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Lusa Paiva

on 4 November 2016

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Transcript of LCPSCNCBP

What type of conduct should judges and public prosecutors assume in what regards to their online interventions in blogs or in social media?
Judges and Public Prosecutors online behavior
An international overview of the duty of discretion
Social networks, private life and freedom of expression
An international overview of the duty of discretion
On the verge of discretion
: Judges, Public Prosecutors and Social Networks

Portuguese Cases and Court Decisions
The way in which portuguese judges and public prosecutors are selected to perform their functions contributes to emphasize the need for an irreproachable ethical conduct.
The importance of the duty of discretion
One that preserves the freedom that is inherent to their human condition?
One that aims at ensuring their independence and objectivity and that, by doing so, restrains their freedom of expression?
The duty of discretion is laid down in
Article 12 (1)
of the Statute of Portuguese Judges and in
Article 84
of the Statute of Portuguese Public Prosecutors
These professionals are bound to observe a series of duties regarding their behavior in their professional lives and in their private lives.
This includes, but it is not limited to, their online interventions in blogs or in social media.
Amongst these duties, we can find the

duty of discretion
The duty of discretion according to the self-regulating bodies of judges and public prosecutors
The duty of discretion in the codes of conduct
They are subject to a rigorous recruitment process
They are controlled by a State body
Their legitimacy arises from their submission to the exclusive practice of law enforcement
What justifies the provision of this duty and its importance are:
The requirements of
independence, impartiality and objectivity
in the activities of judges or public prosecutors;
The need for establishing, maintaining and enhancing the
community's confidence in the judicial system
Both these articles state that
a judge or a public prosecutor should not make any public statements or comments on the merits of a matter pending or impending in any court, except when authorized to do so by the judges disciplinary authority to defend their honour or to fulfill another legitimate interest.
Both the High Council for the Judiciary and the High Council for the Public Prosecution have given contributions to the densification of these concepts
On a deliberation dated 11 March 2008, the High Council for the Judiciary stated
I – Safeguarding justice, professional and State secrets and private life, judges can give all information regarding decisions and the reasons therefor. III – The duty of discretion covers, in essence, the statements or comments (positive or negative), made by judges, involving value appreciation in cases that they are in charge of. IV - All judges, even if they are not responsible for a particular case, can breach this duty. V – The duty of discretion regards all pending cases and those that although already decided once and for all, concern facts or situations of irrefutable actuality. VI – Exempt from the duty of discretion is the consideration of decisions resulting from the exercise of teaching or of legal research or comments of a scientific nature, the commented judgement having acquired the authority of a final decision
These deliberation was re-emphasized in a more recent resolution from the same State body, dated 14 April 2015, that draws attention to the
special precautions that should be taken on social networks, specially given the level of publicity
The High Council for the Public Prosecution Service also deliberated on the content of the duty of discretion on 10 May 2013
, stating that in: "
recognizing the fundamental value of freedom of expression, it calls upon the honourable Public Prosecutors - in giving information, issuing opinions or weaving comments, except in findings of merely doctrinal character - to show the utmost restraint, avoiding any comments about pending cases, whether or not in secrecy, most notably as regards cases that they have been involved with by virtue of their functions, and whose pronunciation can be conveyed by any means to the public.
In particular,
restraint should be used by the honourable Public Prosecutors when participating in debates or the exchange of views on social networks, or in the publication of articles in blogs and websites, given the immediacy, informality, ease of dissemination and easy decontextualization of contents that characterize such mediums

Although the Ethical Commitment of the Portuguese Judges and the Portuguese Public Prosecutors' Charter of Conduct don't have binding force, they are important tools in order to understand the disciplinary duties Portuguese judges and public prosecutors are bound to
The Portuguese Public Prosecutors’ Charter of Conduct specifically addresses the
need for a cautious attitude in any online interventions
: It states, in no. 22, that
the Public Prosecutors’ participation in blogs and social networks should be guided by a special duty of care, that safeguards their own freedom of expression.
Disclosing personal data and facts regarding their private or professional lives should not hinder or constrain the exercising of their present or future functions.
The Ethical Commitment of Portuguese Judges has noted that
judges must not only have unblemished conduct and ethical posture, but it must be on display to the community in which they live
Judges and Public Prosecutors' fundamental rights restrictions
A balance has to be achieved between the exercise of the right to freedom of expression by judges and prosecutors and the constraints arising from the duty of discretion.
The fundamental rights provided for in the Portuguese Constitution, namely the right to freedom of expression (Article 37 (1) ), are granted to all Portuguese citizens, under the Principle of universality (Article 12(1) ) and of equality (Article 13 (1) ).

This obviously includes judges and prosecutors.
But the obligations related to the duty of discretion that are imposed on judges and public prosecutors, given their institutional status and the functions they carry, constitute a considerable restriction on the right to freedom of expression of these professionals.
According to the Portuguese Constitution,
any restriction on fundamental rights must comply with certain requirements
, set forth in Article 18 (2) and (3):

Any restrictions to these rights must be
limited to the extent necessary to safeguard other constitutionally protected rights or interests and
may not reduce the scope and extent of the essential contents of constitutional precepts.

These restrictions must meet requirements of proportionality, necessity and adequacy.
One thing is certain: the restrictions imposed on the right to freedom of expression of judges and public prosecutors
shall not amount to the withdrawal of such right
, and must leave its essential core untouched.
It must be kept in mind that these professionals, far beyond the functions they fulfil, are human beings and citizens, whose fundamental rights should not be limited in an excessive matter that would be contrary to the Portuguese Constitution.

The duty of discretion has been widely debated at an international level...
The principles of impartiality and independence
Article 6 (1) of the European Convention of Human Rights
Article 10 of the Universal Declaration of Human Rights
Instruments concerning public prosecutors
Guidelines on Ethics and Conduct for Public Prosecutors
Rec (2000) 19
General Codes of Conduct:
Bangalore Principals of Judicial
Paragraph 2.4 - duty to avoid making comments in public

Código Modelo Ibero-Americano de Ética Judicial

Universal Charter of the Judge
Local Codes of Conduct
There are important international instruments that encourage States to define the content of this duty.
Principles, Recommendations and Opinions
(aiming to promote the independence of the judiciary)

Basic Principles on the Independence of the Judiciary - paragraph 8 and 15;
Opinion no. 3 of the Consultative Council of European Judges (CCEJ);

This document
encourages judges to uphold standards of conduct within their private lives, taking into consideration the possibility that the exercise of their rights may endanger the impartiality, independence and objectivity;

suggests the establishment of one or more bodies/persons with a counseling role in what concerns the problems related to doubts of the judiciary about the compatibility of their position and their private lives.

it also addresses the problems related to the participation of judges in political activities and
their relationship with the media.

Recommendation CM/REC (2010) 12 of the Committee of Ministers to Member States on Judges: Independence, Efficiency and Responsabilities - paragraph 19.
Portuguese Cases and Court decisions

The problems associated with social networks and judges and prosecutors' private lives is simultaneously the main issue with the three spheres theory...
The three spheres theory supposes the existence of different levels of discretion and confidentiality in one's life
The sphere of social life
, with public knowledge information that can be exposed
The sphere of private life
, which can be accessed when confronted with other fundamental righs
The sphere of intimate life
, related to family, health, sexual behaviour and religious convictions that is completely inaccessible
Defining which situations belong to each sphere is not an easy assignment:
A post on a judges or public prosecutors' facebook profile is a matter of his social life sphere or of his private life sphere? What if he comments in a restricted facebook group page?
The French Cour de Cassation has decided on this subject (Arrêt no. 344, 10 April 2013), establishing that for a facebook page to be considered private and not being used as grounds for accusations of defamation/slander:

(i) the facebook page must be maintained private;
(ii) the facebook member to which the page belongs to must also have a limited number of facebook friends.
The District Court of Appeal of the State of Florida agreed with this interpretation on Domville v. Florida State case, where a judge was definitely removed from a case for being facebook friends with the prosecutor assigned to the case, jeopardizing his impartiality.
The Florida Judicial Ethics Advisory Commitee recommended that a judge should not add lawyers as friends on facebook, nor should they accept friend requests from lawyers.

It is also reminded that these type of social websites allow a user to set different levels of privacy, which allows a member to restrict information available on his/hers facebook page to certain visitors of such page.
This interpretation maintains that the use of social networks by these professionals can be qualified as a private matter.
But what if the facebook posts and/or comments of judges' or public prosecutors leak to the press?
In this case, they could always invoke the protection of privacy of correspondence and telecommunications regulations.

Article 12 of the UDHR;
Article 34 of the Portuguese Constitution;
Articles 75, 76 and 78 of the Portuguese Civil Code;
Article 199 of the Portuguese Criminal Code;
Article 22 of the Portuguese Labour Code;
Portuguese Cases and Court Decisions
- Italian Code of Ethics for judges
Article 6 - dictates that the judiciary, in their relationship with the press and other media, must not instigate the publication of news about their professional activity;

- Statut des Magistrats - Article 6 and Article 43
- Recueil des obligations deontologiques des magistrats (
"soft law")
- College of Ethics for administrative magistrates - entity that gives information and advices th the members of the administrative courts.

England and Wales - Guide to Judicial Conduct of England and Wales;
- Guidance on blogging by Judicial Office Holders

Case 1: Oporto Court of Appeal Decision of September 8th 2014, procedure no. 101/13.5TTMTS.P1

- A company's employee published several posts on a
restricted group of employees of the company;
- Posts had some offensive words, expressions and even photos towards the employer;
- The employee was dismissed for professional misconduct;
- Court of Appeal: Even though the
group was restricted, there was no expectation for such group to remain private or restricted due to its number of members: around 140 members; the evidence provided by the
posts is valid and the dismissal shall be maintained.
- There were just too many members to guarantee a reliable trust bound between all of them, and the employee should have foreseen that before publishing those contents.

Case 2: Lisbon Court of Appeal Decision of September 24th 2014, procedure no. 431/13.6TTFUN.L1-4

- An employee of a company wrote an inflamed post on his facebook page, insulting his employer and stating "share this, my friends".
- The employee was dismissed for professional misconduct;
- However, the employee claimed the evidence used for the dismissal was not valid since the facebook post is part of his private sphere;
- Court of Appeal: the employee invited his facebook friends to share the post he had written. Therefore he renounced any privacy intentions. There was no legitimate expectation of privacy.
- The dismissal was maintained.

Case 3: Portuguese Supreme Court Decision of March 2nd 2011, procedure no.110/10.6YFLSB.S1

Comments made by a judge to a journalist on a particular judicial procedure:
only an unwise judge would throw a girl to the lap of a mother with no conditions to raise and take
care of her. If my decision shall be corrected by a more qualified court, as the Supreme Court, I will
feel comfortable…Judicial procedures involving children always cause great emotion and fuss in the
media. I already suspected that this procedure would have great impact on the media. (…) One does
not need much skill to bring round a six year old girl

Article 12 (2) of the Statute of Portuguese Judges allows judges to provide information to the public regarding the access to information about judicial procedures.
Nevertheless, the Supreme Court considered that the defendant judge provided more than objective information since he made
actual comments and personal opinions on the case
Deliberation of the Plenary of the High Council for the Judiciary of January 19th 2011

- Publishing public statements to the press in matters which can affec Judiciary's prestige;
- Press office to enable urgent access to the press.
Case 4: High Council for the Judiciary Decision of November 9th 2004
- A judge made public statements in interviews with journalists on the functioning of the High Council for the Judiciary;
- Claims about the existence of lobbies in the High Council for the Judiciary and on the independence of inspectors.
Case 5: High Council for the Judiciary Decision of December 6th 2005, disciplinary
procedure no. 83/05

- Recording of a private conversation between a journalist and a judge, without his consent;
- The content of the conversation, regarding the known "Casa Pia" case, leaked to the press.

Case 6: High Council for the Public Prosecution of January 10th 2012
- A public prosecutor made rude and insulting comments on his neighbors and other judges and public prosecutor colleagues in his blog;
- The High Council considered that article 163 of the Public Prosecutor’s Portuguese Statute was infringed.

- According to article 199 (1) of the Portuguese criminal code, recording private conversations without knowledge of the parties involved is considered a crime

- the High Council for the Judiciary considered there was no breach of the duty of discretion since:
- it was a private conversation;
- the judge did not know the conversation was being recorded;

Still, there were three dissenting opinions.
- Resolution of the High Council for Public Prosecutors, dated April 14th 2015;

- The Attorney General of the Republic's dissenting opinion: “
given the available elements, it is difficult to foresee any disciplinary infraction, particularly, in places where there is freedom of expression. Besides, there is little valid digital evidence in this disciplinary procedure, enough to solve this case, especially in what concerns the concrete determination of its perpetrators

Where we stand...
Judges and public prosecutors are bound to their
duty of discretion
when using social networks
Within the framework of the
private life sphere
judges and public prosecutors may freely express their feelings and opinions on the most
diverse subjects of the judiciary.
In their
social sphere
judges and public prosecutors may cautiously comment other judicial proceedings, provided
that they comply with the rest of their Statutory duties – correction, discretion (in case of legal
secrecy, for instance), civilness.

Judges and public prosecutors to freely
comment case law (even judgments which have not yet acquired the authority of a final
decision) for
scientific and teaching purposes
Disclosing, publicizing, exposing or disseminating judge’s and public
prosecutors (or anyone’s for that matter) social network information (v.g. posts, comments,
photos, or other publications) can certainly be included on the possible meaning of a “
of correspondence
”, and therefore even constitute a criminal offence.
Portugal Team

Catarina Brandão Proença
Lusa Correia de Paiva
Sofia Cotrim Nunes

Trainer: Mr. Diogo Ravara
Full transcript