FOURTH SECTION

DECISION

Application no. 60667/19 Joana SALINAS CALADO DO CARMO VAZ against Portugal

The European Court of Human Rights (Fourth Section), sitting on 19 September 2023 as a Committee composed of:

Tim Eicke , President , Branko Lubarda, Ana Maria Guerra Martins , judges ,

and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 60667/19) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 November 2019 by a Portuguese national, Ms Joana Salinas Calado do Carmo Vaz (“the applicant”), who was born in 1954, lives in Matosinhos and was represented by Mr A. Cardoso, a lawyer practising in Matosinhos;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. At the material time, the applicant was a judge at the Oporto Court of Appeal.

2. On 27 May 2014, following the opening of a criminal investigation in respect of her for allegedly using the funds of an institution of which she was head to pay lawyers to draft the judgments that had been allocated to her, the High Council of the Judiciary (hereinafter “the CSM”) decided to initiate disciplinary proceedings against the applicant.

3. On 5 July 2014 the CSM drew up the indictment against the applicant, finding that she had breached the duty of care and the duty to pursue the public interest by which she was bound as a judge. The applicant, after being given notice of the indictment, filed defence pleadings.

4. On 8 July 2014 the applicant was provisionally suspended from office.

5 . On 12 December 2014 the judicial investigator in charge of the case in the disciplinary proceedings submitted his final report. He found that the facts at issue had been established and that therefore the applicant had acted in breach of her duties of care and of pursuing the public interest. By way of a penalty, he proposed that she be dismissed.

6. On 9 January 2015 the applicant’s provisional suspension was extended.

7. On 3 March 2015 the CSM decided to suspend the disciplinary proceedings against the applicant until a final judgment was delivered in the pending criminal proceedings against her. It further decided to extend the applicant’s provisional suspension.

8. On 7 January 2016, by a final judgment of the Supreme Court in the criminal proceedings brought against her, the applicant was convicted of embezzlement and sentenced to two years and six months’ imprisonment, suspended for the same period of time, under condition of making a payment of 5,000 euros to a charitable institution, within one year.

9. On 12 September 2017, sitting in plenary session, the CSM decided to dismiss the applicant from office. It found that, by her conduct, the applicant had breached the duty to pursue the public interest and the duties of care, loyalty, independence, discretion, honesty, dignity, decorum, rectitude, probity, prudence, sobriety and prestige by which she was bound to as a judge. The applicant lodged an appeal against that decision with the Judicial Division of the Supreme Court.

10 . On 14 April 2018 the Supreme Court dismissed her appeal.

11 . The applicant lodged a further appeal with the Constitutional Court, arguing that by the time the CSM had taken its decision, the disciplinary proceedings had already been time-barred. In particular, she challenged the constitutionality of the interpretation of section 178(6) of the Civil Service Employment Act according to which while criminal proceedings were pending, any disciplinary proceedings were automatically suspended, even though criminal and disciplinary proceedings were independent of each other as provided in section 83 of the Status of Judges Act. The applicant added that such an interpretation would breach the constitutional principle of legal certainty.

12 . On 15 May 2019 the constitutional appeal was rejected by way of a summary decision of the Constitutional Court, sitting as a single judge, on the grounds that the appeal did not concern the unconstitutionality of a specific legal provision or its interpretation, and also in view of the fact that the legal provision at issue had not been applied in the present case.

13 . Under Article 6 of the Convention, the applicant complained of the unfairness of the disciplinary proceedings brought against her in that she had been dismissed while the disciplinary proceedings were already time-barred.

14 . Relying on Article 13 of the Convention, she complained of a breach of her right to an effective remedy on account of the lack of impartiality of the judges of the Supreme Court and of the Constitutional Court which had ruled on her case, owing to the fact they were under the authority of the CSM.

15. Relying on Article 41 of the Convention, the applicant also complained of the effects of the dismissal on her private life, in particular her reputation and financial situation.

THE COURT’S ASSESSMENT

16. Regarding the complaint concerning the unfairness of the disciplinary proceedings (see paragraph 13 above), the Court notes that the appeal lodged by the applicant with the Constitutional Court was rejected by way of a summary decision of 15 May 2019 on the grounds that the appeal did not concern the unconstitutionality of a specific legal provision and also in view of the fact that the legal provision at issue had not been applied in the present case (see paragraphs 11-12 above).

17. The relevant principles that should be taken into consideration were defined in Dos Santos Calado and Others v. Portugal (nos. 55997/14 and 3 others, §§ 84-85, 31 March 2020) and Traina v. Portugal ((dec.), no. 59431/11, §§ 23 and 28-29, 21 March 2017).

18. In the present case, assuming that an appeal to the Constitutional Court was a remedy that had to be used for the purposes of Article 35 § 1 of the Convention (see Dos Santos Calado and Others , cited above, § 85), the Court notes that the applicant failed to lodge it properly. In particular, it appears that the relevant legal provision had not been applied in the present case (ibid., §§ 78 and 80).

19. This finding leads to the conclusion that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention, since the applicant failed to raise before the competent domestic authorities, in accordance with the applicable procedural requirements, the complaint that she made to the Court. This complaint must accordingly be rejected pursuant to Article 35 § 4 of the Convention.

20. As regards the complaint raised by the applicant under Article 13 of the Convention concerning the lack of impartiality of the judges of the Supreme Court and the Constitutional Court (see paragraph 14 above), the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine it under Article 6 of the Convention.

21. The Court reiterates the findings it made in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, § 157-65, 6 November 2018). Similarly, in the instant case it appears that the applicant has not adduced new elements enabling the Court to reach a different conclusion. Accordingly, this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 (a) and § 4 of the Convention.

22. As to the complaint raised by the applicant under Article 41 of the Convention (see paragraph 5 above), which is to be examined under Article 8 of the Convention (see Denisov v. Ukraine [GC], no. 76639/11, §§ 115-17, 25 September 2018), the Court notes that the applicant did not raise these questions before the Constitutional Court (see paragraph 11 above); thus, the final decision within the meaning of Article 35 § 1 of the Convention, as applicable before the entry into force of Article 4 of Protocol No. 15, is the Supreme Court’s judgment of 14 April 2018 (see paragraph 10 above), which was taken more than six months before the date on which the present application was lodged with the Court (14 November 2019). Accordingly, this complaint has been submitted out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2023.

Crina Kaufman Tim Eicke Acting Deputy Registrar President