WORKSHOP DISCIPLINARY PROCEEDINGS AGAINST JUDGES AND PROSECUTORS IN UKRAINE DISCIPLINARY LIABILITY OF JUDGES AND PROSECUTORS WITHIN NATIONAL SYSTEMS PORTUGAL KYIV, OCTOBER 20, 2018 JOSÉ MANUEL DURO MATEUS CARDOSO 2/27/2019`1 FOOTER GOES HERE

2 “Disciplinary Proceedings against Judges and prosecutors in Ukraine” WORKSHOP THE PORTUGUESE SYSTEM FOR DISICPLINARY LIABILITY OF JUDGES José Manuel Duro Mateus Cardoso

3 The Portuguese system for judges‘ disciplinary liability is under total and exclusive control of the High Council for Judiciary. Its decisions on the matter can be subject of appeal to the Supreme Court of Justice.

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5 Body of Inspectors Body of 20 inspectors distributed in 18 geographic areas, responsible for carrying out the procedures on disciplinary matters (2) as well as evaluation inspections (18);

Disciplinary Offences 6 Disciplinary Offences Acts committed in violation of professional duties and acts or omissions of their public life or who are passed incompatible with the necessary dignity to the exercise of their functions.

Professional Duties of the Judges 7 Professional Duties of the Judges The duty of administration of justice The duty to abstain from engaging in public party-political activities, and non-occupation of political positions (except for President of Republic, Member of the Government, and member of the State Council) The duty of reserve/discretion (prohibition of making statements or comments regarding pending cases unless authorized by the Council).

Professional Duties of the Judges 8 Professional Duties of the Judges The duty of exclusive dedication The duty of attendance The duty of necessary domicile The duty of abstention of office in a Court where close relatives are, and in courts in which they exercised in the last five years service as prosecutors or as a lawyer Exemption (not take advantage, direct or indirect, pecuniary or other, for themselves or for others);

Professional Duties of the Judges 9 Professional Duties of the Judges Pursuit the public interest (its defense, respect for the constitution, for the laws and the rights and legally protected interests of the citizens) Impartiality (perform the duties with equidistance from the interests in confront, without discriminate, positively or negatively any of them, from the perspective of respect for the equality of citizens) Zeal (know and apply correctly the laws and regulations, performing the functions using the right skills)

Professional Duties of the Judges 10 Professional Duties of the Judges Loyalty (perform the functions subordinated to the objectives of the service); Confidentiality; Correction (respectfully treat colleagues, lawyers, clerks and other citizens); Punctuality (reporting to work regularly and continuously, at the designated hours); Information (provide the citizen, in legal terms, the requested information, with the exception for those that cannot be disclosed).

Participated Any Disciplinary Relevant Behavior Regarding a Judge 11 Participated Any Disciplinary Relevant Behavior Regarding a Judge Possible Interventions of a member of the High Council: Immediate rejection of the complaint; Ask complementary information to the judge; After the reply, rejection of the complaint or dispatch to the Permanent or the Plenary Council for decision on opening a disciplinary procedure or inquiry. From the decision of a single member of the High Council rejecting a complaint, a claim can be presented to the Permanent or Plenary Councils.

First intervention of the Permanent or of the Plenary Council 12 First intervention of the Permanent or of the Plenary Council reject the complaint. start a disciplinary inquiry (if needs to know more relevant elements about who is the judge involved or about the concrete situation). or start a disciplinary procedure.

First intervention of the Permanent or of the Plenary Council 13 First intervention of the Permanent or of the Plenary Council The decision must be taken within 30 days after the Permanent or the Plenary Council became aware of the disciplinary facts, but never 1 year after the facts happened. From the Permanent’s or Plenary’s decision rejecting a complaint, there is no claim or appeal.

If Ordered a Disciplinary Inquiry 14 If Ordered a Disciplinary Inquiry One of Judicial Inspector takes the case. in 30 days, after investigation, reports and proposes the archiving or the opening of disciplinary proceedings. then, the Permanent or the Plenary Council decides on those proposals.

If Ordered a Disciplinary Procedure 15 If Ordered a Disciplinary Procedure the Inspector initiates the case and performs all the necessary steps to collect evidence and reach a conclusion, proposes the archiving or produces an accusation.

If Ordered a Disciplinary Procedure 16 If Ordered a Disciplinary Procedure After the indictment, the judge can present his defense, call witnesses, attach documents or require other measures or acts.  At the end of the procedure, the Inspector provides a final report proposing the archiving or proposing a sanction. 

If Ordered a Disciplinary Procedure 17 If Ordered a Disciplinary Procedure The procedure is, then, randomly distributed to a member of the High Council, who will be the rapporteur, and will propose the archiving or a sanction. The High Council will decide (Permanent or Plenary Councils) and the Judge may appeal against the decision to the Supreme Court of Justice. The Disciplinary Procedure must be finished within 18 months and it’s confidential until the final decision.

Preventive Suspension 18 Preventive Suspension During the disciplinary inquiry or procedure the Judge can be preventively suspended under the Inspector’s proposal… if there is the perspective of imposing, at least, the sanction of the transfer… and if the continuation in office may be prejudicial to the investigation of the case, to the service or to the prestige and dignity of the function. The suspension cannot last more than 180 days, with exceptional possible extension for more 90 days, and the judge continues to receive his salary.

19 Possible Sanctions Reprimand (to minor faults that cannot pass without notice or remark) which may not be subject to registration and may be imposed independently of disciplinary procedure, if the defendant doesn’t oppose to that;   Fine (between 5 and 90 days) for cases of neglect or indifference to fulfill the duties. Implies discount in the salary; Transfer (placement outside the jurisdiction of former court, in the same category) in case of break of the necessary prestige in the court where the judge exercises the functions. Implies loss of 60 days of seniority;

20 Possible Sanctions Suspension (removal from service - 20 to 240 days) for serious negligence or indifference to fulfill the obligations or if sentenced to imprisonment, unless the criminal conviction imposes penalty of dismissal. Implies loss of seniority, loss of salary and loss of time to retirement and may involve transfer and no possibility of promotion for 1 year;

21 Possible Sanctions Inactivity (removal from service between 1 year and 2 years) for serious negligence or indifference to fulfill the obligations or if sentenced to imprisonment, unless the criminal conviction apply penalty of dismissal. Implies loss of seniority, loss of salary and loss of time to retirement and may involve transfer and no possibility of promotion for 2 years;

22 Possible Sanctions Compulsory retirement for cases of permanent incapacity to adapt to the demands of function, lack of honesty, immoral or dishonorable conduct, occupational disability, abandonment of position, conviction for crime with serious and flagrant abuse of the function or with obvious and serious violation of the duties inherent to it. Implies disconnection from service and loss of rights and privileges conferred by Judges Statute, keeping the right to the pension fixed by the same statute;

23 Possible Sanctions Dismissal (removal of the judge with loss of all links with the Judges Statute) for cases of permanent incapacity to adapt to the demands of function, lack of honesty, immoral or dishonorable conduct, occupational disability, abandonment of post, conviction for crime with serious and flagrant abuse of the function or with obvious and serious violation of the duties inherent to it. Only keeps the right to ordinary State pension for retirement, according to his seniority.

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25 Disciplinary Record The Portuguese High Council has a record of the imposed sanctions on judges, and they can only be removed, at request, if deserved by his after good conduct. (possible after 6 months for reprimand, after 1 year for fine, after 2 years for suspension or inactivity, and after 3 years for compulsory retirement or dismissal but without possibility to go back to office).

Classification of Mediocre attributed to a Judge 26 Classification of Mediocre attributed to a Judge During an Evaluation Inspection, the classification of "Mediocre" implicates the suspension of the judge from the exercise of his functions and the opening of an inquiry in order to determine his incapacity to exercise his functions, which can lead to a decision of compulsory retirement or dismissal, which is not considered a disciplinary sanction

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Thank you very much for your attention