Ninth Amendment To Law No. 21/85 Of 30 July (Statute Of Judicial Magistrates), And Fifth Amendment To Act No. 13/2002, Of February 19 (Statute Of The Administrative And Tax Courts)

Original Language Title: Nona alteração à Lei n.º 21/85, de 30 de Julho (Estatuto dos Magistrados Judiciais), e quinta alteração à Lei n.º 13/2002, de 19 de Fevereiro (Estatuto dos Tribunais Administrativos e Fiscais)

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624445334e5331594c6d527659773d3d&fich=ppl175-X.doc&Inline=false

1 PROPOSAL of law No. 175/X explanatory memorandum the 17TH Constitutional Government program provides for the introduction of greater publicity and transparency by making solutions in the process of access to superior courts, as well as appreciate the benefits to the administration of justice resulting from the diversity of experiences. The agreement on parliamentary and political reforms of Justice, concluded between the two major parties were included, in this regard, basic elements for a process with more visibility and publicity and greater integration in the legal community generally considered – obviously to achieve in terms of it not in consequence of injury constitutionally assigned to the mission Superior Council of the Magistracy. At the same time, it was considered essential to create the conditions to ensure the application of standards which provide for filling 1/5 of the judge of the Supreme Court of Justice, by jurists of recognized merit and civic integrity, even though for a long time were in force almost have not had, in practice, expression. Also proposes, in order to create better conditions for the members of the Superior Council of Magistrates elected by the Assembly of the Republic that the vowels that form part of its Permanent Council to perform its functions in full time and that its name pass shall be for a period corresponding to the duration of their mandate. In similar sense, changing the composition of the Permanent Council of the Superior Council of the judiciary, through the increase in that organ, the number of vowels appointed by the Assembly of the Republic.

Are these two subjects – access to superior courts, status of Permanent Council members vowels and composition of the Permanent Council – that summarize the proposed changes to the Statute of judicial magistrates and the Statute of the Administrative and tax Courts. In the above-mentioned parliamentary political agreement was also agreed a reorganisation of the retirement rule regime, it being understood that such a matter must, by their nature, be versed in amendment to include all beneficiaries of identical regime.

2 were heard the Supreme Judicial Council, the Board of Governors of the Administrative and tax Courts and the Superior Council of the Public Ministry. The necessary steps were promoted to hearing of the Bar Association. Was complied with the procedure of collective bargaining, in accordance with the law No. 23/98 of 26 May. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 amendment to law No. 21/85 of 30 July articles 46, 47, 48, 52, 148 and 150 of the law No. 21/85 of 30 July (Statute of judicial magistrates), as amended by Decree-Law No. 342/88 , September 28, by law No. 2/90, of 20 January, no. 10/94 of May 5, no. 44/96, of 3 September, no. 81/98, of December 3, no. 143/99, of 31 August, no. 3-B/2000 of 4 April, and no. 42/2005, of 29 August, are replaced by the following : «article 46 [...]

1-[previous article body]. 2-curricular competition referred to in the preceding paragraph is opened by decision of the Supreme Judicial Council when the existence and need for provision of judge vacancies.

Article 47 curriculum and graduation Review Contest, 1-the contest comprises two phases, the first phase in which the Superior Council of the Magistracy sets the number of competitors will be admitted to the competition between the older law judges want ads with Very good or Good with distinction and a second phase in which the curriculum review is carried out of the judges selected in previous phase 3 and made the final graduation. 2-in the first phase, the Superior Council of the Magistracy has considered, in the definition of the number of slots to contest, twice the number of places provided in the courts of appeal and the provisions of article 48 3-The magistrates who compete indicate in descending order of preference the courts in relation to competing as well as the courts that waive. 4-competitors selected in the previous stage are part of a second phase in which publicly argued their resumes before a jury with the following composition: a) President of the jury: the President of the Supreme Court of Justice, who may delegate one of the Vice-Presidents or another Member of the High Council of the judiciary with equal to or greater than the category of judge judge; b) Vowels: i) a member of the High Council of the judiciary with no category lower than judge judge; II) two members of the Superior Council of the Magistracy, not belonging to the judiciary, to be elected by that body; III) a University professor of law, with no less than the category of associate professor, chosen, in accordance with paragraph 5, for the Superior Council of the Magistracy; 5-the Supreme Judicial Council calls, each of the universities, students and other university schools, public and private, that provide the Right course, within 20 working days, the name of a law professor, with no less than the category of associate professor and, subsequently, at the choice of the vowel as referred to in point (iii) (b))) paragraph 4 , by vote, by secret ballot from among the nominees. 6-the jury issues its opinion on the provision of each of the candidates, which is taken into consideration by the Supreme Judicial Council in drawing up the definitive judgment on the final graduation candidates and that justifies the decision whenever there is disagreement about 4 the opinion of the jury. 7-the final degree of judges is done according to the relative merit of competitors, taking into account in equal proportion the curricular review, as referred to in the preceding paragraph and the classification of service, preferring in the event of a tie the Judge with the most seniority. 8-the Superior Council of the Magistracy shall adopt the measures deemed necessary for the good organization and execution of the contest access to provision of judge vacancies.

Article 48 [...]

1-vacancies for the first stage are filled, at a ratio of 2 to 1, by competitors classified respectively with Very good or Good. 2 - […]. 3 - […].

Article 52 Curriculum Assessment, graduation and filling vacancies 1-graduation is done according to the relative merit of the competitors of each class, taking overall account of the curricular review, prior compliance with the provisions of the following paragraph and, in particular, taking into consideration the following factors: a) [...]; b) […]; c) […]; d) […]; e) […]; f) […]. 2-The competitors defend publicly their resumes before a jury with the following composition: 5 a) President of the jury: the President of the Supreme Court of Justice, acting as President of the Superior Council of the judiciary; b) Vowels: i) the longest serving Councillor judge category that is a member of the Superior Council of the judiciary; II) a member of the High Council of the Public Ministry, the elected by that body; III) A member of the Superior Council of the Magistracy, not belonging to the judiciary, to be elected by that body; IV) a University professor of law, with the rank of full professor, chosen, in accordance with paragraph 5, for the Superior Council of the Magistracy; IV) A lawyer with functions in the Superior Council of the Bar Association, and the Supreme Judicial Council to ask the Bar Association to the respective indication. 3-the jury issues its opinion on the provision of each of the candidates, which is taken into consideration by the Supreme Judicial Council in drawing up the definitive judgment on the candidate list and which should justify the decision where there is dissent against the opinion of the jury. 4-decisions shall be taken by simple majority of votes and the President of the casting vote in the event of a tie. 5-the Supreme Judicial Council calls, each of the universities, students and other university schools, public and private, that provide the Right course, within 20 working days, the name of a law professor, with the rank of full professor and, subsequently, to the choice of the vowel) (iv) of subparagraph (b)) of paragraph 2 , by vote, by secret ballot from among the nominees. 6-[previous No. 2]. 7-[previous paragraph 3].

6 Article 148 [...]

1 - […]. 2-The vowels that are members of the Permanent Council perform their functions in a full-time regime unless such surrender, by applying, in this case, the service reduction corresponding to the Office of origin. 3-The vowels of the Permanent Council members serving in a full-time regime receive salary corresponding to the vowel magistrate of higher category. 4 - […].

Article 150 [...]

1 - […]. 2 - […]. 3-make up the Permanent Council the following members:) [...]; b) […]; c) […]; d) […]; e) […]; f) four other members from the designated by the Assembly of the Republic; g) […]. 4-the description of vowels referred to in (c)) and (d)) of the preceding paragraph is made alternately for periods of 18 months and the designation of the vowels referred to in point (f)) it is registered for a period equal to the duration of their mandate. 5 - […].»


7 article 2 amendment to Act No. 13/2002 of 19 February articles 66, 67 and 69 of the law No. 13/2002 of 19 February (Administrative and tax courts Regulations), as amended by laws No. 4/2003 of 19 February and no. 107-D/2003, of December 31, shall be replaced by the following: ' article 66 curricular Review , undergraduate and filling vacancies 1-[...]. 2-graduation is done according to the relative merit of the competitors of each class, taking overall account of the curricular review, prior compliance with the provisions of the following paragraph and, in particular, taking into consideration the following factors: the Previous service ratings); b) Degree obtained in competitions of qualification or entrance courses in judicial offices; (c) University and post-graduate Curriculum); d) scientific work carried out; and) Activity developed within forensic or legal education; f) other factors abonem the suitability of applicants for the position to be filled. 3-The competitors defend publicly their resumes before a jury with the following composition: a) President of the jury: the President of the Supreme Administrative Court, as Chairman of the Board of Governors of the Administrative and tax Courts. b) Vowels: i) the longest serving Councillor judge category that is a member of the Board of Governors of the Administrative and tax Courts; II) A member of the Board of Governors of the Administrative and tax Courts, not belonging to the judiciary, to be elected by this body;

8 iii) a member of the High Council of the Public Ministry, the elected by this body; IV) a University professor of law, with the rank of full professor, chosen, in accordance with paragraph 6, by the Board of Governors of the Administrative and tax Courts. v) A lawyer with functions in the Superior Council of the Bar Association, and the Board of Governors of the Administrative and tax Courts ask the Bar Association to the respective indication. 4-the jury issues its opinion on the provision of each of the candidates, which must be taken into account by the Board of Governors of the Administrative and fiscal Courts in the drafting of the final judgment on the candidate list, and substantiate the decision where there is dissent against the opinion of the jury. 5-the decisions are taken by simple majority of votes and the President of the casting vote in the event of a tie. 6-the Board of Governors of the Administrative and tax Courts calls, each of the universities, students and other university schools, public and private, that provide the Right course, within 20 working days, the name of a law professor, with the rank of full professor and, subsequently, to the choice of the vowel) (iv) of subparagraph (b)) paragraph 3 , by vote, by secret ballot from among the nominees. 7-[previous No. 2].

Article 67 [...]

1 - […]. 2 - […]. 3-in the provision of judges of the Supreme Administrative Court are provided the magistrates and Jurists referred to in paragraph 1, being the vacancies occupied necessarily according to the quotas indicated, and may not be the same filled by candidates from other items 9 and should be guaranteed entry at least one jurist of recognized merit, a Deputy Attorney General and three justices.

Article 69 [...]

1 - […]. 2-graduation is done according to the merit of the competitors of each class, taking overall curriculum assessment, prior compliance with the next paragraph, and in particular taking into consideration the following factors: the Previous service ratings); b) Degree obtained in competitions of qualification or entrance courses in judicial offices; (c) University and post-graduate Curriculum); d) scientific work carried out; and) Activity developed within forensic or legal education; f) other factors abonem the suitability of applicants for the position to be filled. 3-The competitors defend their resumes before a jury with the following composition: a) President of the jury: the President of the Supreme Administrative Court, and may make to replace by one of the Vice-Presidents or another Member of the Board of Governors of the Administrative and tax Courts with equal to or greater than the category of judge judge. b) Vowels: i) a member of the Board of Governors of the Administrative and tax Courts with no category lower than judge judge; II) two members of the Board of Governors of the Administrative and tax Courts, outside the Magistracy, to be elected by that body; III) a University professor of law, with 10 not lower than the category of associate professor, chosen, in accordance with paragraph 5, by the Board of Governors of the Administrative and tax Courts. 4-the jury draws up an opinion on the provision of each of the candidates, which must be taken into account by the Board of Governors of the Administrative and fiscal Courts in the drafting of the final judgment on the candidate list, and substantiate the decision where there is dissent against the opinion of the jury. 5-the Board of Governors of the Administrative and tax Courts calls, each of the universities, students and other university schools, public and private, that provide the Right course, within 20 working days, the name of a law professor, with no less than the category of associate professor and, subsequently, at the choice of the vowel as referred to in point (iii) (b))) paragraph 3 , by vote, by secret ballot from among the nominees. 6-[previous No. 2].»

Article 3 entry into force this law shall enter into force on 1 September 2008, with the exception of article 1, in so far as it amends article 150 of the law No. 21/85 of 30 July, which shall enter into force at the end of the mandate of the current composition of the Superior Council of Magistracy.

Seen and approved by the Council of Ministers of 20 December 2007 Prime Minister the Minister of Parliamentary Affairs Minister Presidency