Portugal, Supreme Court of Justice, Decision, 26th October 2016
Trust, freedom of expression of judges; integrity and diligence
Supremo Tribunal de Justiça
Supreme Court of Justice
75/15.8YFLSB
26th October 2016
Not available
The Court quotes EctHR jurisprudence in general, not any particular case
Trust – Freedom of expression of judges – Integrity and diligence
The legal issue here is to know what the reserve duty imposed on judges is.
More specifically, whether a judge can comment with the parties to the proceedings any question relating to the same proceedings, in a context other than that of judgment
Portuguese Constitution – articles 202, 203, 205 (1) and 216 (1)
Statute of Judicial Magistrates, approved by Law No. 21/85, of 30 July, in its current wording - article 7-B (1) and (2).
A judge, after a hearing and before the decision, made some comments to the defendants, leading them to believe that they would lose that action, without the judge having yet decided. This judge was subject to disciplinary proceedings. Dissatisfied, she appealed to the Supreme Court.
The Supreme Court gave the judge no reason. Is stated several important conclusions:
Both the Supreme Court and the High Council of Judiciary have interpreted Article 10 ECHR in line with paragraph 2 of the same article, which stipulates restrictions and limitations on freedom of expression (not only, but also, of judges). On this basis, these two bodies have made a rather narrow reading of the duty of reserve as enshrined in article 7-B of the SJM.
In part, one can speak of a consistent interpretation. As we said before, to limit the judge's freedom of expression in the context of this decision, the Supreme Court also makes use of Article 10 of the ECHR, concerning freedom of expression, namely paragraph 2 of that article.
Not applicable since we’re talking about the Supreme Court.
A conflict of norms was at issue: namely, between those that confer the freedom of expression and those who impose the duty of reserve. The court, adopting its understanding, and through a consistent interpretation, gave priority to the duty of reserve, contrary to what the appellant wanted.
Note on the general panorama of judges' freedom of expression in Portugal
In this decision, the Supreme Court of Justice does not make much use of case-law, since there is little jurisprudence in Portugal on the freedom of expression of judges. However, it makes use of the most important Deliberation of the High Council of the Judiciary (HCJ) on the duty of reserve of judges and consequent limitation of their freedom of expression, and we can use it as a basis to make a state of the art regarding the limitation of the freedom of expression of judges in Portugal.
In the deliberation of the Plenary of the HCJ of 11 March 2008, the HCJ bases the duty of reserve - which is currently enshrined in Article 7-B of the Statute of Judicial Magistrates (SJM) - on the "protection of impartiality, independence, institutional dignity of the courts, as well as [on] citizens' confidence in justice", combining these grounds with the "freedom of expression" (paragraph II). From here, the HCJ concludes that this duty "covers, in essence, the statements or comments (positive or negative), made by judges, which involve evaluative assessments about cases they are in charge of" (parahraph IV). If one notices, this is exactly the situation of this decision, which is the reason why this deliberation is cited: in fact, and taking into account the case, the judge in question made comments on a case he was in charge of, going against the SJM and the deliberation referred to. Moreover, the Supreme Court considers that such comments would only be admissible if, perhaps, they were part of a perspective of collaboration with the parties and their representatives, citing to this effect a 2006 Decision of the Italian High Council of the Judiciary – see, Sentenza de 24.11.2005/14.3.2006, n.º 146/2005, of the Consiglio Superiore della Magistratura.
Taking this case as a starting point and further analysing the deliberation, we note that it is also important insofar as paragraph VI of the deliberation states that the duty of reserve applies to "pending cases and cases which, although already finally decided, deal with undeniably topical facts or situations". In other words, judges have their freedom of expression limited both in relation to cases before them (as is the case of the current decision under analysis), and also in relation to those which, although already decided, are in the media.
This understanding becomes even more relevant when we cross-reference what follows from paragraph V of the deliberation: "all judges, even if they do not hold the cases, may be agents of the violation of the duty of reserve". Thus, in other words, even if a judge is not responsible for a case, he may not comment on the case, whether or not it is in the media.
It is important to note that these specific points of the deliberation did not meet with a consensus within the HCJ, with some members voting against, citing an excessive limitation on the freedom of expression of judges. This was the case of Alexandra Leitão and Edgar Lopes, who considered that this solution causes judges to be pushed into a "situation of impediment to participation in public debate on matters of the area of justice" and that the opposite solution would contribute towards keeping "wrong ideas (and even harmful to the image of Justice) of the existence of corporate solidarity" away from public opinion.
Even so, and as stated above, it was the opposite understanding that prevailed, which was materialised in the deliberation in question. This has been the understanding of the Supreme Court. And the High Council of the Public Prosecutor’s Office has a similar understanding for the respective magistrates - see, thus, the Deliberation of the High Council of the Public Prosecutor’s Office, of 15 October 2013, and article 102 of the Statute of the Public Prosecutor’s Service, approved by Law no. 68/2019, of 27 August.
Taking into account paragraphs IV and V of the HCJ Deliberation, it is important to note two recent cases that had some echo in society:
Also with regard to this duty, it should be noted that Article 7-B(2) of the SJM, in line with the Deliberation of the Plenary of the HCJ of 19 January 2011, states that judges may only make public statements or comments on any judicial proceedings when this becomes necessary for the defence of honour or other legitimate interest and if authorised by the HCJ. This is an attempt to reconcile the duty of reserve with freedom of expression, particularly in those situations where, from the outset, freedom of expression, when weighed against the duty of reserve, should prevail.
This is, therefore, the rationale behind possible conflicts between freedom of expression and the duty of reserve in relation to judges:
If we look at the decision under analysis, we see that it supports precisely this understanding. In fact, if it is true that it even refers to Article 10 of the ECHR, it is also true that, together with that reference, and in order to justify the framework just explained, it makes use of paragraph 2 of that same article, which provides limits and restrictions to freedom of expression, reaching the conclusion that the duty of reserve is part of those restrictions.
In fact, this understanding is not unusual, to the extent that, as we have been showing, it fits an understanding that is supported both in the HCJ and in the courts, namely in the Supreme Court of Justice. To better understand this, see the following two decisions:
These examples are important because, invoking the judge's freedom of expression and the duty of reserve contained in the SJM (which, at the time, had a wording that was very similar to the current one), they reach the conclusion that, even when the assumptions for the application of that duty are not fulfilled, the judge's freedom of expression is still limited in view of his or her "status" and "special responsibilities" - in reality, and as the first decision argues, "one cannot speak on television (. ... the same that one speaks or says at home with and to friends, or at a coffee table with colleagues: the demands are different, the audience is different, the degree of danger is incomparable. What can be seen as a simple and inconsistent venting (...), in the other becomes news and is treated as such".
We therefore conclude that Portugal is characterised by still having a limiting framework for the freedom of expression of judges, imitations that may act on two levels:
CIDP_Trust_5: Rule of law, freedom of expression of judges; relationship with the media.