CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1972 and lives in Barcelos. 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 On 29 March 2011 the applicant submitted a request to the HCJ for Judge F.M.J. to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had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 nonjudicial 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. 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. 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. 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.