Resolution of the ECHR of November 6, 2018 in the case of Ramos Nunes de Carvalho e Sa (Ramos Nunes de Carvalho e Sa) against Portugal (application No. 55391/13 and other applications).
In 2013, the applicant was assisted in the preparation of applications. Subsequently, the applications were merged and communicated to Portugal.
The case successfully examined the application of the applicant, who was a judge, about the violation of her rights to the case by an independent and impartial court due to the duality of the functions of the chairperson of the Supreme Court, who was also the chairperson of the High Council of the Magistracy, about the review of the facts of the case established by the High Council of the Magistracy, as well as the right to oral hearing. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In respect of the applicant, who during the period related to the circumstances of the case, was a judge, three disciplinary proceedings were instituted. She was brought to disciplinary responsibility by the Superior Council of Magistrates (hereinafter - SCM), and she was sentenced to a fine and two temporary suspension from office.
The complainant’s demands for a review of the case and a new finding of facts were rejected. The Section of the Supreme Court on Disputes (hereinafter referred to as the SSIA) upheld the decisions of the Supreme Court of Justice on the basis of, inter alia, that the authority of the SSCC did not include a new fact-finding, but only a supervision over the reasonableness of an assessment of the facts.
Within the framework of sentencing, the Supreme Council of Justice unified all penalties imposed on the applicant and assigned her a single sentence of 240 days temporary suspension from office.
During the proceedings before the European Court, the applicant claimed that her right to a case was violated by an independent and impartial court, to review the facts of the case established by the Supreme Council of Justice, as well as to an oral hearing. On 21 June 2016, the Chamber of the European Court unanimously decided that in the present case there had been a violation of Article 6 of the Convention. On October 17, 2016, at the request of the Portuguese authorities, the case was referred for review to the Grand Chamber of the European Court.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 6 of the Convention. (1) Applicability. Article 6 of the Convention is applicable in its civil aspect. As for its criminal law aspect, the provisions of the administrative legislation applied in the course of the disputed proceedings related to those regulating the bringing of judges to disciplinary responsibility. These provisions, which allowed the imposition of punishments, applied to a certain category of judges, and not to the general public. The case was reviewed by a management and disciplinary body, the Supreme Council of Arbitration. Under these conditions, the offenses for which the applicant was accused were of an exclusively disciplinary nature. Finally, all types of punishment that could be imposed on the applicant were purely disciplinary. The severity of the punishment applied to it, namely, a large fine, which has the character of a punitive measure, is not sufficient to attribute controversial offenses to the criminal law field. Thus, the disciplinary proceedings against the applicant did not constitute criminal proceedings against her within the meaning of Article 6 of the Convention. Consequently, the criminal law aspect of this Article of the Convention is not applicable in the present case. Accordingly, the complainant’s complaints of a violation of Article 6 § 3 of the Convention are incompatible with the provisions of the Convention ratione materiae.
(2) The merits of the complaint. (a) Independence and impartiality of the Dispute Section of the Supreme Court. (i) The duality of the functions of the Chief Justice of the Supreme Court. The applicant's complaint concerned, among other things, the fact that the President of the Supreme Court was also the President of the Supreme Court of Justice.
The composition of the SBC was determined by the Statute of Judges (Statut des magistrats du siège) on the basis of objective criteria, such as the length of service as a judge and the judges belonging to a particular section, and the President of the Supreme Court was not a member of the SSC ad hoc. In practice, the official appointment of members of the SSCU was carried out by the Deputy Chairman of the Supreme Court with the most length of service in this position.
In addition, the applicant did not allege that the judges of the SVSS acted according to instructions or under the influence of the Chief Justice of the Supreme Court or that they otherwise showed a lack of impartiality. In particular, it was not established that these judges were appointed specifically to deal with the applicant's case. In the present case, there is no information to establish that the applicant's complaint was justified by objectively justified concerns.
Thus, the duality of the functions of the Chief Justice of the Supreme Court cannot call into question the independence and objective impartiality of this court instance.
(ii) The role of the SCM in the career of judges of the Supreme Court and disciplinary proceedings against judges. In contrast to the case of “Alexander Volkov v. Ukraine” (Oleksandr Volkov v. Ukraine) (Decree of January 9, 2013, complaint No. 21722/11), within the HMC of Portugal there were no serious structural weaknesses or signs of interest of HMS members in the outcome the proceedings.
The independence of judges is guaranteed in Portugal by both the Constitution and other provisions of the country's legislation, and the Constitutional Court of Portugal has several times recognized the mechanism corresponding to the Constitution, during which complaints by the Supreme Court of Justice are considered by the Dispute Section of the Supreme Court.
However, the fact that the judges obeyed the law in general and the rules in the field of discipline and professional ethics, in particular, did not allow to question their impartiality. The judges of the Supreme Court were highly qualified specialists and, as a rule, were at the final stage of their careers, they no longer passed the attestation and did not seek promotion, and the disciplinary authority of the Supreme Court of Justice in relation to them was more theoretical. Thus, the case did not contain any specific information that would indicate the lack of impartiality of the judges. Consequently, the fact that the judges who considered the case themselves were subject to the disciplinary regime and could themselves at one time or another find themselves in the position of one of the parties to the case was not sufficient to reach a violation of the requirements of impartiality.
In this regard, taking into account all the specific circumstances of the present case, as well as the guarantees aimed at protecting the CAS from external influences, the Court considers that the applicants' statements could not be regarded as objectively substantiated and that the system of supervision of the decisions of the Supreme Court of Justice on disciplinary proceedings namely, the mechanism for applying to the Section of the Supreme Court on disputes did not contradict the independence and impartiality that are required in accordance with paragraph 1 of Article 6 of the Convention.
The case did not violate the requirements of Article 6 of the Convention (taken by 11 votes "for" with six - "against").
(b) Supervision of the Disputes Section of the Supreme Court and the absence of an oral hearing in the case. (i) The subject matter of the decisions of the SCM. The subject matter in the present case was whether the applicant fulfilled her professional duties. In resolving this issue, the Supreme Council of Labor was to exercise its discretionary powers. This body, created specifically to interpret and apply the rules governing the conduct of judges in the disciplinary field, was designed to promote the proper administration of justice. However, in the present case, the assessment of the facts and the supervision of the disciplinary sanctions imposed did not necessarily require special knowledge or special professional experience. These questions could fall within the remit of any judicial authority. In this case, it was not a matter of the classical exercise of discretionary administrative powers in a particular legal sphere.
The decisions of the Supreme Court of Justice were the subject of an administrative appeal to the Dispute Section of the Supreme Court. The supervision of the decisions on the imposition of a disciplinary sanction differed from the supervision of administrative decisions that did not contain such a punitive aspect. In addition, in the present case, a disciplinary dispute concerned a judge. Judicial control had to be adapted to the subject of the dispute, that is, to the disciplinary nature of the disputed administrative decisions, a fortiori in the disciplinary proceedings directed against the judge.
(ii) Proceedings at the Supreme Court of Justice (disciplinary aspect). During the proceedings, the applicant was able to present her arguments in her defense. However, the proceedings were written, despite the fact that the applicant could be given a very serious punishment. The applicant could not take part in any of the meetings concerning the three proceedings against her, since the law did not allow the Supreme Court of Justice to hold open hearings on the case. The applicant was not able to present her arguments orally, whether on issues of fact and punishment or on various issues of law. In addition, the Supreme Court of Justice did not hear the witnesses, although the question was put not only on the applicant’s confidence, but also on the key witnesses. Under such circumstances, the implementation of the SCM of its discretionary powers had no relevant factual basis.
(iii) Proceedings at the Supreme Court of Justice (trial). (alpha) Issues subject to judicial control. Firstly, in her complaints to the Supreme Court, the applicant systematically challenged the acts imputed to her by the Supreme Court of Justice. Secondly, disciplinary sanctions were imposed on her on the basis of the conclusion that she had not fulfilled her professional duties as a judge. Thus, the qualification of the applicant’s professional conduct was of key importance. Thirdly, to the extent that the applicant complained that the penalties imposed on her during each of the proceedings were disproportionate, the court could be considered as having full jurisdiction only if she had the authority to assess the proportionality between the offense and the punishment imposed.
In the specific context of disciplinary proceedings, questions of fact, as well as questions of law, were crucial to the outcome of the “civil rights and obligations” process. Fact-finding is all the more important when it comes to proceedings involving the imposition of punishment, in particular disciplinary action against judges, who must be respected in order to exercise their authority in such a way as to ensure public confidence in the functioning and independence of the judiciary . In the present case, the factual circumstances were decisive in the proceedings concerning the applicant, they were not of secondary importance in comparison with the issues that were addressed by the administration’s discretionary powers. The establishment of the facts of the case caused disputes between members of the Supreme Council of the Supreme Court, and these facts were called "decisive". The acts that were attributed to the applicant could have resulted in her temporary or final dismissal, that is, to very severe penalties, which are derogatory in nature and could lead to irreversible consequences for the life and career of the applicant. In fact, they led to the appointment of a disciplinary sanction in the form of 240 days of suspension from office, although in practice this suspension lasted only 100 days.
(beta) Judicial review. The Dispute Section of the Supreme Court clearly indicated that it did not have full jurisdiction in the relevant field, but was authorized to verify only the legality of the disputed decisions.
Considering the limitations that Portuguese legislation and its own case law impose on it, the CAS was not authorized to consider matters that were crucial to the case. The SSS could only "consider contradictions, inconsistencies, as well as insufficient evidence and obvious errors in their assessment to the extent that these flaws were obvious." In case-law practice of the SSSS, “obvious mistakes” were defined as “mistakes that are not only serious (gross, since they obviously contradict reason and common sense or are unreliable, or demonstrate poorly defined knowledge), but also obvious (obvious)”.
The controversial processes did not deal solely with legal aspects that had limited consequences or complex technical issues that could be properly resolved on the basis of the case materials. On the contrary, the complaints lodged by the applicant raised important issues of law and fact. Even if the Supreme Court considered that its task was not to examine evidence, it nevertheless should have checked whether the evidence base of the SCM decisions was sufficient to substantiate the latter’s findings in the case. The dispute about the facts and the consequences of disciplinary actions for the applicant's reputation demanded that the SVSS should exercise sufficiently advanced controls that would allow to consider questions concerning the credibility of the statements of the applicant and witnesses. Of course, the disciplinary proceedings in a closed court session with the consent of the person concerned did not contradict the Convention. However, the applicant demanded an oral hearing on her case, and she should have had the opportunity to obtain consent from the authority vested with full jurisdiction. Such an adversarial hearing would allow oral evidence from the parties and more thoroughly investigate the facts of the case.
(gamma) Authority to make decisions. The case law of the Dispute Section of the Supreme Court did not allow it to substitute its own assessment of the disciplinary authority. At the same time, the Soviet Union had the right to cancel the decision in whole or in part in the case of a “grossly obvious mistake”, including if it was established that the substantive law or the procedural requirements of equality of the parties were violated during the process that ended in a controversial decision. The SSS could, therefore, return the case to the Supreme Court of Justice for reconsideration, under which it was necessary to take into account the instructions that the SSS could make regarding violations that it could establish.
(delta) Motivation of Supreme Court decisions. When making decisions within the framework of its powers, defined in the legislation of the country and the case-law of the Supreme Court, the SVSS sufficiently indicated the grounds for such decisions, responding to all the applicant's arguments. However, the absence of an oral meeting, justified by the limited nature of the CSCU powers, in which key issues of fact would be considered, did not allow the CSC to include considerations regarding the assessment of these issues in the motivation of the decisions.
(iv) Conclusion. Considering, in particular, the specific context of the disciplinary process in relation to the judge, the severity of the punishment, the fact that the procedural guarantees in the proceedings before the Supreme Court of Justice were limited, the need to assess the facts concerning the credibility of the complainant and the witnesses and that were key information, a combination of two elements, namely, the lack of judicial control on the part of the SCSS and the lack of an oral hearing both at the stage of disciplinary proceedings and at the stage of judicial control, led to of the applicant's case had not been examined in accordance with the requirements of Article 6 § 1 of the Convention.
The case was a violation of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court rejected the claim for pecuniary damage.