Last Updated on September 22, 2021 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Ramos Nunes de Carvalho e Sá v. Portugal [GC] – 55391/13, 57728/13 and 74041/13
Judgment 6.11.2018 [GC]
Article 6
Administrative proceedings
Disciplinary proceedings
Article 6-1
Fair hearing
Public hearing
Lack of public hearing and limited extent of review by the Supreme Court over disciplinary decisions of the High Council of the Judiciary: violation
Impartial tribunal
Independent tribunal
Alleged lack of independence and impartiality of the Supreme Court owing to the dual role of its President and the careers of its judges, linked to the High Council of the Judiciary: no violation
Facts – Three sets of disciplinary proceedings were brought against the applicant, who was a judge at the time. The High Council of the Judiciary (hereafter “the CSM”) ordered her to pay a fine and imposed two penalties of suspension from duty.
The appeals lodged by the applicant seeking a review of the establishment of the facts were unsuccessful. The Judicial Division of the Supreme Court upheld the CSM’s decisions, finding, in particular, that its task was not to review the facts but only to examine whether the establishment of the facts had been reasonable.
The CSM grouped together the penalties imposed on the applicant and ordered a single penalty of 240 days’ suspension.
In the proceedings before the European Court the applicant alleged a violation of her right to an independent and impartial tribunal, her right to a review of the facts as established by the CSM and her right to a public hearing. In a judgment of 21 June 2016 a Chamber of the Court held unanimously that there had been a violation of Article 6 of the Convention. On 17 October 2016 the case was referred to the Grand Chamber at the Government’s request.
Law – Article 6 § 1
1. Applicability – Article 6 was applicable under its civil head.
With regard to the criminal aspect, the administrative instruments applied in the context of the proceedings in question formed part of the disciplinary rules applicable to judges. The statutory provisions authorising the imposition of penalties were not aimed at the public in general but at a specific category, namely judges. Furthermore, the proceedings had been conducted by the CSM, which was a management and disciplinary body. Consequently, the offences of which the applicant had been accused were solely disciplinary in nature. Lastly, all the sanctions that the applicant could have incurred were purely disciplinary. Although the amount of the fine had been substantial and the sanction was therefore punitive in nature, its severity did not bring the offence into the criminal sphere. Hence, the disciplinary proceedings against the applicant had not concerned the determination of a criminal charge within the meaning of Article 6, and that Article was therefore not applicable under its criminal head. Accordingly, the applicant’s complaints under the third paragraph of Article 6 were incompatible ratione materiae with the provisions of the Convention.
2. Merits
(a) Independence and impartiality of the Judicial Division of the Supreme Court
(i) The dual role of the President of the Supreme Court – The applicant’s complaint related, in particular, to the fact that the President of the Supreme Court was also the President of the CSM.
The composition of the Judicial Division of the Supreme Court was determined by the Status of Judges Act on the basis of objective criteria such as judges’ seniority and their membership of a particular division, and the President of the Supreme Court did not sit in that ad hoc division. In practice, the members of the division were formally appointed by the most senior Vice-President of the Supreme Court.
In addition, the applicant did not allege that the judges of the Judicial Division had been acting on the instructions of the President of the Supreme Court or had been influenced by the latter, or that they had otherwise demonstrated bias. In particular, it was not established that those judges had been specially appointed with a view to adjudicating her case. No evidence existed capable of arousing objectively justified fears on the part of the applicant.
The dual role of the President of the Supreme Court was therefore not such as to cast doubt on the independence and objective impartiality of that court.
(ii) The CSM’s role regarding the careers of Supreme Court judges and disciplinary proceedings against them – Unlike in the case of Oleksandr Volkov v. Ukraine (21722/11, 9 January 2013, Information Note 159), no serious issues had been identified in terms of structural deficiencies or an appearance of bias within the Portuguese CSM.
The independence of the judiciary in Portugal was protected both by the Constitution and by other provisions of domestic law, and the system whereby jurisdiction over appeals against decisions of the CSM was assigned to the Judicial Division of the Supreme Court had been endorsed on several occasions by the Constitutional Court.
Furthermore, the fact that judges were subject to the law in general, and to the rules of professional discipline and ethics in particular, could not cast doubt on their impartiality. The judges of the Supreme Court, who were highly qualified and often in the final stages of their careers, were no longer subject to performance appraisals or in search of promotion, and the CSM’s disciplinary authority over them was in reality rather theoretical. Nor was there any specific evidence of a lack of impartiality. Hence, the fact that judges hearing cases were themselves still subject to a set of disciplinary rules and might at some point be in a similar position to one of the parties was not in itself a sufficient basis for finding a breach of the requirements of impartiality.
Consequently, regard being had to all the specific circumstances of the case and to the guarantees aimed at shielding the Judicial Division of the Supreme Court from outside pressures, the applicant’s fears could not be regarded as objectively justified, and the system in place for reviewing disciplinary decisions of the CSM, namely an appeal to the Judicial Division, did not breach the requirement of independence and impartiality under Article 6 § 1 of the Convention.
Conclusion: no violation (eleven votes to six).
(b) The review performed by the Judicial Division of the Supreme Court and the lack of a public hearing
(i) The subject-matter of the CSM’s decisions – The subject-matter had been the issue whether the applicant had breached her professional obligations. In order to address that issue, the CSM had had to exercise its discretionary powers. As a body specifically set up to interpret and apply the rules governing the disciplinary conduct of judges, the CSM had the task of contributing to the smooth operation of the justice system. However, in the present case, the assessment of the facts and the review of the disciplinary sanctions imposed had not required specialised knowledge or specific professional experience, but could have come within the jurisdiction of any court. This was not a classic exercise of administrative discretion in a specialised area of law.
The CSM’s decisions had been challenged by means of administrative-law appeals to the Judicial Division of the Supreme Court. The review of a decision imposing a disciplinary penalty differed from that of an administrative decision that did not entail such a punitive element. Furthermore, the disciplinary proceedings in question had concerned a judge. The judicial review carried out had to be appropriate to the subject-matter of the dispute, that is to say, to the disciplinary nature of the administrative decisions in question. That consideration applied with even greater force to disciplinary proceedings against judges.
(ii) The proceedings before the CSM (the disciplinary body) – The proceedings had afforded the applicant the opportunity to mount a defence. However, the proceedings had been in writing, despite the fact that the applicant had been liable to incur very serious penalties. She had been unable to attend the sittings in any of the three sets of proceedings concerning her, as the CSM was not authorised by law to hold public hearings, and had not had an opportunity to make oral representations, either on the factual issues and the penalties or on the various legal issues. Furthermore, the CSM had not heard any evidence from witnesses, although not only the applicant’s credibility, but also that of crucial witnesses, had been at stake. Accordingly, the CSM had not exercised its discretionary powers on an adequate factual basis.
(iii) The proceedings before the Judicial Division of the Supreme Court (the judicial body)
(α) The issues submitted for judicial review – Firstly, in her appeals to the Supreme Court, the applicant had consistently denied the acts of which she had been accused by the CSM. Secondly, the disciplinary sanctions imposed on her had been based on the finding that she had breached her professional obligations as a judge. The characterisation of the applicant’s professional conduct had therefore been a crucial issue. Thirdly, in so far as the applicant complained that the penalties imposed on her in each set of proceedings had been disproportionate, a judicial body could not be said to have full jurisdiction unless it had the power to assess whether the penalty had been proportionate to the misconduct.
In the specific context of disciplinary proceedings, the issues of fact were just as crucial as the legal issues for the outcome of proceedings relating to “civil rights and obligations”. The establishment of the facts was especially important in the case of proceedings that entailed the imposition of penalties, and in particular disciplinary penalties against judges, as the latter had to enjoy the respect that was necessary for the performance of their duties, so as to ensure public confidence in the functioning and independence of the judiciary. In the present case the factual evidence had been a decisive aspect of the proceedings concerning the applicant and had not been merely secondary to the issues coming within the discretion of the administrative authorities. The establishment of the facts had been the subject of disagreement among the members of the CSM and these facts were characterised as “decisive”. The accusations against the applicant had been liable to result in her removal from office or suspension from duty, that is to say, in very serious penalties which carried a significant degree of stigma and which were apt to have irreversible repercussions on her life and career. They had in fact resulted in a disciplinary penalty of 240 days’ suspension from duty, although the period of suspension had lasted for only 100 days in practice.
(β) The method of judicial review – The Judicial Division of the Supreme Court had stated expressly that it did not have full jurisdiction in the matter but was called upon solely to review the lawfulness of the decisions under challenge.
In view of the limits imposed on it by the legislation and by its own case-law, the Judicial Division of the Supreme Court had not been empowered to examine the decisive points in the proceedings, but could only “examine any contradictions, inconsistencies and insufficiency in the evidence and any manifest errors in the assessment thereof, in so far as these defects [were] apparent”. According to the definition in its own case-law, a “manifest” error “must not just be serious (a gross error, in that it [was] manifestly contrary to reason, common sense or the truth, or demonstrate[d] inadequate knowledge); it must also be flagrant (manifest)”.
The proceedings in question had not related to purely legal issues of limited scope or to highly technical questions that could be dealt with satisfactorily on the basis of the case file alone. On the contrary, the applicant’s appeals had concerned important factual and legal issues. Even if the Supreme Court considered that it was not its task to conduct a re-examination of the evidence, it had nevertheless had a duty to ascertain whether the factual basis for the decisions taken by the CSM was sufficient to support the latter’s conclusions. The dispute as to the facts and the repercussions of the disciplinary penalties on the applicant’s reputation had made it necessary for the Judicial Division of the Supreme Court to perform a review that was sufficiently thorough to enable it to examine issues going to the applicant’s credibility and that of the witnesses. It was true that holding disciplinary proceedings in private with the consent of the person concerned was not contrary to the Convention. However, the applicant had requested a public hearing and should therefore have had the possibility of obtaining a public hearing before a body with full jurisdiction. An adversarial hearing of that kind would have allowed for an oral confrontation between the parties and a more thorough review of the facts.
(γ) The decision-making powers – The Judicial Division of the Supreme Court had been prevented by its own case-law from substituting its assessment for that of the disciplinary body. Nevertheless, it was empowered to set aside a decision wholly or in part in the event of a “gross, manifest error”, and in particular if it had been established that the substantive law or procedural requirements of fairness had not been complied with in the proceedings leading to the adoption of the decision. Thus, it could refer the case back to the CSM for the latter to give a fresh ruling in conformity with any instructions issued by the Judicial Division regarding possible irregularities.
(δ) The reasons given for the Supreme Court’s decisions – The Judicial Division of the Supreme Court, ruling within the limits of its jurisdiction as defined by national legislation and its own case-law, had given sufficient reasons for its decisions, replying to each of the applicant’s grounds of appeal. Nevertheless, the lack of a hearing in respect of the decisive factual evidence, which the Judicial Division had justified by reference to the limited nature of its powers, had prevented it from including in its reasoning considerations relating to the assessment of those issues.
(iv) Conclusion – Taking into consideration, in particular, the specific context of disciplinary proceedings conducted against a judge, the seriousness of the penalties, the fact that the procedural guarantees before the CSM had been limited, and the need to assess factual evidence going to the applicant’s credibility and that of the witnesses and constituting a decisive aspect of the case, the combined effect of two factors – namely the insufficiency of the judicial review performed by the Judicial Division of the Supreme Court and the lack of a hearing either at the stage of the disciplinary proceedings or at the judicial review stage – meant that the applicant’s case had not been heard in accordance with the requirements of Article 6 § 1 of the Convention.
Conclusion: violation (unanimously).
Article 41: claim in respect of pecuniary damage dismissed.
(See also Albert and Le Compte v. Belgium, 7299/75 and 7496/76, 10 February 1983; Martinie v. France [GC], 58675/00, 12 April 2006, Information Note 85; Jussila v. Finland [GC], 73053/01, 23 November 2006, Information Note 91; Družstevní záložna Pria and Others v. the Czech Republic, 72034/01, 31 July 2008, Information Note 110; Vernes v. France, 30183/06, 20 January 2011, Information Note 137; and Grande Stevens and Others v. Italy, 18640/10 et al., 4 March 2014, Information Note 172)
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