memorandum, the Portuguese judges who were seconded to East Timor kept certain professional rights in Portugal. Equally, the Portuguese High Council of the Judiciary (HCJ) maintained its disciplinary powers over the judges, in that it could investigate and open disciplinary proceedings against them for acts committed abroad. Thus, the judges in question maintained their contractual ties with Portugal and, as a result, preserved their professional rights and duties, and the duration of their secondment was taken into account in calculating their professional seniority, in accordance with the Portuguese Status of Judges Act. In addition, judges were accountable to the HCJ for any breach of their professional duties.

The Court could not accept the applicant’s argument that, in performing the duties of international judges in East Timor, the Portuguese judges had been acting as agents of the Portuguese State and that their actions thus fell within Portugal’s jurisdiction. It was clear that the judges had been exercising their judicial functions on behalf of East Timor (see Drozd and Janousek v. France and Spain ). In addition, Portugal did not have any discretionary power with regard to the criminal accusation made against the applicant; it had had no power to uphold or set aside the contested decisions. At the relevant time the Portuguese State had not therefore exercised any authority or control in East Timor (see, a contrario , Al-Skeini and Others v. the United Kingdom [GC] and Hirsi Jamaa and Others v. Italy [GC]).

The applicant did not therefore come within Portugal’s jurisdiction on account of the participation of seconded Portuguese judges on the bench of the Timorese courts which convicted the applicant and sentenced her to imprisonment.

The HCJ had opened an investigation following the applicant’s complaint that those proceedings had been unfair on account of several alleged failings on the part of the judges. The investigation had been discontinued with regard to one judge and had given rise to two sets of disciplinary procedures against two other judges, one of whom was an honorary judge.

In the Court’s view, while there undoubtedly existed a jurisdictional link for the purposes of Article 1 with regard to the domestic disciplinary procedures, this could not be extended to the procedural or substantive questions on which the HCJ had ruled, as these were outside Portugal’s jurisdiction (see Markovic and Others v. Italy [GC], Chagos Islanders v. the United Kingdom (dec.) and M.N. and Others v. Belgium (dec.) [GC]).

Thus, the applicant did not come within Portugal’s jurisdiction with regard to the events in East Timor, either on account of the Portuguese judges’ participation in the Timorese courts which had ruled on the criminal charge against her, or on account of a jurisdictional link within the meaning of Article 1. It followed that, in so far as they concerned the criminal proceedings against her and her imprisonment in East Timor, the complaints had to be rejected.

Conclusion : inadmissible (incompatibility ratione loci ).

In contrast, the applicant came within Portugal’s jurisdiction with regard to her procedural rights, which she considered to have been breached in the context of the various proceedings brought by the HCJ following her complaint.

Conclusion : Portugal’s jurisdiction established.

The Court also declared inadmissible, as manifestly ill-founded, the complaint that the disciplinary proceedings conducted by the HCJ at domestic level had been excessively long, given that their length had not exceeded a reasonable time.

(See Drozd and Janousek v. France and Spain , 12747/87, 26 June 1992, Legal summary ; Markovic and Others v. Italy [GC], 1398/03, 14 December 2006, Legal summary ; Al-Skeini and Others v. the United Kingdom [GC], 55721/07, 7 July 2011, Legal summary ; Hirsi Jamaa and Others v. Italy [GC], 27765/09, 23 February 2012, Legal summary ; Chagos Islanders c. the United Kingdom (dec.), 35622/04, 11 December 2012, Legal summary ; and M.N. and Others v. Belgium (dec.) [GC], 3599/18, 5 May 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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