Portugal, Supreme Court of Justice, 134/15.7YFLSB, Supreme, 23.06.2016
Member State
Portugal
Topic
Freedom of expression
Sector
Freedom of Expression and Association
Deciding Court Original Language
Supremo Tribunal de Justiça
Deciding Court English translation
Supreme Court of Justice
Registration N
134/15.7YFLSB
Date Decision
23.06.2016.
ECLI (if available)
N/A
National Follow Up Of (when relevant)
N/A
EU legal sources and CJEU jurisprudence
N/A
ECtHR Jurisprudence
Article 10 of the ECHR
Subject Matter
Whether a judge, when questioning a witness in court, can use offensive language towards that witness, demonstrating a possible violation of the duty of correctness to which judges are obliged. At the same time, whether such language falls within the scope of the judge's exercise of freedom of expression.
Legal issue(s)
What is the extent of the duty of correctness and the freedom of expression of judges, especially when questioning witnesses in court?
Request for expedited/PPU procedures
No
Interim Relief
N/A
National Law Sources
Portuguese Constitution; Statute for Judicial Magistrates (Law No. 67/2019, of 27 August).
Facts of the case
During witness hearings, a judge behaved disrespectfully towards the witnesses. In a first situation, after the witness stated that he couldn't remember the names of certain people he had been in contact with, the judge in question started shouting at the witness in full court, with the aim of forcing him to reveal those names, behaviour that was perceived by the witness's lawyer as pressure on the part of the judge; in another situation, the same judge, visibly under the influence of medication or excessive alcohol consumption, belittled another witness, making derogatory comments and making fun of the fact that the witness, as a minor, had witnessed the death of his mother by his own father. These facts come to the attention of the Superior Council of the Judiciary, which condemned that judge for several disciplinary infractions, namely fines and compulsory retirement of the judge. Unsatisfied, the judge appealed against this decision to the Supreme Court of Justice, alleging, among other things, that his freedom of expression was unduly restricted by that decision.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
The Court did not agree with the judge. Specifically, the Court understood that the language used contained a patent lack of correctness, urbanity, and disrespect for the dignity of the defendants, whose procedural rights the judge failed to observe. For the Court, the duty of correction requires judges not only to refrain from using offensive remarks, capable to diminish honour or dignity, but also to abstain from making unnecessary and unjustified statements that have nothing to do with the trial. For the Court, the duty of correction was thus violated. At the same time, because it was not an isolated situation, but revealed a repetition of behaviour, the Supreme Court considered that the sanction imposed on the judge was not excessive and therefore met the requirements of the principle of proportionality.
Relation of the case to the EU Charter
The judge in question, in his argument, referred that his freedom of expression, besides being enshrined in the Constitution of the Portuguese Republic, was (and is) also provided for in the Charter of Fundamental Rights of the European Union (CFREU) and in the European Convention on Human Rights (ECHR).
According to the judge, these fundamental rights allow for exceptional and limited restrictions, notably by virtue of specific professional activities or the context in which they are exercised, provided that the objectives to be achieved with the restriction are legitimate and proportionate. However, for the judge, and in this case, no limitation existed capable of justifying the restriction on his freedom of expression, so the decision of the Superior Council of the Judiciary was, in his view, in violation of European Union law.
Since the case was being heard in the Supreme Court of Justice, whose decisions are not subject to appeal, and because it was a matter of interpretation, the judge believed that the Supreme Court of Justice was obliged to refer a preliminary reference to the CJEU.
The Supreme Court, however, did not agree with him. Indeed, according to the Supreme Court, the Charter does not confer a general competence for intervention in matters of fundamental rights. Since Member States have their own systems for protecting fundamental rights and the Charter does not replace them, it is the national courts that must ensure respect for fundamental rights, without the need for any preliminary reference regarding the legal issues raised. In other words, it seems to follow from the Supreme Court's argumentation that this court understood that it was not dealing with a matter of European Union law - either because no provision of European Union law was applied, or because the interpretative issue raised did not concern European Union law, but rather a decision of the Superior Council of the Judiciary.
Relation between the EU Charter and ECHR
N/A
Use of Judicial Interaction technique(s)
Taking into account what was previously discussed regarding the case's relationship with the CFREU, it appears that the Supreme Court adopted a kind of consistent interpretation, particularly concerning situations in which European Union law can (and should) intervene. For the Court, and in line with what follows from the Treaties and the case law of the Court of Justice of the European Union, a preliminary ruling should only be referred to the CJEU if it concerns the interpretation of the treaties of the European Union or the validity (and interpretation) of acts adopted by the institutions, bodies or organisations of the Union. As what was at issue was a sanctioning decision by a Superior Council (namely the Superior Council of the Judiciary), which did not apply European Union law, the Supreme Court, being faithful to the consideration described above, ruled out any possible question relating to European Union law, which, in this case, seems to have been falsely raised by the judge.
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
N/A
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
N/A
Strategic use of judicial interaction technique (purpose aimed by the national court)
N/A
Impact on Legislation / Policy
N/A
Notes on the national implementation of the preliminary ruling by the referring court
N/A
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
N/A
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
N/A
Did the national court take into account national case law on fundamental rights?
N/A
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
N/A
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
N/A
Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
Other
N/A
(Link to) full text
Author
Afonso Brás, Lisbon Public Law Research Centre/University of Lisbon School of Law
History of the case: (please note the chronological order of the summarised/referred national judgments.)
- Portuguese Supreme Court of Justice, Judgement No. 134/15.7YFLSB, 23 of June 2016
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