Judicial High Council (CSM) Contentious Practical Approach 20-03-2018

(CSM) JHC CONTENTIOUS: SYNTHESIS JHC decision-making competence Administrative Warranties Precautionary Measures Prognosis Contentious Appeal

DECISION-MAKING COMPETENCE IN THE JHC (CSM) Plenary President Vice-President Members (Vowels)

DECISION-MAKING COMPETENCE IN THE JHC (CSM) Complex web, with possibility of delegation and subdelegation of powers Delegation of tacit powers resulting from the LAW, with the possibility of revocation and concrete retrieval of the Plenary to the Permanent, as to the competence of appreciation of the professional merit and disciplinary action of the Judges – articles 149 and 152 of the Statute of Judicial Magistrates (EMJ) Delegation of separate powers Practice of urgent acts by the Vice-President, subject to ratification by the Plenary, with retroactive effect – article 164 of the Code of Administrative Procedure (CPA) Plenary President Vice-President Members (Vowels)

ADMINISTRATIVE GUARANTEES Complaint against the author of the act : Articles 191 and 192 Code of Administrative Procedure Complaint or special administrative appeal to the Plenary of the acts practiced by the President, Vice-President, Members (Vowels) and Permanent Council - article 151 SJM (EMJ)

ADMINISTRATIVE GUARANTEES: REGARDING THE APPRECIATION OF PROFESSIONAL AND DISCIPLINARY MERIT Judges: SJM (EMJ) The preparation and inspection procedure it is up to the Council Inspective Services Decision –making authority delegated to the Permanent Council, without prejudice to retrieval by the Plenary Complaint of the decision to the Plenary , with a review Legal Officers: Law-Decree 343/99, of 26/08 The preparation and inspection procedure it is up to the Council of Legal Officers (COJ) Decision-making power of the Council of Legal Officers (COJ) Appeal of the decision to the Plenary , with a review

CONTENTIOUS APPEAL Articles 168 to 172 of the SJM (EMJ) Competent Court: Supreme Court of Justice (STJ) in the Contentious Section, consisting of the oldest Vice-President and one judge in each section, annually and by order of seniority Lack of Appeal for the Full-Fledged of the Supreme Court of Justice (STJ) Decision of the Constitutional Court (TC) 345/2015: Lack of a constitutional hindrance which imposes a double degree of jurisdiction in disciplinary matters and the operation of the contentious section with the full-fledged of its members

CONTENTIOUS APPEAL PURVIEW Annulment, declaration of nullity or non-existence of the act It is excluded the assessment of the convenience or opportunity and the possibility of replacing the JHC (CSM) in the practice of the contested act

CONTENTIOUS APPEAL LEGAL GROUNDS Competence Form Procedural formality Fulfilment of the obligation Misuse of power Use of rational and reasonable criterion Constitutional principles: equality, proportionality, adequacy, justice, impartiality, contradiction and presumption of innocence Manifest and gross errors in the assessment of facts Flawed preparation of the procedure Verification of the objective type of illicit Unenforceability of different conduct/behaviour Failure to rule Violation of the principle of statutory oneness

CONTENTIOUS APPEAL PROCEEDING Deadline 30 days View to the Public Prosecutor for 5 days Preliminary assessment by the rapporteur JHC (CSM) response in 10 days, accompanied by the procedure Summonsing of the interested parties Appellant JHC (CSM) and Public Prosecutor allegations in 10 days View to all judges in the section Decision to the rapporteur Extemporality, illegitimacy and manifest illegality of the appeal

PRECAUTIONARY MEASURE TO SUSPEND THE EFFECTIVENESS REQUIREMENTS The dismisses of the main request is not evident Unnecessary precautionary measures are not evident In a first glance judgment, the procedural assumptions of the main action are verified Probability of success of the main request Founded fear of establishing a fait accompli or producing damages that are difficult to repair The concession does not cause superior damage to those resulting from its refusal Limitation to the necessary to avoid injury to the interests advocated by the applicant It does not cover the suspension of exercise of functions but only the loss of salary

PRECAUTIONARY MEASURE TO SUSPEND THE EFFECTIVENESS PROCEEDING (SJM) Deadline: 30 days (CSM) JHC’s response in 5 days (STJ) SCJ’s decision in 10 days

STATISTICAL CURIOSITY In 2016: 32 Appeals went to the Appeal Court 34 Appels left the Appeal Court 9 granted 25 not granted Failure Rate of 73,52%

PROGNOSIS ECHR’s decision of 21-06-2016 Condemnation of the Portuguese State for violation of article 6 # 1 of ECHR, understanding that it does not grant judges access to a fair and equitable procedure Legal grounds: the control of the SCJ (STJ) is of pure legality , being forbidden the reassessment of the matter on fact and the review of the disciplinary penalty beyond its adequacy and proportionality ECHR’s decision of 21-06-2016 Draft law under discussion proposes that the action of impugnation of the disciplinary decision affects on both facts and points of law, with production of the required evidence and inquiry of 10 witnesses

LEGISLATION IN USE Statute of Judicial Magistrates, approved by Law 21/85, of 30/07 and subsequent amendments Organizational and Functioning Regime of JHC (CSM), approved by Law 36/2007, of 14/08 Internal Rules of Procedure of the JHC (CSM), approved by Deliberation 1722/2016, published on Official Journal (D.R.), 2nd series, of 10-11-2016 Code of Administrative Procedure (CPA) approved by Law-Decree 4/2015, of 07/01 Code of Administrative Courts Procedure (CPTA) approved by Law 15/2002, of 22/02

Thank You for your attention! Lisbon, 20 March 2018 Nuno Ribeiro