FOURTH SECTION
DECISION
Application no. 1507/20
Nuno Filipe TOMÁS CARDOSO
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 9 May 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. 1507/20) 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 23 December 2019 by a Portuguese national, Mr Nuno Filipe Tomás Cardoso (“the applicant”), who was born in 1975 and lives in Oeiras and who was represented by Ms L. Alves, a lawyer practising in Lisbon;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant is a judge. The case concerns the penalty of an admonition (pena de advertência) which was imposed on him by the High Council for the Judiciary (Conselho Superior da Magistratura – hereinafter “the CSM”) on account of the fact that, when applying to be appointed a judge in judicial proceedings concerning preparations for a local election in Oeiras, he had not disclosed to the CSM or to the Chief Judge of the judicial district (comarca) of West Lisbon that P.V., one of the political candidates in the election, had been the best man at his wedding and that in the past he had participated in political activities with P.V. and also with his electoral opponent.
2. Following press reports according to which the applicant, in his capacity as a judge in judicial proceedings concerning the elections in Oeiras, had rejected the candidacy of I.M., one of the political opponents of P.V., the CSM decided to open disciplinary proceedings against him.
3. On 5 September 2017 the applicant was heard by the judicial investigator (inspector judicial). On an unspecified date he filed pleadings setting out his defence to the accusations against him.
4. On 12 June 2018 the CSM decided to impose the penalty of an admonition on the applicant, to be noted in his employment record, for breach of his official duty to pursue the public interest, in the sense of acting so as not to undermine public confidence in the judicial system, as required by section 82 of the Status of Judges Act (Law no. 21/85 of 30 July 1985) and in section 73(1), (2)(a) and (3) of the Civil Service Employment Act (Law no. 35/2014 of 20 June 2014), which applied pursuant to section 131 of the Status of Judges Act.
5. The applicant appealed against that decision to the Judicial Division of the Supreme Court. He argued that the CSM had been manifestly in error in its assessment of the evidence and the applicable law, had failed to take proper account of facts and to produce relevant evidence, and had violated the principle of proportionality by imposing on him the penalty of an admonition to be noted in his record of employment, without any justification. On 4 July 2019, after a hearing, the Supreme Court dismissed the appeal, finding that the decision of the CSM was not invalid on the grounds put forward by the applicant.
6. Relying on Article 6 § 1 of the Convention in conjunction with Article 7, the applicant complained of a breach of his right to a fair trial, arguing that the provisions of domestic law governing the disciplinary liability of judges and the disciplinary sanctions available to the CSM were vague and unforeseeable as to their application.
7. Relying on Article 6 § 2 of the Convention, the applicant complained of a breach of his right to the presumption of innocence. He contended that the disciplinary procedure had been initiated on the basis of newspaper reports and decided on the basis of journalistic criteria and propaganda circulated in the mass media by the unsuccessful election candidate.
8. Relying on Article 6 § 1 of the Convention alone or in conjunction with Article 13, the applicant complained of a breach of his rights to a fair trial and to an effective remedy. He argued in particular that the Supreme Court, despite being the only court involved in the disciplinary proceedings, had not carried out a review of the facts but, on the contrary, had accepted the facts as established by the CSM, resulting in a violation of the adversarial principle and of the principle of equality of arms. In addition, the applicant alleged that the Supreme Court had refused to assess the issues raised by him concerning the assessment of the penalty and the exclusion of fault. Lastly, he alleged that he had not been heard in person and had not had the opportunity to contradict the evidence of, among others, the Chief Judge.
THE COURT’S ASSESSMENT
9. The Court refers to the general principles set out in Ramos Nunes de Carvalho e Sá ([GC], no. 55391/13 and 2 others, §§ 122 and 176-92, 6 November 2018).
10. It reiterates that, as far as disciplinary proceedings against a judge are concerned, they do not concern the determination of a criminal charge within the meaning of Article 6 of the Convention (ibid., § 127). The complaints brought by the applicant under Article 6 § 1, under its criminal head, in conjunction with Article 7 of the Convention, and under Article 6 § 2 of the Convention (see paragraphs 6-7 above), are therefore incompatible ratione materiae with the provisions of the Convention or the Protocols thereto within the meaning of Article 35 § 3 (a) of the Convention and should be rejected under Article 35 § 4 (ibid., § 128).
11. As regards the complaints brought by the applicant under Article 6 § 1 and Article 13 of the Convention on the grounds of the alleged unfairness of the proceedings brought against him (see paragraph 8 above), the Court, being the master of the characterisation to be given in law to the facts of the case, considers that they should be examined under Article 6 § 1 only of the Convention, under its civil head (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018 and Ramos Nunes de Carvalho e Sá, cited above, § 120).
12. Regarding in particular the extent of the review carried out by the Supreme Court, the Court notes that all the arguments and questions raised by the applicant, including the issues of the assessment of the penalty and of the alleged exclusion of fault, were duly heard and examined by the Supreme Court. The factual and legal reasons for its decision, which do not appear arbitrary or manifestly unreasonable, were set out at length. Likewise, there is nothing to suggest the proceedings were otherwise unfair.
13. As to the fact that the applicant was not heard in person and did not have an opportunity to contradict the testimony of, among others, the Chief Judge, the Court notes that during the disciplinary proceedings the applicant was heard by the judicial investigator (see paragraph 3 above) before he had been formally accused. The Court further notes that, thereafter, he did not ask the CSM to hear him in person either when he filed his defence pleadings or when he was confronted with the possibility of specific facts being considered to have been proved following the testimony of the Chief Judge. This was, despite having had the opportunity to request additional evidence at that time. Nor did he make such a request in his appeal to the Supreme Court (see paragraph 5 above). It must therefore be considered that the applicant unequivocally waived his right to be heard in person (see Marcolino de Jesus v. Portugal (dec.), no. 2388/15, § 49, 1 June 2021 and the references therein).
14. It follows that the complaint under Article 6 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and should be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 June 2023.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President