Freedom of expression

Freedom of Expression and Association

Supremo Tribunal de Justiça

Supreme Court of Justice

24/20.1YFLSB

25.03.2021

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The case revolves around the question whether a judge, who is simultaneously the president of the Portuguese Judges’ Union Association, can write an opinion article in a newspaper about the ethical legitimacy of judges publicly assuming social, political, ideological, religious or other militancy, without thereby violating the duty of reserve that imposes on any judge.

What is the extent of the duty of reserve that applies to all judges and whether this obligation is different if a judge writes an opinion as President of a Union Association.

NO

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Article 7-B of the Statute for Judicial Magistrates (Law No. 67/2019, of 27 August)

A. was a judge at the Portuguese Constitutional Court, who resigned from that role after a disagreement over the drafting of a ruling. A. publicly recognises herself as a "feminist judge", and the main issue that led to this disagreement was that A., as a Constitutional Court judge, equated the crime of domestic violence with the crime of terrorism in a draft decision, prompting a vehement protest from her colleagues. Sometime after this episode, and also citing other arguments, A. ended up resigning as a Constitutional Court Judge.

The case (and its information) made it into the newspapers. B., who was a judge and president of the Portuguese Judges’ Union Association, wrote an opinion article in a newspaper, regarding A's resignation, criticizing some of the positions that A. had taken. In particular, B. questioned whether it was permissible for judges, in their decisions, to express personal convictions that are lateral to the reasoning of those decisions, citing, for this purpose, the Ethical Commitment of Portuguese Judges, which states, precisely, that judges should not use their decisions to express personal opinions or considerations of a political, ideological or religious nature, which are not strictly necessary for the respective reasoning and are manifestly far removed from the subject of the case.

A., in turn, understood that the judge could not have written that same article, since, by doing so, he violated his duty of reserve, at the same time offending the honour of A. Based on this consideration, she requested the Superior Council of the Judiciary to initiate disciplinary proceedings against B. However, the Superior Council of the Judiciary disagreed with A. Unsatisfied, A. appealed to the Supreme Court of Justice, asking the court to reverse the decision of the Superior Council of the Judiciary and sentence B. to disciplinary action.

The Court did not agree with A. After an extensive reference to the ECHR and the jurisprudence of the ECtHR, the court understood that B's actions did not call into question the duty of reserve arising from the provisions of article 7-B of the Statute for Judicial Magistrates, since B: i) acted as president and representative of a union association, and not as a judge, in the performance of his duties as a judge; ii) commented on matters relevant to the exercise of the judicial function and included in the respective Union’s Statutory purpose, Article 2 of which states that one of the missions of the Portuguese Judges’ Union Association is to promote the dignity of the judiciary and defend the cohesion of judges.; and, above all, iii) he did not comment on a specific legal process, but only on news that was published by several newspapers (of a public nature).

Thus, the Supreme Court of Justice concluded that the statements in question were not made in gratuitous terms, aimed at defaming or offending A., nor did they have any defamatory intent, there being no gratuitous slanderous criticism aimed at affecting the plaintiff's personal qualities. For this very reason, and in line with ECtHR case law, the Supreme Court gave precedence to B's freedom of expression over an alleged offence against A's honour.

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Consistent interpretation, as stated in the previous point.

The Court, to support its decision, not only cites jurisprudence from the European Court of Human Rights, but also national jurisprudence, either from the same court or from the Portuguese Constitutional Court.

There is a relationship with the ECHR, namely with its article 10, relating to freedom of expression, since the Supreme Court took care, as a preliminary question, to understand how this right is interpreted by the ECtHR, with the aim of the decision to be in line with the jurisprudence of this court - that is, to guarantee the same level of protection.

To solve a conflict of norms between the freedom of expression and the duty of reserve.

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Afonso Brás, Lisbon Public Law Research Centre/University of Lisbon School of Law