Published on 29 January 2024
FOURTH SECTION
Application no. 40283/19
Gabriela Adelaide AZEVEDO DA SILVA BARBOSA
against Portugal
lodged on 19 July 2019
communicated on 10 January 2024
SUBJECT MATTER OF THE CASE
The applicant is a judge. The application concerns her professional appraisal by means of an ordinary inspection (inspeção ordinária) by the High Council of the Judiciary (hereinafter “the CSM”), rating the professional performance of the applicant as “good”, which corresponded to a decrease in her mark by two grades, leading to her placement in a lower Court. On 12 June 2018 the plenary of the CSM, following a claim from the applicant, confirmed the evaluation.
On 22 January 2019 the Judicial Division of the Supreme Court dismissed the appeal lodged by the applicant against the decision of the CSM.
Relying on Article 6 § 1 of the Convention, the applicant complains of the unfairness of the proceedings before the CSM and the Judicial Division of the Supreme Court owing to:
- the practical impossibility of challenging the Judicial Inspector’s impartiality;
- the lack of a public hearing before the CSM and the Supreme Court;
- the CSM’s composition, which in the applicant’s view did not comply with the requirements of an “independent and impartial tribunal”.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention applicable to the proceedings concerning the applicant’s rating following her professional appraisal and consequent placement in a lower court? In particular, did the proceedings concern a dispute over an arguable civil right under domestic law (see Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018; and Dzhidzheva-Trendafilova v. Bulgaria, no. 12628/09, §§ 38-40, 9 October 2012)?
In the event of a positive answer to the previous question:
2. In view of its composition, did the CSM comply with the requirements of an “independent and impartial tribunal” (see Denisov v. Ukraine [GC], cited above, §§ 60-65 and 68-71, and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 219 and 231-34, 1 December 2020)?
3. In the event of a negative answer to the previous question, did the applicant have, before the Judicial Division of the Supreme Court, a fair trial in accordance with the requirements of Article 6 § 1 of the Convention (see, Ramos Nunes de Carvalho e Sá v. Portugal [GC], no. 55391/13 and 2 others, §§ 177, 191 and 214, 6 November 2018, and Marcolino de Jesus v. Portugal (dec.), no. 2388/15, §§ 46-51, 1 June 2021)? In particular, were the proceedings complained of fair, considering that the CSM and the Supreme Court refused to effectively discuss the judicial inspector’s impartiality?
4. Was the lack of a public hearing compatible with the requirements of Article 6 § 1 (see Ramos Nunes de Carvalho e Sá, cited above, §§ 187-92, 203, and 211)?