Disciplinary Law - judges
Independence of the courts;
Right to fair process;
Right of appeal;
Guarantees in criminal procedure;
Non-criminal sanctionative proceedings;
Principle of the independence of the courts;
Impartiality of judges.
RULING No. 327/13
12 of June of 2013
The attribution to a Chamber of the Supreme Court of Justice (STJ) of the competence to hear appeals against decisions taken by the Supreme Judicial Council (CSM), namely in disciplinary matters, is not in breach of the constitutional guarantee of the independence of the courts and is therefore not unconstitutional.
The 1989 constitutional review made the organisation of the exercise of the administrative jurisdiction autonomous. There were various reasons for this move: Administrative Law is technically complex and its theory stands apart from that of the other branches of the law; case law is particularly important to the definition of its general principles; and there is a generic advantage to be gained from entrusting administrative cases to judges who are especially aware of the limits on the control of acts undertaken as part of the administration’s exercise of the freedom to take decisions within its sphere of action. The constitutional norm which says that the administrative courts have the competence to try contested actions and appeals whose object is to settle disputes arising from administrative and fiscal legal relations, thereby making those courts the common jurisdiction in administrative matters, does not absolutely reserve competence to them. When justified, the ordinary legislator can give other courts the competence to decide such appeals in one-off situations. What is necessary is for the essential core of the material organisation of the different jurisdictions to be respected in a way that does not disfigure the areas of autonomy enshrined in the Constitution, and for any exceptional solutions that deviate from the constitutional clause which defines the area of competence of the administrative courts to be sufficiently justified.
The appellant, who is a judge, alleged that various norms contained in, and normative interpretations of, the Statute governing Judicial Magistrates (EMJ) and the Disciplinary Statute governing Workers who Exercise Public Functions (EDTFP, which is subsidiarily applicable to disciplinary proceedings involving judges), were unconstitutional.
The norm at the heart of this appeal on the grounds of unconstitutionality says that the competence to hear appeals against decisions of the Supreme Judicial Council (namely in disciplinary matters) pertains to the Supreme Court of Justice. In such cases the STJ sits in a chamber composed of its longest-serving Vice-President, who has a casting vote, and a Justice from each of the Court’s regular chambers, whose appointment is also based on their seniority.
The appellant argued that this constitutes an insufficient differentiation between the entity ad quem and the entity a quo, that there would be practically no possibility of an effective re-examination and ensuing alteration of a judgement, and that this violates: the constitutional principle that the competences to judge disputes arising out of administrative legal relations pertain to the Administrative and Fiscal Courts; the constitutional rights regarding the guarantees applicable to criminal proceedings; the right to effective jurisdictional protection; and the right to see her case examined fairly by an impartial entity – a right that is enshrined in both the Constitution of the Portuguese Republic (CRP) and the European Convention on Human Rights (ECHR).
The Court recalled its own jurisprudence on the exclusivity of the competence of the administrative courts, in which it has held that the constitutional norm does not preclude the ordinary legislator from pragmatically weighing up the areas in which matters of different natures intersect and distributing competences accordingly.
When the exercise of the administrative jurisdiction was made autonomous, the Supreme Administrative Court (STA) could have been an alternative entity to which to entrust the competence to judge appeals against decisions of the Supreme Judicial Council (which had thus far been attributed to the Plenary of the Supreme Court of Justice). Indeed, at first sight the STA would have been a natural choice, given the subject matter of such appeals.
The legislator decided to retain the initial solution. It did this both for historical reasons, and because the Justices of the STJ are very familiar with the realities that come before the Council and then lead to appeals.
The Constitutional Court accepted that this very proximity might raise questions as to the appeal court’s impartiality. However, while in principle the Justices of the STA possess a more detailed knowledge of the applicable law, the specificity of the matters raised in this kind of appeal nevertheless means that the Justices of the STJ are likely to be in a privileged position to control the acts in question. This may well be why it can be said that the legislator had sufficient legitimacy to maintain the solution under which it is the STJ that is competent to hear appeals against decisions taken by the Supreme Judicial Council, particularly in disciplinary matters involving judges.
On the question of the impartiality of the judges to whom it falls to rule on this kind of appeal, the ordinary legislator is required to create a legal framework that guarantees and promotes that impartiality as a means of fulfilling both the principle of the independence of the courts and the citizen’s right to fair process when he/she turns to them. The legislator cannot attribute the competence to decide a case to an entity that is objectively not in a position to maintain an adequate distance from the parties affected by its decision.
The Court said that the fact that the Justices who make up the STJ Chamber with the competence to hear appeals against Supreme Judicial Council decisions are themselves subject to management by, and the disciplinary power of, the latter, cannot be objectively seen as a factor that is capable of influencing their verdict in such cases. The relationship between the Council and these Justices is not a hierarchical one. The Justices are not only independent from the other seats of state power; they also possess an internal independence within the judiciary, under which the Council manages and disciplines them in accordance with rules that are set abstractly and in advance. Nor is the fact that, with the exception of the STJ’s longest-serving Vice-President, the members of this particular chamber are chosen by the President of the STJ, who is also ex oficio President of the organ against whose decision the appeal is being brought, likely to undermine their impartiality. This choice is not a free one – it is determined by the strict criterion that the choice must fall on one Justice from each of the Court’s four regular chambers, and that those Justices must be the longest serving in each chamber.
On the subject of the EMJ norm concerning the correct functioning of the STJ, as seen from the perspective of the European Convention on Human Rights provisions regarding the right to fair process, the Court took the view that the ECHR norms invoked by the appellant do not constitute autonomous parameters, because these rights are expressly enshrined in the CRP. Under the constitutional norm which requires that an accused person in proceedings that can lead to sanctions be guaranteed the rights to be heard and to a defence, the guarantees applicable to criminal proceedings also apply here. The Court found that none of these rights had been violated in the present case.
The Court also considered the question of whether the EMJ configures a breach of the constitutional principle of the presumption of innocence in criminal proceedings. It upheld its existing jurisprudence, under which it is firmly established that the principle that accused persons must be presumed to be innocent, which the Constitution expressly requires in the criminal procedural domain, is also essentially valid in the other domains in which sanctions can be imposed in general, and here in the disciplinary domain in particular. However, the Court also pointed out that it has never said that all the guarantees which the Constitution imposes in criminal proceedings are fully applicable in the disciplinary field.
The scope of the constitutional guarantee that sanctions-related proceedings must provide for the accused’s rights to a hearing and a defence simply means that it is unconstitutional to apply any type of administrative, fiscal, labour, disciplinary or other sanction unless the accused has previously been heard (right to a hearing) and can defend him/herself from the accusations that are made against him/her (right to a defence).
The appellant also alleged that the regime governing Constitutional Court costs was unconstitutional due to its specificity.
The Court said that this regime follows the general model applicable to court costs, which is then adapted in the light of the specificities of proceedings before the Constitutional Court. These specificities justify, for example, the rules whereby there is no initial fee and the Court’s own secretariat draws up the final account. The origins of the different cost regime applicable to the Constitutional Court lie in the latter’s specific autonomous constitutional status; and the power to approve the regime falls within the scope for shaping rules that is inherent in the exercise of the legislative competence which, in this field, the Constitution entrusts exclusively to the Assembly of the Republic.
For all these reasons, the Court declined to find the norms before it unconstitutional and denied the appeal.
The original rapporteur dissented from the majority opinion and was thus replaced in that role. In this Justice’s view, the norms before the Court remove the judgement of a matter that is essentially administrative from the jurisdiction of the administrative courts. She said that by excluding the review of decisions of the Supreme Judicial Council from the scope of the administrative jurisdiction, these norms are in violation of the constitutional norm that places the resolution of disputes arising out of administrative and fiscal legal relations within the competence of the administrative and fiscal courts.
The dissenting Justice interpreted the text of the Constitution as doing more than just prohibiting the decharacterisation of the administrative jurisdiction, and that this means that the legislator is obliged to do more than just safeguard an essential core of the material organisation of the various jurisdictions.
Rulings nos. 277/11 (06-06-2011); and 33/02 (22-01-2002).