FOURTH SECTION
CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL
(Applications nos. 55391/13, 57728/13 and 74041/13)
JUDGMENT
This version was rectified on 13 September 2016 in accordance with Rule 81 of the Rules of Court
STRASBOURG
21 June 2016
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 06/11/2018
This judgment may be subject to editorial revision.
In the case of Ramos Nunes de Carvalho E Sá v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 24 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications (nos. 55391/13, 57728/13 and 74041/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Paula Cristina Ramos Nunes de Carvalho E Sá (“the applicant”), on 16 August 2013 and 8 November 2013.
2. The applicant was represented by Mr J. Ribeiro, a lawyer practising in Porto. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney-General.
3. The applicant alleged that three sets of disciplinary proceedings brought against her had been unfair, in breach of Article 6 of the Convention.
4. On 20 March 2015 the Government were given notice of the complaints concerning the lack of access to a court, the lack of independence and impartiality of the Judicial Division of the Supreme Court of Justice, the lack of a public hearing and, in respect of applications nos. 55391/13 and 74041/13, the legal reclassification of the acts allegedly committed by the applicant and the fact that the circumstances of her involvement in the disciplinary offence that were taken into account differed from those set out in the judicial inspector’s submissions. The remaining complaints were declared inadmissible in accordance with Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1972 and lives in Barcelos.
A. Application no. 57728/13
6. On 16 November 2010 the High Council of the Judiciary (Conselho Superior da Magistratura, “the HCJ”) instituted disciplinary proceedings against the applicant, who at the time was a judge at the Vila Nova de Famalicão Court of First Instance (disciplinary case no. 333/10).
7. On 13 March 2011 the judicial inspector F.M.J., who was in charge of the disciplinary proceedings, made his submissions, proposing that the applicant be ordered to pay twenty day-fines for having called another judicial inspector, Judge H.G., a “liar” during a telephone conversation, in breach of her duty of propriety. He also found that she had accused H.G., who was responsible for conducting her performance appraisal, of “inertia and lack of diligence”.
8. On 29 March 2011 the applicant submitted a request to the HCJ for Judge F.M.J. to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had allegedly insulted.
9. On an unspecified date the applicant filed her pleadings, submitting that the disciplinary proceedings should be declared null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard.
10. On 10 April 2011 Judge F.M.J. requested leave from the HCJ to withdraw from the case, saying that he was the applicant’s “sworn enemy” following the accusations she had made against him in the context of her request for him to withdraw.
11. On an unspecified date the HCJ granted Judge F.M.J.’s request and replaced him with a different inspector, Judge A.V.N.
12. In his final report dated 23 September 2011 the newly appointed inspector Judge A.V.N. proposed that the applicant be ordered to pay fifteen day-fines for acting in breach of her duty of propriety.
13. During the proceedings a witness called by the applicant gave evidence. He stated that he had been present during the conversation in question and that the applicant had not made the alleged remarks.
14. In a decision of 10 January 2012 the HCJ, sitting in plenary, ordered the applicant to pay twenty day-fines, corresponding to twenty days without pay, for acting in breach of her duty of propriety. The HCJ found that it was not appropriate to suspend the fine in the applicant’s case.
15. The formation of the HCJ which made the order against the applicant comprised fifteen members, of whom six were judges and nine were non‑judicial members.
16. Four of the non-judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish in the present case, solely on the basis of H.G.’s statement, that the applicant had called him a “liar”, and finding that the remarks referring to his “inertia” and “lack of diligence” came within the scope of the applicant’s freedom of expression.
17. On an unspecified date the applicant lodged an appeal on points of law with the Judicial Division of the Supreme Court of Justice (Secção de Contencioso do Supremo Tribunal de Justiça), requesting a review of the establishment of the facts. In support of her request the applicant argued that the penalty imposed on her had been disproportionate.
18. On 21 March 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the HCJ’s decision, finding in particular that
(i) there was no doubt as to how the rules of European law were to be interpreted, with the result that the request to seek a preliminary ruling from the Court of Justice of the European Union should be rejected;
(ii) the Supreme Court of Justice’s task was not to review the facts of the case but simply to verify whether the establishment of the facts had been reasonable;
(iii) the applicant had made use of false testimony, a fact that should count against her in determining the penalty to be imposed;
(iv) the administrative authority handling the case had not been required to assess whether the fine should be suspended since the present case did not involve a custodial sentence;
(v) the accusations of “inertia” and “lack of diligence” which the applicant had made against the judicial inspector H.G. had insulted him, falling short of the minimum ethical standards expected from a judge, and had not come within the scope of freedom of expression.
B. Application no. 55391/13
19. A second set of disciplinary proceedings (case no. 179/11) was opened against the applicant for use of false testimony in the earlier proceedings.
20. On 26 May 2011 the judicial inspector, Judge A.D.P.R., filed submissions against the applicant, accusing her of breaching her duty of loyalty. He did not propose any specific penalty.
21. On 14 July 2011 A.D.P.R. submitted his final report, proposing that the applicant be suspended from her duties for sixty days.
22. On 19 July 2011 the applicant raised a plea of nullity with the judicial inspector in respect of this report, complaining that the penalty in question had not been proposed directly in his submissions. By order of 31 August 2011 A.D.P.R. rejected the applicant’s plea.
23. By a decision of 11 October 2011 the HCJ, sitting in plenary, ordered that the applicant be suspended from her duties for 100 days for acting in breach of her duty of honesty. The HCJ considered that the applicant had given false testimony by asking a witness whom she had called in disciplinary case no. 330/10 to make false statements concerning the allegations against her. The HCJ established the facts taking into account the applicant’s mobile phone records, which had been obtained with her consent at the request of the judicial inspector F.M.J.
24. The HCJ’s decision of 11 October 2011 was taken unanimously, with twelve of its seventeen members present. Of these, seven were judges, including the President of the HCJ, and five were non-judicial members[1].
25. On an unspecified date the applicant appealed to the Judicial Division of the Supreme Court of Justice against the decision of 11 October 2011. She disputed the facts, alleging that
(i) she had not been given a hearing on the subject of the proposed disciplinary penalty, as it had not been specified in the submissions;
(ii) the HCJ had altered the legal classification of the acts she had allegedly committed and the circumstances of her involvement in the disciplinary offence;
(iii) the Supreme Court of Justice had omitted to give reasons for its decision not to suspend enforcement of the penalty imposed;
(iv) the penalty imposed had been disproportionate.
26. In a judgment of 26 June 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the decision of 11 October 2011 on the grounds that
(i) it had limited power to review the facts in so far as the appeal was an application to set aside rather than a full appeal on fact and law, regard being had to Article 3 § 1 of the Administrative Courts Code;
(ii) adequate reference had been made to the proposed penalty in the judicial inspector’s final report, of which the applicant had also been duly informed;
(iii) it had been open to the HCJ to increase the proposed penalty on the grounds that the applicant’s defence related to the facts of the case rather than the proposed penalty;
(iv) with regard to the legal reclassification of the facts, the applicant’s rights had been safeguarded since the HCJ, without altering the facts, had adopted a different legal interpretation of the duties that had been breached;
(v) the HCJ, which was in charge of the disciplinary proceedings, had not been required to assess whether the applicant’s suspension from duty should be suspended, since no possible custodial sentence had been at stake in the proceedings and the HCJ had enjoyed a degree of discretion in that regard;
(vi) the penalty did not appear disproportionate;
(vii) in view of the false testimony given by one witness in an attempt to protect the applicant, the HCJ had been entitled, in imposing a penalty, to take into consideration the fact that the applicant had had recourse to a third party in order to tamper with the evidence in the file.
C. Application no. 74041/13
27. A third set of disciplinary proceedings was instituted against the applicant (case no. 269/11) for allegedly asking the judicial inspector, Judge F.M.J., in the course of a private conversation, not to take disciplinary action against the witness who had given evidence on her behalf in the first set of disciplinary proceedings.
28. On 21 December 2011 the judicial inspector, Judge A.D.P.R, submitted his final report, proposing that the applicant be dismissed from her post for acting in breach of her duty of honesty.
29. In her pleadings the applicant admitted having had a private conversation with the judicial inspector, but denied having made such a request to him.
30. In a decision of 10 April 2012 the HCJ, sitting in plenary, ordered that the applicant be suspended from duty for 180 days for acting in breach of her duties of loyalty and propriety.
31. The decision of 10 April 2012 was taken with fourteen of the seventeen members of the HCJ present. Of these, eight, including the President, were judges and six were non-judicial members. One of the judges issued a dissenting opinion to the effect that the facts as established, given their seriousness, warranted a penalty of early retirement or dismissal under section 95 of the Status of Judges Act (see paragraph 38 below).
32. On an unspecified date the applicant appealed against that decision to the Judicial Division of the Supreme Court of Justice, requesting that a public hearing be held so that she could call a witness and present some documents. She complained of the legal reclassification of the facts, the fact that no reasons had been given for the refusal to suspend the penalty, and the disproportionate nature of her suspension from duty.
33. In a judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the judgment of 10 April 2012, finding
(i) that the applicant’s request for a public hearing should be refused on the ground that it was not the task of the Judicial Division to review the establishment of the facts. Instead, its task was confined by law to verifying that the HCJ had complied with the principles and rules governing the examination of evidence, and in particular that its decision regarding the establishment of the facts had been coherent and reasonable;
(ii) that the applicant had produced lengthy pleadings, making it unnecessary to hear legal arguments in oral proceedings;
(iii) that the request for evidence to be taken from the witness had been aimed at establishing the content of the draft decision in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision;
(iv) that the documents submitted by the applicant had exceeded the scope of the disciplinary proceedings;
(v) that the HCJ had considerable discretion regarding issues relating to the law on the determination of the disciplinary offence, which was defined in broad terms in the Status of Judges Act, and that the Supreme Court of Justice could alter that legal classification only in the event of a manifest or gross error concerning the seriousness in disciplinary terms of the applicant’s conduct;
(vi) that the Supreme Court of Justice could likewise not review the penalty imposed, but could only determine whether it had been appropriate to the offence and proportionate to it;
(vii) that the Supreme Court of Justice was not required to rule on the refusal to suspend the disciplinary penalty imposed, as the proceedings did not fall within the sphere of criminal law and no custodial sentence had been applied.
34. In its judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice found as follows:
“Whether or not a public hearing should be held at an individual’s request in connection with a special administrative action to set aside an administrative act depends on the extent of the Supreme Court of Justice’s powers of review as regards the establishment of the facts. It is clear that a hearing devoted to the production of evidence and discussion of the facts would be useful and meaningful only if the Supreme Court had unlimited jurisdiction to review all the facts established by the impugned decision. If that were the case the Supreme Court of Justice would form its own opinion regarding the evidence and would examine new evidence, going well beyond a review of lawfulness.
However, as is clear from the uniform case-law of the Judicial Division, this option is not available in the light of the Status of Judges Act.”
35. On 30 September 2014 the High Council of the Judiciary, sitting in plenary, after grouping together the penalties imposed on the applicant (cúmulo jurídico das penas disciplinares aplicadas) in the three sets of disciplinary proceedings referred to above, unanimously imposed a single penalty of 240 days’ suspension from duty.
36. The decision of 30 September 2014 was final and was taken with twelve of the seventeen members of the HCJ present. Of these, seven, including the President of the HCJ, were judges and five were non-judicial members. The disciplinary penalty of 240 days’ suspension from duty imposed on the applicant was enforced by the national authorities.
II. RELEVANT DOMESTIC LAW AND PRACTICE
37. The Constitution of the Portuguese Republic provides that the seventeen-member High Council of the Judiciary is composed as follows:
Article 218
“1. The High Council of the Judiciary, presided over by the President of the Supreme Court of Justice, 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 judges ...
...”
The relevant parts of Regulation (Regimento) no. 1/2007 of 20 August 2007 on the Assembly of the Republic read as follows:
Article 257
“The Assembly of the Republic shall interview the candidates for the following posts ... which it is responsible for filling:
...
(e) seven members of the High Council of the Judiciary.”
The relevant part of the Regulation governing the High Council of the Judiciary, published on 27 April 1993 in the Official Gazette (Diário da República), reads as follows:
Article 12
“1. Decisions shall be taken by majority vote, at a sitting attended by the majority of the statutory number of members of the High Council of the Judiciary. The President shall have a casting vote.
...”
38. The relevant provisions of the Status of Judges Act (Law no. 21/85 of 30 July 1985) (Estatuto dos Magistrados Judiciais) read as follows:
Section 85
“1. The following penalties may be imposed on judges:
(a) caution;
(b) fine;
(c) transfer;
(d) suspension from duty;
(e) extended leave;
(f) early retirement;
(g) dismissal.”
Section 87
“Fines shall be expressed as day-fines, ranging from five to ninety days.”
Section 89
“1. Suspension from duty and extended leave shall entail complete removal from duties for the duration of the penalty.
2. The period of suspension shall range from 20 to 240 days.”
Section 95
“1. The penalties of early retirement or dismissal shall be applicable where the judge concerned
...
(b) demonstrates a lack of honesty ...”
Section 102
“The fine shall be applied by deducting from the judge’s salary the amount corresponding to the number of days imposed.”
Section 110
“...
2. ... [T]he disciplinary procedure shall be in writing. It shall not be subject to any formalities apart from a hearing with the option for the accused to arrange for his or her defence.”
Section 111
“The High Council of the Judiciary shall be responsible for instituting disciplinary proceedings against judges.”
Section 113
“1. Disciplinary proceedings shall remain confidential until the final decision has been taken ...
2. If the accused so requests, stating reasons, [the HCJ] may provide him or her with copies of the file, provided that this is relevant to the defence of his or her legitimate interests.”
Section 115
“...
2. The [judicial] inspector may refuse a request for witness evidence to be heard ... if he or she considers the evidence produced to be sufficient.”
Section 120
“During the time allowed for preparation of the defence, the accused, his or her officially appointed representative or his or her lawyer may consult the file at the premises [of the HCJ].”
Section 131
“The rules governing the status of civil servants ... shall apply in the alternative, as shall the Criminal Code, the Code of Criminal Procedure ...”
Section 137
“1. The High Council of the Judiciary shall be presided over by the President of the Supreme Court of Justice and shall comprise the following members:
(a) two appointed by the President of the Republic;
(b) seven elected by Parliament;
(c) seven elected by judges from among their number.
2. Judges may not decline appointment to the High Council of the Judiciary.”
Section 138
“1. The Vice-President of the High Council of the Judiciary shall be the judge of the Supreme Court of Justice referred to in section 141(2) and shall be appointed on a full-time basis.
...”
Section 141
“1. The members referred to in sub-paragraph (c) of section 137(1) shall be elected from lists drawn up by a minimum of twenty electors.
2. The lists shall include a deputy for each actual candidate. Each list must contain the names of one judge of the Supreme Court of Justice, two judges of the Court of Appeal and one judge from each judicial district.
...”
Section 153
“1. The President of the High Council of the Judiciary shall be responsible for:
(a) representing the High Council;
(b) performing the duties delegated to him or her by the High Council, with the option of sub-delegating to the Vice-President;
(c) swearing in the Vice-President, the judicial inspectors and the Secretary;
(d) directing and coordinating inspection services;
(e) drawing up circulars on the basis of the Secretary’s proposals;
(f) performing the other tasks assigned to him or her by law.
2. The President may delegate to the Vice-President responsibility for swearing in the judicial inspectors and the Secretary, as well as the duties referred to in sub‑paragraphs (d) and (e) above.”
Section 168
“1. The decisions of the High Council of the Judiciary shall be open to appeal before the Supreme Court of Justice.
2. For the purposes of the appeal referred to in the previous paragraph, the Supreme Court of Justice shall sit in a formation comprising the most senior Vice-President, who shall have a casting vote, and one judge from each of the Divisions, each appointed annually and in order of seniority.
...
5. The grounds for appeal shall be those provided for by law in order to appeal against Government acts.”
Section 178
“The rules governing appeals to the Supreme Administrative Court shall apply in the alternative.
...”
39. Section 3(2) of the Civil Servants’ Disciplinary Act (Law no. 58/2008 of 9 September 2008) provides as follows:
“...
2. The general duties of civil servants shall comprise:
(a) a duty to pursue the public interest;
...
(d) a duty to inform;
...
(g) a duty of loyalty;
(h) a duty of propriety;
...”
40. The aim of an appeal to the Judicial Division of the Supreme Court of Justice against a decision of the High Council of the Judiciary is to have the HCJ’s decision set aside. In a judgment of 15 December 2011 the Judicial Division of the Supreme Court of Justice held that such an appeal constitutes a “special administrative action” (ação administrativa especial) by which the person concerned seeks the setting-aside of the administrative act in question or a declaration that it is null and void or legally non‑existent. The Judicial Division found as follows:
“...
As the judicial protection of citizens’ rights under Article 268 § 4 of the Constitution implies the setting-aside of any administrative act that is found to cause them harm, irrespective of what form it takes, it must comply with Article 3 of the Administrative and Tax Courts Code, which states that ‘in accordance with the principle of separation of powers, the administrative courts shall review the compatibility of the administrative authorities’ acts with the provisions and legal principles by which those authorities are bound and shall not conduct an assessment based on expediency’.
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 restrictions inherent in the protection of the administrative authorities’ discretionary powers. The HCJ’s powers do not come within the scope of review of the courts where [the disciplinary body] is ruling on conduct alleged to be incompatible with a judge’s duty of diligence.
Taking a different approach but with the same outcome, the appeal body must, from the perspective of lawfulness in the broad sense, review compliance with Article 266 § 2 of the Constitution, according to which the administrative authorities must exercise their powers in accordance with, inter alia, the principle of proportionality, which in simple terms amounts to a prohibition on acting in excess of their powers (proibição do excesso).”
In a judgment of 21 March 2013 the Supreme Court of Justice ruled as follows on the nature of the review of the HCJ’s disciplinary decisions:
“An appeal may be lodged regarding the sufficiency of the evidence and of the establishment of the facts leading to the imposition of a penalty in disciplinary proceedings ...
Nevertheless, the review of the sufficiency of the evidence in the context of such an appeal does not constitute a re-examination of the evidence but rather an assessment of the reasonableness and coherence of the relationship between the facts as established by the administrative entity and the evidence on which its decision was based ...
The Supreme Court of Justice does not review the examination and assessment of the evidence. Its task is confined to assessing whether the evidence was identified, gathered and produced in a lawful manner. ...
Its sole task, in the light of the evidence in the file, is to assess whether the final decision was reasonable and to verify whether the administrative entity examined the facts presented by the prosecution and the defence and whether its decision was duly reasoned.
...”
III. RELEVANT INTERNATIONAL MATERIALS
41. The relevant parts of the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, read as follows:
“...
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
...
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”
42. The relevant extracts from Chapter 5 (“Liability”) of the European Charter on the statute for judges (Directorate of Legal Affairs of the Council of Europe, 8-10 July 1998, DAJ/DOC (98)23) read as follows:
“5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.”
43. The report on judicial appointments (CDL-AD(2007)028), adopted by the European Commission for Democracy through Law (the Venice Commission) at its 70th plenary session on 16 and 17 March 2007, reads as follows:
“...
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.
...”
44. In the conclusions to its report on the Independence of the Judicial System Part I: The Independence of Judges, adopted at its 82nd plenary session on 12 and 13 March 2010 (CDL-AD (2010) 004), the Venice Commission found as follows:
“...
6. Judicial councils, or disciplinary courts, should have a decisive influence in disciplinary proceedings. The possibility of an appeal to a court against decisions of disciplinary bodies should be provided for.
...”
45. The Venice Commission summarised its position as follows:
“...
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.
...”
46. The relevant parts of the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe on the draft Law on making changes to the Law on disciplinary Liability and disciplinary Proceedings of Judges of General Courts of Georgia, adopted by the Venice Commission at its 100th plenary session (10-11 October 2014), read as follows:
“...
26. ... publicity should also be the guiding principle for later stages of disciplinary proceedings. ... the draft Article 30(4), according to witch [sic] ‘Sessions of the Disciplinary Board shall be closed’, is problematic. First, it is recommended that sessions, as a general rule, be held in public and be held in camera only exceptionally, at the request of the judge and in the circumstances prescribed by law. Secondly, it is not clear from the wording of Article 30(4) whether the judge’s request for publicity, as in the procedure before the High Council ..., constitutes an exception to the principle of confidentiality of sessions of the Disciplinary Board or only of information related to the hearings. ...”
47. The relevant extracts from the Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges of “The Former Yugoslav Republic of Macedonia” (CDL-AD(2015(042)), adopted by the Venice Commission at its 105th plenary session (18-19 December 2015), read as follows:
“...
62. First of all, the Venice Commission draws the attention of the authorities to its 2014 opinion on the draft amendments to the Macedonian Constitution. In this opinion the Venice Commission suggested changing a balance between judicial and lay members of the Judicial Council in favour of the latter (i.e. essentially to reduce the number of the judicial members), and supported the idea of removing the Minister of Justice and the President of the Supreme Court from the composition of the Council as ex officio members.
...
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.
...
91. Furthermore, Article 54 § 2 allows considerable scope for deciding not to hold disciplinary proceedings in public on the basis of urgency or confidentiality, or in order to respect the ‘dignity and reputation of the judge’. Indeed, it could be argued that such considerations apply in every disciplinary hearing. The interest of the public being properly informed about the developments of the disciplinary proceedings in many cases shall outweigh the private interest of the judge to keep certain details confidential. The law must make clear that the ‘privacy interest’ of a judge does not have precedence in all circumstances, and that the Judicial Council will conduct a balancing exercise when deciding on the request of a judge to have a closed hearing.
...
96. It is not entirely clear how the members of the Appeals Council are selected. It appears that the Appeals Council is formed within the Supreme Court on an ad hoc basis in each case separately and composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court to which the applicant belonged. In the opinion of the Venice Commission, it is very important that the composition of the appellate judicial body be predetermined by law. Normally the disciplinary decisions should be reviewed by a judicial impartial body (Supreme Court of Cassation, Supreme Administrative Court, United Civil Panels of the Court of Cassation etc.), which decides with all the guarantees of the judicial proceeding. Hence, entrusting the power to a permanent court of law (instead of an ad hoc body) would probably be a preferable solution in this case.
...”
48. The relevant parts of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States on judges: independence, efficiency and responsibilities (adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies) read as follows:
“...
Chapter IV – Councils for the judiciary
26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.
27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
28. Councils for the judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions
...
Chapter VI – Status of the judge
Selection and career
46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.
...
Chapter VII – Duties and responsibilities
...
Liability and disciplinary proceedings
...
69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
...”
49. The Consultative Council of European Judges, at its 11th plenary meeting (17-19 November 2010), adopted a Magna Carta of Judges (Fundamental Principles) summarising and codifying the main conclusions of the Opinions it had already adopted. This document reads, inter alia, as follows:
“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.”
50. Recommendation no. 6 of the evaluation report on Portugal by the Group of States against Corruption (GRECO), adopted on 4 December 2015, reads as follows:
“...
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; ...”
THE LAW
I. JOINDER OF THE APPLICATIONS
51. Given their factual and legal similarity, the Court decides to join these applications in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
52. The applicant alleged a violation of her right to an independent and impartial tribunal, her right to a review of the facts established by the High Council of the Judiciary and her right to a public hearing, as guaranteed by Article 6 of the Convention. She also complained that in view of the reclassification of the facts by the High Council of the Judiciary she had not been informed in detail of the accusation against her and had accordingly not had adequate time and facilities for the preparation of her defence. Article 6 of the Convention provides:
“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. ...”
A. Admissibility
53. With regard to the applicability of Article 6 of the Convention under its civil head, the Government submitted that the applicant did not have an arguable claim in respect of a civil right. As to the fine and the suspension from duty, the disciplinary sanctions imposed on the applicant had not permanently prevented her from carrying on her occupation. With regard to the applicability of Article 6 under its criminal head, the Government noted that the offences allegedly committed by the applicant constituted professional misconduct. Accordingly, the sanctions imposed on her on completion of the disciplinary proceedings were “classic” disciplinary sanctions which lacked the degree of seriousness of a criminal sanction.
54. The Government inferred from this that Article 6 was not applicable in the instant case, under either its civil or its criminal head.
55. The applicant disagreed. In her view, the applicability of Article 6 of the Convention under its civil head was not confined to sanctions akin to dismissal. The penalties imposed on her in the present case had deprived her of her salary and had temporarily prevented her from working. Moreover, it was open to her under domestic law to appeal against those penalties to the Supreme Court of Justice. With regard to the criminal limb of Article 6 the applicant submitted that, irrespective of the classification of the offence under domestic law, the decisive factor for the applicability of that provision was the severity of the sanction liable to be imposed. In view of the fact that she had faced possible dismissal, and given the severity of the single penalty of 240 days’ suspension from duty, the criminal nature of the accusation against her was well established.
56. The applicant therefore concluded that all the criteria for the applicability of Article 6, under both its civil and criminal heads, were satisfied in the instant case.
1. Application of Article 6 § 1 under its civil head
57. With reference first of all to the applicability of Article 6 to the judicial proceedings in question, the Court reiterates that this provision applies under its civil head to a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Furthermore, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).
58. In the present case the proceedings in question concerned a dispute raised by the applicant in respect of the decisions of the HCJ imposing sanctions on her following three sets of disciplinary proceedings. With regard first of all to the existence of a “right”, the Court accepts that the proceedings in question were decisive for the applicant’s rights in so far as they could have led to the setting-aside of the disciplinary sanctions imposed by the HCJ if the domestic courts had allowed her appeals.
59. As to the “civil” nature of such a right for the purposes of Article 6, the Court reiterates that, according to its case-law, disputes between the State and its civil servants fall in principle within the scope of Article 6, except where two cumulative conditions are met. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-IV).
60. In the instant case it cannot but be observed that the first of these conditions has not been met, as domestic law makes provision for persons with an interest in bringing proceedings to lodge an appeal with the Supreme Court of Justice challenging the lawfulness of a decision by the HCJ to impose a disciplinary penalty on a judge (see paragraph 42 above). That option was applicable in the case of the applicant, who in fact lodged such an appeal under section 168 of Law no. 21/85 of 30 July 1985. The first condition of the Vilho Eskelinen test is therefore not satisfied and, according, Article 6 is applicable under its civil head (compare Olujić v. Croatia, no. 22330/05, §§ 31-45, 5 February 2009, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 91, ECHR 2013).
61. That provision therefore required that the applicant should have access to a court ruling on the dispute concerning her civil rights and obligations in accordance with the guarantees of Article 6 § 1. Nevertheless, the Court observes that its conclusion concerning the applicability of Article 6 is without prejudice to the question of how the various guarantees of that Article (in particular regarding the scope of review required of the national courts) should be applied in disputes like the present one concerning civil servants (see Vilho Eskelinen and Others, cited above, § 64).
2. Application of Article 6 § 1 under its criminal head
62. In view of the applicability of Article 6 § 1 of the Convention under its civil head, the Court does not consider it necessary to examine whether that provision is applicable in the present case under its criminal head. Accordingly, it will not examine the complaints made under that head.
3. Conclusion
63. The Court notes that the complaints concerning the independence and impartiality of the judicial bodies, the scope of the review conducted by the Supreme Court of Justice and the lack of a public hearing are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that these complaints are not inadmissible on any other grounds. It therefore declares them admissible.
B. Merits
1. The applicant’s submissions
64. The applicant submitted at the outset that the composition of the High Council of the Judiciary, presided over by the President of the Supreme Court of Justice, did not satisfy the requirements of an “independent tribunal”. Under Article 218 § 1 of the Constitution, two of the members of the HCJ were appointed by the President of the Republic, seven were elected by the Assembly of the Republic and only eight of its seventeen members were judges, including the President of the Supreme Court of Justice and of the High Council of the Judiciary.
65. As to the scope of the review conducted by the Supreme Court of Justice, the Judicial Division of that Court had merely adopted systematically the arguments advanced by the High Council of the Judiciary, using a copy-paste approach. The applicant emphasised the nature of the appeal to the Supreme Court of Justice, which consisted of an application to review “lawfulness” (de mera legalidade) rather than a full appeal on fact and law (de plena jurisdição), with no possibility for the court to re-examine the establishment of the facts by the HCJ or even to effectively review the disciplinary penalty imposed.
66. As to the requirement to hold a public hearing, the applicant noted that she had explicitly requested the High Council of the Judiciary and the Supreme Court of Justice to organise a hearing, which to her mind had been warranted in view of the non-technical nature of the issues raised, in application no. 74041/13 in particular, and of the discrepancy in the establishment of the facts regarding the content of her alleged remarks. In the applicant’s view, there were objective reasons to doubt the impartiality of the Judicial Division of the Supreme Court of Justice. The HCJ exercised disciplinary powers with regard to the judges of the Supreme Court of Justice but not with regard to those of the Supreme Administrative Court. Hence, the latter would be better placed to hear appeals concerning disciplinary proceedings against judges of the ordinary courts. The fact that the HCJ appointed, appraised and exercised disciplinary powers in respect of the judges of the ordinary courts raised doubts regarding the impartiality of the judges of the Supreme Court of Justice when hearing disciplinary cases, in which they were called upon to set aside or uphold decisions taken by their own disciplinary body.
2. The Government’s submissions
67. With regard to the composition of the High Council of the Judiciary, the Government acknowledged that this body was made up of eight judges (including the President, who had a casting vote) and nine non-judicial members. However, they stressed that the intervention of the President of the HCJ was apt to compensate for the fact that judges were in a minority. As to the applicant’s fears that the Judicial Division of the Supreme Court of Justice lacked impartiality, the composition of that Division was determined by law on the basis of judges’ seniority and their membership of a particular Division, and not on the basis of the wishes of the President of the Supreme Court of Justice. Furthermore, the latter did not sit in cases in which the Judicial Division examined appeals against the decisions of the High Council of the Judiciary.
68. As to the scope of the Judicial Division’s powers, the Government maintained that it was not for the Supreme Court of Justice to encroach on the discretionary powers of the administrative authorities. As that court had found in its judgment of 15 December 2011, it did not have jurisdiction to review the assessment made by the High Council of the Judiciary of a judge’s conduct in the context of his or her duty to pursue the public interest. Furthermore, the Supreme Court of Justice did not re-examine the evidence, but simply verified that the evidence was sufficient to justify the conclusions reached by the High Council of the Judiciary, in other words that the latter’s decision concerning the establishment of the facts had been reasonable (Supreme Court of Justice judgment of 21 March 2013).
69. With regard to the holding of a public hearing (an issue raised by application no. 74041/13), the Government acknowledged that it was not the practice of the Supreme Court of Justice to hold hearings. However, in the absence of any possibility of re-examining the evidence, holding a hearing made no useful contribution to the conduct of the proceedings. Moreover, in the instant case the Supreme Court of Justice had found that the specific circumstances of the case did not require a public hearing to be held.
3. The Court’s assessment
(a) Independence and impartiality of the authorities hearing the case
70. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005-II). The Court notes that the notion of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV, and Saghatelyan v. Armenia, no. 7984/06, § 43, 20 October 2015). However, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003-VI).
71. Impartiality normally denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 27, 28 and 30, Series A no. 255-A, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000‑XII).
72. However, there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).
73. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Oleksandr Volkov v. Ukraine, no. 21722/11, § 106, ECHR 2013, and Morice v. France [GC], no. 29369/10, § 78, ECHR 2015).
74. Finally, the concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006-XIII). Having regard to the facts of the present case, the Court finds it appropriate to examine the issues of independence and impartiality together (see Oleksandr Volkov, cited above, §§ 103-07).
75. The Court has previously held that where at least half of the membership of a tribunal is composed of judges, including the chairman with a casting vote, this will be a strong indicator of impartiality (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 58, Series A no. 43, and Oleksandr Volkov, cited above, § 109). It is appropriate to note that with respect to disciplinary proceedings against judges, the need for substantial representation of judges on the relevant disciplinary body has been recognised by the European Charter on the statute for judges (see paragraph 42 above) and by the opinions of the Venice Commission (see paragraph 43 above). The Court notes that Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States, adopted by the Committee of Ministers on 17 November 2010, recommends that the authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers (see paragraph 48 above). In addition, Recommendation no. 6 of the evaluation report on Portugal by the Group of States against Corruption (GRECO), adopted on 4 December 2015, recommends providing in law that not less than half the members of the High Council of the Judiciary should be judges chosen by their peers (see paragraph 50 above). The Consultative Council of European Judges, at its 11th plenary meeting (17-19 November 2010), adopted a Magna Carta of Judges which provides, inter alia, that the Council should be composed either of judges exclusively or of a substantial majority of judges elected by their peers (see paragraph 49 above).
76. For the purposes of the present applications the Court will examine the applicant’s complaints concerning the independence and impartiality of the High Council of the Judiciary in the light of the above-mentioned principles.
77. The Court notes that, in accordance with Article 218 § 1 of the Constitution, the High Council of the Judiciary is composed of seventeen members appointed by various bodies. It should be emphasised that two of these members are appointed directly by the President of the Republic, seven are elected by the Assembly of the Republic, and a further seven are elected by judges from among their peers. As observed by the Government, the usual composition of the HCJ consists of eight judges (including the President, who has a casting vote) and nine non-judicial members (see paragraph 37 above). In the Court’s view, it follows that the principles governing the composition of the HCJ have resulted in a situation whereby it may comprise a majority of non-judicial members appointed directly by the executive and legislative authorities.
78. Having examined the minutes of the deliberations of the High Council of the Judiciary of 10 January 2012, the Court notes that, of the fifteen members of the HCJ who ruled on the applicant’s case (the subject of application no. 57728/13), only six were judges (see paragraph 15 above). The Court also observes that the decision of 11 October 2011 was taken by twelve of the seventeen members of the HCJ, of whom seven, including the President, were judges and five were non-judicial members (see paragraph 24 above); the decision of 10 April 2012 was also taken by a majority of judges, owing to the absence of a large number of the HCJ’s non-judicial members (see paragraph 31 above)[2]. The decision of 30 September 2014 was taken by twelve of the seventeen members of the HCJ, of whom seven, including the President, were judges and five were non-judicial members. The fact that judges were in the majority was due to the absence of four non-judicial members (see paragraph 36 above).
79. The Court concludes that, although in most instances judges made up the majority of the members of the formation examining the applicant’s case, at the deliberations of 10 January 2012 they were in the minority. In the Court’s view, this situation within the Portuguese High Council of the Judiciary is problematic from the standpoint of Article 6 § 1 of the Convention (see, mutatis mutandis, Oleksandr Volkov, cited above, § 111)[3]. The Court also notes with concern that in the Portuguese legal system the law does not lay down any specific requirement as regards the qualifications of the non-judicial members of the HCJ.
80. In view of the foregoing, the Court considers that the independence and impartiality of the High Council of the Judiciary may be open to doubt.
(b) Scope of the review carried out by the Supreme Court of Justice
81. In cases such as the present one domestic law provides for an application for judicial review of the lawfulness of a decision of the HCJ imposing a disciplinary penalty on a judge. The Court must therefore ascertain whether the proceedings to which the applicant had access complied with the requirements of Article 6 of the Convention.
82. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). The Court is not a court of appeal from the national courts, and it is not its function to deal with errors of fact or law allegedly committed by them unless and in so far as they may have infringed rights and freedoms protected by the Convention
(see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Similarly, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Nejdet Şahin and Perihan Şahin, cited above, § 50). Accordingly, in the present case it is not the Court’s task, in the context of Article 6, to ascertain whether the decisions of the HCJ imposing penalties on the applicant complied with the domestic legislation, but rather to verify whether the scope of the judicial review conducted by the Supreme Court of Justice was sufficient.
83. In order to satisfy the requirements of Article 6 § 1, a “tribunal” within the meaning of that provision must have jurisdiction to examine all questions of fact and law relevant to the dispute before it (see Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 52, Reports 1996 VI; Chevrol v. France, no. 49636/99, § 77, ECHR 2003-III; and I.D. v. Bulgaria, no. 43578/98, § 45, 28 April 2005). Article 6 also requires the domestic courts to adequately state the reasons on which their decisions are based. Without requiring a detailed answer to every argument put forward by a complainant, this obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, among other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A).
84. In the present case the Supreme Court of Justice had jurisdiction to review the lawfulness of the HCJ’s decision imposing disciplinary penalties on the applicant. In the context of that review it had powers to verify the validity of the evidence, whether the facts had been adequately and coherently established, and whether the decision imposing the penalty had been reasonable and proportionate. The highest court thus had the power to set aside the decision on several grounds of unlawfulness linked to the procedural or substantive requirements laid down by law and to refer the case back to the HCJ for a fresh ruling in conformity with any instructions issued by the Supreme Court of Justice regarding possible irregularities (see paragraph 40 above). Under Portuguese law, the Supreme Court of Justice did not have jurisdiction to re-examine the facts as established by the HCJ. Likewise, it could not review the penalty imposed, but could only determine whether it had been appropriate to the offence and proportionate to it (see paragraph 33 above).
85. The present case should therefore be likened to situations in which the national courts were unable or refused to examine a key issue in the dispute because they considered themselves bound by the findings of fact or of law made by the administrative authorities and could not examine the relevant issues independently (see Terra Woningen B.V., cited above, §§ 46 and 50-55; Obermeier v. Austria, 28 June 1990, §§ 66-70, Series A no. 179; Tsfayo v. the United Kingdom, no. 60860/00, § 48, 14 November 2006; Chevrol, cited above, § 78; I.D. v. Bulgaria, cited above, §§ 50‑55; Capital Bank AD v. Bulgaria, no. 49429/99, §§ 99-108, ECHR 2005-XII (extracts); and Fazliyski v. Bulgaria, no. 40908/05, § 59, 16 April 2013).
86. In the instant case the question that arises is whether the scope of the review conducted by the Supreme Court of Justice in respect of the HCJ’s disciplinary powers was sufficient. The applicant disputed the facts as established by the HCJ. She contended that she had not called Judge H.G. a “liar” nor had she, in the course of her conversation with Judge F.M.J., asked him to discontinue the proceedings against the witness on her behalf. Both situations concerned questions of fact that were crucial to the outcome of the two sets of disciplinary proceedings against her. The applicant never had an opportunity to have the Supreme Court of Justice re-examine these decisive facts (see Tsfayo, cited above, § 48), the first of which was, moreover, disputed between the members of the HCJ (see paragraph 16 above). Hence, the Court notes that the Supreme Court of Justice confined itself to conducting a review of lawfulness with regard to the establishment of the facts (see, conversely, A. Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, § 64, 27 September 2011). It is clear from the manner in which the Supreme Court of Justice arrived at its decision in the applicant’s case, and from the subject-matter of the dispute, that it did not properly address important arguments advanced by the applicant (see, mutatis mutandis, Oleksandr Volkov, cited above, § 127).
87. As regards the review of the legal issues, the Court notes that, in the view of the Supreme Court of Justice, the HCJ’s powers did not come within the scope of the courts’ review where the disciplinary body was ruling on conduct alleged to be incompatible with a judge’s duty of diligence. Furthermore, with regard to the extent of the powers of the Judicial Division of the Supreme Court of Justice, the Government maintained that it was not for the highest court to encroach on the discretionary powers of the administrative authorities (see paragraph 40 above). The Court notes that the appeal body reviews, from the perspective of lawfulness in the broad sense, compliance with Article 266 § 2 of the Constitution, which states that the administrative authorities must exercise their powers in accordance with, among other principles, the prohibition on acting in excess of those powers (see paragraph 40 above). The Court concludes from this that the Supreme Court of Justice adopts a restrictive approach to the scope of its own jurisdiction to review the disciplinary activities of the High Council of the Judiciary.
88. The judicial practice developed in this area is indicative in this regard (see paragraphs 33 and 40 above). Thus, the foregoing considerations indicate that the legal consequences arising from the Supreme Court of Justice’s review of such matters are limited, and these considerations reinforce the Court’s misgivings about that court’s ability to handle the matter effectively and provide a sufficient review of the case (see, mutatis mutandis, Oleksandr Volkov, cited above, § 126).
89. The Court therefore considers that the review conducted by the Supreme Court of Justice in the applicant’s case was insufficient.
(c) Lack of a public hearing (application no. 74041/13)
90. The applicant complained of the fact that the cases had not been examined in the course of a public hearing, in breach of her right to a fair hearing within the meaning of Article 6 § 1 of the Convention. In support of her argument she referred to the non-technical nature of the issues raised, particularly in application no. 74041/13, and the discrepancy in the establishment of the facts relating to the content of her alleged remarks.
91. The Government disputed this argument.
92. The Court reiterates that the public character of proceedings constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. It protects litigants against the administration of justice in secret with no public scrutiny and thus constitutes one of the means whereby confidence in the courts 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 (see Diennet v. France, 26 September 1995, § 33, Series A no. 325-A; B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 36, ECHR 2001-III; Olujić, cited above, § 70; Martinie v. France [GC], no. 58675/00, § 39, ECHR 2006-VI; and Nikolova and Vandova v. Bulgaria, no. 20688/04, § 67, 17 December 2013).
93. Article 6 § 1 does not, however, prohibit courts from deciding, in the light of the special features of the case submitted to them, to derogate from this principle: in accordance with the actual wording of this provision “... 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”; holding proceedings, whether wholly or partly, in camera must be strictly required by the circumstances of the case (see Diennet, § 34; Martinie, § 40; Olujić, § 71; and Nikolova and Vandova, § 68, all cited above).
94. As regards disciplinary proceedings against judges, the Court observes that it is recommended that sessions, as a general rule, be held in public and be held in camera only exceptionally, at the request of the judge and in the circumstances prescribed by law. It further notes that publicity should also be the guiding principle for later stages of disciplinary proceedings and that the fact that “[s]essions of the Disciplinary Board [are] closed”‘ is problematic (see paragraph 46 above).
95. There may be proceedings in which an oral hearing is not required under Article 6, for example 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 parties’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; and Şahin Karakoç v. Turkey, no. 19462/04, § 36, 29 April 2008). Accordingly, even where a court has jurisdiction to review the case both as to facts and as to law, the Court cannot find that Article 6 always requires a right to a public hearing irrespective of the nature of the issues to be decided. There are other considerations, including the right to trial within a reasonable time and the related need for expeditious handling of the courts’ caseload, which must be taken into account in determining the need for a public hearing (see Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002). The Court has already found that proceedings devoted exclusively to legal or highly technical questions may comply with the requirements of Article 6 even if there was no public hearing (see Jurisic and Collegium Mehrerau v. Austria, no. 62539/00, § 65, 27 July 2006, and Mehmet Emin Şimşek v. Turkey, no. 5488/05, §§ 30-31, 28 February 2012).
96. In the instant case the applicant appealed to the Judicial Division of the Supreme Court of Justice against the decision of the HCJ of 10 April 2012, requesting the holding of a public hearing in order to call a witness and present some documents. As regards the protection of the applicant’s dignity, the Court stresses that she herself asked that a hearing be held in public (see Olujić, cited above, § 74). The Court also observes that, according to the available international-law materials, the interest of the public in being properly informed about the developments of the disciplinary proceedings in many cases should outweigh the private interest of the judge in keeping certain details confidential (see paragraph 47 above). The Supreme Court of Justice justified its refusal to call a witness whom the applicant wished to have questioned by stating that the request for evidence to be taken from the witness was aimed at establishing the content of the draft decision in the applicant’s disciplinary case, which ran counter to the confidentiality of the proceedings, and that the documents submitted by the applicant exceeded the scope of the disciplinary proceedings (see paragraphs 32 and 33 above). However, although it is not its task to express a view on the relevance of that evidence or whether the allegations against the applicant were well-founded, the Court considers that the witness evidence in question was relevant in the present case in so far as it would in all likelihood have supported the applicant’s defence. Furthermore, the reasons given by the Supreme Court of Justice were insufficient to justify the refusal to hear evidence from the witness whose attendance the applicant sought to obtain, which led ultimately to a limitation of the applicant’s ability to defend her case, in breach of the guarantees of a fair trial (compare Olujić, cited above, §§ 83-85). The Court further considers that the Supreme Court of Justice, in refusing to hear evidence in public from the witness called by the applicant in the present case, did not ensure the transparency which that procedural act would have lent to the disciplinary proceedings against her and which is among the aims pursued by Article 6 § 1 of the Convention (see Mehmet Emin Şimşek, cited above, § 28). Lastly, the Court notes that in the instant case the Supreme Court of Justice did not remedy the refusal to hold a hearing in public (see, mutatis mutandis, Olujić, cited above, § 76).
97. The Court does not consider 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, were of a highly technical nature and did not require a hearing open to public scrutiny (see, mutatis mutandis, Nikolova and Vandova, cited above, § 76). In the Court’s view, a public hearing, open and accessible to the applicant, as she had requested, was necessary in the present case. In that connection the Court observes that the facts were contested and that the penalties which the applicant was liable to incur carried a significant degree of stigma and were likely to adversely affect her professional honour and reputation (see, mutatis mutandis, Grande Stevens and Others v. Italy, nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, § 122, 4 March 2014).
98. The Court, mindful of the need to strike the right balance between the need to protect the independence of the HCJ and the interest in ensuring its public control and in preventing corporatist management (see paragraph 47 above), considers that the guarantee of a public hearing in disciplinary proceedings against judges contributes to their fairness for the purposes of Article 6 § 1, by ensuring proceedings involving the full hearing of the parties (see paragraph 42 above), the highest degree of transparency towards judges and society and all the guarantees of a fair trial (see paragraph 48 above).
99. In view of the foregoing, the Court concludes that the domestic authorities failed to afford the guarantees of a public hearing.
(d) Conclusion
100. In the instant case, in view of the cumulative effect of the above‑mentioned factors, the Court finds that there has been a violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
101. Article 41 of the Convention provides:
“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
102. The applicant claimed 43,750 euros (EUR) in respect of the pecuniary damage she had allegedly sustained on account of the loss of salary. She did not lodge a claim in respect of non-pecuniary damage, submitting that a finding of a violation would constitute in itself sufficient just satisfaction in respect of the damage sustained.
103. The Government contested the applicant’s argument, maintaining that she was confusing the subject-matter of the domestic proceedings and of the proceedings before the Court.
104. The Court considers that in the instant case the only basis for awarding just satisfaction lies in the fact that the applicant did not have the benefit of the guarantees of Article 6 of the Convention. It is true that the Court cannot speculate as to the outcome of the proceedings had the position been otherwise. Nevertheless, having regard to all the circumstances, and in accordance with its normal practice in civil and criminal cases as regards violations of Article 6 § 1 caused by a lack of objective or structural independence and impartiality, the Court does not consider it appropriate to award financial compensation to the applicant in respect of loss of salary allegedly flowing from the outcome of the domestic proceedings (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 43, ECHR 2002‑IV). Hence, it does not see any causal link between the violations found and the pecuniary damage alleged, and dismisses the applicant’s claim.
B. Costs and expenses
105. The applicant also claimed EUR 2,500 for the costs and expenses incurred before the domestic courts.
106. The Government did not submit any observations in this regard.
107. The Court reiterates that, where it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention or redress of the violation, provided that they have been proved to be necessary, the requisite receipts have been produced – which is not the case here – and the amounts claimed are not unreasonable (see, for example, Martinie, cited above, § 62). In the instant case, in view of the documents in its possession and its case-law, the Court dismisses the claim in respect of the costs and expenses incurred in the domestic proceedings.
FOR THESE REASONS, THE COURT
1. Decides, unanimously, to join the applications;
2. Declares, unanimously, the applications admissible;
3. Holds, unanimously, that it is not necessary to examine the complaints that the applicant was not informed of the nature and cause of the accusation against her and that she did not have adequate time and facilities for the preparation of her defence;
4. Holds, unanimously, that there has been a violation of Article 6 of the Convention;
5. Dismisses, by six votes to one, the claim for just satisfaction.
Done in French, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena TsirliAndrás Sajó
RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kūris is annexed to this judgment.
A.S.
M.T.
PARTLY DISSENTING OPINION OF JUDGE KŪRIS
1. My disagreement with the majority concerns point 5 of the operative part of the judgment.
2. In not awarding the applicant compensation for pecuniary damage, the majority rely on, and refer to, Kingsley v. the United Kingdom ([GC], no. 35605/97, § 43, ECHR-2002, and the case-law cited therein), where the Court refused “to award financial compensation ... in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings” in cases where it found violations of Article 6 § 1 “caused by a lack of objective or structural independence and impartiality”.
3. One detail, though, has not been given credit. An important one moreover. In paragraph 43 of Kingsley (cited above), to which the majority refer, the Court did not award the applicant compensation for pecuniary damage, “having regard to all the circumstances”. I assume that this phrase was not included merely incidentally. It reflects the requirement, which goes without saying in all cases, that the Court, when not awarding compensation for pecuniary damage, has to pay heed to all the actual circumstances of that particular case, and not mechanically copy the outcome of an earlier case, the factual and legal circumstances of which may be different. In my firm belief, the notion of “all the circumstances” includes, more often than not, the absence of a causal link between the violations found and the damage sustained. Must include in fact.
But what if that causal link is not absent? What if it is present?
4. In paragraph 104 of the judgment, the majority state that they do not see a causal link between the violations found and the pecuniary damage sustained by the applicant.
What a finding!
I cannot follow such reasoning. I see that link. I see it as vividly as if it had been projected in shining symbols on a screen. I cannot help but see it. This link is so obvious that one does not see it only if one decides not to want to notice it.
5. Let me put it straightforwardly. The applicant was suspended from her judicial duties for 240 days and that penalty was enforced (see paragraphs 35 and 36 of the judgment). The decision of the High Council of the Judiciary to impose that penalty appeared not to be in conformity with Article 6 § 1 of the Convention. This is the crux of her case under the Convention; this is all that the present judgment is about. Moreover, that “one” violation, in fact and in law, encompassed three aspects (see paragraphs 80, 89 and 99 of the judgment). As a result of enforcement of that decision, which infringed the Convention in three respects, the applicant was not paid her salary for the period in question. Had that decision not been adopted or had it been (for some hypothetical reason) not enforced, she would have been paid her salary, due to the fact that there was no other reason for withholding it. She had not received her salary precisely because of the application to her of that particular penalty, and not for any other reason.
Here, the violation is the cause, and the loss of salary a consequence. Clear as 2 × 2. In terms of the science of logic, we have the antecedent and the consequent: if P, then Q, – the if-clause and the then-clause.
How can the Court “not see” this causal link?
But there is more to it than that.
6. I could not agree more with the majority that the Court cannot (and should not) speculate as to how the proceedings against the applicant could have ended had there been no procedural violation(s) of Article 6 § 1 of the Convention (see paragraph 104 of the judgment).
One could envisage that, had the High Council of the Judiciary erred only “on its own behalf” in, say, applying the domestic legislation, the reopening of proceedings in the applicant’s case within the domestic system, provided that this was still possible after all these years, could bring about the same unfavourable result for the applicant. And if not, that is, if the outcome of those reopened proceedings was to the benefit of the applicant, then whatever the pecuniary damage sustained by her, this could be remedied at the national level. In such a – so far only hypothetical – event, compensation for the pecuniary damage could not be awarded by this Court. Injustice would have been undone at the national level.
I would have accepted that. After all, Article 41 does not oblige the Court to award full compensation to the applicant: it provides that “the Court shall, if necessary, afford just satisfaction to the injured party” only “if the internal law of the High Contracting Party concerned allows only partial reparation to be made” (emphasis added). I also would have accepted a decision by the majority justifying not awarding compensation for pecuniary damage on the grounds that such compensation is indeed available at the national level, were the applicant able to argue and prove her case in such domestic proceedings satisfying the requirements of the Convention.
But there is not a single word in the judgment about such a possibility. And there is not a word about the possibility of reopening the proceedings in the applicant’s case which could rectify the flaws in the ones which have been found by this Court to be in violation of the Convention.
This is not surprising, because hardly any such possibilities exist.
7. In the present case, it was not only the High Council of the Judiciary which erred. Much more, the whole institutional and procedural setting for deciding that type of case in Portugal was, at the material time, not able to guarantee that the requirements of Article 6 § 1 regarding the independence, impartiality and fairness of a tribunal and the public character of a hearing could be satisfied (see the “Relevant Domestic Law and Practice” section). The Court has not been assured that the situation has changed, at least in essence.
8. This is not at all about “speculation” regarding the more or less likely outcome of the applicant’s case had the procedural violations not been committed. This is about the practical and even theoretical impossibility for the deciding body (the High Council of the Judiciary) not to commit at least some of these procedural violations.
9. As matters stand, can we still assert that the Court legitimately left virtually unaddressed the applicant’s claim for compensation of pecuniary damage? Can we say that we did justice to the applicant (who, by the way, did not claim any compensation for the non-pecuniary damage which she doubtless sustained, and, moreover, was not compensated for the costs and expenses incurred)?
My answer is: no, we cannot. This is why I could not vote with the majority on point 5 of the operative part of the judgment.
10. Also, is the line of reasoning (as to not awarding compensation for pecuniary damage) employed in this case one which this Court would tolerate in the practice of the national courts of the member States? Would the Court suggest that this line be followed by the national courts? I can easily imagine that, had this Court to decide a case in which the applicant complained that the domestic courts had found no causal link in a situation where that link was obvious, there would be few arms left for the respondent Government to defend their case.
11. The reference to Kingsley (cited above), especially in its somewhat pruned version (see paragraph 3 above), does not absolve the Court from its duty to examine all the relevant circumstances of the case under examination, including those pertaining to compensation claimed by the applicant, and to award compensation for pecuniary, as well as non-pecuniary, damage to the injured party, if that compensation is not available under the domestic law of the member State.
In this case, that reference aimed at serving the continuity of the Court’s case-law. That continuity has been preserved, or rather its appearance has. And because it is only the appearance of continuity which has been achieved, an additional, artificial, argument was invented and employed to disguise the gap between the simulacrum and the reality. This argument is “no causal link”.
12. Mechanical references to earlier case-law which are used as a substitute for actually probing into the most essential circumstances (even one) of the case under examination, or, moreover, misrepresent such circumstances, may in fact serve continuity in injustice. This is most disappointing – not only in the context of this particular case.
[1]. This paragraph was rectified in accordance with Rule 81 of the Rules of Court.
[2]. This paragraph was rectified in accordance with Rule 81 of the Rules of Court.
[3]. This paragraph was rectified in accordance with Rule 81 of the Rules of Court.
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