Accountability, Organization of the Judiciary; Council of the Judiciary; disciplinary, civil and criminal liability of magistrates (judges and prosecutors).

Supremo Tribunal de Justiça

Supreme Court of Justice 

Not applicable.  

2013

ECLI:PT:STJ:2013:15.12.6YFLSB.FD

Charter - articles 11.º, 20.º, 21.º, 41.º, 47.º, 48.º, N.º 1, 49.º, 51.º

ECHR - articles 6.º, N.ºS1 E 2, 10.º, N.ºS1 E 2, 14.º.

Organization of the judiciary; right to fair trial; freedom of expression of judges; presumption of innocence all in the context of disciplinary proceedings; compatibility with EU law.

• Right to a fair trial: are article 168.º, n.º 2 of the Statute of the Magistrates, in accordance with article. 212.°, n.º 3, of the Portuguese Constitution and arts. 47. of the Charter and 6.º, n.º 1, of the ECHR?
• Freedom of expression of judges: are arts. 82.º, 87.º and 92.º of the Statute of Magistrates as well as articles 3.º, n.º 2, al. h), 10.º and 16.º, al. a), of DL 58/08, de 09-09, applicable ex vi art. 131.° of the Statute of Magistrates in accordance with article 11.º of the Charter and article 10.º, n.º 1, of the ECHR?
• Presumption of innocence: are art. 127.º of the CPP, ex vi art. 131.º of the Statute of Magistrates in accordance with arts. 48.º, n.º 1, 20.º and  21.º of the Charter, and 6.º, n.º 2, 14.º of the ECHR?

Following disciplinary proceedings against a judge she decided to file an appeal to the Supreme Court of Justice. In the appeal, the judge explicitly asked the same Supreme Court to submit a preliminary ruling to the Court of Justice of the European Union on the above mentioned issues.

The Supreme Court of Justice did not however submit such a preliminary ruling to the Court of Justice of the European Union. It argued that Member States have their own systems for protecting fundamental rights through their constitutions and national courts and the Charter does not replace them. Consequently, it is for national courts to ensure, in the first place, respect for fundamental rights, without the need for any preliminary ruling on the questions of law raised. That's why the Supreme Court only decided the matter regarding the national law.

As there was no pronouncement by the CJEU, due to the fact that the Supreme Court of Justice did not submit a preliminary ruling, we are left without a decision on this issue and the rights provided for in the Charter. 

N/A

Despite not specifying them in the decision, the Supreme Court invokes jurisprudence of the Constitutional Court, as well as of lower courts, to support its understanding

Regarding disciplinary, civil and criminal liability of magistrates (judges and prosecutors), it should be noted that Portugal is part of a group of eight Member States where the authority deciding possible sanctions against judges is a Judicial Council, and not a court (specialized or not) or other body composed of judges[1]; Portugal is part of a group of four Member States where the investigator who will be responsible for the possible disciplinary procedure against a judge is chosen by the High Council for the Judiciary, and not by judges (outside this body) or the Minister of Justice[2]; and finally, Portugal is among most of the Member States in terms of appointments to the High Council of the Judiciary: the members of this body are proposed and elected by judges[3].

Thus, we see that there are still challenges related to the independence of the High Council for the Judiciary that, ultimately, are linked to the very idea of the Rule of Law.

[1] See, The 2020 EU Justice Scoreboard, p. 45.

[2] Page 46.

[3] Page 47.

https://jurisprudencia.csm.org.pt/ecli/ECLI:PT:STJ:2013:15.12.6YFLSB.FD