Published on 17 July 2023

FOURTH SECTION

Application no. 40379/19 Duarte Alberto RODRIGUES NUNES against Portugal and 2 other applications (see list appended) communicated on 29 June 2023

SUBJECT MATTER OF THE CASE

The applicant is a judge. Following information sent by the Chief President of the Lisbon District Court, reporting working constraints caused by the position taken by the applicant contrary to the dematerialisation of files provided for by law, the Vice-President of the High Council of the Judiciary (hereinafter “the CSM”) decided to open an inquiry (inquérito) which eventually gave rise to:

- disciplinary proceedings (application no. 40379/19): by a decision of 11 July 2018, the CSM sanctioned the applicant with a penalty of 150 days’ suspension from office for breach of his professional duties of administering justice, diligence and correctness. On 22 January 2019 the Judicial Division of the Supreme Court dismissed the appeal lodged by the applicant;

- the placement of the applicant in another District Court by a decision of the CSM of 11 July 2018 (application no. 50668/19) taking into consideration another decision of the CSM concerning his professional appraisal which was not final at the time. On 21 March 2019 the Judicial Division of the Supreme Court dismissed the appeal lodged by the applicant;

- an extraordinary inspection ( inspeção extraordinária ) into the work performed in 2017 by the applicant that ended with a decision of the CSM of 3 November 2020 rating the professional performance of the applicant as “sufficient” (application no. 4894/22). On 14 July 2021 the Judicial Division of the Supreme Court dismissed the appeal lodged by the applicant.

Relying on Articles 6 §§ 1, 2 and 3 (b), 8 and 13 of the Convention, the applicant complains of the unfairness of the proceedings alleging that:

- the CSM was not an independent and impartial tribunal, in view of its composition and of the public statements made by its Vice-President while the disciplinary proceedings were pending (this latter point was raised in applications nos. 40379/19 and 4894/22);

- the proceedings before the Supreme Court had been unfair, because of the lack of a public hearing (applications nos. 40379/19 and 4894/22) and its limited scope of review (all applications); in applications nos. 40379/19 and 4894/22, the applicant notably alleges that his arguments in defence were not properly addressed; and

- the President of the Supreme Court lacked impartiality, due to the fact that he allegedly intervened in the CSM’s deliberations concerning the applicant’s rating further to the extraordinary inspection, even though he should have been prevented from doing so for personal reasons (application no. 4894/22).

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention applicable to the proceedings concerning the applicant’s rating following his professional appraisal (application no. 4894/22) and concerning his annual placement (application no. 50668/19)? In particular, did these proceedings concern a dispute over an arguable civil right under domestic law (see Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018)?

2. Concerning the disciplinary proceedings (application no. 40379/19) and concerning also, in the event of a positive answer to the previous question, the proceedings regarding the applicant’s appraisal and placement (applications nos. 4894/22 and 50668/19), did the applicant have a fair trial in the determination of his civil rights and obligations as required by Article 6 § 1 of the Convention? In particular:

(a) In view of its composition and of the statements made by its Vice-President, did the CSM comply in the instant cases with the requirements of an “independent and impartial tribunal” (see Denisov v. Ukraine [GC], cited above, §§ 60-65 and 68-71, and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 219 and 231-34, 1 December 2020)?

(b) In the negative, did the applicant have, before the Judicial Division of the Supreme Court, a fair trial in accordance with the requirements of Article 6 § 1 of the Convention (see, Ramos Nunes de Carvalho e Sá v. Portugal [GC], no. 55391/13 and 2 others, §§ 177, 191 and 214, 6 November 2018, and Marcolino de Jesus v. Portugal (dec.), no. 2388/15, §§ 46-51, 1 June 2021)? In particular:

(i) Was the extent of the review conducted by the Supreme Court sufficient as concerns the assessment of the relevant facts (namely the alleged difficulties for the applicant to work almost exclusively with electronic versions of case files given his visual impairment), evidence and law (all applications) and, specifically regarding the disciplinary proceedings (application no. 40379/19), the applicant’s misconduct and the proportionality of the imposed penalty (see Ramos Nunes de Carvalho e Sá , cited above, §§ 176-186)?

(ii) Was the lack of a public hearing before the Judicial Division of the Supreme Court in the disciplinary proceedings and in the proceedings concerning the rating of the applicant further to his professional appraisal (applications no. 40379/19 and 4894/22) compatible with the requirements of Article 6 § 1 of the Convention ( ibid ., §§ 187-192)?

(iii) Having regard to the alleged intervention of the President of the Supreme Court in the CSM’s deliberations, was the Supreme Court an “impartial tribunal” within the meaning of Article 6 § 1 of the Convention (application no. 4894/22)?

3. Concerning applications nos. 40379/19 and 4894/22, do the facts of the cases also raise an issue under Article 8 of the Convention? If so, was there an interference with the applicant’s right to respect for his private life and was such interference justified, in terms of the second paragraph of Article 8 (see, for example, Denisov , cited above, §§ 95-96, 100-102, 107, and 109-111)?

INFORMATION SOUGHT

Regarding application no. 4894/22, the Government is invited to clarify whether the President of the Supreme Court at the material time participated in the CSM’s deliberations concerning the applicant’s rating.

List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

1.

40379/19

Rodrigues Nunes v. Portugal

19/07/2019

Duarte Alberto RODRIGUES NUNES 1974 Torres Vedras Portuguese

2.

50668/19

18/09/2019

3.

4894/22

10/01/2022