PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1. My disagreement with the majority concerns point 5 of the operative part of the judgment.

2. In not awarding the applicant compensation for pecuniary damage, the majority rely on, and refer to, Kingsley v. the United Kingdom ([GC], no. 35605/97, § 43, ECHR-2002, and the case-law cited therein), where the Court refused “to award financial compensation ... in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings” in cases where it found violations of Article 6 § 1 “caused by a lack of objective or structural independence and impartiality”.

3. One detail, though, has not been given credit. An important one moreover. In paragraph 43 of Kingsley (cited above), to which the majority refer, the Court did not award the applicant compensation for pecuniary damage, “h aving regard to all the circumstances”. I assume that this phrase was not included merely incidentally. It reflects the requirement, which goes without saying in all cases, that the Court, when not awarding compensation for pecuniary damage, h as to pay heed to all the actual circumstances of that particular case, and not mechanically copy the outcome of an earlier case, the factual and legal circumstances of which may be different. In my firm belief, the notion of “all the circumstances” includes, more often than not, the absence of a causal link between the violations found and the damage sustained. Must include in fact.

But what if that causal link is not absent? What if it is present ?

4. In paragraph 104 of the judgment, the majority state that they do not see a causal link between the violations found and the pecuniary damage sustained by the applicant.

What a finding!

I cannot follow such reasoning. I see that link. I see it as vividly as if it had been projected in shining symbols on a screen. I cannot help but see it. This link is so obvious that one does not see it only if one decides not to want to notice it.

5. Let me put it straightforwardly. The applicant was suspended from her judicial duties for 240 days and that penalty was enforced (see paragraphs 35 and 36 of the judgment). The decision of the High Council of the Judiciary to impose that penalty appeared not to be in conformity with Article 6 § 1 of the Convention. This is the crux of her case under the Convention; this is all that the present judgment is about. Moreover, that “one” violation, in fact and in law, encompassed three aspects (see paragraphs 80, 89 and 99 of the judgment). As a result of enforcement of that decision, which infringed the Convention in three respects, the applicant was not paid her salary for the period in question. Had that decision not been adopted or had it been (for some hypothetical reason) not enforced, she would have been paid her salary , due to the fact that there was no other reason for withholding it. She had not received her salary precisely because of the application to her of that particular penalty, and not for any other reason.

Here, the violation is the cause, and the loss of salary a consequence. Clear as 2 × 2. In terms of the science of logic, we have the antecedent and the consequent: if P , then Q , – the if -clause and the then-clause .

How can the Court “not see” this causal link?

But there is more to it than that.

6. I could not agree more with the majority that the Court cannot (and should not) speculate as to how the proceedings against the applicant could have ended had there been no procedural violation(s) of Article 6 § 1 of the Convention (see paragraph 104 of the judgment).

One could envisage that, had the High Council of the Judiciary erred only “on its own behalf” in, say, applying the domestic legislation, the reopening of proceedings in the applicant ’ s case within the domestic system, provided that this was still possible after all these years, could bring about the same unfavourable result for the applicant. And if not, that is, if the outcome of those reopened proceedings was to the benefit of the applicant, then whatever the pecuniary damage sustained by her, this could be remedied at the national level. In such a – so far only hypothetical – event, compensation for the pecuniary damage could not be awarded by this Court. Injustice would have been undone at the national level.

I would have accepted that. After all, Article 41 does not oblige the Court to award full compensation to the applicant: it provides that “the Court shall, if necessary , afford just satisfaction to the injured party” only “if the internal law of the High Contracting Party concerned allows only partial reparation to be made ” (emphasis added). I also would have accepted a decision by the majority justifying not awarding compensation for pecuniary damage on the grounds that such compensation is indeed available at the national level , were the applicant able to argue and prove her case in such domestic proceedings satisfying the requirements of the Convention.

But there is not a single word in the judgment about such a possibility. And there is not a word about the possibility of reopening the proceedings in the applicant ’ s case which could rectify the flaws in the ones which have been found by this Court to be in violation of the Convention.

This is not surprising, because hardly any such possibilities exist.

7. In the present case, it was not only the High Council of the Judiciary which erred. Much more, the whole institutional and procedural setting for deciding that type of case in Portugal was, at the material time, not able to guarantee that the requirements of Article 6 § 1 regarding the independence, impartiality and fairness of a tribunal and the public character of a hearing could be satisfied (see the “Relevant Domestic Law and Practice” section). The Court has not been assured that the situation has changed, at least in essence.

8. This is not at all about “ speculation ” regarding the more or less likely outcome of the applicant ’ s case had the procedural violations not been committed. This is about the practical and even theoretical impossibility for the deciding body (the High Council of the Judiciary ) not to commit at least some of these procedural violations.

9. As matters stand, can we still assert that the Court legitimately left virtually unaddressed the applicant ’ s claim for compensation of pecuniary damage? Can we say that we did justice to the applicant (who, by the way, did not claim any compensation for the non-pecuniary damage which she doubtless sustained, and, moreover, was not compensated for the costs and expenses incurred)?

My answer is: no, we cannot. This is why I could not vote with the majority on point 5 of the operative part of the judgment.

10. Also, is the line of reasoning (as to not awarding compensation for pecuniary damage) employed in this case one which this Court would tolerate in the practice of the national courts of the member States? Would the Court suggest that this line be followed by the national courts? I can easily imagine that, had this Court to decide a case in which the applicant complained that the domestic courts had found no causal link in a situation where that link was obvious, there would be few arms left for the respondent Government to defend their case.

11. The reference to Kingsley (cited above), especially in its somewhat pruned version (see paragraph 3 above), does not absolve the Court from its duty to examine all the relevant circumstances of the case under examination, including those pertaining to compensation claimed by the applicant, and to award compensation for pecuniary, as well as non-pecuniary, damage to the injured party, if that compensation is not available under the domestic law of the member State.

In this case, that reference aimed at serving the continuity of the Court ’ s case-law. That continuity has been preserved, or rather its appearance has. And because it is only the appearance of continuity which has been achieved, an additional, artificial , argument was invented and employed to disguise the gap between the simulacrum and the reality . This argument is “no causal link”.

12. Mechanical references to earlier case-law which are used as a substitute for actually probing into the most essential circumstances (even one) of the case under examination, or, moreover, misrepresent such circumstances, may in fact serve continuity in injustice. This is most disappointing – not only in the context of this particular case.

[1] . This paragraph was rectified in accordance with Rule 81 of the Rules of Court.

[2] . This paragraph was rectified in accordance with Rule 81 of the Rules of Court .

[3] . This paragraph was rectified in accordance with Rule 81 of the Rules of Court .