FOURTH SECTION
DECISION
Application no. 57026/11
Luís Nuno BRAVO BELO
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 21 June 2016 as a Committee composed of:
Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 2 September 2011,
Having regard to the comments submitted by the Portuguese Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Luís Nuno Bravo Belo, is a Portuguese national, who was born in 1957 and lives in Vila Franca de Xira. He was represented before the Court by Mr L. Rebelo Pereira, a lawyer practising in Lisbon.
2. The Portuguese Government (“the Government”) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy Attorney General.
3. On 18 February 2014 the complaint about the length of proceedings was communicated to the Government.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Disciplinary proceedings against the applicant
5. The applicant was a judge. On 10 January 1989 and on 25 May 1992 the High Council of the Judiciary (Conselho Superior de Magistratura) instituted two different disciplinary proceedings against him with respect to his professional conduct. On an unknown date the two sets of proceedings were joined into a single one.
6. On 12 May 1994 at the end of the disciplinary proceedings the High Council of the Judiciary applied the sanction of dismissal (pena de demissão) to the applicant.
7. On 8 June 1994 the applicant challenged his dismissal before the Conference of the High Council of the Judiciary, which on 17 January 1995 upheld the first-instance decision.
8. On an unknown date the applicant lodged an application for the judicial review of his dismissal before the Supreme Court of Justice. Alternatively he requested to be removed from exercising his functions as a judge (exonerado) instead of the application of the sanction of dismissal. On 5 December 1995 the Supreme Court rejected the applicant’s claim for review but granted his subsidiary request and removed him from the exercise of functions as judge.
9. On 10 April 1996 the applicant lodged an appeal with the Constitutional Court against the Supreme Court’s decision of 5 December 1995.
10. On 20 October 2004 the Constitutional Court dismissed the applicant’s appeal. On 16 February 2005 the decision of the Constitutional Court became res iudicata.
11. On 2 October 2001, 23 April 2002, and 16 December 2003 and on 25 May 2004, four other disciplinary proceedings were initiated against the applicant by the High Council of the Judiciary also on account of his professional conduct. They ended on 19 November 2002, 11 March 2003, 22 May 2005 and 2 March 2007, respectively, and resulted in several fines (multas) and a short suspension from the exercise of his functions as judge (pena de suspensão).
2. Proceedings with regard to the cumulative disciplinary sanction
12. On 16 March 2007 the applicant lodged a request with the High Council of the Judiciary seeking the imposition of a cumulative sanction.
13. On 8 January 2008 the High Council of the Judiciary, applied the cumulative sanction of removal from the exercise of his functions as judge (exoneração) to the applicant, taking into account all the sanctions that had been applied to him in the six disciplinary proceedings which had started between 1989 and 2004 (see paragraphs 5, 7-8 and 11 above). On 1 March 2008 the decision became res judicata.
3. Proceedings with regard to the withdrawing of the applicant’s status of retired judge
14. Meanwhile, on 14 July 2004 the National Centre for the public sector pensions (Caixa Geral de Aposentações), following the acknowledgement of a medical board on 26 April 2004, declared that the applicant should retire due to an absolute and permanent incapacity to perform his duties and fixed the amount of the pension that he was entitled to. Consequently, on 15 July 2004 the Vice-President of the High Council of the Judiciary proposed to assign the status of retired judge (juiz jubilado) to the applicant, who was entitled to the corresponding retirement pension. This decision was endorsed by the Permanent Council (Conselho Permanente) of the High Council of the Judiciary on 12 October 2004.
15. On 21 October and 29 October 2008 a lawyer and a public prosecutor, intervening in other proceedings to which the applicant was a party, lodged two requests with the High Council of the Judiciary seeking clarification with regard to the applicant’s status.
16. On 4 November 2008 the High Council of the Judiciary requested that a study be produced with a view to determine how the decision of 8 January 2008 – concerning the application of a cumulative sentence (see paragraph 13 above) – should be enforced. On 4 February 2010 the applicant was notified of the draft decision which was being proposed to be eventually adopted and he was asked to submit observations. On 25 February 2010 the applicant contested the draft decision considering that the eventual withdrawal of his status of retired judge would be illegal.
17. On 20 April 2010 the High Council of the Judiciary adopted a decision withdrawing the status of retired judge from the applicant.
18. The applicant challenged the decision (reclamação) before the High Council of the Judiciary, which on 22 June 2010 upheld its previous decision.
4. The applicant’s appeals against the decisions of the High Council of the Judiciary decisions adopted on 8 January 2008 and 20 April 2010
(a) Domestic proceedings no. 122/10.0YFLSB
19. On 16 June 2010 the applicant appealed against the decision of the High Council of the Judiciary of 20 April 2010 (see paragraph 16 above) before the Supreme Court of Justice on the grounds that the decision was void and contained various material errors. He argued, in particular, that the decision withdrawing the status of retired judge from him should have been preceded by disciplinary proceedings and had been grounded on a decision, referring to the decision of 8 January 2008 (see paragraph 13 above), which lacked legal basis.
20. On 2 March 2011 the appeal was dismissed. The Supreme Court of Justice stated that the decision of 20 April 2010 to withdraw the status of retired judge from the applicant was a consequence of the execution of the cumulative sanction imposed to him on 8 January 2008. Thus, it could not be considered that the decision to withdraw the status of retired judge lacked legal basis. Accordingly, it did not require previous different disciplinary proceedings, apart from the ones which had already taken place between 1989 and 2007 (see paragraphs 5 and 11 above) and which had led to the application of the cumulative sanction.
21. On an unknown date the applicant lodged an appeal against the Supreme Court’s decision before the Conference of the Supreme Court. On 24 May 2011 the Conference of the Supreme Court rejected the appeal for being unfounded at law (manifestamente ilegal).
22. On 9 June 2011 the applicant lodged a constitutional appeal against the decision adopted by the Conference of the Supreme Court. On 12 October 2011 the Constitutional Court declared the appeal inadmissible on the grounds that the legal norms which the applicant was challenging “had not been the ratio decidendi” in the Supreme Court’s judgment.
(b) Domestic proceedings no. 157/10.2YFLSB
23. On 22 November 2010, after the withdrawal of his status of retired judge (see paragraph 15 above) the applicant lodged a request with the Supreme Court of Justice seeking the suspension of the effects of the decision of the Conference of the High Council of 8 January 2008 (see paragraph 13 above). He invoked, in particular, the personal and pecuniary effects originating from the enforcement of the decisions adopted on 8 January 2008 and 20 April 2010 (see paragraphs 13 and 16 above).
24. On 16 December 2010 the Supreme Court of Justice dismissed the applicant’s appeal.
25. On an unknown date the applicant challenged the Supreme Court’s decision before the Conference of the Supreme Court, which dismissed the appeal on 2 March 2011.
(c) Domestic proceedings no. 161/10.0YFLSB
26. Also on 22 November 2010 the applicant lodged a second appeal against the decision adopted on 8 January 2008 by the High Council of the Judiciary (see paragraph 13 above) before the Supreme Court of Justice. He argued, in particular, that the cumulative sanction applied was nonexistent and that the decision should, consequently, be void.
27. On 2 March 2011 the Supreme Court dismissed the applicant’s appeal for being unfounded at law and considered that the cumulative sanction applied to the applicant had a legal basis when it was first applied on 5 December 1995 in the first set of disciplinary proceedings (see paragraph 8 above), and that, when it was applied in 2008 (see paragraph 13 above), it was the most favourable sanction in accordance with Article 2 § 4 of the Criminal Code read in conjunction with the new Judges Act (Estatuto dos Magistrados Judiciais) of 1999.
28. On an unknown date the applicant challenged the Supreme Court’s decision before the Conference of the Supreme Court, which dismissed the appeal on 7 April 2011.
29. On an unknown date the applicant lodged a constitutional appeal against the decision adopted by the Conference of the Supreme Court on 7 April 2011. On 27 July 2011 the Constitutional Court declared the appeal inadmissible on the grounds that the legal norms which the applicant was challenging “had not been the ratio decidendi” in the Supreme Court’s decision of 7 April 2011 but rather the ratio decidendi of the decision of 2 March 2011.
30. On a non-specified date the applicant contested the decision before the Conference of the Constitutional Court, which on 30 November 2011 upheld the previous decision.
B. Relevant domestic law
1. The Judges Act (Estatuto dos Magistrados Judiciais), adopted by Law no. 21/85 of 30 July 1985
31. The relevant provision of the Judges Act reads as follows:
Article 34
“...
3. In the event that disciplinary proceeding which were based on an inquiry lead to the conclusion that the judge is unfit (inaptidão do magistrado), but that he is nevertheless capable of exercising public functions, the sanctions of compulsory retirement or dismissal can, at the request of the interested party, be replaced by the sanction of removal from the post of judge (exoneração).”
Article 84
“1. The removal from the post of judge or a change in the status does not prevent the punishment for offences committed in the exercise of functions.
2. In the case of removal from the post of judge, the judge will have to serve the sanction if he returns to the activity.”
Article 85
“1 – The following sanctions may be imposed on judges:
a) Admonition (advertência);
b) Fine (multa);
c) Transfer (transferência);
d) Suspension from the exercise of functions (suspensão);
e) Inactivity (inactividade);
f) Compulsory retirement (aposentação compulsiva);
g) Sanction of dismissal (demissão)”
32. Article 34 of the Judges Act was amended by Law no. 143/99 of 31 August 1999, which removed the possibility of replacing the sanctions of compulsory retirement or dismissal by the sanction of removal from the post of judge.
2. The Portuguese Criminal Code
33. Article 2 § 4 of the Criminal Codes establishes that whenever criminal provisions in force at the time of the practice of a punishable fact are different from those established in later legislation, the regime which proves to be concretely more favourable should be the one applied.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on account of the length of the civil proceedings
34. The applicant complained about the length of the proceedings as a whole under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“in the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by a... tribunal...”
1. The period to be taken into consideration
35. The applicant argued that the length of proceedings, as a whole, was incompatible with the “reasonable time” requirement. He claimed that the proceedings had started on 10 January 1989, with the first set of disciplinary proceedings against him, and had ended on 30 November 2011, with the decision of the Constitutional Court regarding the cumulative disciplinary sanction.
36. At the outset the Government submitted that the proceedings for the application of a cumulative disciplinary sanction to the applicant should be considered as an autonomous procedure separate from the several sets of disciplinary proceedings against him.
37. The Government argued that the decisions adopted in the different disciplinary proceedings had become res judicata on 16 February 2005 (see paragraphs 7 and 9 above), 2002, 2003, 2005 and 2007, respectively (see paragraph 10 above). Consequently, having the application been lodged in September 2011, the complaint under Article 6 § 1 with regard to this part of the application had been lodged out of time and should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
38. The Court recalls that the relevant period to take into account in the assessment of the length of proceedings normally covers the whole of the proceedings in question, including appeal proceedings König v. Germany, 28 June 1978, § 98 in fine, Series A no. 27) and extends right up to the decision which disposes of the dispute (Poiss v. Austria, 23 April 1987, § 50, Series A no. 117).
39. In the instant case, the Court notes that six disciplinary proceedings were instituted against the applicant between 1989 and 2004 (see paragraphs 5 and 11 above), in all of which the dispute was about the disciplinary responsibility of the applicant and the sanctions to be applied. They all ended between 2001 and 2007. The Court further notes that the applicant is complaining about the length of the disciplinary proceedings which started in 1989 and, in his view, ended in 2011.
40. In this connection, the Court agrees with the Government that when the applicant lodged a request for the application of a cumulative disciplinary sanction, he initiated an autonomous procedure, the nature of which was independent of the disputes which had given rise to it. Consequently, the length of proceedings cannot be seen as whole, having the impugned disciplinary proceedings at hand started in 1989 and ended in 2004 with a decision of the Constitutional Court (see paragraph 10 above).
41. The Court observes that the instant application was lodged on 2 September 2011. It follows that the complaint concerning the excessive length of the disciplinary proceedings which started in 1989 and ended in 2004 must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-compliance with the six months’ time-limit.
2. Whether the complaint is manifestly ill-founded
42. As regards the proceedings concerning the application of a cumulative sanction, the period to be considered began on 16 March 2007, when the applicant lodged his request for the application of a cumulative sanction. It ended on 30 November 2011, when the Constitutional Court dismissed his final appeal in the third set of appeal proceedings (see paragraphs above 24 – 28).
43. The Government argued that the length of proceedings was not excessive and was attributable to the applicant, who took advantage of every avenue of appeal available to him.
44. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
45. The Court firstly notes that the applicant lodged his request for the application of a cumulative sanction on 16 March 2007 before the High Council of Judiciary, which adopted a decision on 8 January 2008 (see paragraphs 12-13 above). The proceedings therefore lasted nine months and twenty-four days. The Court then observes that the applicant only contested the decision of 8 January 2008 on 22 November 2010 by lodging two different appeals before the Supreme Court of Justice (see paragraphs 23 and 26 above). The analysis of the applicant’s appeals by the domestic courts ended on 2 March and 30 November 2011 with decisions of the Conference of the Supreme Court of Justice and the Constitutional Court (see paragraphs 23-30 above), respectively, the latter being the final domestic decision. This part of the proceedings therefore lasted eleven months and ten days. The total length of proceedings thus lasted one year and nine months for three levels of jurisdiction.
46. The Court further observers that the applicant resorted to all legal avenues available to him and that, taking into account his appeals, it does not find any substantial period of inactivity for which the authorities could be held responsible.
47. In the light of the above, it cannot be said that the proceedings which started on 16 March 2007 before the High Council of the Judiciary and ended with the decision of the Constitutional Court of 30 November 2011, cannot be considered as having been excessively lengthy.
48. It follows that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Other alleged violations of the Convention
49. The applicant also complained that the cumulative sanction applied to him by the decision of the Conference of the High Council of the Judiciary of 8 January 2008 was not provided by law at the material time. He relied on Article 7 of the Convention, which provides as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
50. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence in question under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003‑X). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character (see Öztürk v. Germany, 21 February 1984, § 54, Series A no. 73, and Lutz v. Germany, 25 August 1987, § 55, Series A no. 123). This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑XIV, and Ezeh and Connors, cited above, §§ 82-86).
51. The Court has already held in comparable cases that the disciplinary sanction imposed was not, of itself, such as to render it “criminal” in nature (see, among other authorities, Brown v. the United Kingdom (dec.), no. 38644/97, ECHR 1998; Vagenas v. Greece (dec.), no. 53372/07, ECHR 2011; and Müller-Hartburg v. Austria, no. 47195/06, §§ 63-64, 19 February 2013). The Court sees no reason to depart from its previous case-law in the instant case.
52. Furthermore, the Court notes that what was at stake in the set of proceedings at hand was the application of a cumulative sanction and not the assessment of the applicant’s guilt or the application of the corresponding sanction, which had already been imposed during the various disciplinary proceedings.
53. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
54. The applicant finally complained that the withdrawal of the status of retired judge was not preceded by disciplinary proceedings and, secondly, that he had not been heard during the proceedings. He relied on Article 6 § 1 of the Convention.
55. The Court notes that, in the instant case, the applicant was notified of the draft decision preceding the decision of the High Council of the Judiciary of 20 April 2010 and requested to submit observations, which he did (see paragraph 16 above). In this regard, the Court recalls that it has already accepted that forgoing a hearing may be justified in cases raising merely legal issues of a limited nature (Allan Jacobsson v. Sweden (no. 2), 19 February 1998, §§ 48-49, Reports of Judgments and Decisions 1998‑I; or which present no particular complexity (see Varela Assalino v. Portugal (dec.), no. 64336/01, ECHR 2002; Speil v. Austria (dec.), no. 42057/98, ECHR 2002).
56. The Court further observes that the decision of 20 April 2004, which withdrew the status of retired judge to the applicant, was a consequence of the enforcement of the decision adopted by the High Council of the Judiciary of 1 January 2008. Therefore, as noted by the domestic courts, this decision was grounded on previous disciplinary proceedings lodged against the applicant between 1989 and 2004 and which led to the application of a cumulative sanction in 2008.
57. It follows that this part of the application must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 July 2016.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy