CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL

Peticija Nr. 55391/13 · Priimta 2018-11-06 · ECLI:CE:ECHR:2018:1106JUD005539113 · Kalbos: EN · EN · FR · PL · SL

← Strasbūras↗ HUDOC originalas
Peticija Nr.
55391/13
Priimta
2018-11-06
Valstybė atsakovė
PRT
Išvada
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione materiae;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Fair hearing;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
Konvencijos straipsniai
6, 6-1, 35, 35-1, 35-3-a, 41
Svarba
Pagrindinė byla (Key case)
Originalas
HUDOC ↗
PirmininkasGuido RaimondiTeisėjasAngelika NußbergerTeisėjasLinos-Alexandre SicilianosTeisėjasGanna YudkivskaTeisėjasHelena JäderblomTeisėjasIşıl KarakaşTeisėjasNebojša VučinićTeisėjasPaulo Pinto de AlbuquerqueTeisėjasErik MøseTeisėjasKsenija TurkovićTeisėjasDmitry DedovTeisėjasBranko LubardaTeisėjasCarlo RanzoniTeisėjasStéphanie Mourou-VikströmTeisėjasAlena PoláčkováTeisėjasPauliine KoskeloTeisėjasLәtif HüseynovKanclerisFrançoise Elens-Passos
Santrauka
Rengiama…

GRAND CHAMBER

CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL

(Applications nos. 55391/13, 57728/13 and 74041/13)

JUDGMENT

STRASBOURG

6 November 2018

This judgment is final but it may be subject to editorial revision.

In the case of Ramos Nunes de Carvalho e Sá v. Portugal,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Guido Raimondi, President,

Angelika Nußberger,

Linos-Alexandre Sicilianos,

Ganna Yudkivska,

Helena Jäderblom,

Işıl Karakaş,

Nebojša Vučinić,

Paulo Pinto de Albuquerque,

Erik Møse,

Ksenija Turković,

Dmitry Dedov,

Branko Lubarda,

Carlo Ranzoni,

Stéphanie Mourou-Vikström,

Alena Poláčková,

Pauliine Koskelo,

Lәtif Hüseynov, judges,

and Françoise Elens-Passos, Deputy Registrar,

Having deliberated in private on 22 March 2017, 7 February and 4 July 2018,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

There appeared before the Court:

(a) for the Government Ms M.F. da Graça Carvalho, Deputy Attorney-General, Agent,

Mr R. Dias José, judge of the Administrative Supreme Court,

Ms A. Garcia Marques, lawyer in the Agent’s Office, Advisers;

(b) for the applicant Ms P. Ramos Nunes de Carvalho e Sá, Applicant,

Mr J. Ribeiro, lawyer, Counsel,

Mr P. Rodrigues, interpreter, Adviser.

The Court heard addresses by Ms Ramos Nunes de Carvalho e Sá and Ms da Graça Carvalho, and their replies to judges’ questions.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Proceedings concerning insulting remarks about judicial inspector H.G. (application no. 57728/13)

On 13 September 2010, while she was on maternity leave, the applicant telephoned H.G. to ask him again to conduct her performance appraisal, which had still not been carried out. The following day she sent a request to the same effect to the CSM. The same day, H.G. asked to be relieved of responsibility for the applicant’s appraisal, stating that she had made disrespectful remarks about him during the telephone conversation.

In accordance with section 118 of the Act, the applicant was given notice of the indictment and had fifteen days to present her defence. As required by section 120 of the Act, the indictment specified where the applicant or her lawyer could consult her disciplinary file.

With regard to the breach of the principle of equality she observed that she had lodged a complaint with the CSM against the judicial inspector H.G. for making false accusations and that, in an order of 15 February 2011, it had been decided not to institute proceedings in that regard, despite the fact that the complaint concerned the same facts giving rise to the current disciplinary proceedings against her.

As to the facts, the applicant stated as follows:

(a) that she had indeed telephoned the judicial inspector H.G. on 13 September 2010 to ask him to carry out her appraisal while she was on maternity leave. She had explained that she wished to be able to apply for the vacancies arising in 2011 since she had been unable to apply the previous year because her appraisal had not been carried out before she left on maternity leave;

(b) that the inspector had expressed surprise, claiming that she had previously told him that she did not wish her appraisal to be carried out while she was on maternity leave;

(c) that he had then asked her to submit her request in writing given that they were unable to agree;

(d) that she had replied that it was he who had failed to keep his word hitherto; and

(e) that she had at no point accused him of being a liar. She attached some items of evidence and requested that a further witness be examined.

(a) that the CSM had not taken into consideration a number of facts on which she had relied in her defence and which were corroborated by various items of evidence;

(b) that in its establishment of the facts the CSM had made no reference to the intentional element of the disciplinary offence;

(c) that the disciplinary penalty was based on insufficient or irrelevant evidence;

(d) that the conduct complained of had not amounted to a disciplinary offence, that she had simply been exercising a legitimate right and that the authorities had disregarded the principle of administration in good faith;

(e) that the CSM had failed to give reasons for its decision not to suspend enforcement of the penalty; and

(f) that the penalty imposed had been disproportionate to the acts of which she had been accused.

“Effective protection by the courts of citizens’ legally protected rights and interests, which is guaranteed by Article 268 § 4 of the Constitution, affords them, in the specific context of the decisions of the CSM in disciplinary proceedings, the right to a review of lawfulness rather than a review by a body with full jurisdiction. Hence, any appeal will be aimed at obtaining a declaration that the impugned act is null and void or non-existent, rather than a fresh assessment of the criteria employed by the administrative body or of the question whether those criteria were applied correctly, with particular regard to the establishment of the key facts ... The position taken by the Judicial Division is that, although the Supreme Court has the power to assess and sanction a failure to take necessary and relevant steps in disciplinary proceedings, it cannot take the place of the competent administrative body – the CSM – in gathering the evidence (aquisição da matéria instrutória) or establishing the key facts. Its task is solely to set aside the impugned decision, if appropriate, in order for that body to carry out or order a particular investigative measure in the proceedings and re‑examine the case accordingly ...

According to the case-law of the Supreme Court regarding administrative cases, it may not reassess the evidence examined by the authority [whose decision is contested]. Its sole task is to ascertain, on the basis of the available evidence, whether the establishment of the facts was reasonable, and hence to verify whether the authority [whose decision is contested] examined (or re-examined) the facts set forth in the indictment and those submitted by the defence, [and whether it] gave adequate reasons for the establishment [of the facts], which the Supreme Court has no option but to uphold ...

According to the Supreme Court’s case-law, an appeal may relate to the sufficiency or otherwise of the evidence and facts on which the decision to impose a disciplinary penalty was based. However, ascertaining whether these were sufficient does not entail reassessing the factual evidence or drawing a new and different conclusion from the available evidence. The Supreme Court may only assess the reasonable and coherent nature of the relationship between the facts as established by the authority [whose decision is contested] and the evidence on which its decision was based ...

The extent of the Supreme Court’s review of the facts is confined to ascertaining that the assessment [made by the authority whose decision is contested] was not defective; it cannot re-examine the evidence relied on and deliver a fresh judgment on the basis of that evidence. In other words, it is not the task of the Supreme Court to deliver a fresh judgment after assessing the evidence, but solely to verify whether the evidence was valid and lawful and whether the facts were reasonably and coherently established. It must therefore, against this background, examine any contradictions, inconsistencies and insufficiency in the evidence and any manifest errors in the assessment thereof, in so far as these defects are apparent ...”

“There were no errors in the assessment of the facts on which the decision [by the CSM] was based, or in the interpretation of those facts. It is clear from the reasoning that the evidence was examined in a coherent and logical manner. The reasoning was based on facts which, once established in accordance with the principle of the free assessment of evidence, do not preclude the assessment made in the present case ... [the assessment of the facts] was not arbitrary, haphazard, obscure or incoherent.”

(a) that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and

(b) that the penalty had not been disproportionate. The Supreme Court ruled as follows:

“In the context of disciplinary proceedings, it is for the CSM to decide on the severity of the penalty to be imposed, where it is variable in the abstract.

It is not the task of the Supreme Court to reconsider this decision, but merely to verify whether it was appropriate to the offence committed and whether the penalty imposed was proportionate to that offence ...

The determination of the penalty falls within what is known as the technical and administrative [margin of] discretion, which is not subject to judicial scrutiny except in cases of gross and manifest errors and particularly of failure to comply with the principle of proportionality as regards the appropriateness of the penalty ...

Having regard to the foregoing, and since it has been established that a fine, set at twenty days, should be imposed by way of a penalty, there is no basis for finding that the sanction imposed is disproportionate to the disciplinary offence or to the relevant legislative framework.”

B. Proceedings concerning the use of false testimony (application no. 55391/13)

(a) there had been errors in the establishment of the facts. In particular, she had not been acting in the performance of her duties, and a new witness questioned during the investigation had confirmed that she had not made the alleged remarks in the course of the conversation in question, during which that witness had indeed been present;

(b) her conduct had not amounted to a disciplinary offence. In the alternative, she submitted that it had been driven by “necessity”, in view of the avowed hostility of the judicial investigator F.M.J. towards her;

(c) she had not been questioned about the planned disciplinary penalty, which had not been proposed in the indictment;

(d) the CSM had altered the legal classification of the facts and the manner of her involvement in the disciplinary offence, in breach of her defence rights, including her right to be heard;

(e) the CSM had failed to give reasons for its decision not to suspend enforcement of the penalty; and

(f) the penalty imposed had been disproportionate to the facts.

“The longest-established guarantee is the right to appeal or to challenge administrative acts; [this guarantee] is aimed at ... individuals’ legally protected rights and interests, and generally encompasses the possibility of applying to have an administrative act set aside or declared null and void or non-existent, on grounds of unlawfulness.

Hence, Article 50 § 1 of the Administrative Courts Code concerning appeals against administrative acts provides that ‘an appeal against an administrative act is aimed at obtaining the setting-aside of the act in question or a declaration that it is null and void or non‑existent’.

Even though, since 1997, the Constitution no longer refers to ‘unlawfulness’ as a ground for appealing against an administrative act, this should not be construed to mean that the courts now have powers to examine the ‘well-foundedness’ of the administrative action: the unlawful nature of the act stems from the infringement of the individual’s legally protected rights and legitimate interests[1].

Under the Constitution, the administrative courts have jurisdiction to determine disputes arising in legal relationships in the administrative sphere. Article 212 § 3 provides that ‘the administrative and fiscal courts shall rule on actions and appeals aimed at determining disputes arising out of legal relationships in the administrative and fiscal spheres’.

However, Article 3 § 1 of the Administrative Courts Code provides for one limitation[2], according to which ‘within the limits imposed by the principle of separation of powers, the administrative courts shall examine compliance with the legal rules and principles by which the administrative authorities are bound, but shall not examine the appropriateness or expediency (conveniência ou opportunidade) of their actions’.

Article 3 § 1 of the Administrative Courts Code makes very clear that a degree of discretion is left to the authorities, an administrative sphere of activity that is not governed by legal rules or principles and falls outside the scope of the administrative courts’ scrutiny.

...

Accordingly, in view of this discretion on the part of the authorities, the courts’ scrutiny of administrative activity must be confined to examining whether or not the authorities have complied with the legal principles by which they are bound. In principle, this will entail a negative review (proceedings to set aside rather than a full review), in which the court may not substitute its assessment for that of the administrative authorities with regard to elements falling within the scope of that discretion.”

In the instant case the Supreme Court found that the CSM had indeed examined the factual evidence which, according to the applicant, it had disregarded. The Supreme Court pointed out in that connection that the issue whether the applicant had been acting in the performance of her duties was more in the nature of a legal issue and that, in any event, in assessing whether a judge had complied with his or her duty, it was necessary to take into account the judge’s relations with society and with the CSM, which was the profession’s management and disciplinary body. The Supreme Court found that the CSM had been right to dismiss the witness evidence presented by the applicant, in view of its content and the fact that the truth of the insult allegation had already been established in the earlier proceedings (see paragraphs 25 and 30 above).

(a) that the fact that the judicial investigator had not proposed a penalty until the final report was in line with the statutory requirements and had been sufficient in view of the fact that the report had been duly notified to the applicant so that she could make whatever comments she deemed necessary;

(b) that the rights of the defence, and in particular the right to be heard, had not been infringed in the applicant’s case, given that her defence had related to the facts of the case rather than to the proposed penalty and the fact that it had been open to the CSM to impose a heavier penalty than the one proposed; and

(c) that the legal reclassification of the facts had likewise not damaged the defence, given that it was in the context of the same facts that the applicant had breached her duty of honesty.

(a) that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and

(b) that the penalty imposed had not been disproportionate. C. Proceedings concerning the attempt to prevent the opening of disciplinary proceedings against a witness (application no. 74041/13)

First of all, it rejected the applicant’s argument that the proceedings were null and void on account of a breach of the adversarial principle.

The CSM took the view that, despite the various items of evidence to the contrary adduced by the applicant, F.M.J.’s statements remained credible.

Taking into account the applicant’s personal circumstances and her professional attributes, it found that a lesser penalty than that proposed in the final report was sufficient, and ordered that the applicant be suspended from duty for 180 days.

(a) that the relevant facts had not been taken into account, that the CSM had committed a manifest error in its assessment of the evidence, and that it had used factual evidence obtained by fraudulent means;

(b) that the CSM’s decision had been unlawful, especially on account of the definition of the alleged disciplinary offence;

(c) that there had been a breach of her right to a fair trial, as the CSM had refused to provide her with information which, in her submission, would have made it possible (i) to clarify certain allegations made by the judicial inspector F.M.J. or cast doubt on their credibility, and (ii) to establish which member of the CSM formation had made public certain details of the deliberations in the case before the decision had been delivered;

(d) that no reasons had been given for the refusal to suspend enforcement of the penalty; and

(e) that the penalty imposed had been disproportionate to the acts of which she had been accused.

The Supreme Court held as follows:

“Whether or not the provisions governing a special administrative action [ação administrativa especial] to set aside an administrative act permit the holding of a public hearing at an appellant’s request will naturally depend from the outset on the extent of the Supreme Court’s powers of review, as fashioned and regulated specifically by the Status of Judges Act, with regard to the establishment of the facts and the taking of evidence in connection with the appeal. In reality, it is clear that such a hearing, devoted to the production of evidence and discussion of the facts, would be useful and meaningful only if the Supreme Court, in determining the appeal, had broad-ranging jurisdiction to review without restriction all the facts and evidence relied on in the impugned decision. If that were the case the Supreme Court would repeat and add to the examination of the evidence produced in the disciplinary proceedings in order to ... form ... its own opinion as to the conclusions to be drawn from it ...

However, as it follows from the uniform, settled case-law of the Judicial Division, this is manifestly not the legal position that is continuing to emerge, primarily, from the reinforced law represented by the Status of Judges Act.”

With regard to the evidence which the applicant proposed to produce during the hearing, the Supreme Court found that it was inadmissible and irrelevant, stressing in particular

(a) that the applicant’s request for evidence to be heard from the witness had been aimed at establishing the content of the draft decision of the plenary CSM in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision; and

(b) that the documents submitted by the applicant went beyond the subject-matter of the disciplinary proceedings. Lastly, the Supreme Court observed that the applicant had produced a lengthy memorial. Under Article 91 of the Administrative Courts Code, this made it unnecessary to hear legal arguments in oral proceedings.

(a) that there had been no manifest error or inconsistency in the establishment of the facts, or any indication that the evidence had been obtained unlawfully;

(b) that the CSM had considerable discretion regarding the definition of the disciplinary offence, which was described in broad terms in the Act, and that the Supreme Court could alter that legal classification only in the event of a gross, manifest error, which was not the situation in the present case; and

(c) that the applicant’s arguments that the proceedings before the CSM had been unfair were unfounded, as the refusal to provide certain items of information had been duly reasoned.

(a) that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and

(b) that the penalty imposed had not been disproportionate. On this last point, the Supreme Court found as follows:

“Nevertheless, as ruled uniformly and consistently in this Division’s case-law, ‘when it comes to fixing penalties in the context of disciplinary proceedings, a degree of [administrative] discretion exists which should be overridden only in cases of gross, manifest error ...’

...

In the light of the Supreme Court’s powers with regard to the scale of the penalty – which falls wholly within the discretionary powers [of the administrative authorities] in accordance with the above-mentioned case-law – we do not consider that the CSM’s value judgment regarding the specific factual circumstances and the accused’s misconduct was apt to infringe the principles of proportionality and equality.

Furthermore, there is nothing in the case file to indicate that the choice of the [type] of sanction or its severity was based on any criteria other than the need to protect the public interest and the requirements of judicial ethics; accordingly, [the complaint concerning the] alleged abuse of powers is manifestly ill-founded ...”

D. Cumulative imposition and enforcement of the penalties

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Portuguese Constitution

Article 2 – Democratic State based on the rule of law

“The Portuguese Republic is a democratic State based on the rule of law, the sovereignty of the people, plural democratic expression and political organisation, on respect for and guaranteed exercise of fundamental rights and freedoms and on the separation and interdependence of powers, with a view to achieving economic, social and cultural democracy and deepening participatory democracy.”

Article 203 – Independence

“The courts are independent and are subject only to the law.”

Article 212 § 3 – The administrative and fiscal courts

“The administrative and fiscal courts shall rule on actions and appeals aimed at determining disputes arising out of legal relationships in the administrative and fiscal spheres.”

Article 215 § 4 – Judges of the ordinary courts

“Recruitment to the Supreme Court shall be by competition, based on candidates’ curriculum vitae. It shall be open to judges and prosecutors and to other lawyers of particular merit, under the conditions determined by statute.”

Article 216 – Guarantees and incompatible activities

“1. Judges shall have guaranteed tenure. They may not be transferred, suspended, compelled to retire or removed from office, save in those cases provided for by law.

Article 217 § 1 – Appointment, assignment, transfer and promotion of judges

“Decisions on the appointment, assignment, transfer and promotion of the judges of the ordinary courts, and on disciplinary action against them, shall be taken by the High Council of the Judiciary, in accordance with the law.”

Article 218 §§ 1 and 2 – High Council of the Judiciary

“1. The High Council of the Judiciary shall be presided over by the President of the Supreme Court and shall be composed of the following members:

(a) two members appointed by the President of the Republic;

(b) seven members elected by the Assembly of the Republic;

(c) seven judges elected by their peers ...

Article 266 – Basic principles

“1. The public administration shall pursue the public interest while respecting citizens’ legally protected rights and interests.

Article 268 § 4 – Citizens’ rights and guarantees

“Citizens shall be guaranteed effective judicial protection of their statutory rights and interests. This shall include recognition of those rights and interests, the right to appeal against any administrative act that causes them harm, irrespective of what form it takes ...”

B. Status of Judges Act

[General provisions]

Section 4(1) – Independence

“Judges shall adjudicate cases solely on the basis of the Constitution and the law. They shall not be subject to any orders or instructions, with the exception of the duty for the lower courts to adhere to the rulings given by the higher courts on appeal.”

Section 6 – Guaranteed tenure

“Judges shall be appointed for life. They may not be transferred, suspended, promoted, compelled to retire or removed from office, or undergo any change of status, save in the cases provided for in the present Act.”

Section 7 – Impediments

“Judges may not

(a) hear cases concerning judges, prosecutors or court officials with whom they are connected by marriage, a de facto marital relationship, a parent-child relationship or any tie of kinship in the direct line or a tie of kinship in the collateral line up to the second degree; or

(b) serve in a court within whose jurisdiction they have acted as a prosecutor or had a legal practice during the previous five years.” [Judges’ duties, incompatible activities, rights and privileges]

Section 13(1) and (2) – Incompatible activities

“1. With the exception of retired judges and those on long-term unpaid leave, judges may not hold any other position in the public or private sector, apart from unpaid teaching or academic research positions in the legal field and executive positions in a professional representative body for judges.

Section 40 – Conditions [for appointment as a judge]

“In order to be eligible to serve as a judge, the individual concerned must

(a) be a Portuguese citizen;

(b) have full enjoyment of his or her political and civil rights;

(c) hold a law degree from a Portuguese university or validated in Portugal;

(d) have successfully completed the relevant training; and

(e) satisfy the other statutory requirements for the appointment of civil servants.” Section 50 – Manner of recruitment [of Supreme Court judges]

“Recruitment to the Supreme Court shall be by competition, open to all judges and prosecutors and to other lawyers of particular merit, in accordance with the provisions set out below.”

Section 51 – Competition

“1. ... the High Council of the Judiciary, via an announcement in the Official Gazette (Diário da República), shall declare open the competition for recruitment to the Supreme Court on the basis of candidates’ curriculum vitae.

(a) deputy Attorneys-General whose period of service is at least equal to that of the most recently appointed of the judges referred to in paragraph 2, and whose performance is deemed to be ‘very good’ or ‘good (with merit)’;

(b) lawyers who are recognised for their particular merit and their civic standing and who have twenty years’ exclusive or continuous experience in university teaching or as practising lawyers ...

...

Section 52(2) and (4) – Assessment of curriculum vitae, ranking and

filling of vacant posts

“2. Candidates shall present their curriculum vitae at a public hearing before a panel composed as follows.

(a) The President of the Supreme Court, in his or her capacity as President of the High Council of the Judiciary, shall chair the panel.

(b) The remaining members shall be:

(i) the Supreme Court judge with the longest period of service in his or her category and who is a member of the High Council of the Judiciary;

(ii) one member of the High Council of Prosecutors ...;

(iii) one member of the High Council of the Judiciary who is not a member of the judiciary and is elected by that body;

(iv) one university professor of law ... selected by the High Council of the Judiciary;

(v) one practising lawyer who holds a position within the Bar Council ...

...

[Types of penalties]

Section 85 – Scale of penalties

“1. The following penalties may be imposed on judges:

(a) caution;

(b) fine;

(c) transfer;

(d) suspension from duty;

(e) disciplinary leave without pay (inatividade);

(f) early retirement;

(g) removal from office.” Section 87 – Fines

“Fines shall be expressed as day-fines, ranging from five to ninety days.”

Section 89 – Suspension from duty and disciplinary leave without pay

“1. Suspension from duty and disciplinary leave without pay shall entail complete removal from duties for the duration of the penalty.

[Application of penalties]

Section 94(1) – Suspension from duty and disciplinary leave without pay

“Suspension from duty and disciplinary leave without pay may be ordered in respect of judges who have demonstrated serious negligence or a serious lack of commitment in the performance of their duties, or if a judgment is given sentencing them to a prison term and removal from office.”

Section 95 – Early retirement and removal from office

“1. Early retirement or removal from office may be ordered where the judge concerned

...

(b) demonstrates a lack of honesty, and immoral or dishonourable conduct ...” [Effects of penalties]

Section 102 – Fines

“The fine shall be applied by deducting from the judge’s salary the amount corresponding to the number of day-fines imposed.”

Section 104 – Suspension from duty

“Suspension from duty shall result in the period [corresponding to the penalty] being deducted from the period taken into account for the purposes of remuneration, length of service and retirement.”

[Procedural rules]

Section 110(2) – Disciplinary proceedings

“... [D]isciplinary proceedings shall be in writing. They shall not be subject to any formalities apart from the requirement to hear evidence from the accused and to afford him or her the opportunity to present a defence.”

Section 111 – Responsibility for instituting proceedings

“The High Council of the Judiciary shall be responsible for instituting disciplinary proceedings against judges.”

Section 112 – Impediments and grounds for suspicion

“The impediments and grounds for suspicion provided for in criminal proceedings shall apply to disciplinary proceedings, with the necessary adjustments.”

Section 113 – Confidentiality of proceedings

“1. Disciplinary proceedings shall remain confidential until the final decision is given ...

Section 114(3) – Time allowed for investigation

“The [judicial] investigator shall notify the High Council of the Judiciary and the accused of the date on which he or she commences the investigation.”

Section 115 – Number of witnesses during the investigation stage

“1. There shall be no limit on the number of witnesses during the investigation stage.

Section 117(1) – Indictment

“Once the investigation is completed and details of the accused’s disciplinary status have been added to the case file, the investigator shall draw up the indictment within ten days. This shall set out in detail the facts constituting the disciplinary offence and any aggravating or extenuating circumstances he or she considers to be established, together with the applicable statutory provisions.”

Section 118(1) – Notification to the accused

“A copy of the indictment shall be given to the accused or sent by registered letter with recorded delivery. A time-limit of between ten and thirty days shall be laid down for the submission of defence pleadings.”

Section 120 – Consultation of the file

“During the time allowed for the submission of defence pleadings the accused, his or her officially appointed representative or his or her lawyer may consult the file at the premises [of the CSM].”

Section 121 – Defence of the accused

“1. For the purposes of his or her defence the accused may call witnesses, submit documents and request investigative steps (diligências).

Section 122 – Report [of the judicial investigator]

“Once the investigation has been completed the judicial investigator shall compile the report within fifteen days. The report shall contain

(a) the establishment of the facts;

(b) their legal classification; and

(c) the applicable penalty.” Section 123 – Notification of the decision

“The final decision, accompanied by a copy of the report referred to in the previous section, shall be notified to the accused ...”

Section 124 – Grounds of nullity and irregularities

“1. Failure to hear evidence from the accused so as to enable him or her to present a defence, and failure to take in good time all practicable measures that are essential in order to establish the truth, shall constitute grounds of irremediable nullity.

Section 131 – Subsidiary law

“The rules governing the status of civil servants ... shall apply in the alternative, together with the Criminal Code, the Code of Criminal Procedure ...”

[High Council of the Judiciary]

Section 137 – Composition

“1. The High Council of the Judiciary shall be presided over by the President of the Supreme Court and shall comprise the following members:

(a) two members appointed by the President of the Republic;

(b) seven members elected by Parliament;

(c) seven members elected by judges from among their number.

Section 138(1) – Vice-President ...

“The Vice-President of the High Council of the Judiciary shall be the Supreme Court judge referred to in section 141(2) and shall be appointed on a full-time basis.”

Section 139 – Appointment

“1. The members of the Council referred to in section 137(1)(b) shall be those appointed in accordance with the Constitution and the Regulation on the Assembly of the Republic.

Section 147(1) – Performance of duties

“The members referred to in section 137(1)(c) shall be elected for a three-year term of office, renewable once.”

Section 149 – Responsibilities

“The High Council of the Judiciary shall

(a) appoint, assign, transfer, promote and remove judges, assess their performance, take disciplinary action against them and, in general, perform any acts of a similar nature, without prejudice to the provisions governing elected posts ...” Section 150 – Functioning

“1. The High Council of the Judiciary shall sit in plenary session (plenário) or as a Permanent Council.

(a) the President of the High Council of the Judiciary, who shall preside;

(b) the Vice-President of the High Council of the Judiciary;

(c) one appeal court judge;

(d) two judges;

(e) one of the members referred to in section 137(1)(a);

(f) four of the members elected by the Assembly of the Republic;

(g) the member referred to in section 159(2).

...

Section 151 – Responsibilities of the plenary formation

“The High Council of the Judiciary, sitting in plenary session, shall be responsible for

(a) carrying out the acts referred to in section 149 in respect of judges of the Supreme Court and the appeal courts, and with regard to those courts;

(b) examining and adjudicating complaints against decisions of the Permanent Council and of the President, Vice-President or members of the Council; ...” Section 152 – Responsibilities of the Permanent Council

“1. The Permanent Council shall be responsible for those acts not referred to in the previous section.

Section 153 – Responsibilities of the President

“1. The President of the High Council of the Judiciary shall

(a) represent the Council;

(b) perform the duties delegated to him or her by the Council, with the option of sub-delegating to the Vice-President;

(c) swear in the Vice-President, the judicial inspectors and the Secretary;

(d) direct and coordinate inspection services;

(e) draw up circulars on the basis of the Secretary’s proposals; and

(f) perform the other tasks assigned to him or her by law.

Section 156(2) and (3) – Functioning of the plenary formation

“2. Decisions shall be taken by a majority of the votes cast. The President shall have a casting vote.

Section 157(2) and (3) – Functioning of the Permanent Council

“2. In order for the decisions to be valid, the presence of at least five members is required.

Section 159(1) and (2) – Assignment of cases (processos)

“1. Cases shall be assigned by drawing lots in accordance with the Rules of Procedure.

[Appeals]

Section 168 – Appeals

“1. The decisions of the High Council of the Judiciary shall be open to appeal before the Supreme Court.

...

Section 178 – Subsidiary law

“The rules governing appeals to the Supreme Administrative Court shall apply in the alternative.”
“1. A judge may be withdrawn from a case (recusado(a)) where there is a risk that his or her involvement may give rise to suspicions, in view of the existence of serious and substantial reasons to doubt his or her impartiality.

...”

Section 3 – Disciplinary offences

“...

(a) a duty to pursue the public interest;

...

(d) a duty to inform;

...

(g) a duty of loyalty;

(h) a duty of propriety;

...”

C. Organisation of the Courts Act

“It shall be for the President of the Supreme Court to determine the distribution of judges among the divisions, taking into account, in turn, their level of specialisation, the needs of the service (a conveniência para o serviço) and any preference expressed.”

This provision corresponds to section 49(2) of the Organisation of the Judicial System Act (Lei de organização do sistema judiciário) (Law no. 62/2013 of 26 August 2013), which is currently in force.

D. Administrative Courts Code

Article 3

“Within the limits imposed by the principle of separation of powers, the administrative courts shall examine compliance with the legal rules and principles by which the administrative authorities are bound, but shall not examine the appropriateness or expediency (conveniência ou opportunidade) of their actions.”

Article 50

“1. An appeal against an administrative act is aimed at obtaining the setting-aside of the act in question or a declaration that it is null and void or non-existent.
“1. Once the taking of evidence is complete, the judge or rapporteur may, if the complexity of the facts warrants it, order of his or her own motion a public hearing in order to debate the facts.

...”

The relevant parts of this Article, as amended by Legislative Decree no. 214-G/2015 of 2 October 2015, read as follows:

“1. Where statements are to be taken from the parties, witness evidence is to be heard or experts are to provide oral clarifications, a final hearing shall be held.

...”

“Without prejudice to the provisions of any specific legislation, administrative legal proceedings over which courts belonging to a different court system have jurisdiction shall be governed by the provisions of the present Code, with the necessary adjustments.”

E. Code of Civil Procedure

Article 696

“A decision that has become res judicata may be the subject of an application to reopen the proceedings (recurso de revisão) only where

...

(f) it is incompatible with a final decision given by an international appeal body and by which Portugal is bound.”

F. Case-law of the Judicial Division of the Portuguese Supreme Court

“Appeals to the Supreme Court against decisions of the CSM afford no fewer guarantees than appeals to the administrative courts. In particular, since the composition of the Judicial Division of the Supreme Court is based on fixed criteria, it is determined in advance and in an objective manner.

...

The effective judicial protection of citizens’ rights under Article 268 § 4 of the Constitution, which provides, inter alia, for ‘the right to appeal against any administrative act that causes them harm, irrespective of what form it takes’, must comply with Article 3 of the Administrative Courts Code, which states that ‘within the limits imposed by the principle of separation and interdependence of powers, the administrative courts shall examine compliance with the legal rules and principles by which the administrative authorities are bound, but shall not examine the appropriateness or expediency (conveniência ou oportunidade) of their actions’.

While this new provision appears to extend the powers of the administrative courts compared with the earlier legislation, the fact that these courts now enjoy full jurisdiction should not blind us to the limitations inherent in the protection of the administrative authorities’ discretionary powers. In this regard, the powers exercised by the CSM in ruling on conduct alleged to be incompatible with a judge’s duty of diligence are exempt from the courts’ scrutiny.

... the appeal body must, on the basis of lawfulness in the broad sense, examine compliance with Article 266 § 2 of the Constitution, according to which the administrative authorities must exercise their powers in accordance with the principle of proportionality in particular; this amounts, in other words, to a prohibition on acting in excess of their powers (proibição do excesso).”

In a judgment of 27 January 2004 (domestic proceedings no. 1049/01), it found as follows:

“A gross, manifest error of assessment constitutes an exception to the rule that the Supreme Court does not review matters falling within the margin of discretion. The error must not just be serious (a gross error, in that it is manifestly contrary to reason, common sense or the truth, or demonstrates inadequate knowledge); it must also be flagrant (manifest).”

In its judgment of 8 May 2012 (domestic proceedings no. 114/11.1YFLSB), the Judicial Division of the Supreme Court held, inter alia, as follows:

“Hence, it is necessary to respect the assessment made by the administrative authorities as regards the conduct of the accused and the circumstances of the case ... and the consequent choice of a fine as a disciplinary penalty, the amount of the fine and the fact that no mitigating factors were taken into account.”

In its judgment of 26 June 2013 (domestic proceedings no. 132/12.2YFLSB), it found as follows:

“Given that what is in issue is simply an application to set aside under sections 168 et seq. of the Status of Judges Act, an application that can seek only to obtain the setting-aside of the impugned act or a declaration that it is null and void or non‑existent, it is not for the Supreme Court to play an active administrative role by taking the place of the body whose decision is being contested (full review). Accordingly, in so far as the Supreme Court is empowered solely to rule on an application to set aside, it cannot substitute its assessment for that of the CSM and apply a penalty that is lesser in substance than the one imposed. Its sole task is to ascertain whether the penalty is appropriate to the offence committed and whether there is a relationship of proportionality between the penalty and the offence.

... in determining penalties in disciplinary proceedings the administrative authorities enjoy a very wide discretion, which may be overridden only in the event of a gross, manifest error. In other words, the Supreme Court may intervene only if it appears that a gross error was committed in determining the disciplinary penalty, in breach of the principle of proportionality as regards the appropriateness of the penalty ...”

Lastly, in its judgment of 25 September 2014 (domestic proceedings no. 21/14.6YFLSB), the Supreme Court found as follows:

“The Supreme Court may intervene only where it considers that, in the determination of the disciplinary penalty, a manifest, serious or gross error was committed, based on criteria that were clearly mistaken or contrary to the principles of justice, impartiality, equality, proportionality and pursuit of the public interest.

In all other cases the decision taken by the CSM must be considered to fall within the wide margin of discretion and assessment enjoyed by that administrative body. Accordingly, the corresponding factors may not be reviewed by the judiciary.”

G. Case-law of the Constitutional Court

“... when jurisdiction was [originally] assigned to the Supreme Court sitting in plenary session to hear appeals against decisions of the High Council of the Judiciary, no credible alternative existed.

However, with increasing organisational autonomy in the exercise of administrative jurisdiction, the Supreme Administrative Court not only became an option no longer posing a threat to the judiciary, but also appeared, at first sight, the most natural choice in view of the issues under discussion in such appeals.

Nevertheless, the legislature retained the original approach, in view of the history – however short – of the exercise of this jurisdiction by the Supreme Court, and of the proximity of the judges of that Court to the issues forming the subject-matter of appeals against the decisions of the High Council of the Judiciary, and in particular against disciplinary decisions concerning judges. The legislature may also have feared creating a source of conflict between the two court systems.

In reality, even though this proximity may raise questions regarding the impartiality of the appellate court ..., it means that the latter is more familiar with the issues raised by the impugned decisions and can weigh the interests at stake in these appeals from a position of greater awareness.

While the judges of the Supreme Administrative Court have more detailed knowledge in principle of the applicable law, those of the Supreme Court are, given the specific nature of the matters being discussed, better placed to review the impugned decisions effectively. It was thus this last factor which influenced the legislature’s decision to maintain the approach whereby the Supreme Court has jurisdiction to hear disputes concerning disciplinary measures against judges.

For these reasons it cannot be said that the assigning of jurisdiction to the Supreme Court is in breach of Article 213 § 1 of the Constitution.

...

The fact that the judges making up the formation of the Supreme Court which hears appeals against decisions of the High Council of the Judiciary, including in disciplinary cases, are subject to the administrative and disciplinary authority of that body cannot, from an objective viewpoint, be regarded as a factor liable to influence the Supreme Court’s decision in these cases.

The relationship between the Supreme Court and judges is not one of subordination. Judges not only enjoy independence from the other branches of State power, but also enjoy internal independence, as management and disciplinary issues are a matter for the High Council of the Judiciary, in accordance with the rules laid down in advance and in the abstract. ...

... the fact that, with the exception of the most senior Vice-President of the Supreme Court, the judges are appointed by the President, who is also the President of the body whose decisions are being challenged on appeal, is not apt to cast doubt on their impartiality, since the appointment by the President of the Supreme Court is based on an objective and binding (vinculado) criterion, namely that one judge must be chosen from each of the four divisions ‘in order of seniority’.

The judges chosen are the most senior in each division.

... the impartiality of these judges vis-à-vis the High Council of the Judiciary and its President cannot therefore be called into question on this basis either ...”

III. RELEVANT INTERNATIONAL LAW AND PRACTICE

THE LAW

I. PRELIMINARY ISSUES

A. Subject-matter of the dispute

B. Preliminary objections on grounds of inadmissibility

In view of the foregoing considerations, and in particular the fact that they had been surprised by the Chamber judgment, which despite the particular circumstances referred to above had nonetheless examined the issue of the CSM’s independence and impartiality, the Government maintained that they had thus been unable to raise an objection before the Chamber alleging a failure to exhaust domestic remedies. They therefore took the view that they were not estopped from raising it at the present stage of the proceedings.

(a) Objection of failure to comply with the six-month time-limit

(i) Whether or not the Court has jurisdiction to examine the issue of the applicant’s compliance with the six-month rule

(ii) Compliance with the six-month rule

(α) General principles

“39. The six-month time-limit provided for by Article 35 § 1 has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see O’Loughlin and Others v. the United Kingdom (dec.), no. 23274/04, 25 August 2005) and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Nee v. Ireland (dec.), no. 52787/99, 30 January 2003).

(β) Application of these principles to the present case

In that connection the Court reiterates that the mere fact that the applicant invoked Article 6 in his or her application is not sufficient to constitute introduction of all subsequent complaints made under that provision where no indication has initially been given of the factual basis of the complaint and the nature of the alleged violation (see Allan, cited above, and Adam and Others v. Germany (dec.), no. 290/03, 1 September 2005).

(b) Objection of failure to exhaust domestic remedies

(c) Conclusions

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

...

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

...”

A. The Chamber judgment

However, the Chamber noted that under Portuguese law the Supreme Court did not have jurisdiction to re-examine the facts as established by the CSM. Furthermore, it could not reconsider the penalty imposed, but could only determine whether the penalty had been appropriate to the offence and proportionate to it. For that reason, in the Chamber’s view, the case was to be likened to situations in which the national courts had been unable or had refused to examine a key issue in the dispute because they had considered themselves bound by the findings of fact or of law made by the administrative authorities and could not examine the relevant issues independently. In the instant case the Supreme Court had confined itself to conducting a review of lawfulness with regard to the establishment of the facts and had thus not properly addressed important arguments advanced by the applicant concerning questions of fact that were crucial to the disciplinary proceedings against her.

As to the review of the legal issues, the Chamber noted that, in the view of the Supreme Court, it was not its task to rule on conduct alleged to be incompatible with a judge’s duties, or to encroach on the discretionary powers of the administrative authorities, but simply to conduct a review of lawfulness in the broad sense. The Chamber concluded from this that the Supreme Court adopted a restrictive approach to the extent of its own jurisdiction to review the disciplinary activities of the CSM, and that the review carried out in the cases concerning the applicant had therefore been insufficient.

The Chamber took the view that the matters under discussion in the proceedings at issue, namely the disciplinary penalty imposed on a judge for acts connected in particular with remarks in breach of her professional obligations, had not been of a highly technical nature and had thus required a hearing open to public scrutiny. It further noted that the facts had been contested and that the penalties which the applicant had been liable to incur carried a significant degree of stigma and were likely to adversely affect her professional honour and reputation. Accordingly, a public hearing, open and accessible to the applicant, had been necessary in the present case.

B. Applicability of Article 6 of the Convention

(a) Existence of a “dispute” relating to “civil rights and obligations”

(b) Existence of a “criminal charge”

(i) General principles

(ii) Application of these principles to the present case

C. Merits

(a) The parties’ submissions

(i) professional disciplinary offences were not defined with the requisite precision and were based in part on the provisions concerning civil servants;

(ii) the adversarial principle was not adhered to, given that the CSM was responsible – either directly or through the judicial investigators whom it appointed and dismissed – for the opening of proceedings, the disciplinary investigation, the indictment and the adoption of the final decision;

(iii) the requirement to hold a public oral hearing did not apply to disciplinary proceedings, with the adversarial principle being confined to hearing evidence from the person concerned and giving him or her the opportunity to request additional investigative measures;

(iv) disciplinary proceedings were confidential and no public hearing before the CSM was possible.

(b) The Court’s assessment

(a) The parties’ submissions

(i) The applicant

(ii) The Government

(b) The Court’s assessment

(i) General principles

(ii) Application of these principles to the present case

(α) The dual role of the President of the Supreme Court

(β) The CSM’s role as regards the careers of Supreme Court judges and disciplinary proceedings against them

“130. The Court observes that the judicial review was performed by judges of the HAC who were also under the disciplinary jurisdiction of the HCJ. This means that these judges could also be subjected to disciplinary proceedings before the HCJ. Having regard to the extensive powers of the HCJ with respect to the careers of judges (appointment, disciplining and dismissal) and the lack of safeguards for the HCJ’s independence and impartiality (as examined above), the Court is not persuaded that the judges of the HAC considering the applicant’s case, to which the HCJ was a party, were able to demonstrate the ‘independence and impartiality’ required by Article 6 of the Convention.”

(a) The parties’ submissions

(i) The applicant

(ii) The Government

(b) The Court’s assessment

(i) General principles

(α) Extent of the judicial review

The case of Tsfayo falls into this category. In that case, the body whose decision was under judicial review was not merely lacking in independence from the executive, but was also directly connected to one of the parties to the dispute (see Tsfayo, cited above, § 47). The Court considered that the independence of judgment in relation to the finding of primary fact was liable to be impaired in a manner which could not be adequately scrutinised or rectified by judicial review. As the competent court had lacked jurisdiction to rehear the evidence and had therefore been unable to determine a crucial issue of fact, the Court found a violation of Article 6 on the ground that the central issue had not been determined by a tribunal that was independent of the parties. In other words, in that case, the impossibility of re-examining a decisive factual issue had prevented the appellate court from remedying the lack of independence from one of the parties to the dispute that had been found at first instance.

(β) Public hearing

“39. The Court reiterates that the public character of proceedings before the judicial bodies referred to in Article 6 § 1 protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, among many other authorities, Axen v. Germany, 8 December 1983, § 25, Series A no. 72).

(a) where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the case file (see Döry v. Sweden, no. 28394/95, § 37, 12 November 2002, and Saccoccia v. Austria, no. 69917/01, § 73, 18 December 2008);

(b) in cases raising purely legal issues of limited scope (see Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 49, Reports 1998‑I, and Mehmet Emin Şimşek v. Turkey, no. 5488/05, §§ 29-31, 28 February 2012), or points of law of no particular complexity (see Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002, and Speil v. Austria (dec.), no. 42057/98, 5 September 2002);

(c) where the case concerns highly technical issues. For instance, the Court has taken into consideration the technical nature of disputes concerning social-security benefits, which may be better dealt with in writing than in oral argument. It has held on several occasions that in this sphere the national authorities are entitled, having regard to the demands of efficiency and economy, to dispense with a hearing, as systematically holding hearings may be an obstacle to the particular diligence required in social-security cases (see Schuler-Zgraggen, § 58, and Döry, § 41, both cited above).

(a) where there is a need to assess whether the facts were correctly established by the authorities (see Malhous v. the Czech Republic [GC], no. 33071/96, § 60, 12 July 2001);

(b) where the circumstances require the court to form its own impression of litigants by affording them a right to explain their personal situation, on their own behalf or through a representative (see Göç, cited above, § 51; Miller, cited above, § 34 in fine; and Andersson v. Sweden, no. 17202/04, § 57, 7 December 2010);

(c) where the court needs to obtain clarification on certain points, inter alia by means of a hearing (see Fredin v. Sweden (no. 2), 23 February 1994, § 22, Series A no. 283-A, and Lundevall v. Sweden, no. 38629/97, § 39, 12 November 2002).

If, however, the appellate court has full jurisdiction, the lack of a hearing before a lower level of jurisdiction may be remedied before that court (see, for example, Malhous, cited above, § 62, and, in a disciplinary context, A. v. Finland (dec.), no. 44998/98, 8 January 2004, and Buterlevičiūtė v. Lithuania, no. 42139/08, §§ 52-54, 12 January 2016).

(ii) Application of these principles to the present case

(α) The subject-matter of the CSM’s decisions

(β) The proceedings before the CSM (the disciplinary body)

(γ) The proceedings before the Judicial Division of the Supreme Court (the judicial body)

Firstly, as emphasised by the Chamber, the applicant, in her appeals to the Supreme Court, consistently denied the acts of which she had been accused by the CSM (see, mutatis mutandis, Tsfayo, cited above, § 46, and Družstevní Záložna Pria and Others v. the Czech Republic, no. 72034/01, § 112, 31 July 2008).

Secondly, the Court notes that in each set of proceedings the disciplinary sanctions imposed on the applicant were based on the finding that she had breached her professional obligations as a judge. The characterisation of the applicant’s professional conduct was therefore a crucial issue in the proceedings to be reviewed by the Supreme Court.

Thirdly, in so far as the applicant complained to the Judicial Division of the Supreme Court that the penalties imposed on her in each set of proceedings had been disproportionate, the Court reiterates that a judicial body cannot be said to have full jurisdiction unless it has the power to assess whether the penalty was proportionate to the misconduct (see Diennet, cited above, § 34, and Mérigaud v. France, no. 32976/04, § 69, 24 September 2009).

In the present case the factual evidence was a decisive aspect of the proceedings concerning the applicant and was not merely secondary to the issues coming within the discretion of the administrative authorities. The applicant denied calling Judge H.G. a “liar” and stated that during her conversation with Judge F.M.J. she had not asked him to refrain from instituting proceedings against the witness whom she had wished to call. In that regard it should be noted that the establishment of the facts had been the subject of disagreement among the members of the CSM (see paragraph 26 above). Like the Chamber, the Grand Chamber regards these facts as “decisive”. The accusations against the applicant were liable to result in her removal from office or suspension from duty, that is to say, in very serious penalties which carried a significant degree of stigma (see paragraph 196 above) and which were apt to have irreversible repercussions on her life and career. They did in fact result in a disciplinary penalty of 240 days’ suspension from duty, although the period of suspension lasted for only 100 days in practice (see paragraphs 67 and 69 above).

It appears therefore that, in view of the limits imposed on it by the legislation and by its own case-law, the Judicial Division of the Supreme Court was not empowered to examine the decisive points in the proceedings, namely the content of the applicant’s conversations with the judicial inspector H.G. and with Judge F.M.J. It could only “examine any contradictions, inconsistencies and insufficiency in the evidence and any manifest errors in the assessment thereof, in so far as these defects [were] apparent” (see paragraph 29 above). According to the definition in its own case-law, a “manifest” error “must not just be serious (a gross error, in that it is manifestly contrary to reason, common sense or the truth, or demonstrates inadequate knowledge); it must also be flagrant (manifest)” (see paragraph 81 above).

The applicant did in fact request the holding of a hearing in the third set of proceedings, relying on Article 91 § 2 of the Administrative Courts Code (see paragraph 61 above). The Judicial Division of the Supreme Court, whose task it was to rule on whether such a measure was necessary, did not declare the applicant’s request inadmissible for lack of a legal basis, as the CSM had done, but nevertheless refused it, citing as reasons the scope of its jurisdiction and the supposed irrelevance of the evidence which the applicant wished to have examined (see Jussila, cited above, § 48, and paragraphs 64 and 76 above).

(δ) Conclusion

Accordingly, it is not necessary to examine the two remaining aspects of the review performed by the Judicial Division of the Supreme Court, namely its review of the breach of professional obligations and its review of the disciplinary sanctions imposed (see paragraphs 201-02 above).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

B. Costs and expenses

FOR THESE REASONS, THE COURT,

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 November 2018.

Françoise Elens-Passos Guido Raimondi

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Judges Raimondi, Nussberger, Jäderblom, Møse, Poláčková and Koskelo;

(b) concurring opinion of Judge Pinto de Albuquerque;

(c) joint partly dissenting opinion of Judges Yudkivska, Vučinić, Pinto de Albuquerque, Turković, Dedov and Hüseynov. G.R.

F.E.P.

JOINT CONCURRING OPINION OF JUDGES RAIMONDI, NUSSBERGER, JÄDERBLOM, MØSE, POLÁČKOVÁ AND KOSKELO

General remarks

Application in the present case

The lack of an oral hearing

Critical observations on the approach taken by the majority

Concluding summary

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

The history of judicial governance in Portugal

With the present findings, the Grand Chamber seeks to convey the same message as the Chamber judgment: that it is high time to reform the applicable legal framework and practice in Portugal. It is laudable that the Government heeded the call of the Chamber and, even before the Grand Chamber ruling, presented a proposal to reform the Status of Judges Act[8]. I would like to emphasise that this reform does not, however, mean that the constitutional framework has to be changed. I will elaborate further on this issue below.

The international standards on judicial governance

“29. ... Thus, a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualification taking into account possible conflicts of interest ...”
“32. To sum up, it is the Venice Commission’s view that it is an appropriate method for guaranteeing for the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges. Owing to the richness of legal culture in Europe, which is precious and should be safeguarded, there is no single model which applies to all countries. While respecting this variety of legal systems, the Venice Commission recommends that states which have not yet done so consider the establishment of an independent judicial council or similar body. In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges. With the exception of ex-officio members these judges should be elected or appointed by their peers ...”
“77. The Venice Commission recalls its position in the Opinion on the draft law on the High Judicial and Prosecutorial Council (HJPC) of Bosnia and Herzegovina, where the Commission stressed that it is important to have ‘a balance between the need to protect the independence of the HJPC and the interest in ensuring its public control and in preventing corporatist management’. While in that opinion it was recommended that a majority of the HJPC members should be elected by the judiciary, the Venice Commission has never been in favor of systems where all members of the body were elected by the judges. Given that now the CDF [Council for Determination of Facts] has obtained very important powers in the sphere of the judges’ discipline, it is recommended that a significant proportion of its members are appointed by democratically elected bodies, most preferably by the Parliament with a qualified majority of votes. The latter solution would increase democratic accountability of the judiciary while providing sufficient protection against domination of this body by political appointees.”

“Chapter IV – Councils for the judiciary

...

Chapter VI – Status of the judge

Selection and career

“13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.”
“Given the extensive powers of these two councils, notably with respect to appointment, promotion, evaluation and disciplinary procedures, their composition attracted criticism on site and their independence and freedom from political bias was questioned. In this respect, the [GRECO evaluation team] wishes to recall Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, which stipulates that judges elected by their peers should make up not less than half the members of councils for the judiciary. In Portugal, the legal framework falls short of meeting this important requirement.”

GRECO also noted as follows:

“... in practice some of the HCJ members appointed by the President of the Republic happen to be former judges. The [GRECO evaluation team] was told that the two members appointed by the President to the HJC are not career judges, although currently one of them is an ex-judge of the Constitutional Court.”

On this basis, GRECO made the following recommendation:

“vi. that i) the role of the judicial councils as guarantors of the independence of judges and of the judiciary is strengthened, in particular, by providing in law that not less than half their members are judges elected by their peers; ...”[15]

Reinforcement of the guarantees in judicial governance

“If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a ‘mixed’ offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 ... would be subordinated to their sovereign will[20].”
“... notwithstanding the non-criminal character of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring – the third criterion – may bring the matter into the ‘criminal’ sphere” [22].

(1) the defendant judge should have the right “to be heard in public before the CSM sitting in plenary”[34];

(2) the defendant judge should have the right “to make oral representations” on both “the factual issues and the penalties” and on “the various legal issues” before the CSM sitting in plenary[35];

(3) the defendant judge should have the right to have witnesses heard before the CSM sitting in plenary[36];

(4) the defendant judge should have the right to have “an adversarial hearing before the body performing the judicial review”[37];

(5) the defendant judge should have the right to obtain “a public hearing before a body with full jurisdiction” and such a hearing should allow “for an oral confrontation between the parties”, namely the CSM and the defendant judge[38];

(6) the defendant judge should have the right to be heard “orally” by the body performing the judicial review, in order “to explain (his or) her version of the situation” and allow the appellate judges “to form (their) own impression of the applicant”[39];

(7) the body performing the judicial review should observe that “in the context of disciplinary proceedings, dispensing with an oral hearing should be an exceptional measure and should be duly justified in the light of the Convention institutions’ case-law”[40];

(8) “in respect of the decisive factual evidence”, the body performing the judicial review should include “in its reasoning considerations relating to the assessment of those issues”[41];

(9) the body performing the judicial review should “assess factual evidence going to the applicant’s credibility and that of the witnesses and constituting a decisive aspect of the case”[42];

(10) the body performing the judicial review should have the power “to assess whether the penalty was proportionate to the misconduct”[43];

(11) in order to put an end to the violation or violations found by the Court and to redress as far as possible the effects there should be, at least, a “reopening [of the] proceedings at domestic level where the Court has found a violation of an applicant’s fundamental rights and freedoms”[44]. These are the minimum procedural guarantees in disciplinary proceedings against judges, laid down by the Grand Chamber of the Court.

Conclusion

JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, VUČINIĆ, PINTO DE ALBUQUERQUE, TURKOVIĆ, DEDOV AND HÜSEYNOV

The dual role of the President of the Supreme Court

The fact that the Supreme Court is subject to the CSM’s disciplinary power

[1]. José Carlos Vieira de Andrade, A justiça Administrativa (Lições), Livraria Almedina, 1999, p. 95.

[2]. Jorge de Sousa, “Poderes de Cognição dos Tribunais Administrativos relativamente a Actos Praticados no Exercício da Função Política”, in Julgar, no. 3-2007, Coimbra Editora, p. 119.

[3]. For reasons of economy I will limit the scope of the opinion to the Republican regime.

[4]. The Portuguese word artigo is translated in accordance with the Court’s consistent practice, which is to use “section” for Acts and “Article” for Codes.

[5]. On this issue, see the critical Portuguese literature: J. Miranda, Annotation to Article 217, in Miranda/Medeiros, Constituiçao Portuguesa Anotada, vol. III, 2007, p. 192; “Os parametros constitucionais da reforma do contencioso administrativo”, in Reforma do contencioso administrativo, vol. 1, 2007, p. 374; S. Correia, Contencioso Administrativo, 1990, p. 125; R. Alves, “A apreciaçao jurisdicional das deliberaçoes do CSM pelo STJ”, in Julgar, no. 21, p. 248; C. Fraga, Sobre a independencia dos juizes, 2003, p. 189; P. Rangel, Repensar o poder judicial, 2001, p. 227; A. Pereira, “O poder politico perante a magistratura”, ASJP (ed.), in Poder Judicial na viragem do seculo, vol. II, 1997, p. 89; and A. Santos Silva, “A Constituiçao e a independencia do poder judicial”, in Scientia Juridica, 1975, XXII, p. 35.

[6]. See section 168(5) of the Status of Judges Act. As demonstrated above, this provision dates back to the Status of Judges Act 1944 (section 445), with the very same wording.

[7]. See paragraphs 79 to 81 of the judgment.

[8]. The reform procedure was started by Government Bill no. 122/XIII.

[9]. Although I agree with the Court that the applicant’s claim regarding the composition of the CSM as such was first made after the six-month period had expired, nothing prevented the Court from analysing the legal arguments presented as a part of the historical and constitutional context in which the CSM’s decisions were taken. In fact, the Government themselves invoked the argument of the composition of the CSM (Government’s observations, §§ 97-108). The Grand Chamber recognises this too. In declaring the claim concerning the CSM to be inadmissible, the majority announce that “when examining the remaining complaints [the Court] will take into consideration, as appropriate, any relevant factors concerning the CSM” (see paragraph 107 of the judgment), which the majority ultimately refrain from doing (see paragraph 160).

[10]. Section 137 of the Status of Judges Act.

[11]. Section 159 of the Status of Judges Act.

[12]. Section 148(2) of the Status of Judges Act.

[13]. Oleksandr Volkov v. Ukraine, no. 21722/11, §113, ECHR 2013.

[14]. See paragraphs 41-50 of the Chamber judgment.

[15]. Greco Eval IV Rep (2015) 5E.

[16]. Greco RC4(2017)23.

[17]. Ibid., paragraph 72.

[18]. The operative part of the judgment does not refer explicitly to the applicant’s claim that the case should have been considered under the criminal limb of Article 6 and not only under its civil head. In this regard, the Grand Chamber omits to consider important features of the “punitive” nature of the sanctions applied to the applicant, to which the subsequent considerations will be dedicated.

[19]. Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22.

[20]. Ibid., § 81.

[21]. Ibid., § 81.

[22]. Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998. In this case, the Court declared the complaint inadmissible precisely because “the severity of the penalty was not, of itself, such as to render the charges ‘criminal’ in nature”.

[23]. For example, regarding lawyers, see Müller-Hartburg v. Austria, no. 47195/06, § 48, 19 February 2013, and Biagioli v. San Marino (dec.), no. 64735/14, § 56, 13 September 2016; regarding judges, see Oleksandr Volkov v. Ukraine, no. 21722/11, § 93, ECHR 2013; and regarding other public officials, see Moullet v. France (dec.), no. 27521/04, 13 September 2007.

[24]. “A fine which is punitive and deterrent rather than compensatory, may suggest that the matter is ‘criminal’ in nature if the penalty is sufficiently substantial” (Brown, cited above).

[25]. Section 102 of the Status of Judges Act, cited in paragraph 71.

[26]. Section 104 of the Status of Judges Act, cited in the same paragraph 71.

[27]. Section 102 of the Status of Judges Act.

[28]. Articles 66 and 67 of the Criminal Code.

[29]. Section 131 of the Status of Judges Act.

[30]. Brown, cited above.

[31]. Delicta propria, or Sonderdelikte. See my separate opinion in A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 19, ECHR 2016.

[32]. The very serious nature of the penalties was emphasised in paragraphs 198 and 203 and in the concluding remarks of paragraph 214 of the judgment.

[33]. Government Bill no.122/XIII.

[34]. Paragraph 198 of the judgment.

[35]. Ibid.

[36]. Ibid.

[37]. Paragraph 211 of the judgment.

[38]. Paragraph 208 of the judgment.

[39]. Paragraph 206 of the judgment.

[40]. Paragraph 210 of the judgment.

[41]. Paragraph 213 of the judgment.

[42]. Paragraph 214 of the judgment.

[43]. Paragraph 201 of the judgment.

[44]. Paragraph 222 of the judgment.

[45]. Section 168 of the Status of Judges Act.

[46]. Section 29(2) of the Organisation of the Courts Act, cited in paragraph 74 of the judgment.

[47]. Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013.

[48]. Oleksandr Volkov, cited above, § 130.

[49]. For example, case 02P3735, judgment of the Supreme Court of 3 July 2003, on an appeal against a disciplinary sanction imposed by the CSM on a judge of the Supreme Court.

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