CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2016

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sBAD0D18F { width:1.87pt; display:inline-block } .s202E1F75 { width:210.14pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sEAE3FFDB { margin-top:24pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FOURTH SECTION             CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL   (Applications nos. 55391/13, 57728/13 and 74041/13)             JUDGMENT   This version was rectified on 13 September 2016 in accordance with Rule   81 of the Rules of Court     STRASBOURG   21 June 2016   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 06/11/2018   This judgment may be subject to editorial revision. In the case of Ramos Nunes de Carvalho E Sá v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Vincent A. De Gaetano,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Egidijus Kūris,   Gabriele Kucsko-Stadlmayer, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 24 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 55391/13, 57728/13 and 74041/13) 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”) by a Portuguese national, Ms   Paula Cristina Ramos Nunes de Carvalho E Sá (“the applicant”), on 16   August 2013 and 8 November 2013. 2.     The applicant was represented by Mr J. Ribeiro, a lawyer practising in Porto. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney-General. 3.     The applicant alleged that three sets of disciplinary proceedings brought against her had been unfair, in breach of Article 6 of the Convention. 4.     On 20 March 2015 the Government were given notice of the complaints concerning the lack of access to a court, the lack of independence and impartiality of the Judicial Division of the Supreme Court of Justice, the lack of a public hearing and, in respect of applications nos. 55391/13 and 74041/13, the legal reclassification of the acts allegedly committed by the applicant and the fact that the circumstances of her involvement in the disciplinary offence that were taken into account differed from those set out in the judicial inspector’s submissions. The remaining complaints were declared inadmissible in accordance with Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1972 and lives in Barcelos. A.     Application no. 57728/13 6.     On 16 November 2010 the High Council of the Judiciary ( Conselho Superior da Magistratura , “the HCJ”) instituted disciplinary proceedings against the applicant, who at the time was a judge at the Vila Nova de Famalicão Court of First Instance (disciplinary case no. 333/10). 7.     On 13 March 2011 the judicial inspector F.M.J., who was in charge of the disciplinary proceedings, made his submissions, proposing that the applicant be ordered to pay twenty day-fines for having called another judicial inspector, Judge H.G., a “liar” during a telephone conversation, in breach of her duty of propriety. He also found that she had accused H.G., who was responsible for conducting her performance appraisal, of “inertia and lack of diligence”. 8.     On 29 March 2011 the applicant submitted a request to the HCJ for Judge F.M.J. to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had allegedly insulted. 9.     On an unspecified date the applicant filed her pleadings, submitting that the disciplinary proceedings should be declared null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard. 10.     On 10 April 2011 Judge F.M.J. requested leave from the HCJ to withdraw from the case, saying that he was the applicant’s “sworn enemy” following the accusations she had made against him in the context of her request for him to withdraw. 11.     On an unspecified date the HCJ granted Judge F.M.J.’s request and replaced him with a different inspector, Judge A.V.N. 12.     In his final report dated 23 September 2011 the newly appointed inspector Judge A.V.N. proposed that the applicant be ordered to pay fifteen day-fines for acting in breach of her duty of propriety. 13.     During the proceedings a witness called by the applicant gave evidence. He stated that he had been present during the conversation in question and that the applicant had not made the alleged remarks. 14.     In a decision of 10 January 2012 the HCJ, sitting in plenary, ordered the applicant to pay twenty day-fines, corresponding to twenty days without pay, for acting in breach of her duty of propriety. The HCJ found that it was not appropriate to suspend the fine in the applicant’s case. 15.     The formation of the HCJ which made the order against the applicant comprised fifteen members, of whom six were judges and nine were non ‑ judicial members. 16.     Four of the non-judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish in the present case, solely on the basis of H.G.’s statement, that the applicant had called him a “liar”, and finding that the remarks referring to his “inertia” and “lack of diligence” came within the scope of the applicant’s freedom of expression. 17.     On an unspecified date the applicant lodged an appeal on points of law with the Judicial Division of the Supreme Court of Justice ( Secção de Contencioso do Supremo Tribunal de Justiça ), requesting a review of the establishment of the facts. In support of her request the applicant argued that the penalty imposed on her had been disproportionate. 18.     On 21 March 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the HCJ’s decision, finding in particular that (i)     there was no doubt as to how the rules of European law were to be interpreted, with the result that the request to seek a preliminary ruling from the Court of Justice of the European Union should be rejected; (ii)     the Supreme Court of Justice’s task was not to review the facts of the case but simply to verify whether the establishment of the facts had been reasonable; (iii)     the applicant had made use of false testimony, a fact that should count against her in determining the penalty to be imposed; (iv)     the administrative authority handling the case had not been required to assess whether the fine should be suspended since the present case did not involve a custodial sentence; (v)     the accusations of “inertia” and “lack of diligence” which the applicant had made against the judicial inspector H.G. had insulted him, falling short of the minimum ethical standards expected from a judge, and had not come within the scope of freedom of expression. B.     Application no. 55391/13 19.     A second set of disciplinary proceedings (case no. 179/11) was opened against the applicant for use of false testimony in the earlier proceedings. 20.     On 26 May 2011 the judicial inspector, Judge A.D.P.R., filed submissions against the applicant, accusing her of breaching her duty of loyalty. He did not propose any specific penalty. 21.     On 14 July 2011 A.D.P.R. submitted his final report, proposing that the applicant be suspended from her duties for sixty days. 22.     On 19 July 2011 the applicant raised a plea of nullity with the judicial inspector in respect of this report, complaining that the penalty in question had not been proposed directly in his submissions. By order of 31   August 2011 A.D.P.R. rejected the applicant’s plea. 23.     By a decision of 11 October 2011 the HCJ, sitting in plenary, ordered that the applicant be suspended from her duties for 100 days for acting in breach of her duty of honesty. The HCJ considered that the applicant had given false testimony by asking a witness whom she had called in disciplinary case no. 330/10 to make false statements concerning the allegations against her. The HCJ established the facts taking into account the applicant’s mobile phone records, which had been obtained with her consent at the request of the judicial inspector F.M.J. 24.     The HCJ’s decision of 11 October 2011 was taken unanimously, with twelve of its seventeen members present. Of these, seven were judges, including the President of the HCJ, and five were non-judicial members [1] . 25.     On an unspecified date the applicant appealed to the Judicial Division of the Supreme Court of Justice against the decision of 11 October 2011. She disputed the facts, alleging that (i)     she had not been given a hearing on the subject of the proposed disciplinary penalty, as it had not been specified in the submissions; (ii)     the HCJ had altered the legal classification of the acts she had allegedly committed and the circumstances of her involvement in the disciplinary offence; (iii)     the Supreme Court of Justice had omitted to give reasons for its decision not to suspend enforcement of the penalty imposed; (iv)     the penalty imposed had been disproportionate.   26.     In a judgment of 26 June 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the decision of 11 October 2011 on the grounds that (i)     it had limited power to review the facts in so far as the appeal was an application to set aside rather than a full appeal on fact and law, regard being had to Article 3 § 1 of the Administrative Courts Code; (ii)     adequate reference had been made to the proposed penalty in the judicial inspector’s final report, of which the applicant had also been duly informed; (iii)     it had been open to the HCJ to increase the proposed penalty on the grounds that the applicant’s defence related to the facts of the case rather than the proposed penalty; (iv) with regard to the legal reclassification of the facts, the applicant’s rights had been safeguarded since the HCJ, without altering the facts, had adopted a different legal interpretation of the duties that had been breached; (v)     the HCJ, which was in charge of the disciplinary proceedings, had not been required to assess whether the applicant’s suspension from duty should be suspended, since no possible custodial sentence had been at stake in the proceedings and the HCJ had enjoyed a degree of discretion in that regard; (vi)     the penalty did not appear disproportionate; (vii)     in view of the false testimony given by one witness in an attempt to protect the applicant, the HCJ had been entitled, in imposing a penalty, to take into consideration the fact that the applicant had had recourse to a third party in order to tamper with the evidence in the file. C.     Application no. 74041/13 27.     A third set of disciplinary proceedings was instituted against the applicant (case no. 269/11) for allegedly asking the judicial inspector, Judge   F.M.J., in the course of a private conversation, not to take disciplinary action against the witness who had given evidence on her behalf in the first set of disciplinary proceedings. 28.     On 21 December 2011 the judicial inspector, Judge A.D.P.R, submitted his final report, proposing that the applicant be dismissed from her post for acting in breach of her duty of honesty. 29.     In her pleadings the applicant admitted having had a private conversation with the judicial inspector, but denied having made such a request to him. 30.     In a decision of 10 April 2012 the HCJ, sitting in plenary, ordered that the applicant be suspended from duty for 180 days for acting in breach of her duties of loyalty and propriety. 31.     The decision of 10 April 2012 was taken with fourteen of the seventeen members of the HCJ present. Of these, eight, including the President, were judges and six were non-judicial members. One of the judges issued a dissenting opinion to the effect that the facts as established, given their seriousness, warranted a penalty of early retirement or dismissal under section 95 of the Status of Judges Act (see paragraph 38 below). 32.     On an unspecified date the applicant appealed against that decision to the Judicial Division of the Supreme Court of Justice, requesting that a public hearing be held so that she could call a witness and present some documents. She complained of the legal reclassification of the facts, the fact that no reasons had been given for the refusal to suspend the penalty, and the disproportionate nature of her suspension from duty. 33.     In a judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice unanimously upheld the judgment of 10 April 2012, finding (i) that the applicant’s request for a public hearing should be refused on the ground that it was not the task of the Judicial Division to review the establishment of the facts. Instead, its task was confined by law to verifying that the HCJ had complied with the principles and rules governing the examination of evidence, and in particular that its decision regarding the establishment of the facts had been coherent and reasonable; (ii)     that the applicant had produced lengthy pleadings, making it unnecessary to hear legal arguments in oral proceedings; (iii)     that the request for evidence to be taken from the witness had been aimed at establishing the content of the draft decision in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision; (iv)     that the documents submitted by the applicant had exceeded the scope of the disciplinary proceedings; (v)     that the HCJ had considerable discretion regarding issues relating to the law on the determination of the disciplinary offence, which was defined in broad terms in the Status of Judges Act, and that the Supreme Court of Justice could alter that legal classification only in the event of a manifest or gross error concerning the seriousness in disciplinary terms of the applicant’s conduct; (vi)     that the Supreme Court of Justice could likewise not review the penalty imposed, but could only determine whether it had been appropriate to the offence and proportionate to it; (vii) that the Supreme Court of Justice was not required to rule on the refusal to suspend the disciplinary penalty imposed, as the proceedings did not fall within the sphere of criminal law and no custodial sentence had been applied. 34.     In its judgment of 8 May 2013 the Judicial Division of the Supreme Court of Justice found as follows: “Whether or not a public hearing should be held at an individual’s request in connection with a special administrative action to set aside an administrative act depends on the extent of the Supreme Court of Justice’s powers of review as regards the establishment of the facts. It is clear that a hearing devoted to the production of evidence and discussion of the facts would be useful and meaningful only if the Supreme Court had unlimited jurisdiction to review all the facts established by the impugned decision. If that were the case the Supreme Court of Justice would form its own opinion regarding the evidence and would examine new evidence, going well beyond a review of lawfulness. However, as is clear from the uniform case-law of the Judicial Division, this option is not available in the light of the Status of Judges Act.” 35.     On 30 September 2014 the High Council of the Judiciary, sitting in plenary, after grouping together the penalties imposed on the applicant ( cúmulo jurídico das penas disciplinares aplicadas ) in the three sets of disciplinary proceedings referred to above, unanimously imposed a single penalty of 240 days’ suspension from duty. 36.     The decision of 30 September 2014 was final and was taken with twelve of the seventeen members of the HCJ present. Of these, seven, including the President of the HCJ, were judges and five were non-judicial members. The disciplinary penalty of 240 days’ suspension from duty imposed on the applicant was enforced by the national authorities. II.   RELEVANT DOMESTIC LAW AND PRACTICE 37.     The Constitution of the Portuguese Republic provides that the seventeen-member High Council of the Judiciary is composed as follows: Article 218 “1.     The High Council of the Judiciary, presided over by the President of the Supreme Court of Justice, shall be composed of the following members: (a)     two members appointed by the President of the Republic; (b)     seven members elected by the Assembly of the Republic; (c)     seven judges elected by judges ... ...” The relevant parts of Regulation ( Regimento ) no.   1/2007 of 20 August 2007 on the Assembly of the Republic read as follows: Article 257 “The Assembly of the Republic shall interview the candidates for the following posts ... which it is responsible for filling: ... (e) seven members of the High Council of the Judiciary.” The relevant part of the Regulation governing the High Council of the Judiciary, published on 27 April 1993 in the Official Gazette ( Diário da República ), reads as follows: Article 12 “1.     Decisions shall be taken by majority vote, at a sitting attended by the majority of the statutory number of members of the High Council of the Judiciary. The President shall have a casting vote. ...” 38.     The relevant provisions of the Status of Judges Act (Law no. 21/85 of 30 July 1985) ( Estatuto dos Magistrados Judiciais) read as follows: Section 85 “1.     The following penalties may be imposed on judges: (a)     caution; (b)     fine; (c)     transfer; (d)     suspension from duty; (e)     extended leave; (f)     early retirement; (g)     dismissal.” Section 87 “Fines shall be expressed as day-fines, ranging from five to ninety days.” Section 89 “1.     Suspension from duty and extended leave shall entail complete removal from duties for the duration of the penalty. 2.     The period of suspension shall range from 20 to 240 days.” Section 95 “1.     The penalties of early retirement or dismissal shall be applicable where the judge concerned ... (b)     demonstrates a lack of honesty ...” Section 102 “The fine shall be applied by deducting from the judge’s salary the amount corresponding to the number of days imposed.” Section 110 “... 2.     ... [T]he disciplinary procedure shall be in writing. It shall not be subject to any formalities apart from a hearing with the option for the accused to arrange for his or her defence.” Section 111 “The High Council of the Judiciary shall be responsible for instituting disciplinary proceedings against judges.” Section 113 “1. Disciplinary proceedings shall remain confidential until the final decision has been taken ... 2. If the accused so requests, stating reasons, [the HCJ] may provide him or her with copies of the file, provided that this is relevant to the defence of his or her legitimate interests.” Section 115 “... 2.     The [judicial] inspector may refuse a request for witness evidence to be heard ... if he or she considers the evidence produced to be sufficient.” Section 120 “During the time allowed for preparation of the defence, the accused, his or her officially appointed representative or his or her lawyer may consult the file at the premises [of the HCJ].” Section 131 “The rules governing the status of civil servants ... shall apply in the alternative, as shall the Criminal Code, the Code of Criminal Procedure ...” Section 137   “1.     The High Council of the Judiciary shall be presided over by the President of the Supreme Court of Justice and shall comprise the following members: (a)     two appointed by the President of the Republic; (b)     seven elected by Parliament; (c)     seven elected by judges from among their number. 2.     Judges may not decline appointment to the High Council of the Judiciary.” Section 138   “1.     The Vice-President of the High Council of the Judiciary shall be the judge of the Supreme Court of Justice referred to in section 141(2) and shall be appointed on a full-time basis. ...” Section 141 “1.     The members referred to in sub-paragraph (c) of section 137(1) shall be elected from lists drawn up by a minimum of twenty electors. 2.     The lists shall include a deputy for each actual candidate. Each list must contain the names of one judge of the Supreme Court of Justice, two judges of the Court of Appeal and one judge from each judicial district. ...” Section 153 “1.     The President of the High Council of the Judiciary shall be responsible for: (a)     representing the High Council; (b)     performing the duties delegated to him or her by the High Council, with the option of sub-delegating to the Vice-President; (c)     swearing in the Vice-President, the judicial inspectors and the Secretary; (d)     directing and coordinating inspection services; (e)     drawing up circulars on the basis of the Secretary’s proposals; (f)     performing the other tasks assigned to him or her by law. 2.     The President may delegate to the Vice-President responsibility for swearing in the judicial inspectors and the Secretary, as well as the duties referred to in sub ‑ paragraphs (d) and (e) above.” Section 168 “1.     The decisions of the High Council of the Judiciary shall be open to appeal before the Supreme Court of Justice. 2.     For the purposes of the appeal referred to in the previous paragraph, the Supreme Court of Justice shall sit in a formation comprising the most senior Vice-President, who shall have a casting vote, and one judge from each of the Divisions, each appointed annually and in order of seniority. ... 5.     The grounds for appeal shall be those provided for by law in order to appeal against Government acts.” Section 178 “The rules governing appeals to the Supreme Administrative Court shall apply in the alternative. ...” 39.     Section 3(2) of the Civil Servants’ Disciplinary Act (Law no.   58/2008 of 9 September 2008) provides as follows: “... 2.     The general duties of civil servants shall comprise: (a)     a duty to pursue the public interest;   ... (d)     a duty to inform;   ... (g) a duty of loyalty; (h) a duty of propriety; ...” 40.     The aim of an appeal to the Judicial Division of the Supreme Court of Justice against a decision of the High Council of the Judiciary is to have the HCJ’s decision set aside. In a judgment of 15 December 2011 the Judicial Division of the Supreme Court of Justice held that such an appeal constitutes a “special administrative action” ( ação administrativa especial ) by which the person concerned seeks the setting-aside of the administrative act in question or a declaration that it is null and void or legally non ‑ existent. The Judicial Division found as follows:   “... As the judicial protection of citizens’ rights under Article 268 § 4 of the Constitution implies the setting-aside of any administrative act that is found to cause them harm, irrespective of what form it takes, it must comply with Article 3 of the Administrative and Tax Courts Code, which states that ‘in accordance with the principle of separation of powers, the administrative courts shall review the compatibility of the administrative authorities’ acts with the provisions and legal principles by which those authorities are bound and shall not conduct an assessment based on expediency’. While this new provision appears to extend the powers of the administrative courts compared with the earlier legislation, the fact that these courts now enjoy full jurisdiction should not blind us to the restrictions inherent in the protection of the administrative authorities’ discretionary powers. The HCJ’s powers do not come within the scope of review of the courts where [the disciplinary body] is ruling on conduct alleged to be incompatible with a judge’s duty of diligence. Taking a different approach but with the same outcome, the appeal body must, from the perspective of lawfulness in the broad sense, review compliance with Article 266 § 2 of the Constitution, according to which the administrative authorities must exercise their powers in accordance with, inter alia , the principle of proportionality, which in simple terms amounts to a prohibition on acting in excess of their powers ( proibição do excesso ).” In a judgment of 21 March 2013 the Supreme Court of Justice ruled as follows on the nature of the review of the HCJ’s disciplinary decisions: “An appeal may be lodged regarding the sufficiency of the evidence and of the establishment of the facts leading to the imposition of a penalty in disciplinary proceedings ... Nevertheless, the review of the sufficiency of the evidence in the context of such an appeal does not constitute a re-examination of the evidence but rather an assessment of the reasonableness and coherence of the relationship between the facts as established by the administrative entity and the evidence on which its decision was based ... The Supreme Court of Justice does not review the examination and assessment of the evidence. Its task is confined to assessing whether the evidence was identified, gathered and produced in a lawful manner. ... Its sole task, in the light of the evidence in the file, is to assess whether the final decision was reasonable and to verify whether the administrative entity examined the facts presented by the prosecution and the defence and whether its decision was duly reasoned. ...” III.     RELEVANT INTERNATIONAL MATERIALS 41.     The relevant parts of the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from 26   August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, read as follows: “... Discipline, suspension and removal 17.     A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. ... 19.     All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20.     Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.” 42.     The relevant extracts from Chapter 5 (“Liability”) of the European Charter on the statute for judges (Directorate of Legal Affairs of the Council of Europe, 8-10 July 1998, DAJ/DOC (98)23) read as follows:   “5.1.     The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.” 43.     The report on judicial appointments (CDL-AD(2007)028), adopted by the European Commission for Democracy through Law (the Venice Commission) at its 70th plenary session on 16 and 17 March 2007, reads as follows: “... 29.     ... Thus, a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualification taking into account possible conflicts of interest. ...” 44.     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: “... 6.     Judicial councils, or disciplinary courts, should have a decisive influence in disciplinary proceedings. The possibility of an appeal to a court against decisions of disciplinary bodies should be provided for. ...” 45.     The Venice Commission summarised its position as follows: “... 32.     To sum up, it is the Venice Commission’s view that it is an appropriate method for guaranteeing for the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges. Owing to the richness of legal culture in Europe, which is precious and should be safeguarded, there is no single model which applies to all countries. While respecting this variety of legal systems, the Venice Commission recommends that states which have not yet done so consider the establishment of an independent judicial council or similar body. In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges. With the exception of ex-officio members these judges should be elected or appointed by their peers. ...” 46.     The relevant parts of the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe on the draft Law on making changes to the Law on disciplinary Liability and disciplinary Proceedings of Judges of General Courts of Georgia, adopted by the Venice Commission at its 100th plenary session (10-11 October 2014), read as follows:   “... 26.     ... publicity should also be the guiding principle for later stages of disciplinary proceedings. ... the draft Article 30(4), according to witch [ sic ] ‘Sessions of the Disciplinary Board shall be closed’, is problematic. First, it is recommended that sessions, as a general rule, be held in public and be held in camera only exceptionally, at the request of the judge and in the circumstances prescribed by law. Secondly, it is not clear from the wording of Article 30(4) whether the judge’s request for publicity, as in the procedure before the High Council ..., constitutes an exception to the principle of confidentiality of sessions of the Disciplinary Board or only of information related to the hearings. ...” 47.     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:   “... 62.     First of all, the Venice Commission draws the attention of the authorities to its 2014 opinion on the draft amendments to the Macedonian Constitution. In this opinion the Venice Commission suggested changing a balance between judicial and lay members of the Judicial Council in favour of the latter (i.e. essentially to reduce the number of the judicial members), and supported the idea of removing the Minister of Justice and the President of the Supreme Court from the composition of the Council as ex officio members. ... 77.     The Venice Commission recalls its position in the Opinion on the draft law on the High Judicial and Prosecutorial Council (HJPC) of Bosnia and Herzegovina, where the Commission stressed that it is important to have ‘a balance between the need to protect the independence of the HJPC and the interest in ensuring its public control and in preventing corporatist management’. While in that opinion it was recommended that a majority of the HJPC members should be elected by the judiciary, the Venice Commission has never been in favor of systems where all members of the body were elected by the judges. Given that now the CDF [Council for Determination of Facts] has obtained very important powers in the sphere of the judges’ discipline, it is recommended that a significant proportion of its members are appointed by democratically elected bodies, most preferably by the Parliament with a qualified majority of votes. The latter solution would increase democratic accountability of the judiciary while providing sufficient protection against domination of this body by political appointees. ... 91.     Furthermore, Article 54 § 2 allows considerable scope for deciding not to hold disciplinary proceedings in public on the basis of urgency or confidentiality, or in order to respect the ‘dignity and reputation of the judge’. Indeed, it could be argued that such considerations apply in every disciplinary hearing. The interest of the public being properly informed about the developments of the disciplinary proceedings in many cases shall outweigh the private interest of the judge to keep certain details confidential. The law must make clear that the ‘privacy interest’ of a judge does not have precedence in all circumstances, and that the Judicial Council will conduct a balancing exercise when deciding on the request of a judge to have a closed hearing. ... 96.     It is not entirely clear how the members of the Appeals Council are selected. It appears that the Appeals Council is formed within the Supreme Court on an ad hoc basis in each case separately and composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court to which the applicant belonged. In the opinion of the Venice Commission, it is very important that the composition of the appellate judicial body be predetermined by law. Normally the disciplinary decisions should be reviewed by a judicial impartial body (Supreme Court of Cassation, Supreme Administrative Court, United Civil Panels of the Court of Cassation etc.), which decides with all the guarantees of the judicial proceeding. Hence, entrusting the power to a permanent court of law (instead of an ad hoc body) would probably be a preferable solution in this case. ...” 48.     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:   “... Chapter IV – Councils for the judiciary 26.     Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system. 27.     Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. 28.     Councils for the judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions ... Chapter VI – Status of the judge Selection and career 46.     The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. ... Chapter VII – Duties and responsibilities ... Liability and disciplinary proceedings ... 69.     Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate. ...” 49.     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:   “13.     To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.” 50.     Recommendation no. 6 of the evaluation report on Portugal by the Group of States against Corruption (GRECO), adopted on 4   December 2015, reads as follows:   “... vi. that i) the role of the judicial councils as guarantors of the independence of judges and of the judiciary is strengthened, in particular, by providing in law that not less than half their members are judges elected by their peers; ...” THE LAW I.     JOINDER OF THE APPLICATIONS 51.     Given their factual and legal similarity, the Court decides to join these applications in accordance with Rule 42 § 1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52.     The applicant alleged a violation of her right to an independent and impartial tribunal, her right to a review of the facts established by the High Council of the Judiciary and her right to a public hearing, as guaranteed by Article 6 of the Convention. She also complained that in view of the reclassification of the facts by the High Council of the Judiciary she had not been informed in detail of the accusation against her and had accordingly not had adequate time and facilities for the preparation of her defence. Article 6 of the Convention provides: “1.     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...” A.     Admissibility 53.     With regard to the applicability of Article 6 of the Convention under its civil head, the Government submitted that the applicant did not have an arguable claim in respect of a civil right. As to the fine and the suspension from duty, the disciplinary sanctions imposed on the applicant had not permanently prevented her from carrying on her occupation. With regard to the applicability of Article 6 under its criminal head, the Government noted that the offences allegedly committed by the applicant constituted professional misconduct. Accordingly, the sanctions imposed on her on completion of the disciplinary proceedings were “classic” disciplinary sanctions which lacked the degree of seriousness of a criminal sanction. 54.     The Government inferred from this that Article 6 was not applicable in the instant case, under either its civil or its criminal head. 55.     The applicant disagreed. In her view, the applicability of Article 6 of the Convention under its civil head was not confined to sanctions akin to dismissal. The penalties imposed on her in the present case had deprived her of her salary and had temporarily prevented her from working. Moreover, it was open to her under domestic law to appeal against those penalties to the Supreme Court of Justice. With regard to the criminal limb of Article 6 the applicant submitted that, irrespective of the classification of the offence under domestic law, the decisive factor for the applicability of that provision was the severity of the sanction liable to be imposed. In view of the fact that she had faced possible dismissal, and given the severity of the single penalty of 240 days’ suspension from duty, the criminal nature of the accusation against her was well established. 56.     The applicant therefore concluded that all the criteria for the applicability of Article 6, under both its civil and criminal heads, were satisfied in the instant case. 1.     Application of Article 6 § 1 under its civil head 57.     With reference first of all to the applicability of Article 6 to the judicial proceedings in question, the Court reiterates that this provision applies under its civil head to a dispute (“ contestation ” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Furthermore, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois   v.   Luxembourg [GC], no. 37575/04, § 90, ECHR 2012). 58.     In the present case the proceedings in question concerned a dispute raised by the applicant in respect of the decisions of the HCJ imposing sanctions on her following three sets of disciplinary proceedings. With regard first of all to the existence of a “right”, the Court accepts that the proceedings in question were 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 HCJ if the domestic courts had allowed her appeals. 59.     As to the “civil” nature of such a right for the purposes of Article 6, the Court reiterates that, according to its case-law, disputes between the State and its civil servants fall in principle within the scope of Article 6, except where two cumulative conditions are met. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v.   Finland [GC], no. 63235/00, § 62, ECHR 2007-IV). 60.     In the instant case it cannot but be observed that the first of these conditions has not been met, as domestic law makes provision for persons with an interest in bringing proceedings to lodge an appeal with the Supreme Court of Justice challenging the lawfulness of a decision by the HCJ to impose a disciplinary penalty on a judge (see paragraph 42 above). That option was applicable in the case of the applicant, who in fact lodged such an appeal under section 168 of Law no. 21/85 of 30 July 1985. The first condition of the Vilho Eskelinen test is therefore not satisfied and, according, Article 6 is applicable under its civil head (compare Olujić v.   Croatia , no. 22330/05, §§ 31-45, 5 February 2009, and Oleksandr Volkov v. Ukraine , no. 21722/11, § 91, ECHR 2013). 61.     That provision therefore required that the applicant should have access to a court ruling on the dispute concerning her civil rights and obligations in accordance with the guarantees of Article 6 § 1. Nevertheless, the Court observes that its conclusion concerning the applicability of Article 6 is without prejudice to the question of how the various guarantees of that Article (in particular regarding the scope of review required of the national courts) should be applied in disputes like the present one concerning civil servants (see Vilho Eskelinen and Others , cited above, § 64). 2.     Application of Article 6 § 1 under its criminal head 62.     In view of the applicability of Article 6 § 1 of the Convention under its civil head, the Court does not consider it necessary to examine whether that provision is applicable in the present case under its criminal head. Accordingly, it will not examine the complaints made under that head. 3.     Conclusion 63.     The Court notes that the complaints concerning the independence and impartiality of the judicial bodies, the scope of the review conducted by the Supreme Court of Justice and the lack of a public hearing are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that these complaints are not inadmissible on any other grounds. It therefore declares them admissible. B.     Merits 1.     The applicant’s submissions 64.     The applicant submitted at the outset that the composition of the High Council of the Judiciary, presided over by the President of the Supreme Court of Justice, did not satisfy the requirements of an “independent tribunal”. Under Article 218 § 1 of the Constitution, two of the members of the HCJ were appointed by the President of the Republic, seven were elected by the Assembly of the Republic and only eight of its seventeen members were judges, including the President of the Supreme Court of Justice and of the High Council of the Judiciary. 65.     As to the scope of the review conducted by the Supreme Court of Justice, the Judicial Division of that Cou