EHRM, 06-11-2018, nr. 55391/13, nr. 57728/13, nr. 74041/13

On 8 October 2009 Judge H.G. was instructed by the CSM, in his capacity as a judicial inspector (inspetor judicial), to conduct the applicant's performance appraisal. As the applicant was due to start maternity leave at the end of June 2010, she asked him to carry out the appraisal before her departure so that she would be in a position to apply for vacant posts in 2010 (movimento judicial).

On 13 September 2010, while she was on maternity leave, the applicant telephoned H.G. to ask him again to conduct her performance appraisal, which had still not been carried out. The following day she sent a request to the same effect to the CSM. The same day, H.G. asked to be relieved of responsibility for the applicant's appraisal, stating that she had made disrespectful remarks about him during the telephone conversation.

In a final decision of 30 September 2014 the CSM, sitting in plenary session, after deciding that the penalties incurred by the applicant in the three sets of disciplinary proceedings referred to above should be imposed cumulatively (cúmulo jurídico das penas disciplinares aplicadas), unanimously ordered a single penalty of 240 days' suspension from duty.

The decision of 30 September 2014 was taken by a formation comprising twelve of the seventeen members of the CSM (seven judges, including the President of the CSM, and five non-judicial members).

The applicant stated that she had actually been suspended from duty for only 100 days, as enforcement of the remainder of the penalty had become time-barred.

The relevant provisions of the Portuguese Constitution read as follows:

Article 2 — Democratic State based on the rule of law

Article 203 — Independence

Article 212 § 3 — The administrative and fiscal courts

Article 215 § 4 — Judges of the ordinary courts

Article 216 — Guarantees and incompatible activities

Article 217 § 1 — Appointment, assignment, transfer and promotion of judges

Article 218 §§ 1 and 2 — High Council of the Judiciary

Article 266 — Basic principles

Article 268 § 4 — Citizens’ rights and guarantees

The relevant provisions of the Status of Judges Act (Law no. 21/85 of 30 July 1985) (Estatuto dos Magistrados Judiciais — ‘the Act’) read as follows:

[General provisions]

Section 4(1) — Independence

Section 6 — Guaranteed tenure

Section 7 — Impediments

[Judges’ duties, incompatible activities, rights and privileges]

Section 13(1) and (2) — Incompatible activities

Section 40 — Conditions [for appointment as a judge]

Section 50 — Manner of recruitment [of Supreme Court judges]

Section 51 — Competition

Section 52(2) and (4) — Assessment of curriculum vitae, ranking and filling of vacant posts

[Types of penalties]

Section 85 — Scale of penalties

Section 87 — Fines

Section 89 — Suspension from duty and disciplinary leave without pay

[Application of penalties]

Section 94(1) — Suspension from duty and disciplinary leave without pay

Section 95 — Early retirement and removal from office

[Effects of penalties]

Section 102 — Fines

Section 104 — Suspension from duty

[Procedural rules]

Section 110(2) — Disciplinary proceedings

Section 111 — Responsibility for instituting proceedings

Section 112 — Impediments and grounds for suspicion

Section 113 — Confidentiality of proceedings

Section 114(3) — Time allowed for investigation

Section 115 — Number of witnesses during the investigation stage

Section 117(1) — Indictment

Section 118(1) — Notification to the accused

Section 120 — Consultation of the file

Section 121 — Defence of the accused

Section 122 — Report [of the judicial investigator]

Section 123 — Notification of the decision

Section 124 — Grounds of nullity and irregularities

Section 131 — Subsidiary law

[High Council of the Judiciary]

Section 137 — Composition

Section 138(1) — Vice-President …

Section 139 — Appointment

Section 147(1) — Performance of duties

Section 149 — Responsibilities

Section 150 — Functioning

Section 151 — Responsibilities of the plenary formation

Section 152 — Responsibilities of the Permanent Council

Section 153 — Responsibilities of the President

Section 156(2) and (3) — Functioning of the plenary formation

Section 157(2) and (3) — Functioning of the Permanent Council

Section 159(1) and (2) — Assignment of cases (processos)

[Appeals]

Section 168 — Appeals

Section 178 — Subsidiary law

The relevant parts of Article 43 of the Code of Criminal Procedure, which is applicable to judges under section 112 of the Status of Judges Act, read as follows:

At the material time the relevant provisions of the Civil Servants’ Disciplinary Act (Estatuto disciplinar dos trabalhadores que exercem funções públicas) (Law no. 58/2008 of 9 September 2008), applicable to judges under section 131 of the Status of Judges Act, read as follows:

Section 3 — Disciplinary offences

Section 29(2) of the Organisation of the Courts Act (Lei de organização e funcionamento dos tribunais judiciais) (Law no. 3/99 of 13 January 1999), as in force at the relevant time, provided as follows:

This provision corresponds to section 49(2) of the Organisation of the Judicial System Act (Lei de organização do sistema judiciário) (Law no. 62/2013 of 26 August 2013), which is currently in force.

Articles 3 and 50 of the Administrative Courts Code, as derived from Law no. 15/2002 of 22 February 2002, read as follows:

Article 3

Article 50

The relevant parts of Article 91 of the Administrative Courts Code, as derived from Law no. 15/2002 of 22 February 2002, provided:

The relevant parts of this Article, as amended by Legislative Decree no. 214-G/2015 of 2 October 2015, read as follows:

Article 192 of the Administrative Courts Code, on the applicability of the provisions of the Code, reads as follows:

The relevant provisions of the Code of Civil Procedure, which are applicable under Articles 154 and 155 of the Administrative Courts Code, read as follows:

Article 696

According to its settled case-law, the role of the Judicial Division of the Supreme Court in cases concerning decisions of the CSM is confined to a review of lawfulness (see, for instance, the judgment of 29 May 2006 in case no. 757/06, the judgment of 7 February 2007 in case no. 4115/05, the judgment of 19 September 2007 in case no. 1021/05, the judgment of 10 July 2008 in case no. 4265/07 and the judgment of 17 December 2009 in case no. 365/09.9YFLSB).

In a judgment of 15 December 2011 (domestic proceedings no. 87/11.OYFSB), the Supreme Court noted that an appeal against a disciplinary decision of the CSM constituted a ‘special administrative action’ (ação administrativa especial) by which the person concerned sought the setting-aside of the administrative act in question or a declaration that it was null and void or legally non-existent. It found, in particular, as follows:

According to its case-law, the review performed by the Judicial Division of the Supreme Court in the context of an application to set aside a decision by the CSM imposing a penalty is limited by the specific characteristics of the impugned decision.

In a judgment of 27 January 2004 (domestic proceedings no. 1049/01), it found as follows:

In its judgment of 8 May 2012 (domestic proceedings no. 114/11.1YFLSB), the Judicial Division of the Supreme Court held, inter alia, as follows:

In its judgment of 26 June 2013 (domestic proceedings no. 132/12.2YFLSB), it found as follows:

Lastly, in its judgment of 25 September 2014 (domestic proceedings no. 21/14.6YFLSB), the Supreme Court found as follows:

The Constitutional Court has confirmed in several judgments the compatibility of section 168(1) and (2) of the Status of Judges Act with the Constitution (see, for instance, judgment no. 347/97 of 29 April 1997, judgment no. 687/98 of 15 December 1998, judgment no. 40/99 of 19 January 1999, judgment no. 64/99 of 2 February 1999 and judgment no. 131/99 of 3 March 1999). In judgment no. 277/2011 of 6 June 2011 the Constitutional Court found as follows:

In their written observations before the Grand Chamber the Government stated that their request for referral to the Grand Chamber did not concern the complaints relating to the extent of the review conducted by the Supreme Court or the lack of a public hearing before that court in the context of application no. 74041/13.

At the hearing the Government argued that the Grand Chamber was not empowered to examine issues which the Chamber had declined to consider, or in respect of which the Chamber had found in the Government's favour. In their view, the Grand Chamber should not examine the complaint under Article 6 § 3 of the Convention, the issue of the alleged lack of independence and impartiality of the Supreme Court, or the just satisfaction claims, which had been dismissed by the Chamber.

The applicant, without replying formally to the Government's submissions in this regard, presented her own observations, in which she argued that there had been a violation of the Convention in respect of the above-mentioned complaints and reformulated her just satisfaction claims.

According to the Court's settled case-law, the ‘case’ referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, and not only the serious ‘question’ or ‘issue’ at the basis of the referral. The content and scope of the ‘case’ referred to the Grand Chamber are therefore delimited by the Chamber's decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 140–41, ECHR 2001-VII; Göç v. Turkey [GC], no. 36590/97, §§ 35–37, ECHR 2002-V; Perna v. Italy [GC], no. 48898/99, §§ 23–24, ECHR 2003-V; and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III). This means that the Grand Chamber must examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber. The entire judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber delivered pursuant to Article 43 § 3 of the Convention (see K. and T. v. Finland, cited above, § 140, and, mutatis mutandis, V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 39, 17 November 2016). The Court sees no reason to depart from this principle in the present case.

The Court further observes that the Grand Chamber has previously decided in some cases, in view of the importance of the issues at stake, to consider certain complaints which the Chamber had not deemed it necessary to examine, doing so even where the outcome was detrimental to the party that had requested referral to it (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 141 and 149, ECHR 2004-XII, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 382, ECHR 2012 (extracts)).

In the present case it should be noted that the Chamber declared the applications admissible (point 2 of the operative part) but decided that it was not necessary to examine the complaints under the criminal head of Article 6 of the Convention, to the effect that the applicant had not been informed of the nature and cause of the accusation against her and had not had adequate time and facilities for the preparation of her defence (point 3 of the operative part). The Court also stresses that, in paragraph 63 of its judgment, the Chamber set out in detail the complaints that had been declared admissible, namely those concerning the independence and impartiality of the judicial bodies, the extent of the review conducted by the Supreme Court and the lack of a public hearing.

In view of the foregoing, the Court will examine in the present case all the complaints declared admissible by the Chamber and set forth in the previous paragraph, as well as all the claims for just satisfaction.

On the question of admissibility, with regard to the application of Article 6 of the Convention under its civil head, the Chamber noted that the proceedings in question had concerned a dispute raised by the applicant in respect of the CSM's decisions imposing disciplinary sanctions on her in three separate sets of proceedings. Regarding the existence of a ‘right’, it observed that the proceedings in question had been decisive for the applicant's rights in so far as they could have led to the setting-aside of the disciplinary sanctions imposed by the CSM if the domestic courts had allowed her appeals. As to the ‘civil’ nature of such a right, the Chamber found that the first condition of the test established in the judgment in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007-II) had not been met, as domestic law — in the form of section 168 of the Act (see paragraph 71 above) — made provision for persons with an interest in bringing proceedings to lodge an appeal with the Supreme Court challenging the lawfulness of a decision by the CSM to impose a disciplinary penalty on a judge. The applicant had in fact made use of that option. Accordingly, the Chamber held that Article 6 was applicable under its civil head. In view of that finding, the Chamber did not consider it necessary to ascertain whether that provision was applicable in the present case under its criminal head, and decided not to examine the complaints submitted in that regard.

On the merits, the Chamber held that there had been a violation of Article 6 § 1 of the Convention on account of the cumulative effect of several factors relating to the lack of independence and impartiality of the CSM, the insufficient extent of the review conducted by the Supreme Court, and the lack of a public hearing in the proceedings that were the subject of application no. 74041/13.

Firstly, in the light of the principles enshrined in the Court's case-law and those arising out of various instruments adopted by the Council of Europe bodies, the Chamber examined the principles governing the composition of the CSM, both in the abstract and in the proceedings concerning the applicant. It concluded that the independence and impartiality of the CSM could be open to doubt.

With regard to the extent of the review conducted by the Supreme Court, the Chamber noted that the latter had been empowered to review the lawfulness of the CSM's decisions imposing disciplinary penalties on the applicant. In the course of that review it could verify the validity of the evidence, whether the facts had been adequately and coherently established, and whether the penalty imposed had been reasonable and proportionate. It could therefore set aside the decision on several grounds of unlawfulness linked to the procedural or substantive requirements laid down by law and refer the case back to the CSM for a fresh ruling in conformity with any instructions issued by the Supreme Court regarding possible irregularities.

However, the Chamber noted that under Portuguese law the Supreme Court did not have jurisdiction to re-examine the facts as established by the CSM. Furthermore, it could not reconsider the penalty imposed, but could only determine whether the penalty had been appropriate to the offence and proportionate to it. For that reason, in the Chamber's view, the case was to be likened to situations in which the national courts had been unable or had refused to examine a key issue in the dispute because they had considered themselves bound by the findings of fact or of law made by the administrative authorities and could not examine the relevant issues independently. In the instant case the Supreme Court had confined itself to conducting a review of lawfulness with regard to the establishment of the facts and had thus not properly addressed important arguments advanced by the applicant concerning questions of fact that were crucial to the disciplinary proceedings against her.

As to the review of the legal issues, the Chamber noted that, in the view of the Supreme Court, it was not its task to rule on conduct alleged to be incompatible with a judge's duties, or to encroach on the discretionary powers of the administrative authorities, but simply to conduct a review of lawfulness in the broad sense. The Chamber concluded from this that the Supreme Court adopted a restrictive approach to the extent of its own jurisdiction to review the disciplinary activities of the CSM, and that the review carried out in the cases concerning the applicant had therefore been insufficient.

Lastly, the Chamber concluded that the domestic authorities had failed to afford the guarantees of a public hearing in the context of application no. 74041/13. The protection of the applicant's dignity had not been an issue, as she herself had requested a public hearing. Moreover, the reasons given by the Supreme Court had been insufficient to justify the refusal to examine the witness whom the applicant wished to have called and whose evidence, in the Chamber's view, had been relevant to the case. That refusal had led ultimately to a limitation of the applicant's ability to defend her case and had undermined the transparency which that procedural act would have lent to the disciplinary proceedings against her.

The Chamber took the view that the matters under discussion in the proceedings at issue, namely the disciplinary penalty imposed on a judge for acts connected in particular with remarks in breach of her professional obligations, had not been of a highly technical nature and had thus required a hearing open to public scrutiny. It further noted that the facts had been contested and that the penalties which the applicant had been liable to incur carried a significant degree of stigma and were likely to adversely affect her professional honour and reputation. Accordingly, a public hearing, open and accessible to the applicant, had been necessary in the present case.

In the Chamber proceedings the applicant claimed 43,750 euros (EUR) in respect of the pecuniary damage she had allegedly sustained on account of her loss of salary. She did not lodge a claim for non-pecuniary damage, submitting that a finding of a violation would constitute in itself sufficient just satisfaction in respect of the damage sustained. The Government contested that argument, maintaining that the applicant was confusing the subject-matter of the domestic proceedings and of the proceedings before the Court.

Having regard to all the circumstances and in accordance with its normal practice in civil and criminal cases regarding violations of Article 6 § 1 caused by a lack of objective or structural independence and impartiality, the Chamber — citing, mutatis mutandis, Kingsley, cited above, § 43 — did not consider it appropriate to award financial compensation to the applicant in respect of loss of salary. It saw no causal link between the violations found and the pecuniary damage alleged, and dismissed the applicant's claim.

In the Grand Chamber proceedings the applicant claimed EUR 16,829.40 in respect of the pecuniary damage she had allegedly sustained on account of the actual loss of 100 days' salary. She produced documents in support of her claim. Lastly, the applicant requested the Court to direct the Portuguese State to reopen the proceedings in question. In her view, this was the only possible means of affording redress for the alleged violations.

The Government did not comment on this point in the Grand Chamber proceedings.

The Grand Chamber agrees with the Chamber's analysis and therefore rejects in full the applicant's claim in respect of pecuniary damage.

As regards the applicant's request for reopening of the domestic proceedings in the context of the present case, the Court considers that it is for the respondent State to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation or violations found by the Court and to redress as far as possible the effects. Nevertheless, the Court notes that Article 696 of the Code of Civil Procedure provides for the possibility of reopening proceedings at domestic level where the Court has found a violation of an applicant's fundamental rights and freedoms (see paragraph 78 above).

Before the Chamber the applicant also claimed EUR 2,500 for the costs and expenses incurred in the domestic proceedings. The Government did not submit any observations in that regard.

In view of the documents in its possession and its case-law, the Chamber dismissed the claim in respect of costs and expenses.

Before the Grand Chamber the applicant claimed EUR 2,608.65 in respect of the costs and expenses incurred in the domestic proceedings, and produced documents in support of her claims. She did not submit any claim for costs and expenses in connection with the Grand Chamber proceedings.

The Government did not comment on this point in the Grand Chamber proceedings.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case the Court observes that, in the Chamber proceedings, the applicant did not submit any documents in support of her claim for reimbursement of costs and expenses, providing documents only before the Grand Chamber but without offering any explanation for the delayed submission. Accordingly, in view of its case-law (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 385, ECHR 2014 (extracts)), the Court rejects the claim in respect of the costs and expenses incurred in the domestic proceedings.

This case concerns proceedings under the civil limb of Article 6 § 1 arising from the imposition of disciplinary sanctions on the applicant by an administrative body, namely the Portuguese High Council of the Judiciary (CSM), and which the applicant contested before the competent appeal body, namely the Judicial Division of the Supreme Court of Portugal. Under the applicable domestic law, such an appeal before the Judicial Division is governed by the norms concerning judicial review.

In its case-law, the Court has in many respects expanded the scope of application of Article 6 § 1 and reinforced the procedural safeguards which must be guaranteed in domestic adjudication. The Court has, however, never sought to undermine the basic feature of judicial review of administrative decisions, namely that it is designed to entail a verification of such decisions, and not a fresh examination of their subject-matter by a judicial authority.

This basic feature of judicial review is rooted in the principle of separation of powers, which in many Contracting States is enshrined at the level of the Constitution. One of its tenets is that the courts shall perform scrutiny of administrative acts, but not take over the functions of the administration. More specifically, what is at issue from the perspective of the separation of powers is, firstly, the guarantee of judicial scrutiny of administrative decisions in order to ensure their lawfulness and, secondly, the need to ensure that the norms governing that scrutiny continue to uphold the principle that the courts should not encroach on the functions or responsibilities of the administration by taking the place of the competent administrative authorities when dealing with the appeals before them.

Accordingly, the Court has acknowledged that Article 6 does not go so far as to guarantee access to a court which can substitute its own assessment or opinion for that of the administrative authorities (see Fazia Ali v. the United Kingdom, no. 40378/10, § 77, 20 October 2015). This is part of well-established case-law. What is required under Article 6 § 1 is access to a court with ‘full jurisdiction’. Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have ‘full jurisdiction’ will be satisfied where it is found that the judicial body in question has exercised ‘sufficient jurisdiction’ or provided ‘sufficient review’ in the proceedings before it (see Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 152, 21 July 2011, and the case-law cited therein). Thus, the requirement of full jurisdiction has been given an autonomous definition in the light of the object and purpose of the Convention, one that does not necessarily depend on the legal characterisation in domestic law. As the well-established case-law shows, this notion requires the exercise of ‘sufficient jurisdiction’, or ‘sufficient review’. While this approach is reiterated in the present judgment as a general principle (see paragraph 177 of the judgment), it is not, in our view, taken seriously enough in its application to the present case (see below).

It is important to stress that no exceptions to this approach have hitherto been made in cases where sanctions, such as disciplinary ones, are imposed on an individual by an administrative authority — which as such is not precluded under Article 6 (see, for instance, Diennet v. France, 26 September 1995, Series A no. 325-A; Mérigaud v. France, no. 32976/04, § 68, 24 September 2009; A. Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, § 59, 27 September 2011; and Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 139, 4 March 2014). In this domain, too, the Court has held that the access to court enshrined in Article 6 § 1 requires that the court must have ‘full jurisdiction’, within the above-mentioned autonomous meaning, to deal with the appeal. Thus, although the sufficiency of judicial review does depend on the subject-matter of the case (see Tsanova-Gecheva v. Bulgaria, no. 43800/12, § 98, 15 September 2015, and the cases cited therein, and in particular Bryan v. the United Kingdom, 22 November 1995, § 45, Series A no. 335-A; Sigma Radio Television Ltd, cited above, § 154; and Galina Kostova, no. 36181/05, § 59, 12 November 2013), this has not been taken to mean that the case on appeal from the administrative body must be subjected to a full re-examination at the judicial stage (see Menarini Diagnostics S.r.l., cited above, §§ 62–67, and Grande Stevens and Others, cited above, §§ 139 and 149). In this context, it is also to be noted that these last cases concerned administrative sanctions falling under the criminal limb of Article 6 § 1.

In this connection it should be stressed that there is a distinction to be made, on the one hand, between the issues that must be subject to the Court's scrutiny when it carries out a judicial review and, on the other hand, the method of their review by the court. The latter in turn is linked to the manner of the Court's disposal of the case on conclusion of its review. This point is, in principle, reflected in paragraph 199 of the present judgment.

As regards the subject-matter of the review, the competent court must, according to the Court's case-law, be empowered to conduct a review of all questions of fact and law relevant to the appeal before it, and to address any procedural shortcomings before the administrative authority (see, mutatis mutandis, Potocka and Others v. Poland, no. 33776/96, §§ 55–56, ECHR 2001-X, and Tsanova-Gecheva v. Bulgaria, cited above § 101), as well as the proportionality of the sanction imposed (see Diennet, cited above, § 34; Mérigaud, cited above, § 69; and, mutatis mutandis, Sigma Radio Television Ltd, cited above, § 168).

As regards the method of review, the Court has consistently acknowledged that the domestic courts cannot be required under Article 6 to be able to substitute their own assessment or findings for those of the competent administrative authority. Consequently, judicial scrutiny may be confined to a review of the administrative acts and proceedings, without fresh decisions having to be taken, especially on the facts of the case. Accordingly, the judicial body conducting the review has been recognised as having ‘full jurisdiction’, within the autonomous meaning of Article 6 § 1 of the Convention, even if it does not conduct a re-examination and reassessment of the evidence, including a rehearing of witnesses, but confines itself to verifying — particularly from the standpoint of relevance, sufficiency and coherence — the facts and evidence on which the administrative decision under review was based.

As regards the Court's disposal of the case, the court carrying out judicial review must have the power to quash the impugned administrative decision and either replace it with a new decision or remit the case to the same administrative authority or a different authority (see Kingsley v. the United Kingdom [GC], no. 35605/97, §§ 32 and 34, ECHR 2002-IV, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 125, ECHR 2013), a point reiterated in paragraph 184 of the present judgment. Especially where the administrative body is found to have established the facts in an unlawful or inadequate manner, it may be necessary to annul the decision and remit the case back to the administrative body for the latter to conduct a re-examination of the facts and reconsider its conclusions accordingly.

The above elements are the essence of the standard under which the competent court must be able to exercise ‘full’ jurisdiction, within the autonomous meaning adopted by the Court. As outlined above, this notion is satisfied by means of judicial review by the court in respect of all the above aspects of the case, in so far as they have been raised on appeal before the court. It has not been understood to require that the issues decided upon by the administrative authority must be submitted to a re-examination by the competent court. In this sense, the legal position is similar to the requirement under Article 2 of Protocol No. 7, which stipulates (as a minimum standard) that criminal appeals must ensure a ‘review’ of the conviction and sentence; this does not entail a re-examination or retrial.

In particular where questions of fact are concerned, there is a major difference between, on the one hand, a requirement that the court must verify (review) the manner in which the relevant facts have been established by the administrative authority and whether the factual basis on which the latter has taken its decision can be regarded as sufficient and solid enough to warrant the legal consequences that have been attached to it, and, on the other hand, a requirement that the court must conduct a re-examination of the evidence in order to establish the facts for itself. Under the first scenario, what the party contesting the administrative decision must achieve, in order to be successful with the appeal, is to argue before the court, and to persuade the latter, that the facts as established by the administrative authority did not constitute a sufficiently solid basis for the legal consequences which the decision entails, or that the facts were established in a manner not affording the necessary procedural safeguards. Where the appeal succeeds, the court must then annul the impugned decision. Depending on the circumstances, the court may remit the case for fresh examination by the administrative authority or, if the correct factual basis has already become sufficiently clear, possibly issue a new decision on the merits. Under the second scenario, the court would repeat the examination and assessment of the evidence.

According to the Court's case-law, the first type of judicial scrutiny has been considered to satisfy the requirements of Article 6 § 1. Even in situations where Article 6 was applicable under its criminal head, the Court has considered the judicial review sufficient although the competent court did not conduct a fresh examination of the evidence or make its own assessment of that evidence (see, for instance, A. Menarini Diagnostics S.r.l., cited above, §§ 63–64).

By contrast, the Court has found violations of Article 6 in situations where the national courts were unable or refused to examine a key issue in the dispute because they considered themselves bound by the findings of fact or of law made by the administrative authorities and could not conduct an independent review of such findings (see the case-law cited in paragraph 182 of the present judgment). A particular variant of that type of situation can be seen in Tsfayo v. the United Kingdom (no. 60860/00, § 47, 14 November 2006), where the Court was faced with a case in which the decision under judicial review had been taken by an organ that was not only lacking in independence from the executive but was directly connected to one of the parties to the dispute. Under those special circumstances, the Court considered that the independence of judgment in relation to the finding of primary fact could be infected in a manner which could not be adequately scrutinised or rectified by judicial review. As the competent court lacked jurisdiction to rehear the evidence and, therefore, a crucial question of fact had not been re-examined by it, the Court found a violation of Article 6 as the central issue had not been determined by a tribunal that was independent from the parties. In other words, that case concerned a particular kind of situation where there was a combination of deficiencies in the form of a lack of independence from one of the parties at first instance, allied to a failure to re-examine and determine a decisive factual issue on appeal.

There is no need to dwell further on this last line of case-law, as it is clear that the present case does not raise any issues of a similar kind. It can be seen from the citations of the relevant domestic judgments that the Judicial Division of the Portuguese Supreme Court performed a judicial review of a kind that has hitherto been considered to satisfy the requirements of Article 6 § 1.

In this context, a couple of further points are worth noting. Firstly, it is true that the judicial review of an administrative decision imposing a disciplinary penalty may often raise issues different from those involved in the review of administrative decisions which do not entail a specific punitive element. Nevertheless, the Court has not previously considered that the access to court enshrined in Article 6 § 1 requires that appeals against administrative decisions imposing a disciplinary penalty or another kind of administrative sanction should be subject to procedural rules that are separate from the paradigm of judicial review described above. On the contrary, the Court has not, even in the context of proceedings concerning administrative sanctions falling under the criminal limb, been inclined to abandon the approach whereby the necessary access to a court with ‘full’ jurisdiction is sufficient, entailing judicial review but not necessarily a re-examination of the case, especially on the facts and the evidence relied on by the administrative authority.

Secondly, as regards the subject-matter of the decision appealed against, it can be noted that the Court, when assessing the sufficiency of judicial review, has taken into account to what extent it concerned a specialised issue requiring professional knowledge or experience and to what extent it involved the exercise of administrative discretion (see, for instance, Fazia Ali, cited above, § 84). The underlying consideration here is that where an administrative decision is based on the application of specialised expertise or the exercise of discretionary powers incumbent on the administration, the judicial review should not result in such characteristics of administrative decision-making being ‘overridden’ by the courts. In the present context, similar considerations should be borne in mind. While it is true that the impugned disciplinary proceedings did not concern issues of a highly technical nature or otherwise requiring a particular kind of special expertise, the point to be taken into account in the present case relates to the special function and constitutional position of the CSM. The latter is the authority entrusted under the Portuguese Constitution (see paragraph 70 of the present judgment) with specific responsibility for the autonomous management of the judiciary, and in particular for disciplinary matters concerning judges, with the wider aim of guaranteeing the independence of the justice system. The Court should therefore recognise the particular importance of the CSM's responsibilities under the Constitution in a key area from the perspective of the rule of law and the separation of powers. As a body specifically mandated to interpret and apply the rules governing the disciplinary conduct of judges, the CSM has the task of ensuring the proper operation of the justice system. In this context, just as the courts exercising judicial review should not take over the functions of the administrative authority whose decisions they examine, the judicial review performed by the Supreme Court when it comes to disciplinary proceedings within the competence of the CSM should likewise not result in the disciplinary function of the latter being taken over by the Supreme Court.

Finally, one further feature of judicial review also deserves to be mentioned, linked to the fact that such review is concerned with the verification of administrative decisions rather than the re-examination of the relevant issues with a view to enabling the court to adopt its own decision in place of the administrative decision. Given its function of verification rather than re-examination, a court of judicial review typically enjoys a degree of discretion as to the extent to which, in the light of the submissions made by the parties, it needs to order particular investigative steps to clarify whether the facts have been established in an adequate manner. Thus, the court is not required to order such steps simply because certain facts have been contested by a party on appeal. In its case-law under Article 6, the Court has held that the requirement of a fair trial does not — even in the context of criminal proceedings before a trial court — impose on the competent court an obligation to order an investigative measure merely because a party has requested it. Thus, it is for the court to consider and to decide whether it is necessary or advisable to accept evidence for examination (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, nos. 26711/07 and 2 others, § 95, 12 May 2016, with further references). The same approach must apply, a fortiori, in the context of judicial review proceedings, where the task of the competent court is not to re-examine and re-decide the subject-matter of the case but to perform judicial scrutiny as described above.

In our opinion, it is important to acknowledge and preserve the distinction between scrutiny or review and re-examination, as discussed above. It is a distinction that is well-established and anchored both in domestic and supranational systems of judicial appeals and judicial review, and one that should not be blurred or eroded. This, however, is precisely what the majority do in the present case. The consequences are highly problematic, given the wide range of situations where these matters arise in the domestic courts that exercise jurisdiction on appeals arising from administrative decisions, and in particular from those concerning the imposition of various administrative or disciplinary sanctions.

As already mentioned at paragraph 17 above, on the basis of the decisions and case-law of the Judicial Division of the Supreme Court as cited in the present judgment, there is no doubt in our minds that the principles followed by that court in respect of the scope and method of the judicial review in the applicant's cases were in line with the Court's case-law as described above and thus satisfied the requirements of Article 6 § 1.

As regards the specific application of those principles it is important to observe at the outset that, as the Court has stated many times, it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention, and that issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are normally not for the Court to review. The Court should not act as a fourth instance and question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, ECHR 2016, and further references cited therein).

Furthermore, it must be noted that the present case before this Court comprises three separate complaints, based on three sets of disciplinary proceedings against the applicant at the domestic level, which were linked in the sense that they arose from a specific sequence of events. The first set of proceedings was based on the alleged use by the applicant of insulting language toward the judicial inspector in charge of her appraisal. The second set of proceedings came about as it transpired that the applicant had attempted to exonerate herself from the accusation in the first set of proceedings by inciting a colleague to give false testimony in her favour. The third set of proceedings in its turn arose from an alleged attempt by the applicant to persuade another judicial inspector to refrain from opening disciplinary proceedings against the person who had provided the false testimony in her favour in the first set of proceedings. It is also to be noted that the chronological order in which the disciplinary decisions were taken by the CSM was different from the above in that the second case, concerning the incitement to give false testimony, ended up being decided before the first case, which concerned insulting language.

In the first of the above-mentioned sets of proceedings, the question whether the applicant had uttered the word ‘liar’ was a key issue of fact, involving the credibility of the persons involved in the conversation. In the third set of proceedings, the content of the applicant's utterances similarly presented itself as the key factual issue. In the second set of proceedings, concerning the incitement to give false testimony, the essential facts appear to have been beyond dispute.

As already stated, the Court's case-law under Article 6 § 1 does not require that applicants should have access to a court that will conduct a re-examination of the evidence and establish the facts for itself. We see no good reason why that position should be abandoned now. The applicant in the present case had the opportunity to argue before the Judicial Division of the Supreme Court that the facts had not been properly and reliably established at the level of the CSM. The fact that she was not successful in persuading the Judicial Division that this was the case is not in itself a basis for finding a violation of Article 6 § 1. If it found otherwise the Court would be acting as a court of fourth instance.

Furthermore, we discern no grounds on which it could be concluded that the Judicial Division of the Supreme Court acted in an arbitrary or manifestly unreasonable manner in performing its review of the facts of the case. There has been no violation of Article 6 § 1 on that basis, either.

In respect of the third set of proceedings, the applicant complained further about the lack of an oral hearing before the Judicial Division of the Supreme Court.

It should be pointed out that in the course of the proceedings against her, the applicant did have the opportunity to give oral evidence at the investigative stage of the proceedings before the CSM, as well as to make oral submissions. However, neither before the plenary of the CSM nor before the Judicial Division of the Supreme Court did she have any opportunity to argue her case orally.

In its case-law, the Court has emphasised the fundamental nature of the right to a public hearing, of which the right to an oral hearing is one aspect (see Göç v. Turkey [GC], no. 36590/97, § 46, ECHR 2002-V). Thus, the Court has considered that a complaint about the lack of a public hearing could not be absorbed by its findings in respect of another aspect of fairness such as the right to an adversarial procedure; instead, the right to a public hearing was an aspect of fairness in the proceedings that called for separate consideration as a self-standing right (ibid., § 46).

Furthermore, it is to be noted that the right to an oral hearing is not only linked to the question whether the proceedings involve the examination of witnesses who shall give their evidence orally. What is at issue as well is the opportunity for a party to state his or her case orally before the domestic courts (see Göç, cited above, § 48). Thus, the right to an oral hearing underpins the overall equality of arms between the parties to the proceedings.

Thus, for instance, in the case of Grande Stevens and Others, cited above, where the complaints concerned judicial review of the imposition of administrative financial sanctions (characterised as falling under the criminal limb of Article 6) by a specialised administrative body (CONSOB) before which the proceedings were conducted in writing, the Court considered that although those proceedings in themselves did not meet the requirements set out in Article 6, the applicants' case had subsequently been reviewed by an independent and impartial body with full jurisdiction, as required by the Court's case-law. However, that body had not held a public hearing, which amounted to a violation of Article 6 § 1 of the Convention (see Grande Stevens and Others, cited above, § 161).

Similarly, the applicant in the present case had no opportunity at either level of the proceedings against her to make oral representations before the bodies deciding her case, whether on the factual issues or the penalties or on the various legal issues she had raised. According to the Court's case-law, and in the absence of any exceptional circumstances that would justify a finding to the contrary, this deficiency in the proceedings is sufficient in itself to give rise to a breach of Article 6 § 1 of the Convention.

The Court has repeatedly stated that its judgments serve not only to decide the individual cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the States' observance of the engagements undertaken by them (see, for instance, Konstantin Markin v. Russia [GC], no. 30078/06, § 89, ECHR 2012, with further references). The Court's Grand Chamber, in particular, should be committed to and capable of contributing to a sufficient degree of clarity and legal certainty in the case-law. If a departure from existing case-law is found necessary or desirable, it should be made clear what is being changed, why, and how.

In the present case the judgment adopted by the majority, regrettably, falls short of those expectations. What seems clear is that the majority are departing from the existing case-law, namely the principles of judicial review as outlined above and hitherto accepted by the Court. Where the majority is going instead is harder to tell.

The majority no longer appear to approve of the position whereby a court conducting judicial review verifies the factual basis of the administrative decision but is not required to re-examine the facts and the evidence on the basis of which the facts have been established. The majority note that the Judicial Division of the Supreme Court did not have the task of ‘gathering the evidence … or establishing the key facts’ and that owing to this limitation it was not ‘empowered to examine the decisive points in the proceedings, namely the content of the … conversations’ (see paragraph 204 of the judgment). The majority also note that ‘the assessment of the facts entailed examining issues going to the credibility of the applicant and the witnesses’, whereas the Judicial Division did not have jurisdiction to ‘re-examine the facts and the evidence’. The majority take the view that it was ‘necessary’ in the present case for the court to ‘determine, for instance, whether the applicant had made certain remarks’ (see paragraph 206 of the judgment). These statements suggest that the majority wish to set a new standard by requiring that the court must re-examine and re-establish the key facts, instead of verifying the factual basis of the administrative decision as described above (see paragraphs 10–11 and 13–14). At the same time, however, the majority continue to refer to the traditional concept of ‘review’ by stating that it must determine whether the ‘review of the lawfulness of the establishment of the facts’ was sufficient for the purposes of Article 6 § 1 (see paragraph 205 of the judgment). Later on, the majority state that the court had a duty to ‘ascertain whether the factual basis for the decisions taken by the CSM was sufficient to support the latter's conclusions’ (see paragraph 211 of the judgment) ̶ which also implies an approach typical of judicial review, as opposed to a re-examination of the facts and evidence ̶ and they conclude that a hearing would have enabled a more thorough ‘review’ of the disputed facts. In the conclusion, reference is made to ‘the need to assess factual evidence going to the applicant's credibility’, which, by contrast, again implies a re-examination of the relevant evidence by the court on appeal. The latter approach appears also to be reflected in the reference to the ‘lack of a hearing in respect of the decisive factual evidence’ (see paragraph 213 of the judgment).

With respect, all this strikes us as incoherent, obscure and confusing. It will be difficult for domestic courts to understand, and to follow, such reasoning, which will give rise to major legal uncertainty. Issues of disputed facts arise all the time before domestic courts dealing with appeals from administrative decisions imposing sanctions of various kinds, under both the civil and the criminal limb of Article 6 § 1. How will the domestic courts be able to figure out which procedural standards they are required to satisfy when addressing such issues? It is highly problematic and regrettable that the Court, especially at the level of the Grand Chamber, does not provide reasonable clarity in the standard it aims to develop.

The majority endeavour to both justify and limit the approach taken, by reference to the procedural protection of judges (see paragraphs 203 and 214). While safeguarding the independence of judges is clearly of paramount importance in order to preserve the rule of law, the argument seems odd in the present context, where we are dealing with judicial review of the decisions of a judicial council, in this case a special constitutional body set up precisely for the purpose of ensuring judicial independence. There is no complaint, submission or evidence on the basis of which the Court would have cause to call into question, as a matter of principle, the role of the Portuguese High Council of the Judiciary as the body in charge of disciplinary proceedings against judges, and to conclude that the established principles of the Court's case-law are no longer adequate as a standard for the judicial review of disciplinary decisions taken by that body.

From a more general point of view, the case for creating, under Article 6 § 1, a lex specialis for disciplinary proceedings against judges does not appear convincing. In particular, we find the present case an ill-chosen occasion for such a step. Taking into account the circumstances that gave rise to the impugned disciplinary proceedings, especially the second and third sets of proceedings (see paragraph 24 above), the present case is about upholding judicial ethics — which is also a matter of high importance — and not about upholding judicial independence.

Through its case-law, the Court has developed the standards of judicial review required under Article 6 § 1. We see no compelling reason to abandon those standards now. Furthermore, any further development of the case-law should be introduced in a conceptually clear and comprehensible manner. The domestic authorities can hardly be expected to take guidance from something that fails to provide guidance.

In the specific context of the present case, given the constitutionally enshrined function of the CSM, the purpose of which is to safeguard judicial independence, it would seem essential, in the context of disciplinary proceedings, to ensure appropriate procedural safeguards at the level of that body, rather than transforming the subsequent judicial review into a ‘re-run’ of the examinations of the case on appeal.

As explained in the beginning, this separate opinion is, technically, a concurring one. The underlying difference of opinion and approach, however, is of a kind that will require further clarification in the future. It is to be hoped that the legal uncertainty will not have to persist for too long.

The first Republic (1910–1926) set up a governing body of the judiciary1.. After the declaration of the Republic (5 October 1910), the Law of 12 July 1912 created a High Council for Judges (Conselho Superior da Magistratura Judicial — CSMJ), composed of three judges appointed by the Government. A Regulation of 29 October 1912 laid down the procedure to be applied by the new CSMJ. The most serious disciplinary sanctions were imposed by the Government, on a proposal from the CSMJ, and the less serious by the CSMJ itself. The disciplinary procedure was adversarial, but lacked any public hearing. There was no judicial oversight of the disciplinary decisions.

Decree no. 4172 of 30 April 1918 stipulated that the composition of the CSMJ was to be exclusively judicial, with three full and three substitute members, elected from among the judges of the Supreme Court for a three-year term by all judges. If the President of the Supreme Court was elected, he or she also became the President of the CSMJ. The CSMJ had exclusive competence to apply the most severe disciplinary sanctions, with an appeal to the plenary of the Supreme Court (Article 13). Decree no. 4691 of 23 July 1918 provided that the CSMJ was to be composed of five full members and three substitutes, but the method of election remained the same. The President of the Supreme Court was chosen by the Government from among the judges of the Supreme Court (Article 5). Decree no. 5499 of 5 May 1919 accorded the Government the power to appoint all members of the CSMJ (two full members and two substitutes, plus the President) from among the judges of the Supreme Court; the President of the Supreme Court was also the President of the CSMJ.

Decree no. 7725 of 6 October 1921 merged the CSMJ with the public prosecutors' and judicial clerks' own governing councils, the single unified council being known as the High Judicial Council (Conselho Superior Judiciario — CSJ). The Prosecutor General and the prosecutor of the Lisbon second-instance court, as well as two judicial clerks chosen by the Government, joined the composition of the CSJ. From that point on, the Supreme Court judges who were full members had to perform their functions on a full-time basis. According to Decree no. 10310 of 19 November 1924, which consolidated the rules governing disciplinary proceedings against judges, less severe sanctions were applied by the CSJ without the possibility of appeal, while the more severe ones were open to appeal before the plenary of the Supreme Court, which had full jurisdiction (Article 113). Decree no. 10734 of 2 May 1925 created a special summary procedure for political disciplinary offences, which were dealt with by the Minister of Justice, with an appeal to the Council of Ministers.

The dictatorship (1926–1974) changed the system radically. Under Decree no. 11751 of 23 June 1926, the CSJ had a mixed composition: three judicial members appointed by the Government, including the President of the CSJ and of the Supreme Court, and two judicial members elected by the judges. The most severe disciplinary penalties were open to appeal before the plenary of the Supreme Court, which had full jurisdiction. The Status of Judges Acts 1927 (Decree no. 13809 of 22 June 1927) and 1928 (Decree no. 15344 of 12 April 1928) did not change the composition of the CSJ, but both limited drastically the possibility of lodging an appeal against disciplinary decisions. The most severe penalties applied by the CSJ were open to appeal before an enlarged ad hoc formation of the same CSJ, including both its full and substitute members.

In 1929, Decree no. 16563 of 5 March 1929 again radically changed the CSJ's composition, since new members could now be appointed by the Government following a reform of the retirement age. Under Decree no. 17955 of 12 February 1930, judges once again prevailed in the composition of the CSJ; with the exception of the President of the CSJ and of the Supreme Court, who was appointed by the Government, all the other four members were judges elected by three different electoral colleges (with the judges of the first-instance courts electing two representatives, the judges of the second-instance courts electing one, and the judges of the Supreme Court electing a further one). However, the CSJ's powers became merely consultative and the decision-making power lay with the Government. Finally, under Decree no. 21485 of 20 July 1932, the CSJ's composition was again amended, with the members being appointed entirely by the Government.

According to the Status of Judges Act 1944 (Decree no. 33547 of 23 February 1944), the CSJ was presided over by the President of the Supreme Court and composed of three judges of that same court and, with no voting right, two other judges of the first-instance or second-instance courts. All members were chosen by the Government. More importantly, appeals against the most severe disciplinary penalties were treated as applications to review lawfulness, made to the ad hoc formation of the CSJ, like any another appeal lodged against governmental acts (section 4452.). According to the preamble to the Act, the Government made a deliberate political choice to deny judges the benefit of full jurisdiction in their appeals against the most severe disciplinary penalties, on the grounds that they should not be treated better than any other civil servants coming within the jurisdiction of the administrative authorities.

The Status of Judges Act 1962 again reviewed the composition of the CSJ, which now included the President and the Vice-President of the Supreme Court, the three presidents of the courts of appeal and one first-instance judge, all appointed by the Government. The most severe disciplinary penalties were open to appeal before a new ad hoc formation of the CSJ known as the Supreme Disciplinary Council (Supremo Conselho Disciplinar), which was composed of all the members of the CSJ and the four most senior judges of the Supreme Court. This legal framework remained in force until the fall of the dictatorship.

The democratic Constitution of 1976 provided that the composition of the High Council of the Judiciary (Conselho Superior da Magistratura — CSM) was to be established by law and was to include judges elected by their peers. The first legislative instrument to regulate the CSM's composition was Decree no. 926/76 of 31 December 1976, which included only judges and judicial clerks (13 judges and 4 judicial clerks, the latter intervening only on issues related to clerks). Law no. 85/77 of 13 December 1977 (the first Status of Judges Act of the democratic regime) returned to a mixed composition, with judges outnumbering non-judicial members (13 judges and 10 non-judicial members). The constitutional reform of 1982 enshrined the CSM's composition in the Constitution with a minimum majority of judges (9 judges and 8 non-judicial members). Finally, the constitutional reform of 1997 reversed the judicial majority in the CSM (8 judges and 9 non-judicial members).

Article 13 of Decree no. 926/76 of 31 December 1976 as well as section 175 of the Status of Judges Act 1977 provided that the CSM's disciplinary decisions were open to appeal before the plenary of the Supreme Court. However, section 168 of Law no. 21/85 of 30 July 1985 (Status of Judges Act 1985) reintroduced the possibility of appeal before an ad hoc formation of the Judicial Division of the Supreme Court, presided over by the President of the CSM and of the Supreme Court. The same person combined these three functions: President of the Judicial Division of the Supreme Court, President of the CSM and President of the Supreme Court. In order to ensure that the President of the body whose decision was under appeal (the CSM) and the appellate body (the Judicial Division) were not one and the same person, Law no. 10/94 of 5 May 1994 conferred the presidency of the Judicial Division on the Vice-President of the Supreme Court.

It is clear from this historical overview that the fact that the disciplinary procedure before the CSM is not public, the ad hoc formation for hearing appeals lodged against the most severe disciplinary penalties and the limited powers of review of this formation are relics of the past, introduced in 1911, 1928 and 1944 respectively and which the new democratic regime should have sought to abolish. It is against this historical background that the Judicial Division's powers of review over the CSM's decisions must be assessed3.. Both the law in books4.and the law in action5.show that the body empowered to review decisions of the CSM has traditionally had very limited powers when it comes to reviewing and establishing the ‘key facts’ and collecting and reassessing the evidence. In paragraphs 203 and 214 of the judgment, the Grand Chamber specifically upheld the Chamber judgment with regard to the ‘decisive’ nature of the facts disputed by the applicant and the lack of proper judicial review of the CSM's decision on these facts. This serious shortcoming is aggravated by the lack of a public and oral hearing of the evidence or of the indicted judge.

With the present findings, the Grand Chamber seeks to convey the same message as the Chamber judgment: that it is high time to reform the applicable legal framework and practice in Portugal. It is laudable that the Government heeded the call of the Chamber and, even before the Grand Chamber ruling, presented a proposal to reform the Status of Judges Act6.. I would like to emphasise that this reform does not, however, mean that the constitutional framework has to be changed. I will elaborate further on this issue below.

The Council of Europe and, in particular, the European Commission for Democracy through Law (the Venice Commission) and the Group of States against Corruption (GRECO) have assessed the compatibility of judicial councils with the European standards of judicial independence. Two main issues were discussed in the case at hand7.. First, the majority of the members of the CSM are not judges elected by their fellow judges. For example, out of the fifteen members who ruled in the applicant's case on 10 January 2012, only six were judges (see paragraph 26 of the judgment). In the other two sets of proceedings, a slight majority of the CSM's members were judges, because some of the non-judicial members happened to be absent. Indeed, there is no guarantee that a majority of the CSM's members will even have legal training, since there is no legal requirement in this regard for the non-judicial members of the CSM8.. Prior to the CSM's deliberations there is no way of knowing who is going to participate in those deliberations. The indicted judge cannot find out who is going to be a member of the formation voting on his or her case. To aggravate things, it is not ruled out that a non-judicial member of the CSM may be the rapporteur in a disciplinary case9., which raises the possibility of a person without any legal background performing that function.

Second, the members of the CSM can choose to work part-time10., a decision that may de facto expose them to whatever hierarchical or professional ties they may have outside this function, whether in the private or the public sector. This was already noted as a problem by the Court in Oleksandr Volkov v. Ukraine (no. 21722/11, ECHR 2013), when the Court noted that all but four members of the Ukrainian High Council of Justice (HCJ) ‘continue to work and receive a salary outside the HCJ, which inevitably involves their material, hierarchical and administrative dependence on their primary employers’11.. Both features (the lack of a judicial majority and the part-time nature of the function) have been identified as potential threats to judicial independence by a number of international and European bodies. The relevant materials were highlighted by the Chamber judgment12., and here I reproduce only the ones that are germane to this point. The emphases are my own.

The report on judicial appointments (CDL-AD(2007)028), adopted by the Venice Commission at its 70th plenary session on 16 and 17 March 2007, reads as follows:

In the conclusions to its report on the Independence of the Judicial System Part I: The Independence of Judges, adopted at its 82nd plenary session on 12 and 13 March 2010 (CDL-AD (2010) 004), the Venice Commission found as follows:

The relevant extracts from the Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges of ‘The Former Yugoslav Republic of Macedonia’ (CDL-AD(2015(042)), adopted by the Venice Commission at its 105th plenary session (18–19 December 2015), read as follows:

The relevant parts of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States on judges: independence, efficiency and responsibilities (adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies) read as follows:

The Consultative Council of European Judges, at its 11th plenary meeting (17–19 November 2010), adopted a Magna Carta of Judges (Fundamental Principles) summarising and codifying the main conclusions of the Opinions it had already adopted. This document reads, inter alia, as follows:

GRECO's Fourth evaluation round report on Portugal, adopted on 4 December 2015, made the following assessment with regard to the CSM and its counterpart in the administrative and tax jurisdiction, the Supreme Council of Administrative and Tax Courts:

GRECO also noted as follows:

On this basis, GRECO made the following recommendation:

On 6 March 2018 GRECO called on Portugal to step up its efforts to improve its legal framework in order to prevent corruption in respect of MPs, judges and prosecutors. This follow-up report14., which assessed Portugal's compliance with the recommendations issued by GRECO in the 2015 evaluation report, concluded that Portugal had only implemented satisfactorily one of fifteen recommendations. Three had been partly implemented and eleven had not yet been implemented. The situation was described by GRECO as ‘globally unsatisfactory’15..

At this juncture it is important to note that the Committee of Ministers of the Council of Europe and GRECO, while recommending that not less than half of the judicial council's members should be judges elected by their peers, do not require a majority of judges elected by their peers where the judicial council has an uneven number of members, which is the case of the CSM. It is my firm belief that the CSM's composition, according to the constitutional framework from 1982 to 1997 and the subsequent presidential practice of appointing one judge, is in line with the role of judicial councils as guarantors of judicial independence. The moral authority and political representativeness of the President of the Republic are in and of themselves a solid guarantee of a fair balance between the democratic and judicial components in the Portuguese judicial governance body. The generally recognised high professional calibre and social standing of the members hitherto chosen by the successive Presidents of the Republic attest to this conclusion.

The reform of the legal framework should take into account the nature of the subject-matter of these proceedings16.. I note that the three Engel criteria17.are not cumulative but alternative. The Grand Chamber makes this explicit in paragraph 122 of the judgment regarding the second and third criteria, but it is obviously also true for the first one: any other reading would imply that a sanction needs to be criminal under domestic law in order to be criminal under the Convention. As the Court put it in Engel:

I would reiterate that the present case relates to disciplinary proceedings concerning insulting remarks about judicial inspector H.G. (application no. 57728/13), disciplinary proceedings concerning the use of false testimony (application no. 55391/13) and disciplinary proceedings concerning an attempt to prevent the opening of disciplinary proceedings against a witness (application no. 74041/13), and that the subject-matter of these proceedings was intrinsically criminal in nature (defamation, use of false testimony and obstruction of justice). Although no criminal prosecution was brought against the applicant on the basis of the facts investigated in the three sets of disciplinary proceedings, these facts were typical of the ‘mixed’19. offences to which the Engel judgment referred. These were offences with a high degree of social offensiveness and stigma. The downgrading of these offences by the Grand Chamber, in paragraph 125 of the judgment, as ‘purely disciplinary’ deprives the defendant judge of basic procedural guarantees. This is precisely what the Convention is meant to prevent, especially in the case of the ‘mixed’ offences to which the Engel judgment made reference.

Therefore, even if the sanction is not labelled as criminal under domestic law and the underlying offence is not considered as ‘criminal’, a reasonable reading of the Convention still demands that a sanction, if sufficiently severe, should attract the guarantees of the criminal limb of Article 6, absent a good reason to the contrary. As the Court puts it:

Moreover, in its case-law concerning disciplinary proceedings against the members of a certain profession, the Court has paid attention to whether the sanction relates to the person's profession or not. Sanctions such as a suspension or dismissal from the exercise of a profession or a public duty have been found to be purely disciplinary in nature21., while fines, if they are severe enough, are found to be deterrent and punitive in nature22..

In fact, the applicant faced a possible punishment of up to 90 day-fines and suspension from duty of up to 240 days. She was actually fined (see paragraph 25 of the judgment) and punished by a penalty of 100 days' suspension from duty (see paragraph 41 of the judgment), a penalty of 180 days' suspension from duty (see paragraph 58) and an aggregate penalty of 240 days' suspension from duty (see paragraph 67).

Furthermore, according to domestic law, fines are applied by deducting from the judge's salary the amount corresponding to the number of day-fines imposed23.; the suspension from duty results in the period corresponding to the penalty being deducted from the period taken into account for the purposes of remuneration24.. In practice, this means that in the case of both fines and suspension from duty, the financial loss is automatically imposed in the form of deduction from the judge's salary. As is plain to see, the financial loss resulting from 240 days' suspension from duty may be much more severe than that resulting from the highest possible fine applicable, namely 90 day-fines.

This line of reasoning is reinforced by another important feature of domestic law that emerges from the comparison between the disciplinary penalty of suspension from duty25. and the criminal penalty of prohibition on holding office and suspension from office26.. This comparative exercise would have clearly revealed a telling similarity in terms of punitive features and consequently an overlap of these punitive instruments, which may target the very same professional category.

Bearing this in mind, and also the fact that the applicable subsidiary law is the Criminal Code and the Code of Criminal Procedure27., it seems to me that the sanctions that are applicable and were applied are, in theory and in practice, deterrent and punitive and should attract the guarantees of the criminal limb of Article 6.

I would further argue, on a more general note, that there is nothing in the ‘nature’ of disciplinary offences that justifies different treatment compared with criminal offences as regards respect for fundamental procedural guarantees. The classification of some offences as ‘disciplinary’ rather than ‘criminal’ for the purposes of Article 6 of the Convention, despite the high degree of social offensiveness they represent, the considerable stigma they attract and the severity of the resulting punishment, is only possible if one applies a nominalist distinction which has no basis in European case-law. This nominalist interpretation of the Convention is even less convincing when it accepts that the criminal limb of Article 6 is applicable in certain cases involving heavy financial penalties for disciplinary offences28.. Such an unprincipled approach not only ignores the impact of serious non-financial penalties, like suspension or dismissal from a profession, but leaves the impression of an uncertain and unclear jurisprudence which gives no proper guidance to the respondent States.

Hence, the argument, in paragraph 125 of the judgment, that the sanctions faced by the applicant were ‘not aimed at the public in general but at a specific category, namely judges’ and that this circumstance should be determinative of the classification of the offence as non-criminal, is wrong. It does not stand any criminal-law test. It ignores a long-standing tradition of criminal offences with a limited personal scope, applicable only to people distinguished by certain personal or professional features29.. For example, innumerable criminal-law provisions in all countries punish bribe-taking committed specifically by public officials. These criminal-law provisions are designed to protect the profession's honour, reputation and integrity and to maintain public trust in public officials, and no one would dare to argue that they are not criminal in nature for the purposes of Article 6 of the Convention. In other words, the mere fact that an offence is applicable to a specific professional category is not decisive as to its nature.

For unknown reasons, the Grand Chamber concluded that ‘in the present case, the severity of the sanction in itself does not bring the offence into the criminal sphere’ (see paragraph 126 of the judgment). Nevertheless, it also acknowledged that, in general, ‘disciplinary penalties may nevertheless entail serious consequences for the lives and careers of judges' and that, in the case at hand, ‘[t]he accusations against the applicant were 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’ (see paragraph 196 of the judgment)30..

Accordingly, it is submitted that the current reform of the legislative framework31.should reinforce the procedural safeguards in disciplinary proceedings against judges in the light of the guarantees of Article 6 of the Convention, and in particular should strengthen the adversarial, oral and public nature of these proceedings, as follows:

These are the minimum procedural guarantees in disciplinary proceedings against judges, laid down by the Grand Chamber of the Court.

In the light of the above considerations, I could not but conclude that the fact that disciplinary proceedings before both the CSM and the Supreme Court are not public, the ad hoc formation of the Judicial Division of the Supreme Court in disciplinary cases and the limited powers of review of that Judicial Division are relics of the past which are out of step with the contemporary international standard of judicial independence. The reform and modernisation of the legal framework and practice as regards judicial governance in Portugal is now under way, and the fact that the Government have presented draft legislation in Parliament to that end is to be welcomed. I am sure that Parliament will listen attentively to the message sent by this Court and will deliver a fully-developed response to it.

As to the first claim, the majority conclude that ‘the dual role of the President of the Supreme Court is not such as to cast doubt on the independence and impartiality of that court in ruling on the applicant's appeals against the CSM's decisions’ (see paragraph 156). The majority put forward two sets of arguments in support of this conclusion.

First, they observe that, according to the Status of Judges Act, ‘[t]he composition of the Judicial Division of the Supreme Court … is determined on the basis of objective criteria such as judges' seniority and their membership of a particular division, and the President of the Supreme Court does not sit in this ad hoc division’ (see paragraph 154). The majority also take into account the fact that these judges are ‘formally appointed’ by the most senior Vice-President of the Supreme Court (ibid.). However, none of these arguments is convincing on closer examination.

It is true that the President cannot select the members of the Judicial Division for a particular case as such, and it is true that the composition of the Judicial Division is determined by seniority and division membership. More precisely: the Judicial Division is composed of the most senior Vice-President of the Court, as well as of the most senior judge of each of the Supreme Court's three divisions (Civil, Criminal and Social Affairs)43.. But the majority omit a crucial aspect of the organisation of the Supreme Court, namely that it is the President of the Supreme Court who selects the members of each of the divisions, at his or her discretion, on the basis, among other criteria, of the ‘needs of the service’ (conveniência para o serviço). Therefore, the President could to a certain extent determine who is the most senior judge in each division44..

The quintessential characteristic of any judicial body is that appearances matter as much as facts. Justice must not only be done properly, but must be seen and perceived to be done properly. To us, there is no doubt that the appearance of impartiality of the appellate body is irreversibly tainted when the president of the body whose decision is under appeal (in this instance, the CSM) is, even if only indirectly, in a position to determine the composition of the appellate body (the Judicial Division). This shortcoming is compounded by the fact that the Judicial Division is called upon to assess a decision in which the President of the Supreme Court took part in his or her capacity as President of the CSM.

The second argument of the majority is that the applicant did not ‘claim that the President of the Supreme Court could have influenced the judges of the Judicial Division’ and that ‘it is not established that those judges were specially appointed with a view to adjudicating her case’ (see paragraph 155). In view of the above, this argument is not convincing, because, as the majority themselves announce from the outset, the applicant's complaint is to be examined ‘from the standpoint of independence and objective impartiality’ (see paragraph 152). This ‘objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings’ (see paragraph 148). This is not about whether in this particular case the judges of the Judicial Division harboured any particular animosity towards the applicant, but about whether the institutional setting in which the applicant had her case heard afforded the appropriate guarantees to secure the appearance of impartiality.

The other claim raised by the applicant is that the CSM is in charge of the ‘appraisal, appointment and promotion’ of Supreme Court judges, including those in the Judicial Division, and of disciplinary proceedings concerning them (see paragraph 137). Therefore, the body whose decisions were being reviewed had various forms of power over the body that was reviewing them. The majority also reject this argument (see paragraphs 157-64).

From the outset, the majority seek to distinguish this case from Oleksandr Volkov45.(see paragraphs 157–60 of the judgment). In that case, the Court observed that the judicial review of disciplinary sanctions ‘was performed by judges … who were also under the disciplinary jurisdiction’ of the body whose decisions were being reviewed, and that this fact jeopardised the ‘independence and impartiality’ of the reviewing court46.. According to the majority, that case can be distinguished from the present one because, in Oleksandr Volkov, ‘these findings should be regarded as a criticism based on the circumstances of the case and applicable in a system with serious structural deficiencies or an appearance of bias within the disciplinary body for the judiciary … rather than as a general conclusion’ (see paragraph 158 of the judgment). By contrast, the majority assert that ‘in the present case, no such serious issues have been established in terms of structural deficiencies or an appearance of bias within the Portuguese CSM’ (see paragraph 160). In fact, the Grand Chamber considered itself prevented from reviewing any such possible deficiencies owing to the application of the six-month rule (see paragraph 107). We note that the majority thus do not rubber-stamp in general terms the structure and functioning of the CSM, but leave the door open to future complaints regarding possible ‘structural deficiencies’ of that body.

We believe that the principle set out in § 130 of Oleksandr Volkov is fully applicable to the present case. Just as in the Ukrainian case, the Supreme Court's judicial review of disciplinary sanctions was performed by judges who were also under the disciplinary jurisdiction of the CSM. In this regard we accept the national judge's analysis, in his separate opinion, concerning the constitutional and legal framework in which the CSM's decisions were taken.

The majority choose to respond to this argument in two ways. First, they consider it ‘normal’ that judges assess cases knowing that ‘at some point in their careers [they may themselves be] in a similar position to one of the parties’ (see paragraph 163). More specifically, the majority describe the ‘theoretical risk’ of the situation as consisting in ‘the fact that judges hearing cases are themselves still subject to a set of disciplinary rules’ (ibid.).

This reconstruction by the majority misses the point. The problem is not that the Judicial Division judges are assessing a factual situation that they may face in the future, as if they were adjudicating a breach of contract knowing that they might breach a contract in the future, or a robbery case knowing they may be robbed in the future, and so on. The problem is about the institutional framework itself. The Judicial Division adjudicates cases knowing that the persons whose decisions they are asked to review can exert disciplinary power over them.

The second line of argument of the majority dismisses the risk of disciplinary proceedings being brought against the judges of the Judicial Division as ‘theoretical’ (see paragraph 163). The majority go on to note that there are no ‘pending disciplinary proceedings’ against the judges who reviewed the applicant's case (see paragraph 163). But again, the majority themselves recognise that the issue at stake here is ‘objective’ impartiality, meaning that the existence of disciplinary proceedings against the Supreme Court judges acting in the present case is not decisive. All we need to know is whether there is a realistic possibility that judges in the Judicial Division may face disciplinary proceedings before the CSM. Indeed, this is not only a realistic possibility, but has actually happened in the past47..

Like the majority, we consider that disciplinary proceedings which entail the imposition of sanctions against judges, as in the present case, must ensure public confidence in the functioning and independence of the judiciary as such, because they go to the heart of the rule of law. In the current climate, it is not superfluous to restate this principle.