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Portugal / Supreme Court / 134/15.7YFLSB

Judge v the Supreme Judicial Council

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court of Justice
Decision date:

Key facts of the case: 

In this case, a judge appealed against a decision made the Supreme Judicial Council (Conselho Superior da Magistratura, CSJ) that sentenced him to a disciplinary measure based on his compulsory retirement owing to a breach in deontological ethics whereby he failed to act correctly, with urbanity, in pursuit of the public interest and with impartiality, while showing a lack of respect for the dignity of the defendants. The Supreme Judicial Council is the body responsible for exercising disciplinary action upon judges. The Council considered that the behaviour and attitude of the judge towards the defendants while presiding at their trial infringed upon the deontological rules of the profession as laid down in Article 82 in the Code of Judicial Conduct (Law 21/85 of 30 July). 

The appellant claimed that his behaviour fell within the scope of freedom of expression, referring to Article 11 in the Charter and demanded the right to a fair and equitable disciplinary procedure, underlining the disproportionate nature of the measure applied. The appellant likewise referred to the need for a preliminary ruling to be brought before the European Court of Justice for its interpretation of the rules governing freedom of expression. 

Outcome of the case: 

The appeal was dismissed. The Supreme Court considered that its intervention is only warrented when a crass error has been made in the application of a disciplinary measure, which was clearly not the case here. The Court further decided that the judge’s behavior was not in conformity with the context of freedom of expression, and thus confirmed a breach of deontological ethics. Concerning the preliminary ruling, the court considered that European Union Member States were legally bound to the Charter of Fundamental Rights of the European Union, and as such, the principle of subsidiarity holds good. This means, therefore, that the Member States are first and foremost subject to the fundamental rights laid down in their own country’s constitutions and, when they apply Union law, they also have to respect Union principles. The Supreme Court considered that the EU Charter of Fundamental Rights does not replace the [national] systems protecting fundamental rights; therefore, raising the question was deemed unnecessary.