Stow and Gai v. Portugal (dec.)

Information Note on the Court’s case-law No. 79

October 2005

Stow and Gai v. Portugal (dec.) - 18306/04

Decision 4.10.2005 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Referral of a case back to the same court after the annulment of the impugned decision: inadmissible

The applicants were convicted at first instance and given prison sentences for drug trafficking. The Appeal Court set aside the judgment on procedural grounds (there had been no tape-recording of the oral proceedings). The case was referred back to the same court with three judges, two of whom had participated in the first hearing of the case. The applicants, who had unsuccessfully challenged those two judges, were again convicted and given the same sentences. Their appeals were rejected by the Court of Appeal and by the Court of Cassation. The Constitutional Court emphasized that under domestic law a case could only be referred back to a differently composed court when the decision appealed against had been set aside because of a substantive defect.

Inadmissible under Article 6 § 1 – An obligation of impartiality could not be used as the basis for a general rule that an appellate court, after setting aside an administrative or judicial decision, should be obliged to remit the case to a different judicial body or to the same body with a different composition. In the present case, Portuguese law itself made a distinction between instances where the case was referred back after a judgment had been set aside or quashed by the higher court because of a substantive defect that irreversibly vitiated that judgment and instances where a procedural issue was concerned. Whilst it was not difficult to understand that, in the event of a substantive defect, the accused might fear bias on the part of the judges called upon to rehear the case, this was hardly true in the event of a procedural issue. In the present case, after the appeal court had referred the case back, the court below was simply required to keep a tape-recording of the oral proceedings and no new elements had been introduced: manifestly ill-founded.

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

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