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PROPOSED LAW NO. 175 /X

Exhibition of Motives

The programme of the XVII Constitutional Government provides for the introduction of solutions

enshrining greater publicity and transparency in the process of access to the courts

superiors, as well as value the advantages for the administration of justice that

stem from the diversity of experiences.

In the political-parliamentary agreement on the reforms of Justice, concluded between the two

larger parties, were included, in that respect, basic elements for a process

with more visibility and publicity and greater insertion in the legal community

globally considered-obviously to come to fruition in terms of which it does not decorates

mission injury constitutionally assigned to the Superior Council of Magistrature.

At the same time, it was considered indispensable to create the conditions that ensured the

Application of standards providing for the filling of 1/5 of the seats of judge of the

Supreme Court of Justice, by jurists of recognisance merit and civic idoneity,

that although there is long time vigorous they have almost not had, in practice, expression.

It is proposed yet, in order to create better conditions of intervention for members of the

Top Council of the Magistrature elected by the Assembly of the Republic that the vowels

that they integrate the respective permanent council perform their duties in

full time regime and that its designation will be carried out by the period

corresponding to the duration of the respective mandate. In identical sense, it proceeded to

alteration of the composition of the permanent council of the Superior Council of the

Magistrate, through the increase, in that organ, of the number of vowels designated by the

Assembly of the Republic.

It is these two subjects-access to the Higher Courts, status of the member vowels

of the permanent council and composition of the permanent council-which summarize the

changes now proposed to the Statute of Judicial Magistrates and the Statute of the

Administrative and Fiscal Courts. In the parliamentary political agreement mentioned above was

also consensualized a reorganization of the rule of jubilation rule, understanding-

if such a matter should, by its nature, be versed in the amendment that integrates all

the beneficiaries of identical arrangements.

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The Higher Council of the Magistrature was heard, the Higher Council of the

Administrative and Fiscal Courts and the Higher Council of the Public Prosecutor's Office.

The necessary representations were promoted to the hearing of the Order of Lawyers.

Compliance was given to the collective bargaining procedure, pursuant to the Law n.

23/98, of May 26.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Amendment to Law No. 21/85 of July 30

Articles 46, 47, 48, 148, and 150 and 150 of Law No. 21/85 of July 30 (Statute

of Judicial Magistrates), as amended by Decree-Law No. 342/88 of September 28,

by the Laws No 2/90 of January 20, para. 10/94, May 5, para. 44/96, 3

September, paragraph 81/98, of December 3, para. 143/99, August 31, para. 3-B/2000 4

of April, and paragraph 42/2005, of August 29, shall be replaced by the following:

" Article 46.

[...]

1-[ Previous body of the article ].

2-The curricular contest referred to in the preceding paragraph is open by

Deliberation of the Superior Council of Magistrature when it occurs

existence and necessity of provement of judge vacancies of the relationship.

Article 47.

Concourse, curriculum assessment and graduation

1-The contest comprises two phases, a first phase in which the

Magistrature's Superior Council defines the number of competitors that

are going to be admitted to the contest among the oldest law judges of the

sorted with Very good or Good with distinction and a second phase

in which the curricular evaluation of selected judges is carried out in the

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previous phase and carried out the final graduation.

2-In the first phase, the Superior Council of Magistrature has in

consideration, in the definition of the number of vacancies the contest, double the

number of places not providesin the courts of the relationship and the provisions

constants of Article 48 para.

3-The magistrates running indicate by descending order of

preference the courts of the relationship to which they compete as well as the

courts to which to resign.

4-Selected contestants in the previous phase integrate a second

phase in which they publicly defend their curricula before a jury

with the following composition:

a) President of the jury: the President of the Supreme Court of Justice,

which you can delegate to one of the Vice-Presidents or in another member

of the Superior Council of Magistrate with equal category or

superior to that of a disembarker judge;

b) Vowels:

i) A magistrate member of the Superior Council of Magistrate

with category not lower than that of a disembarker judge;

ii) Two members of the Superior Council of Magistrature, no

belonging to the judgeship, to be elected by that organ;

iii) A university professor of law, with category not

lower than that of associate professor, chosen, under the terms of the n.

5, by the Superior Council of the Magistrature;

5-The Superior Council of the Magistrature requests, to each of the

universities, university institutes and other university schools,

public and private, who will administer the course of law, the indication, in the

deadline of 20 working days, from the name of a law professor, with the

category not lower than that of associate professor, proceeding,

subsequently, to the choice of the vowel referred to in sub-paragraph iii) from the

point ( b) from paragraph 4, by vote, by secret vote, from among the nominees.

6-The jury issues opinion on the provision of each of the candidates, to which

is taken into account by the Superior Council of Magistrature in the

drafting of the final judgment on the final graduation of candidates

and that substantiates the decision whenever there is disagreement in relation

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to the opinion of the jury.

7-A The final graduation of the magistrates is done in accordance with merit

relative of competitors, taking into consideration in equal

percentage the curriculum evaluation, in the terms provided for in the number

previous and the service classification, preferring in case of a tie the

Judge with more seniority.

8-The Superior Council of the Magistrature adopts the arrangements that if

show necessary to the good organization and execution of the contest of

access to the propment of vacancies of judge of the relationship.

Article 48.

[...]

1-The vacancies for the first phase are filled, in the ratio of 2 to 1,

by competitors ranked respectively with Very good or Good

with distinction.

2-[...].

3-[...].

Article 52.

Curriculum assessment, graduation and filling vacancies

1-A graduation is made second the relative merit of the competitors of each

class, taking globally into account the curriculum assessment, with

prior observance of the provisions of the following number and, in particular,

taking into consideration the following factors:

a) [...];

b) [...];

c) [...];

d) [...];

e) [...];

f) [...].

2-Competitors publicly defend their curricula in the face of a

jury with the following composition:

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a) President of the jury: the president of the Supreme Court of Justice, in the

quality of Chairman of the Superior Council of Magistrate;

b) Vowels:

i) The oldest councillor judge in the category who is a member

of the Superior Council of the Magistrature;

ii) A member of the Superior Council of the Public Prosecutor's Office, the

elect by that organ;

iii) A member of the Superior Council of Magistrature, no

belonging to the magistrate, to be elected by that organ;

iv) A university lecturer in law, with the category of

cathedral teacher, chosen, pursuant to paragraph 5, by the

Top Council of the Magistrature;

iv) A lawyer with duties in the Superior Council of the Order

of the Lawyers, fit to the Superior Council of the Magistrature

request the Order of Lawyers the respective indication.

3-The jury issues opinion on the provision of each of the candidates, to which

is taken into account by the Superior Council of Magistrature in the

drafting of the final judgment on the list of candidates and which should

substantiate the decision whenever there is disagreement in the face of the opinion

of the jury.

4-deliberations will be taken by a simple majority of votes having the

President of the jury vote of quality in the event of a tie.

5-The Superior Council of the Magistrature requests, to each of the

universities, university institutes and other university schools,

public and private, who will administer the course of law, the indication, in the

deadline of 20 working days, from the name of a law professor, with the

category of cathedical teacher, proceeding, subsequently, to the

choice of vowel as referred to in sub-paragraph iv) of the paragraph b) of paragraph 2, by

voting, by secret ballot, from among the nominees.

6-[ Previous Article No 2 ].

7-[ Previous Article No 3 ].

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Article 148.

[...]

1-[...].

2-The vowels that are members of the standing council perform the

their duties in full-time arrangements except if the such waive,

applying, in this case, reduction of the service corresponding to the post of

origin.

3-The vowel members of the permanent council who exercise duties in

full time regime auferem maturity corresponding to that of the

vogal magistrate of highest category.

4-[...].

Article 150.

[...]

1-[...].

2-[...].

3-Compose the standing council the following members:

a) [...];

b) [...];

c) [...];

d) [...];

e) [...];

f) Four vowels from among those designated by the Assembly of

Republic;

g) [...].

4-A designation of the vowels referred to in points c) and d) of the previous number

does it rotatively, for periods of 18 months and the designation of the

vowels referred to in para. f) it is for period equal to that of the duration of the

respective mandate.

5-[...]. "

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Article 2.

Amendment to Law No 13/2002 of February 19

Articles 66, 67 and 69 of Law No 13/2002 of February 19 (Statute of the Courts

Administrative and Fiscal), as amended by the Laws No. 4-A/2003 of February 19 and

n 107-D/2003 of December 31, shall be replaced by the following:

" Article 66.

Curriculum assessment, graduation and filling vacancies

1-[...].

2-A graduation is made second the relative merit of the competitors of each

class, taking globally into account the curriculum assessment, with

prior observance of the provisions of the following number and, in particular,

taking into consideration the following factors:

a) Previous service classifications;

b) Graduation obtained in habilitation contests or courses of

ingress into judicial positions;

c) University and post-university curriculum;

d) Scientific work carried out;

e) Activity developed in the forensic framework or in legal education;

f) Other factors abiding by the suitability of the applicants for the

post to prover.

3-Competitors publicly defend their curricula in the face of a

jury with the following composition:

a) President of the jury: the President of the Supreme Court

Administrative, as the President of the Higher Council

of the Administrative and Fiscal Courts.

b) Vowels:

i) The oldest councillor judge in the category who is a member

of the Superior Council of Administrative and Fiscal Courts;

ii) A member of the Superior Council of Courts

Administrative and Fiscal, not belonging to the judgeship, the

elect by this organ;

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iii) A member of the Superior Council of the Public Prosecutor's Office, the

elect by this organ;

iv) A university lecturer in law, with the category of

cathedral teacher, chosen, pursuant to paragraph 6, by the

Top Council of Administrative and Fiscal Courts.

v) A lawyer with duties in the Superior Council of the Order

of the Lawyers, fit to the Superior Council of the Courts

Administrative and Fiscal to request the Order of Lawyers to

respective indication.

4-The jury issues opinion on the provision of each of the candidates, to which

must be taken into account by the Superior Council of Courts

Administrative and Taxation in the drafting of the final judgment on the

list of candidates, and shall substantiate the decision whenever there is

disagreement in the face of the opinion of the jury.

5-deliberations are taken by a simple majority of votes having the

chairman of the jury vote of quality in the event of a tie.

6-The Superior Council of Administrative and Fiscal Tribunals requests, the

each of the universities, university institutes and other schools

university-owned, public and private, who will run the law course, the

indication, within 20 working days, of the name of a teacher of

Right, with the category of cathedical teacher, proceeding,

subsequently, to the choice of the vowel referred to in sub-paragraph iv) from the

point ( b) from paragraph 3, by vote, by secret vote, from among the nominees.

7-[ Previous Article No 2 ].

Article 67.

[...]

1-[...].

2-[...].

3-In the provement of Judges of the Supreme Administrative Court are

provided the magistrates and jurists referred to in paragraph 1, the vacancies being

occupied necessarily in accordance with the indicated quotas, not

may be the same filled by candidates of other points,

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having to be guaranteed the entry of at least one jurist from

recognized merit, an assistant attorney general and three judges.

Article 69.

[...]

1-[...].

2-A graduation is made second the merit of the competitors of each class,

taking overall the curriculum assessment, with prior observance

of the provisions of the following number, and in particular, having in

consideration of the following factors:

a) Previous service classifications;

b) Graduation obtained in habilitation contests or courses of

ingress into judicial positions;

c) University and post-university curriculum;

d) Scientific work carried out;

e) Activity developed in the forensic framework or in legal education;

f) Other factors abiding by the suitability of the applicants for the

post to prover.

3-Competitors defend their curricula before a jury with the

following composition:

a) President of the jury: the President of the Supreme Court

Administrative, and may make yourself replaced by one of the deputy

presidents or by another member of the Superior Council of the

Administrative and Fiscal Courts with equal category or

superior to that of a disembarker judge.

b) Vowels:

i) A magistrate member of the Superior Council of the Courts

Administrative and Fiscal with category not lower than that of judge

disembarker;

ii) Two members of the Superior Council of the Courts

Administrative and Fiscal, not belonging to the judgeship, the

elect by that organ;

iii) A university professor of law, with category not

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lower than that of associate professor, chosen, under the terms of the n.

5, by the Superior Council of Administrative Courts and

Fiscal.

4-The jury prepares to appear on the provision of each of the applicants, the

which should be taken into account by the Higher Council of the

Administrative and Fiscal Courts in the drafting of the final judgment

on the list of candidates, and they should substantiate the decision whenever

there is dissent in the face of the opinion of the jury.

5-The Superior Council of Administrative and Fiscal Tribunals requests, the

each of the universities, university institutes and other schools

university-owned, public and private, who will run the law course, the

indication, within 20 working days, of the name of a teacher of

Right, with category not lower than that of associate professor,

proceeding, subsequently, to the choice of the vowel referred to in

subparagraph iii) of the paragraph b) from paragraph 3, by vote, by secret vote, from among

the nominees.

6-[ Previous Article No 2 ]. "

Article 3.

Entry into force

This Law shall enter into force on September 1, 2008, with the exception of Article 1, in the

part on amending Article 150 of Law No 21/85 of July 30, which comes into force

at the end of the mandate of the current composition of the Higher Council of Magistrate.

Seen and approved in Council of Ministers of December 20, 2007

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs