JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, VUČINIĆ, PINTO DE ALBUQUERQUE, TURKOVIĆ, DEDOV AND HÜSEYNOV

1. We do not agree with the majority in so far as they do not find a violation of Article 6 § 1 of the European Convention on Human Rights (“the Convention”) regarding the independence and impartiality of the Judicial Division of the Supreme Court (“the Judicial Division”).

2. The majority conclude that they see “no evidence of a lack of independence and impartiality on the part of the Judicial Division of the Supreme Court” (see paragraph 165 of the judgment). In order to reach this conclusion, they dismiss the two claims brought by the applicant concerning the independence and objective impartiality of the Supreme Court, namely that the President of the CSM, since he or she is also the President of the Supreme Court, can exert undue influence over the appeal proceedings, and that the CSM’s disciplinary power over the members of the Supreme Court jeopardises their independence. In our view, these two arguments by the applicant were not duly assessed.

The dual role of the President of the Supreme Court

3. 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.

4. 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.

5. 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) [45] . 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 division [46] .

6. 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.

7. 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 fact that the Supreme Court is subject to the CSM’s disciplinary power

8. 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).

9. From the outset, the majority seek to distinguish this case from Oleksandr Volkov [47] (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 court [48] . 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.

10. 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.

11. 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.).

12. 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.

13. 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 past [49] .

14. 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.

[1] . José Carlos Vieira de Andrade, A justiça Administrativa ( Lições ), Livraria Almedina, 1999, p. 95.

[2] . Jorge de Sousa, “Poderes de Cognição dos Tribunais Administrativos relativamente a Actos Praticados no Exercício da Função Política”, in Julgar , no. 3-2007, Coimbra Editora, p. 119.

[3] . For reasons of economy I will limit the scope of the opinion to the Republican regime.

[4] . The Portuguese word artigo is translated in accordance with the Court’s consistent practice, which is to use “section” for Acts and “Article” for Codes.

[5] . On this issue, see the critical Portuguese literature: J. Miranda, Annotation to Article 217, in Miranda/Medeiros, Constituiçao Portuguesa Anotada , vol. III, 2007, p. 192; “Os parametros constitucionais da reforma do contencioso administrativo”, in Reforma do contencioso administrativo , vol. 1, 2007, p. 374; S. Correia, Contencioso Administrativo , 1990, p. 125; R. Alves, “A apreciaçao jurisdicional das deliberaçoes do CSM pelo STJ”, in Julgar , no. 21, p. 248; C. Fraga, Sobre a independencia dos juizes , 2003, p. 189; P. Rangel, Repensar o poder judicial , 2001, p. 227; A. Pereira, “O poder politico perante a magistratura”, ASJP (ed.), in Poder Judicial na viragem do seculo , vol. II, 1997, p. 89; and A. Santos Silva, “A Constituiçao e a independencia do poder judicial”, in Scientia Juridica , 1975, XXII, p. 35.

[6] . See section 168(5) of the Status of Judges Act. As demonstrated above, this provision dates back to the Status of Judges Act 1944 (section 445), with the very same wording.

[7] . See paragraphs 79 to 81 of the judgment.

[8] . The reform procedure was started by Government Bill no. 122/XIII.

[9] . Although I agree with the Court that the applicant’s claim regarding the composition of the CSM as such was first made after the six-month period had expired, nothing prevented the Court from analysing the legal arguments presented as a part of the historical and constitutional context in which the CSM’s decisions were taken. In fact, the Government themselves invoked the argument of the composition of the CSM (Government’s observations, §§ 97-108). The Grand Chamber recognises this too. In declaring the claim concerning the CSM to be inadmissible, the majority announce that “when examining the remaining complaints [the Court] will take into consideration, as appropriate, any relevant factors concerning the CSM” (see paragraph 107 of the judgment), which the majority ultimately refrain from doing (see paragraph 160).

[10] . Section 137 of the Status of Judges Act.

[11] . Section 159 of the Status of Judges Act.

[12] . Section 148(2) of the Status of Judges Act.

[13] . Oleksandr Volkov v. Ukraine , no. 21722/11, §113, ECHR 2013.

[14] . See paragraphs 41-50 of the Chamber judgment.

[15] . Greco Eval IV Rep (2015) 5E.

[16] . Greco RC4(2017)23.

[17] . Ibid., paragraph 72.

[18] . The operative part of the judgment does not refer explicitly to the applicant’s claim that the case should have been considered under the criminal limb of Article 6 and not only under its civil head. In this regard, the Grand Chamber omits to consider important features of the “punitive” nature of the sanctions applied to the applicant, to which the subsequent considerations will be dedicated.

[19] . Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22.

[20] . Ibid., § 81.

[21] . Ibid., § 81.

[22] . Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998. In this case, the Court declared the complaint inadmissible precisely because “the severity of the penalty was not, of itself, such as to render the charges ‘criminal’ in nature”.

[23] . For example, regarding lawyers, see Müller-Hartburg v. Austria , no. 47195/06, § 48, 19 February 2013, and Biagioli v. San Marino (dec.), no. 64735/14, § 56, 13 September 2016; regarding judges, see Oleksandr Volkov v. Ukraine , no. 21722/11, § 93, ECHR 2013; and regarding other public officials, see Moullet v. France (dec.), no. 27521/04, 13 September 2007.

[24] . “A fine which is punitive and deterrent rather than compensatory, may suggest that the matter is ‘criminal’ in nature if the penalty is sufficiently substantial” ( Brown , cited above).

[25] . Section 102 of the Status of Judges Act, cited in paragraph 71.

[26] . Section 104 of the Status of Judges Act, cited in the same paragraph 71.

[27] . Section 102 of the Status of Judges Act.

[28] . Articles 66 and 67 of the Criminal Code.

[29] . Section 131 of the Status of Judges Act.

[30] . Brown, cited above.

[31] . Delicta propria , or Sonderdelikte . See my separate opinion in A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 19, ECHR 2016.

[32] . The very serious nature of the penalties was emphasised in paragraphs 198 and 203 and in the concluding remarks of paragraph 214 of the judgment.

[33] . Government Bill no.122/XIII.

[34] . Paragraph 198 of the judgment.

[35] . Ibid.

[36] . Ibid.

[37] . Paragraph 211 of the judgment.

[38] . Paragraph 208 of the judgment.

[39] . Paragraph 206 of the judgment.

[40] . Paragraph 210 of the judgment.

[41] . Paragraph 213 of the judgment.

[42] . Paragraph 214 of the judgment.

[43] . Paragraph 201 of the judgment.

[44] . Paragraph 222 of the judgment.

[45] . Section 168 of the Status of Judges Act.

[46] . Section 29(2) of the Organisation of the Courts Act, cited in paragraph 74 of the judgment.

[47] . Oleksandr Volkov v. Ukraine , no. 21722/11, ECHR 2013.

[48] . Oleksandr Volkov , cited above, § 130.

[49] . For example, case 02P3735, judgment of the Supreme Court of 3 July 2003, on an appeal against a disciplinary sanction imposed by the CSM on a judge of the Supreme Court.