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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 12148
Experience:  Barrister 17 years experience
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I have a case awaiting judgement in a Portuguese court for

Customer Question

I have a case awaiting judgement in a Portuguese court for over 4 years.
JA: Have you talked to a lawyer about this? In which country do you live? If different, which country is your legal question related to?
Customer: I live in England, my question relates to the ECoHR Article 6
JA: What steps have you taken so far?
Customer: Have no faith in the Portuguese judical system, therefore intend to appeal to the ECoHR. My question is, having suffered the unlawful indecision, can the case be withdrawn, due to fear of an incorrect decision being given, prior to being hear by the European Judge?
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Just wish to know if withdrawing my case will weaken or damage my appeal for justice
Submitted: 7 months ago.
Category: Law
Expert:  Virtual-mod replied 6 months ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 6 months ago.
I will wait for you to find a professional to answer. Please keep me updated. (European guidelines dictate that if a judge does not give a verdict within two years their inaction is considered unlawful). Therefore this particular judge is at best unreliable.
Expert:  Buachaill replied 6 months ago.

Hello, and thank you for your question. I am your Expert and I will provide the answer you require.

Expert:  Buachaill replied 6 months ago.

1. The first thing you need to realise is that the European Court of Human Rights don't rehear a case which has been brought before a National Court. So, it is not possible to take this current case you have brought, away from the Portuguese judge and present it to the ECHR. Instead, separate and new proceedings are issued dealing with claims under the articles of the European Convention on Human Rights, alleging that there has been a breach of several of its provisions.

Expert:  Buachaill replied 6 months ago.

2. In your situation, you could currently, issue a claim before the European Court of Human Rights alleging a breach of Article 6 and Article 13 of the ECHR, alleging that there has been excessive delay in the judge reaching a decision and that you have been denied an effective remedy as a result. Be aware that you might have additional claims for breach of the ECHR, depending upon the facts of your case, which a lawyer would be better able to advise upon, having read the case papers. However, the European Court cannot take hold of your current case before the Portuguese courts and give a judgment upon what has been presented before the Portuguese courts. They cannot step in and give judgment or remedy the mess the Portuguese judge has made of proceedings.

Expert:  Buachaill replied 6 months ago.

3. It is also a requirement for the Admissibility of cases before the European Court of Human Rights that you must have exhausted domestic remedies in Portugal before you take proceedings before the ECHR. So, you should speak to a Portuguese lawyer and see if there is some way you can compel the Portuguese courts to give a decision before you start proceedings before the ECHR. However, if no decision can be given, other than by the judge that heard the case, then you will be taken to have exhausted domestic remedies and your case will be admissible to the ECHR.

Expert:  Buachaill replied 6 months ago.

4. If you have any other queries relating to the situation, I will be happy to provide additional guidelines for you. However, given that four years have elapsed without a decision, I would suggest you seek to do something about the matter. Given the circumstances, it is likely that the judge has lost papers and his notes relating to the case, so is not in a position to give a judgment as he lacks materials to do so. Accordingly, it might be a mercy to all persons, including the judge, if something were done to take the case away from him and have it dealt with by some other judge or tribunal.

Expert:  Buachaill replied 6 months ago.

5. Thank you for using the website. Please Rate or Accept the answer as unless you do so your Expert will not receive payment from the website despite answering your question.

Customer: replied 6 months ago.
Dear Mr Buachaill, Thank you for your reply. The Portugal judicial system is different,the judge has not lost my file; my case when heard in court will put an ex President,(lawyer), in prison for 9 years, after bankrupting him and his associates and enforce a loss of lost profit award against a Council.I am advised that Portuguese judges are dictated to by politicians. My solicitor has been threatened by his employees, needing to call the Police. She has failed to take my instructions. I noted in Guide on Article 6 of the Convention, Right to a Fair Trial, civil limb; 1.44. The right of access to a court must be ''practical and effective'' ...''have a clear, practical opportunity to challenge an act that is an interference with his rights''. Also, in Protecting the Right to a Fair Trial, page 9, ''As a rule, a person can claim to be a ''victim'' of a violation of Article 6 only if the proceedings are over..... 'There are exceptions though, in that a breach of the ''access to a court'' or the ''reasonable time'' requirements may occur without final judgement. It is not that l wish the ECHR to rehear my case, indeed l have been informed that it will not be heard in Strasbourg, but the European Judge will direct the Portuguese judge to administer a verdict under Portuguese Law. But, at this stage, knowing that the Portuguese judge is comfortable to act unlawfully l have no confidence, l expect her to give the wrong decision, thereby enforcing my case back into the opaque Portuguese appeal system. I wish to withdraw my case to avoid this torturous event. However, if l withdraw my file, will this weaken my appeal to ECHR, or do l have to sit worrying to see if the Portuguese judge will act unlawfully again. I am hoping that the unlawful act has occurred and is well documented, thereby enabling my file to be withdrawn. Thereby, l can appeal to the ECHR, as l have not had access to court within a reasonable time frame.
Expert:  Buachaill replied 6 months ago.

6. Withdrawing your legal action at this juncture would be highly foolish. The ECHR would not be able to help you if you adopt this course. Essentially, you should seek to take legal proceedings as you said before the ECHR who will compel the Portuguese court to give a decision. However, you can ask that the matter be handled by a different judge and seek that the ECHR give directions that this course is adopted.

Expert:  Buachaill replied 6 months ago.

7. However, if there is not a live set of legal proceedings in Portugal, the ECHR will probably only give you a paltry sum in money damages, like for instance happened with Mikhail Khodorkovsky in his Article 6 case against Russia. You need to have a set of legal proceedings going in Portugal which the ECHR can direct should be dealt with in a proper manner, as ultimately, your primary remedy will come from the Portuguese courts and not from the ECHR, which only has an advisory and human rights role.

Expert:  Buachaill replied 6 months ago.

8. Please note that I do not offer the Live Phone Call service. So, you can continue the chat. Please be sure to Rate the answer.