FOURTH SECTION
DECISION
Application no. 29238/22
Maria Clara PEREIRA DE SOUSA DE SANTIAGO SOTTOMAYOR
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 7 February 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 29238/22) 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 7 June 2022 by a Portuguese national, Ms Maria Clara Pereira de Sousa de Santiago Sottomayor (“the applicant”), who was born in 1966, lives in Porto and was represented by Mr P. Graça, a lawyer practising in Lisbon;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant is a judge of the Supreme Court.
2. Following a series of comments made by her in a public post on the social media platform Facebook concerning a pending criminal investigation, the High Council of the Judiciary (hereinafter “the CSM”) initiated an inquiry procedure (processo de averiguações) in respect of her.
3. On 9 September 2020 the CSM informed the applicant that it was proposing to settle the case by issuing her with a warning without making a formal record. The applicant refused the proposal and therefore disciplinary proceedings were initiated against her. She was accused of a breach of the duty of discretion she was subject to as a judge.
4. The applicant requested the withdrawal of the members of the CSM involved in the proceedings against her (incidente de recusa). On 23 March 2021 her request was dismissed by the President of the CSM. On 5 May 2021 the applicant challenged that decision by means of an administrative action in the Judicial Division of the Supreme Court.
5. On 1 June 2021 the CSM delivered a final decision in the disciplinary proceedings, imposing the sanction of a warning on the applicant for a breach of her duty of discretion. That decision was notified to the applicant on 9 July 2021.
6. On 8 October 2021 the applicant lodged an appeal against the CSM’s decision with the Judicial Division of the Supreme Court (Secção do Contencioso Administrativo do Supremo Tribunal de Justiça).
7. On 15 October 2021 the applicant requested an extension, under Article 63 of the Administrative Courts Code, of the subject matter of the administrative action which she had lodged on 5 May 2021 (see paragraph 4 above) concerning the withdrawal of the members of the CSM, asking the Supreme Court to also assess the necessity of the disciplinary sanction that had been applied to her.
8. On 21 December 2021 the Judicial Division of the Supreme Court ruled against her in respect of the withdrawal of the members of the CSM and dismissed her request to extend the subject matter of the proceedings since the applicant had failed to challenge the disciplinary sanction within the thirty-day time-limit set out in section 171(1) of the Judges’ Statute.
9. On 14 July 2022 the Supreme Court rejected the appeal lodged on 8 October 2021 (paragraph 6 above) on the ground that it was out of time, as the applicant had failed to lodge the appeal within the thirty-day time-limit provided for in section 171(1) of the Judges’ Statute.
10. The applicant complained under Article 6 § 1 of the Convention of unfairness of the proceedings that had led to the judgment of the Judicial Division of the Supreme Court of 21 December 2021 (see paragraph 8 above). She further complained of the lack of a decision from the Supreme Court concerning the sanction applied to her. She argued that the interpretation of Article 63 of the Administrative Courts Code (see paragraph 7 above) should not take into account the time-limit set out in section 171(1) of the Judges’ Statute.
11. The applicant also complained, under Article 10 of the Convention, that the comments which had led to the inquiry procedure (see paragraph 2 above) were covered by her right to freedom of expression.
THE COURT’S ASSESSMENT
Complaint under Article 6 § 1 of the Convention (access to a court)12. The Court notes at the outset that in the application form submitted to it on 7 June 2022 the applicant complained of the unfairness of the proceedings concerning her request for the withdrawal of the members of the CSM and her subsequent request for an examination of the necessity of the sanction that had been applied to her in the meantime (see paragraphs 4 and 7 above). The Court notes that on 14 July 2022 the Supreme Court rejected a second appeal lodged by the applicant against the decision of the CSM (see paragraph 9 above).
13. Regarding the lack of a decision of the Supreme Court concerning the sanction applied to the applicant (paragraphs 9 to 10 above), the Court refers to the general principles summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 80-86, 5 April 2018).
14. It further reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see Mizzi v. Malta, no. 26111/02, § 83, ECHR 2006-I (extracts), and the references contained therein). The Court’s role is not to resolve disputes over the interpretation of domestic law regulating access to a court but to determine whether the effects of such an interpretation are compatible with the Convention (see Zubac, cited above, § 81).
15. In the instant case, it appears that on 21 December 2021 the Judicial Division of the Supreme Court rejected the applicant’s request for an examination of the necessity of the sanction applied to her as out of time pursuant to section 171(1) of the Judges’ Statute in so far as she had failed to comply with the thirty-day time-limit provided therein (paragraph 8 above). The same conclusion was reached by the Judicial Division of the Supreme Court regarding the appeal lodged on 8 October 2021 (see paragraph 9 above). The Court finds that the time-limit at issue was not unforeseeable for the applicant, who is a judge and was moreover represented by a lawyer. Furthermore, there are no grounds for finding that the Supreme Court’s application of section 171 of the Judges’ Statute displayed excessive formalism.
16. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.
Other complaints17. In so far as the applicant complained of the unfairness of the decision of the Supreme Court concerning the question of the withdrawal of the members of the CSM, the Court observes that this part of the proceedings did not concern the determination either of a criminal charge or of the applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention. The CSM did not determine a “criminal charge” within the meaning of that Article, nor did the matter concerning the composition of the CSM relate to a civil right. It concerned at most a procedural right and did not entail the determination of the applicant’s civil rights. Accordingly, these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 (see Schreiber and Boetsch v. France (dec.), no. 58751/00, ECHR 2003-XII).
18. As to the complaint regarding the unfairness of the proceedings which concerned the necessity of the sanction applied by the CSM and the applicant’s subsidiary complaint under Article 10 of the Convention, the Court notes, as observed above, that the appeals lodged by the applicant were rejected on 21 December 2021 and 14 July 2022 (see paragraphs 8 and 9 above) on the grounds that they were out of time.
19. In view of its finding in paragraph 16 above, the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention since the applicant failed to raise before the competent domestic authorities, in accordance with the applicable procedural requirements, the complaint that was made to the Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 March 2023.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President