FOURTH SECTION
DECISION
Application no. 78528/17
Miguel José MARTINS BARREIRA FERNANDES
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 17 June 2025 as a Committee composed of:
Tim Eicke, President,
Ana Maria Guerra Martins,
András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 78528/17) 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”) on 3 November 2017 by a Portuguese national, Mr Miguel José Martins Barreira Fernandes (“the applicant”), who was born in 1978 and lives in Lisbon and who was represented by Ms F. Fidalgo Simões, a lawyer practising in Lisbon;
the decision to give notice of the complaints concerning the alleged unfairness of the proceedings, namely the lack of a public hearing, the limited scope of review of the Supreme Court and the lack of adversariness, to the Portuguese Government (“the Government”), represented by Mr. R. J. Bragança de Matos, Public Prosecutor, superseded by Mr M. Aires Magriço, Public Prosecutor, both Government Agents at the relevant time, and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. At the material time, the applicant was a judge. The case concerns the disciplinary proceedings instituted against him by the High Council of the Judiciary (Conselho Superior da Magistratura, hereinafter the “CSM”) which resulted in his dismissal from the judiciary by a decision of the CSM of 21 December 2015, confirmed by the Judicial Division of the Supreme Court on 22 February 2017. The applicant alleged several procedural shortcomings under Article 6 of the Convention.
2. On 20 May 2014, following the detection of significant slowness in case-processing by the applicant, the CSM instituted disciplinary proceedings against him and ordered him to undergo a special performance appraisal.
3. On 20 January 2015, following the appraisal, the CSM classified the applicant’s performance as “poor”, suspended him from his duties and initiated an inquiry to confirm whether the applicant had the abilities required to perform the duties of a judge. This inquiry was subsequently converted into disciplinary proceedings.
4. On 10 February 2015 the two above-mentioned sets of disciplinary proceedings were joined.
5. On 16 June 2015 the applicant was served with an indictment drawn up by the judicial inspector (inspetor judicial) in charge of the disciplinary proceedings, in which he was accused of, inter alia, a breach of the duty to pursue the public interest and a breach of the duty of diligence. On 15 July 2015 the applicant filed his defence, in which he asked for evidence to be admitted and witness evidence to be taken.
6. On 3 August 2015 the judicial inspector submitted his final report to the CSM. Taking into account, inter alia, the applicant’s productivity reports covering the period from 2012 to 2014, the judicial inspector concluded that the applicant had failed to carry out the duties referred to in the indictment and proposed to suspend the applicant from his position for 180 days. The judicial inspector further found that the applicant’s defence had been filed late and determined that the request for witness interviews was not relevant to the purposes of the disciplinary proceedings.
7. The CSM rejected the sanction proposed by the judicial inspector and appointed a new judicial inspector. The applicant was invited to submit his observations on a proposal by the new judicial inspector to dismiss him from the judiciary.
8. On 29 October 2015 the applicant replied contending that the proposed dismissal was both inappropriate and disproportionate given the applicable legal provisions.
9. In a decision of 21 December 2015 the CSM, sitting in plenary session, referred to the applicant’s productivity reports and found that he had breached, inter alia, the duty to act in the public interest and the duty of diligence in article 73(2) of the Public Employment Act (Law no. 35/2014, of 20 June 2014) and in articles 34(2), 82, 85(1), 90(2) and 95(1) of the Status of Judges Act as in force at the material time (Law no. 21/85 of 30 July 1985 – hereafter the “Act”). It concluded that the applicant had shown himself to be fundamentally incapable of adapting to the demands of his office and dismissed him from the judiciary pursuant to section 95 (1) a and c of the Act. Furthermore, the CSM confirmed the judicial inspector’s conclusion that the applicant’s defence had been filed out of time and that it was not necessary to take evidence from witnesses.
10. On 12 February 2016 the applicant appealed against the CSM’s decision to the Judicial Division of the Supreme Court (hereinafter the “Supreme Court”). He argued that the CSM decision was invalid on several grounds, namely that the disciplinary proceedings had become time-barred; that his right to defend himself had been breached by the rejection of his defence and his request for witness evidence; and that his dismissal had been disproportionate.
11. On 9 May 2016, following the filing of appeal submissions by both the applicant and the CSM, and pursuant to article 176 of the Act, the Public Prosecutor gave her written opinion on the case, in which she recommended that the appeal should be dismissed. A copy of that opinion was not communicated to either party.
12. On 21 February 2017 the applicant asked the Supreme Court to admit four documents in support of his claims, which he said would mean that witnesses did not need to be called.
13. On 22 February 2017, as regards the applicant’s request of 21 February 2017 (see paragraph 12 above), the judge rapporteur of the Supreme Court found that it had been anomalous in that the applicant had already been given an opportunity to file his defence.
14. On the same day, the Supreme Court partially found in favour of the applicant holding that one of the original sets of disciplinary proceedings had been time-barred. The Supreme Court upheld the decision of the CSM of 21 December 2015 in the remaining part and held that the disciplinary sanction had not been disproportionate.
15. On 4 May 2017 a six-judge bench (conferência) of the Supreme Court dismissed a further appeal lodged by the applicant, in which he claimed that the judge rapporteur’s decision not to admit his evidence had been unlawful (see paragraphs 12 and 13 above).
16. Relying on Article 6 § 1 of the Convention, the applicant complained of a breach of his right to a fair trial on account of the lack of a public hearing before the Supreme Court; the limited scope of the review by the Supreme Court; and the fact that he had had no opportunity to reply to the written opinion given by the Public Prosecutor to the Supreme Court.
THE COURT’S ASSESSMENT
17. The Court refers to the general principles set out in Ramos Nunes de Carvalho e Sá ([GC], no. 55391/13 and 2 others, §§ 131-33 and 176-214, 6 November 2018).
18. The Court observes at the outset that the request for the admission of evidence and for witnesses to be called was made in the applicant’s defence, which both the CSM and the Supreme Court (at two levels of jurisdiction) held had been filed out of time (see paragraphs 9 and 14 above). The Court concludes that the applicant is responsible that these requests were to no avail.
19. With respect to the extent of the judicial review carried out by the Supreme Court, the Court notes that all the arguments and questions raised by the applicant in his appeal against the decision of the CSM of 21 December 2015, which were exclusively legal in nature (see, a contrario, Ramos Nunes, cited above, §§ 206 and 211), were duly heard and examined by the Supreme Court (see paragraph 14 above) and that the factual and legal reasons for the decisions that followed, which do not appear to be arbitrary or manifestly unreasonable, were set out at length by that court.
20. As to the lack of a public hearing before the Supreme Court, the Court observes that the applicant failed to clearly and unequivocally request a public hearing (see paragraph 12 above). It may therefore reasonably be considered that the applicant had waived his right to be heard in person (compare Marcolino de Jesus v. Portugal (dec.), no. 2388/15, § 49, 1 June 2021).
21. In any event, the Court notes that the applicant raised questions of a purely legal nature in his appeal, that he did not dispute any specific fact in the CSM decision and that he merely contested the legal determinations and inferences arrived at by the CSM on the basis of the undisputed facts (see paragraph 10 above). Consequently, the Court finds that the present situation would, in any event, fall within the first two established exceptions for dispensing with a public hearing (no issues of credibility or contested facts; only legal issues of limited scope: see Ramos Nunes de Carvalho e Sá, cited above, §§ 188-91, and Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002).
22. With respect to the fact that the applicant had no opportunity to reply to the written opinion presented by the Public Prosecutor to the Supreme Court (see paragraphs 11 and 16 above), the Court observes that the Public Prosecutor was not a party to the proceedings or in any way associated with the CSM. In addition, neither the applicant nor the CSM were provided with the written opinion or given an opportunity to comment on it nor did the domestic law provide for such a possibility at the material time. More importantly, the Court observes that the opinion of the Public Prosecutor addressed only the key legal arguments raised by the applicant in his pleadings. Furthermore, the arguments contained in that opinion were essentially the same as those raised by the CSM on appeal (see paragraph 11 above). The applicant did not explain how the non-communication of that opinion had affected his rights, nor did he demonstrate that it had prevented him from making arguments relevant for making up his case. In the circumstances, the Court concludes that the communication of the Public Prosecutor’s opinion to the applicant would have had no impact on the outcome of the case (compare Verdú Verdú v. Spain, no. 43432/02, §§ 27-28, 15 February 2007, Hudáková and Others v. Slovakia, no. 23083/05, § 27, 27 April 2010, and Liga Portuguesa de Futebol Profissional v. Portugal, no. 4687/11, §§ 52, 54-55, 17 May 2016). The Court also observes that under article 173 of the current Act as amended by Law no. 67/2019 of 27 August 2019, the rules governing administrative judicial proceedings apply equally to appeals against CSM decisions. A Public Prosecutor’s opinion must therefore now be communicated to the parties under article 146 (2) of the Administrative Courts Code.
23. In view of the foregoing, it follows that the present application is manifestly ill‑founded. Accordingly, it must be rejected in accordance with 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 10 July 2025.
Simeon Petrovski Tim Eicke
Deputy Registrar President