1. Judicial High Council (CSM) Contentious
Practical Approach

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

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

4. 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 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)

5. 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)

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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%

14. 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
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

15. 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
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

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