Freedom of expression

Freedom of Expression and Association

Supremo Tribunal de Justiça

Supreme Court of Justice

07P1521

17.04.2008

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Knowing whether a judge writing a response to a lawyer's opinion article, using inelegant language, and publicly sharing that same response in various places, is still within the limits of the judges' freedom of expression.

What is the extent of the freedom of expression of judges.

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Portuguese Constitution; Statute for Judicial Magistrates (Law No. 42/2005, 29 August).

A., a lawyer, wrote an opinion article in a well-known Portuguese newspaper in which he criticized the allowances to which certain judges were entitled, particularly about the tax regime from which these same allowances benefited. B., a judge in Guimarães Court of First Instance, responded to this article, criticizing the opinion expressed by A., by claiming that lawyers lived in a "pornographic fiscal untruth", that the lawyer in question "lacked courage" and that the opinion he wrote was "circus-like".

B's conduct, however, did not stop there. In fact, not only did he write the opinion article in response to A., but he also posted both articles (of A. and B.) in various places in the court where he performed his duties with the authorization of the Court’s President. Having this situation come to the attention of the Superior Council of the Judiciary, this body condemned B. for a disciplinary infraction, namely a recorded warning. B. appealed to the Supreme Court of Justice.

The Court did not agree with the judge's reasoning, although it did agree that the sanction applied was not necessary. Specifically, it understood that the judge violated his duty of correction. For the Supreme Court, the judge did not violate the duty of correction because he wrote an offensive letter to lawyers intended for publication in a weekly newspaper. Instead, the Court found a violation of that duty because, he publicized the same letter in the building where he works and where, therefore, he is the judge and not a person within the scope of his private life, thus offending, in the exercise of his relationship with public service users, some of them. Thus, for the Supreme Court, the right to good name of lawyers does not have to give way, in this case, to freedom of expression, in the sense of being able to affirm that in the name of the right to freedom of expression, offense is possible.

However, despite this conclusion, the Supreme Court ruled that the sanction applied - a recorded warning - was not necessary.

In fact, the Court looked at the crime of offence against honour, as laid down in the Portuguese Criminal Code, and drew the conclusion that if an offence against honour is in response to another offence - and in this case it was, because B's article was in response to A's - then the penalty can be waived. If this is the case in the criminal field, then the Superior Council of the Judiciary should have done similar reasoning and applied an equivalent disciplinary sanction, namely an unrecorded warning. Having failed to do so, the disciplinary sanction imposed on B., was excessive.

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