Judiciary Law – Disciplinary Law – Statute governing Judges and Magistrates
Proceedings that can lead to the imposition of sanctions;
Appeals against administrative acts;
Guarantees of the defence;
Right of judicial appeal;
Two levels of jurisdiction.
RULING No. 345/15
23 of June of 2015
The Constitutional Court found no unconstitutionality in a norm in the Statute governing Judges under which the Litigation Chamber of the Supreme Court of Justice (STJ) is the only jurisdictional instance with the competence to decide appeals against administrative acts of the Supreme Judicial Council (CSM), including those that impose sanctions. The Constitution of the Portuguese Republic (CRP) expressly enshrines the right to appeal to another court in criminal proceedings, but not in administrative or civil ones. It is constitutional jurisprudence that in disciplinary cases, the constitutional norm under which accused persons have the right to a hearing and a defence in any proceedings in which sanctions can be imposed does not extend the guarantee of the right to appeal to the extent of making it a constant dimension of the guarantees available to the defence. In this respect the Constitutional Court had already said in the past that the CRP does not require the ordinary legislator to include the right of appeal in non-criminal proceedings or in situations in which no jurisdictional decision violates a fundamental right, thus leaving the legislator with a broad margin within which it is free to determine whether or not it is possible to appeal against judicial decisions in other situations.
The Court found that the present case did not involve the possibility of a breach of a fundamental right by a jurisdictional decision, given that even if such a breach had occurred, it would have been derived from an administrative decision – that of the CSM – which was the object of jurisdictional control by the Litigation Chamber of the STJ.
Inasmuch as this case concerned a matter in which the CRP does not require there to be more than one level of jurisdiction, the Court found no violation of the right to appeal in the normative solution under which challenges against disciplinary decisions handed down by the CSM are only heard by a single instance.
This concrete review case entailed an appeal by a judge who was sentenced to compulsory retirement in disciplinary proceedings, whose appeal to the Litigation Chamber of the Supreme Court of Justice (STJ) was denied, and who wanted to appeal to another instance, but was unable to do so. The question before the Constitutional Court was whether it is constitutionally admissible for the Litigation Chamber’s decisions in disciplinary matters not to be open to appeal.
The Constitution (CRP) provides accused persons in proceedings that can result in the imposition of sanctions with a number of guarantees. One of them is that it is unconstitutional to impose any kind of sanction – be it administrative (including an administrative fine), fiscal, labour-related, disciplinary, or any other type – unless the accused has first been heard (right to a hearing) and can defend him/herself against the accusations (right to a defence), including by presenting evidence and requiring the authorities to take certain steps to determine the truth. When these kinds of proceedings enter the jurisdictional phase – i.e. when the initial non-judicial decision has been challenged before the courts – the accused enjoys the same generic guarantees applicable to all judicial proceedings.
The right to appeal consists of the ability to challenge a decision by submitting the judgement to another, hierarchically superior, organ in the judicial structure. The general rule in the Portuguese procedural system is that judicial decisions can be appealed to higher instances. However, the CRP does not expressly and generically enshrine a right to two levels of jurisdiction, except in the case of decisions involving criminal convictions and decisions in criminal proceedings in which the accused person’s freedom or any other fundamental right is restricted or taken away. Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms also distinguishes penal situations, expressly saying that: “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal”.
There are various constitutional precepts from which one can deduce an implicit general right to appeal. This means the ordinary legislator cannot do away with the ability to appeal in all and any circumstances, inasmuch as this would empty the competence of higher courts of any practical significance and would leave the constitutional provision for it without any useful content. However, as long as it respects this limitation, the ordinary legislator enjoys a broad margin within which it is free to shape the right to appeal.
Outside criminal proceedings, it has been argued that the right to appeal against decisions that affect rights, freedoms and guarantees to which the CRP affords its protection is included in the principle of a democratic state based on the rule of law. Legal doctrine has gradually accepted that when a court’s actions directly affect a citizen’s fundamental right, even outside the penal area, the citizen must be recognised to possess a right to have his/her situation considered by another court. However, when the origins of the effect on the fundamental right lie in an action taken by the Administration and that action has already been jurisdictionally controlled, the CRP does not always require the control decision itself to be the object of judicial review.
The Constitutional Court considered the question of whether the fact that there are two possible levels of appeal against decisions of the Supreme Council of the Administrative and Fiscal Courts (CSTAF), but only one against decisions of the CSM, violates the principle of equality. In this respect it took the view that these are not situations that constitutionally call for the same legal treatment, nor does this inequality appear arbitrary, in that it is derived from the existence of different structures and organisations within the Supreme Administrative Court and the Supreme Court of Justice.
The constitutional guarantee of the right to appeal is not limited to the dimension that requires the ordinary legislator to provide for a level of appeal in certain cases, nor does it allow the legislator to adopt arbitrary or disproportionate solutions, even in the case of appeals that are only provided for in the ordinary law and are not imposed by the Constitution.
The Court said that from this perspective it can only reprimand the legislator for making unreasonable choices when the latter either differentiate between persons or situations that deserve equal treatment, or on the contrary handle them in the same way when they warrant different treatments.
Other than in these circumstances – and namely when what is at issue is whether one legal system is simply “less rational” than another – the Constitutional Court is not able to issue findings of unconstitutionality, and this was its conclusion in relation to the present case.
See Rulings nos. 210/86 (18-06-1986); 8/87 (13-01-1987); 31/87 (28-01-1987); 65/88 (23-03-1988); 163/90 (23-05-1990); 202/90 (19-06-1990); 336/95 (22-06-1995); 373/99 (22-06-1999); 33/02 (22-01-2002); 659/06 (28-11-2006); 135/09 (18-03-2009); 546/11 (16-11-2011); and 774/14 (12-11-2014).