Freedom of expression of judges

Supremo Tribunal de Justiça

Supreme Court of Justice

102/15.9YFLSB

27.01.2016

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To know whether the duty of reserve that falls on judges is absolute, or whether, on the contrary, it can be relaxed in some specific circumstances.

The case concerns the duty of judges to reserve judgement. Specifically, the question is whether a judge's breach of this duty is justified when it is made in the context of a complaint, with the judge acting as the complainant, with the purpose of fighting for the independent, impartial and correct functioning of the courts, and for the right to liberty of those who are deprived of it. The purpose of the case is to fight for the independent, impartial and correct functioning of the courts, and for the right to liberty of those who are deprived of it.

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Article 244 of the Portuguese Criminal Procedure Code; Article 31 (1) and (2) of the Portuguese Criminal Code; Article 20 of the Portuguese Constitution; Articles 1, 2, 3, 10 and 40, of Law No. 58/08, of 9th September, which approves the Disciplinary Statute for Workers in Public Service; and articles 12, 85 (1), 94 and 131 of Law No. 21/85, of 30th June, which approves the Statute of the Judiciary.

BB, a former Minister of Justice, was the subject of criminal proceedings. AA, a judge, decided to denounce the behaviour of the former minister, which she made public in an email. Because of this disclosure (which the judge calls a "denunciation"), the Superior Council of the Judiciary imposed a disciplinary sanction on the judge for, among other things, breaching her duty of confidentiality. The judge is contesting the application of this sanction before the Supreme Court of Justice, arguing that she did not make any public pronouncements about any cases she was the holder of or assigned to other magistrates, nor did she divulge any procedural documents or elements of a court case, and she also maintains that the content of the e-mail she received was not subject to any kind of reservation.

The Supreme Court begins by stating that the statutory duty of reserve imposed on judicial magistrates is based on the defence and protection of the values of impartiality, independence, the institutional dignity of the courts, as well as citizens' trust in justice, and respect for fundamental rights, in conjunction with freedom of expression. It goes on to add that under the terms of previous decisions taken by the Superior Council of the Judiciary, all judges, even if they are not the holders of the cases, can be the perpetrators of a breach of the duty of confidentiality. This last assertion is echoed in the jurisprudence of the Supreme Court of Justice, which, referring to the general duties that bind judicial magistrates, specifically the duty of propriety/correction, has already had occasion to state that the judge's "duties" also include a component outside the exercise of the procedural act, which includes other vectors, such as the functional relationship, an understanding that extends to all the statutory duties to which judicial magistrates are obliged, including the duty of reserve. After this explanation, it concludes that the disclosure of the email, which corresponds to the behaviour adopted by the judge, is part of this functional relationship and by conveying confidential information, transcends mere private writing, not covered by the duty of confidentiality.  Thus, in objective terms, there was a violation of the duty of confidentiality to which the judge was bound.

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In this case, the Supreme Court cites previous case law, as well as deliberations by the Superior Council of the Judiciary, to support its understanding.

In this case, there is a mismatch of understandings, since the interpretation given to the duty of reserve by the Superior Council of the Judiciary, as this duty is enshrined, was contested by the judge who was the subject of the disciplinary sanction. With this decision, which confirmed the understanding adopted by the Superior Council of the Judiciary, the Supreme Court of Justice clarified (and stabilised) that interpretation.

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Tiago Fidalgo de Freitas, Lisbon Centre for Research in Public Law (CIDP)