CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 6 novembre 2018

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PORTUGAL   (Applications nos. 55391/13, 57728/13 and 74041/13)                             JUDGMENT         STRASBOURG   6 November 2018       This judgment is final but it may be subject to editorial revision. In the case of Ramos Nunes de Carvalho e Sá v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President ,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Helena Jäderblom,   Işıl Karakaş,   Nebojša Vučinić,   Paulo Pinto de Albuquerque,   Erik Møse,   Ksenija Turković,   Dmitry Dedov,   Branko Lubarda,   Carlo Ranzoni,   Stéphanie Mourou-Vikström,   Alena Poláčková,   Pauliine Koskelo,   Lәtif Hüseynov, judges, and Françoise Elens-Passos, Deputy Registrar, Having deliberated in private on 22 March 2017, 7 February and 4   July 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned 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 and 8 November 2013. 2.     The applicant was represented by Mr J. Ribeiro, a lawyer practising in Oporto. For the purposes of the Grand Chamber hearing, the applicant was given leave by the President of the Court to present her own case (Rules   71 and 36 §§ 2 and 3 of the Rules of Court). The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho. 3.     The applicant alleged in particular, under Article 6 § 1 of the Convention, a breach of her right of access to an independent and impartial tribunal with full jurisdiction and to a public hearing. 4.     Under Rule 52 § 1 of the Rules of Court, the applications were allocated to the First Section of the Court and subsequently to the Fourth Section. On 21 June 2016 a Chamber of the Fourth Section 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, decided to join the applications and declared them admissible. It further held unanimously that it was not necessary to examine the complaints to the effect that the applicant had not been informed of the nature and cause of the accusation against her and had not had adequate time and facilities for the preparation of her defence, and found that there had been a violation of Article 6 of the Convention. The partly dissenting opinion of Judge Kūris was annexed to the judgment. 5.     On 13 September 2016 the judgment thus adopted was rectified at the Government’s request, under Rule 81. 6.     On 20 September 2016 the Government requested the referral of the case to the Grand Chamber under Article 43 of the Convention. On 17   October 2016 the panel of the Grand Chamber granted that request. 7.     The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24. 8.     The applicant and the Government each filed observations on the admissibility and merits of the case (Rule 59 § 1). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 22 March 2017 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   M.F. da Graça Carvalho, Deputy Attorney-General,   Agent, Mr   R. Dias José, judge of the Administrative Supreme Court, Ms   A. Garcia Marques, lawyer in the Agent’s Office,   Advisers; (b)     for the applicant Ms   P. Ramos Nunes de Carvalho e Sá,   Applicant, Mr   J. Ribeiro, lawyer,   Counsel, Mr   P. Rodrigues, interpreter,   Adviser.   The Court heard addresses by Ms Ramos Nunes de Carvalho e Sá and Ms   da Graça Carvalho, and their replies to judges’ questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1972 and lives in Barcelos. 11.     The High Council of the Judiciary ( Conselho Superior da Magistratura , hereafter “the CSM”) decided to open three sets of disciplinary proceedings against the applicant, who at the time was a judge at the Vila Nova de Famalicão Court of First Instance. A.     Proceedings concerning insulting remarks about judicial inspector H.G. (application no. 57728/13) 12.     On 8 October 2009 Judge H.G. was instructed by the CSM, in his capacity as a judicial inspector ( inspetor judicial ), to conduct the applicant’s performance appraisal. As the applicant was due to start maternity leave at the end of June 2010, she asked him to carry out the appraisal before her departure so that she would be in a position to apply for vacant posts in 2010 ( movimento judicial ). On 13 September 2010, while she was on maternity leave, the applicant telephoned H.G. to ask him again to conduct her performance appraisal, which had still not been carried out. The following day she sent a request to the same effect to the CSM. The same day, H.G. asked to be relieved of responsibility for the applicant’s appraisal, stating that she had made disrespectful remarks about him during the telephone conversation. 1.     Disciplinary proceedings before the CSM 13.     On 16 November 2010 the Permanent Council of the CSM decided to open disciplinary proceedings against the applicant (disciplinary case no.   333/10) for insulting a judicial inspector. 14.     On 12 January 2011 the judicial investigator ( juiz instrutor ) Judge F.M.J. was placed in charge of the investigation. The applicant was represented by a lawyer. 15.     On 27 January 2011 the judicial investigator informed the CSM that he was about to begin the investigation in accordance with section 114(3) of the Status of Judges Act (Law no. 21/85 of 30 July 1985 – hereafter “the Act”). The applicant was also informed. 16.     On 8 February 2011, on the basis of the evidence heard from H.G., Judge F.M.J. drew up an indictment against the applicant, of which she was notified on 9 February 2011. The indictment stated, in particular, that in a letter to the CSM dated 9 June 2010 the applicant had accused the judicial inspector H.G. of “inertia and lack of diligence” and that she had called H.G. a “liar” during the telephone conversation of 13 September 2010. 17.     On 11 February 2011 the applicant appealed against the indictment, arguing that it was null and void because she had not given evidence before the judicial investigator. In an order of 19 February 2011 the judicial investigator allowed the appeal. He set aside all the steps that had been taken in the investigation and summoned Judge H.G. and the applicant to appear before him to give evidence. They gave evidence on 22   and   23   February   2011 respectively. 18.     During the investigation various documents were examined and witnesses were questioned. One witness called by the applicant stated that he had been present during the telephone conversation in question and had not heard the applicant make the alleged remarks. However, he retracted his statement on 21 March 2011. 19 .     On 13 March 2011 the judicial investigator drew up a fresh indictment against the applicant, again finding the facts set out in the previous indictment to be established. Taking the view that the applicant had acted in breach of her duty of propriety, he proposed a penalty of twenty day-fines. In accordance with section 118 of the Act, the applicant was given notice of the indictment and had fifteen days to present her defence. As required by section   120 of the Act, the indictment specified where the applicant or her lawyer could consult her disciplinary file. 20.     On 29 March 2011 the applicant submitted a request to the CSM 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 was accused of insulting. 21.     On 30 March 2011 the applicant filed her defence pleadings, contesting the facts and submitting that the disciplinary proceedings were null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard. With regard to the breach of the principle of equality she observed that she had lodged a complaint with the CSM against the judicial inspector H.G. for making false accusations and that, in an order of 15   February   2011, it had been decided not to institute proceedings in that regard, despite the fact that the complaint concerned the same facts giving rise to the current disciplinary proceedings against her. As to the facts, the applicant stated as follows: (a)     that she had indeed telephoned the judicial inspector H.G. on 13   September 2010 to ask him to carry out her appraisal while she was on maternity leave. She had explained that she wished to be able to apply for the vacancies arising in 2011 since she had been unable to apply the previous year because her appraisal had not been carried out before she left on maternity leave; (b)     that the inspector had expressed surprise, claiming that she had previously told him that she did not wish her appraisal to be carried out while she was on maternity leave; (c)     that he had then asked her to submit her request in writing given that they were unable to agree; (d)     that she had replied that it was he who had failed to keep his word hitherto; and (e)     that she had at no point accused him of being a liar. She attached some items of evidence and requested that a further witness be examined. 22.     On 10 April 2011 Judge F.M.J. requested leave from the CSM to stand down 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 be withdrawn. 23.     In an order dated 3 May 2011 the Permanent Council of the CSM granted Judge F.M.J.’s request to stand down and replaced him with another judicial investigator, Judge A.V.N. 24.     In his final report dated 23 September 2011 Judge A.V.N. proposed that the applicant be ordered to pay fifteen day-fines for acting in breach of her duty of propriety. 25 .     In a decision of 10 January 2012 the CSM, sitting in plenary session, found the truth of H.G.’s allegations to be established. It found that the applicant had acted in breach of her duty of propriety and that, given the seriousness of her remarks, a heavy penalty should be imposed. Accordingly, it ordered her to pay twenty day-fines, corresponding to twenty days without pay. 26.     The decision of 10 January 2012 was adopted by a majority of the fifteen-member formation, comprising six judges and nine non-judicial members. Four of the non-judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish, 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. 2.     Supreme Court proceedings 27.     The applicant lodged an appeal against the CSM’s decision with the Judicial Division of the Supreme Court ( Secção do Contencioso administrativo do Supremo Tribunal de Justiça ). She submitted in particular: (a)     that the CSM had not taken into consideration a number of facts on which she had relied in her defence and which were corroborated by various items of evidence; (b)     that in its establishment of the facts the CSM had made no reference to the intentional element of the disciplinary offence; (c)     that the disciplinary penalty was based on insufficient or irrelevant evidence; (d)     that the conduct complained of had not amounted to a disciplinary offence, that she had simply been exercising a legitimate right and that the authorities had disregarded the principle of administration in good faith; (e)     that the CSM had failed to give reasons for its decision not to suspend enforcement of the penalty; and (f)     that the penalty imposed had been disproportionate to the acts of which she had been accused. 28.     In a final judgment of 21 March 2013 the Judicial Division of the Supreme Court unanimously dismissed the appeal. 29 .     The Supreme Court began by emphasising that appeals against disciplinary decisions of the CSM were not full appeals on fact and law but concerned only the lawfulness of the decisions in question. It went on to find as follows: “Effective protection by the courts of citizens’ legally protected rights and interests, which is guaranteed by Article 268 § 4 of the Constitution, affords them, in the specific context of the decisions of the CSM in disciplinary proceedings, the right to a review of lawfulness rather than a review by a body with full jurisdiction. Hence, any appeal will be aimed at obtaining a declaration that the impugned act is null and void or non-existent, rather than a fresh assessment of the criteria employed by the administrative body or of the question whether those criteria were applied correctly, with particular regard to the establishment of the key facts ... The position taken by the Judicial Division is that, although the Supreme Court has the power to assess and sanction a failure to take necessary and relevant steps in disciplinary proceedings, it cannot take the place of the competent administrative body – the CSM – in gathering the evidence ( aquisição da matéria instrutória ) or establishing the key facts. Its task is solely to set aside the impugned decision, if appropriate, in order for that body to carry out or order a particular investigative measure in the proceedings and re ‑ examine the case accordingly ... According to the case-law of the Supreme Court regarding administrative cases, it may not reassess the evidence examined by the authority [whose decision is contested]. Its sole task is to ascertain, on the basis of the available evidence, whether the establishment of the facts was reasonable, and hence to verify whether the authority [whose decision is contested] examined (or re-examined) the facts set forth in the indictment and those submitted by the defence, [and whether it] gave adequate reasons for the establishment [of the facts], which the Supreme Court has no option but to uphold ... According to the Supreme Court’s case-law, an appeal may relate to the sufficiency or otherwise of the evidence and facts on which the decision to impose a disciplinary penalty was based. However, ascertaining whether these were sufficient does not entail reassessing the factual evidence or drawing a new and different conclusion from the available evidence. The Supreme Court may only assess the reasonable and coherent nature of the relationship between the facts as established by the authority [whose decision is contested] and the evidence on which its decision was based ... The extent of the Supreme Court’s review of the facts is confined to ascertaining that the assessment [made by the authority whose decision is contested] was not defective; it cannot re-examine the evidence relied on and deliver a fresh judgment on the basis of that evidence. In other words, it is not the task of the Supreme Court to deliver a fresh judgment after assessing the evidence, but solely to verify whether the evidence was valid and lawful and whether the facts were reasonably and coherently established. It must therefore, against this background, examine any contradictions, inconsistencies and insufficiency in the evidence and any manifest errors in the assessment thereof, in so far as these defects are apparent ...” 30 .     In the case at hand the Supreme Court dismissed the applicant’s arguments regarding the establishment of the facts, finding as follows: “There were no errors in the assessment of the facts on which the decision [by the CSM] was based, or in the interpretation of those facts. It is clear from the reasoning that the evidence was examined in a coherent and logical manner. The reasoning was based on facts which, once established in accordance with the principle of the free assessment of evidence, do not preclude the assessment made in the present case ... [the assessment of the facts] was not arbitrary, haphazard, obscure or incoherent.” 31.     The Supreme Court also dismissed the remainder of the applicant’s arguments, to the effect that the conduct complained of did not amount to a disciplinary offence, that she had simply been exercising a legitimate right and that the authorities had disregarded the principle of administration in good faith. The Supreme Court therefore upheld the reasoning leading to the CSM’s finding that the applicant had acted in breach of her duty of propriety. 32.     With regard to the penalty imposed, the Supreme Court found: (a)     that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and (b)     that the penalty had not been disproportionate. The Supreme Court ruled as follows: “In the context of disciplinary proceedings, it is for the CSM to decide on the severity of the penalty to be imposed, where it is variable in the abstract. It is not the task of the Supreme Court to reconsider this decision, but merely to verify whether it was appropriate to the offence committed and whether the penalty imposed was proportionate to that offence ... The determination of the penalty falls within what is known as the technical and administrative [margin of] discretion, which is not subject to judicial scrutiny except in cases of gross and manifest errors and particularly of failure to comply with the principle of proportionality as regards the appropriateness of the penalty ... Having regard to the foregoing, and since it has been established that a fine, set at twenty days, should be imposed by way of a penalty, there is no basis for finding that the sanction imposed is disproportionate to the disciplinary offence or to the relevant legislative framework.” B.     Proceedings concerning the use of false testimony (application no.   55391/13) 1.     Disciplinary proceedings before the CSM 33.     On 29 March 2011, following information received from the judicial investigator F.M.J., the Permanent Council of the CSM decided to open a second set of disciplinary proceedings against the applicant (case no.   179/11) for the use of false testimony in the first set of disciplinary proceedings. The investigation also concerned the witness in question. 34.     On an unspecified date Judge R. was placed in charge of the investigation as judicial investigator. 35.     During the investigation evidence was heard from the applicant, F.M.J., the applicant’s co-accused and one witness. 36.     On 26 May 2011 the judicial investigator drew up the indictment against the applicant. He found that she had acted in breach of her duty of loyalty, but did not specify in what manner she had been involved in committing the offence. Likewise, he did not propose any penalty, taking the view that the applicant’s defence arguments should first be examined. He noted in that regard that section 117(1) of the Act, concerning the indictment, did not require a penalty to be proposed at this stage. 37 .     The applicant was given notice of the indictment and filed defence pleadings. She contested the allegations, submitted documents in support of her arguments and called two witnesses in accordance with section 121 of the Act. She also submitted that she could not be prosecuted as an accomplice to the offence as the law made no provision for that possibility. 38.     On 14 July 2011 the judicial investigator submitted his final report under section 122 of the Act. He found that the facts in question had been established and that the applicant had therefore acted in breach of her duty of loyalty. He specified in that connection that she should be regarded as the co-perpetrator of the offence, given that in disciplinary case no. 333/10 she had knowingly called a witness who had not been present during the conversation in question. Accordingly, he proposed by way of a penalty that the applicant be suspended from duty for sixty days. 39.     On 19 July 2011 the applicant lodged a complaint against this report with the judicial investigator. She argued, in particular, that the indictment had not proposed this heavy penalty and that her defence rights had therefore been infringed. She requested that the indictment be set aside and that she be given additional time to prepare her defence. 40.     In an order of 31 August 2011 the judicial investigator dismissed the complaint on the grounds, in particular, that the applicant had not raised a plea of nullity in respect of the indictment in her defence pleadings (see paragraph   37 above). 41.     On 11 October 2011 the CSM, sitting in plenary session, gave its decision, which was adopted unanimously by a twelve-member formation comprising seven judges, including the President of the CSM, and five non ‑ judicial members. It found that the applicant had acted in breach of her duty of honesty, which it regarded as “a more practical manifestation of the wider duty of loyalty referred to in the indictment” and which should govern judges’ personal and professional conduct not just in the strict performance of their duties but also in their relations with society. The CSM noted that in disciplinary case no. 333/10 the applicant had knowingly agreed to use testimony containing false statements concerning the acts of which she had been accused. It observed that those acts had been established on the basis of calls made by the applicant on her mobile phone, the records of which had been obtained with her consent at the request of the judicial investigator F.M.J. In view of the scope of the duty of honesty, which it considered to be a personal duty, the CSM found that the applicant had been the perpetrator of the acts in question, rather than the co-perpetrator as indicated in the judicial investigator’s final report, and imposed a disciplinary penalty of 100 days’ suspension from duty. Noting that the indictment had conformed to the requirements of section 117(1) of the Act, it dismissed the applicant’s argument that it was null and void. The CSM also held that the applicant’s defence rights had not been infringed given that, after examining the evidence, the judicial investigator had set out in his final report the facts he considered established and their legal classification, and had proposed a specific penalty under section 122 of the Act. 2.     Supreme Court proceedings 42.     On an unspecified date the applicant appealed to the Judicial Division of the Supreme Court against the decision of 11 October 2011. She submitted that: (a)     there had been errors in the establishment of the facts. In particular, she had not been acting in the performance of her duties, and a new witness questioned during the investigation had confirmed that she had not made the alleged remarks in the course of the conversation in question, during which that witness had indeed been present; (b)     her conduct had not amounted to a disciplinary offence. In the alternative, she submitted that it had been driven by “necessity”, in view of the avowed hostility of the judicial investigator F.M.J. towards her; (c)     she had not been questioned about the planned disciplinary penalty, which had not been proposed in the indictment; (d)     the CSM had altered the legal classification of the facts and the manner of her involvement in the disciplinary offence, in breach of her defence rights, including her right to be heard; (e)     the CSM had failed to give reasons for its decision not to suspend enforcement of the penalty; and (f)     the penalty imposed had been disproportionate to the facts. 43.     On 23 January 2012 the CSM submitted its memorial in reply, which was notified to the applicant on 27 January 2012. 44.     In a final judgment of 26 June 2013 the Judicial Division of the Supreme Court unanimously dismissed the applicant’s appeal. 45 .     The Supreme Court began by defining its jurisdiction in the following terms: “The longest-established guarantee is the right to appeal or to challenge administrative acts; [this guarantee] is aimed at ... individuals’ legally protected rights and interests, and generally encompasses the possibility of applying to have an administrative act set aside or declared null and void or non-existent, on grounds of unlawfulness. Hence, Article 50 § 1 of the Administrative Courts Code concerning appeals against administrative acts provides that ‘an appeal against an administrative act is aimed at obtaining the setting-aside of the act in question or a declaration that it is null and void or non ‑ existent’.   Even though, since 1997, the Constitution no longer refers to ‘unlawfulness’ as a ground for appealing against an administrative act, this should not be construed to mean that the courts now have powers to examine the ‘well-foundedness’ of the administrative action: the unlawful nature of the act stems from the infringement of the individual’s legally protected rights and legitimate interests [1] . Under the Constitution, the administrative courts have jurisdiction to determine disputes arising in legal relationships in the administrative sphere. Article   212   §   3 provides that ‘the administrative and fiscal courts shall rule on actions and appeals aimed at determining disputes arising out of legal relationships in the administrative and fiscal spheres’. However, Article 3 § 1 of the Administrative Courts Code provides for one limitation [2] , according to which ‘within the limits imposed by the principle of separation of powers, the administrative courts shall examine compliance with the legal rules and principles by which the administrative authorities are bound, but shall not examine the appropriateness or expediency ( conveniência ou opportunidade ) of their actions’. Article 3 § 1 of the Administrative Courts Code makes very clear that a degree of discretion is left to the authorities, an administrative sphere of activity that is not governed by legal rules or principles and falls outside the scope of the administrative courts’ scrutiny. ... Accordingly, in view of this discretion on the part of the authorities, the courts’ scrutiny of administrative activity must be confined to examining whether or not the authorities have complied with the legal principles by which they are bound. In principle, this will entail a negative review (proceedings to set aside rather than a full review), in which the court may not substitute its assessment for that of the administrative authorities with regard to elements falling within the scope of that discretion.” 46.     With regard to the establishment of the facts by the CSM, the Supreme Court pointed to its case-law according to which judicial review could encompass only the insufficiency of the evidence and the facts in disciplinary proceedings; this did not entail conducting a fresh assessment of the available evidence or reaching a new and different conclusion on the basis of that evidence. Furthermore, the Supreme Court could not remedy possible omissions in the disciplinary proceedings. In the event of such an omission it was empowered solely to set aside the disciplinary body’s decision and refer the case back to that body for any further steps in the investigation. In the instant case the Supreme Court found that the CSM had indeed examined the factual evidence which, according to the applicant, it had disregarded. The Supreme Court pointed out in that connection that the issue whether the applicant had been acting in the performance of her duties was more in the nature of a legal issue and that, in any event, in assessing whether a judge had complied with his or her duty, it was necessary to take into account the judge’s relations with society and with the CSM, which was the profession’s management and disciplinary body. The Supreme Court found that the CSM had been right to dismiss the witness evidence presented by the applicant, in view of its content and the fact that the truth of the insult allegation had already been established in the earlier proceedings (see paragraphs 25 and 30 above). 47.     The Supreme Court also considered that the CSM had not committed any manifest error in its assessment of the applicant’s conduct in finding her to have acted in breach of her duty of honesty. 48.     With regard to the applicant’s remaining arguments, concerning the procedural safeguards in proceedings before the CSM, the Supreme Court found: (a)     that the fact that the judicial investigator had not proposed a penalty until the final report was in line with the statutory requirements and had been sufficient in view of the fact that the report had been duly notified to the applicant so that she could make whatever comments she deemed necessary; (b)     that the rights of the defence, and in particular the right to be heard, had not been infringed in the applicant’s case, given that her defence had related to the facts of the case rather than to the proposed penalty and the fact that it had been open to the CSM to impose a heavier penalty than the one proposed; and (c)     that the legal reclassification of the facts had likewise not damaged the defence, given that it was in the context of the same facts that the applicant had breached her duty of honesty. 49.     As to the applicant’s arguments in relation to the penalty imposed, the Supreme Court found: (a)   that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and (b)     that the penalty imposed had not been disproportionate. C.     Proceedings concerning the attempt to prevent the opening of disciplinary proceedings against a witness (application no.   74041/13) 1.     Disciplinary proceedings before the CSM 50.     On 7 June 2011, following information received from the judicial investigator F.M.J., the Permanent Council of the CSM decided to open a third set of disciplinary proceedings against the applicant (case no.   269/11) on the grounds that she had asked that judicial investigator, in the course of a private conversation on 18 March 2011, not to institute disciplinary proceedings against the witness on her behalf whom she had called in the first set of disciplinary proceedings. 51.     On an unspecified date Judge R. was placed in charge of the investigation as judicial investigator. 52.     On an unspecified date the applicant received notice of the indictment, which proposed that she be removed from her post for acting in breach of her duties of loyalty and propriety. 53.     The applicant filed defence pleadings in accordance with section   121 of the Act and attached evidence. She argued, in particular, that the proposed penalty was manifestly disproportionate to the acts of which she was accused. She admitted having had a private conversation with F.M.J., but denied having made the request in question. 54.     During the investigation evidence was heard from the applicant, F.M.J., and thirty-two witnesses. Written statements from witnesses were added to the file. The judicial investigator R. also organised a confrontation ( acareação) between the applicant and F.M.J. 55.     On 21 December 2011 the judicial investigator R. submitted his final report. Deeming Judge F.M.J.’s testimony to be credible, he concluded on that basis that the facts were established and therefore proposed that the applicant be removed from office for acting in breach of her duties of loyalty and propriety. 56.     On 17 January 2012 the applicant requested that a public hearing be held. As it emerges from the minutes of the plenary sitting of the CSM held on the same day, the applicant’s request was refused on the ground that the statutory rights of the defence had been respected and that there was no legal basis for holding a public hearing before the CSM sitting in plenary. 57.     On an unspecified date the applicant submitted that the final report was null and void, and requested that it be rectified. On 30 January 2012 the judicial investigator rectified various errors in the report. 58.     In a decision of 10 April 2012 the CSM, sitting in plenary session, found that the applicant had acted in breach of her duties of loyalty and propriety. First of all, it rejected the applicant’s argument that the proceedings were null and void on account of a breach of the adversarial principle. The CSM took the view that, despite the various items of evidence to the contrary adduced by the applicant, F.M.J.’s statements remained credible. Taking into account the applicant’s personal circumstances and her professional attributes, it found that a lesser penalty than that proposed in the final report was sufficient, and ordered that the applicant be suspended from duty for 180 days. 59.     The decision of 10 April 2012 was taken by fourteen of the seventeen members of the CSM (eight judges, including the President, and six 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 compulsory early retirement or removal from office under section   95 of the Act (see paragraph 71 below). 2.     Supreme Court proceedings 60.     On an unspecified date the applicant lodged an appeal against the CSM’s decision with the Judicial Division of the Supreme Court. In her appeal, she submitted: (a)     that the relevant facts had not been taken into account, that the CSM had committed a manifest error in its assessment of the evidence, and that it had used factual evidence obtained by fraudulent means; (b)     that the CSM’s decision had been unlawful, especially on account of the definition of the alleged disciplinary offence; (c)     that there had been a breach of her right to a fair trial, as the CSM had refused to provide her with information which, in her submission, would have made it possible (i) to clarify certain allegations made by the judicial inspector F.M.J. or cast doubt on their credibility, and (ii) to establish which member of the CSM formation had made public certain details of the deliberations in the case before the decision had been delivered; (d)     that no reasons had been given for the refusal to suspend enforcement of the penalty; and (e)     that the penalty imposed had been disproportionate to the acts of which she had been accused. 61.     In her memorial the applicant requested that a public hearing be held in accordance with Article 91 § 2 of the Administrative Courts Code, so that she could present new evidence, namely a witness and some documents. 62.     On an unspecified date the CSM submitted its memorial in reply. 63.     In a judgment of 8 May 2013 the Judicial Division of the Supreme Court unanimously dismissed the appeal. 64 .     The Supreme Court found at the outset that the applicant’s request for a public hearing should be refused on the ground that it was not that court’s task to reassess the facts. Rather, its role was confined by law to verifying that the CSM had complied with the rules and principles governing the examination of evidence, and in particular that its decision regarding the establishment of the facts had been coherent and reasonable. The Supreme Court held as follows: “Whether or not the provisions governing a special administrative action [ ação administrativa especial ] to set aside an administrative act permit the holding of a public hearing at an appellant’s request will naturally depend from the outset on the extent of the Supreme Court’s powers of review, as fashioned and regulated specifically by the Status of Judges Act, with regard to the establishment of the facts and the taking of evidence in connection with the appeal. In reality, it is clear that such a hearing, devoted to the production of evidence and discussion of the facts, would be useful and meaningful only if the Supreme Court, in determining the appeal, had broad-ranging jurisdiction to review without restriction all the facts and evidence relied on in the impugned decision. If that were the case the Supreme Court would repeat and add to the examination of the evidence produced in the disciplinary proceedings in order to ... form ... its own opinion as to the conclusions to be drawn from it ... However, as it follows from the uniform, settled case-law of the Judicial Division, this is manifestly not the legal position that is continuing to emerge, primarily, from the reinforced law represented by the Status of Judges Act.” With regard to the evidence which the applicant proposed to produce during the hearing, the Supreme Court found that it was inadmissible and irrelevant, stressing in particular (a)     that the applicant’s request for evidence to be heard from the witness had been aimed at establishing the content of the draft decision of the plenary CSM in the applicant’s disciplinary case; this ran counter to the confidentiality of the proceedings leading to the final decision; and (b)     that the documents submitted by the applicant went beyond the subject-matter of the disciplinary proceedings. Lastly, the Supreme Court observed that the applicant had produced a lengthy memorial. Under Article 91 of the Administrative Courts Code, this made it unnecessary to hear legal arguments in oral proceedings. 65.     On the merits, the Supreme Court noted (a)     that there had been no manifest error or inconsistency in the establishment of the facts, or any indication that the evidence had been obtained unlawfully; (b)     that the CSM had considerable discretion regarding the definition of the disciplinary offence, which was described in broad terms in the Act, and that the Supreme Court could alter that legal classification only in the event of a gross, manifest error, which was not the situation in the present case; and (c)     that the applicant’s arguments that the proceedings before the CSM had been unfair were unfounded, as the refusal to provide certain items of information had been duly reasoned. 66.     As to the penalty imposed, the Supreme Court observed (a)     that in contrast to the provisions of criminal law, where a custodial sentence was at stake, the statutory provisions governing disciplinary proceedings did not empower or require the authorities to suspend enforcement of the penalty. In any event, in the present case, suspending enforcement of the penalty would have run counter to its purpose; and (b)     that the penalty imposed had not been disproportionate. On this last point, the Supreme Court found as follows: “Nevertheless, as ruled uniformly and consistently in this Division’s case-law, ‘when it comes to fixing penalties in the context of disciplinary proceedings, a degree of [administrative] discretion exists which should be overridden only in cases of gross, manifest error ...’ ... In the light of the Supreme Court’s powers with regard to the scale of the penalty – which falls wholly within the discretionary powers [of the administrative authorities] in accordance with the above-mentioned case-law – we do not consider that the CSM’s value judgment regarding the specific factual circumstances and the accused’s misconduct was apt to infringe the principles of proportionality and equality. Furthermore, there is nothing in the case file to indicate that the choice of the [type] of sanction or its severity was based on any criteria other than the need to protect the public interest and the requirements of judicial ethics; accordingly, [the complaint concerning the] alleged abuse of powers is manifestly ill-founded ...” D.     Cumulative imposition and enforcement of the penalties 67.     In a final decision of 30 September 2014 the CSM, sitting in plenary session, after deciding that the penalties incurred by the applicant in the three sets of disciplinary proceedings referred to above should be imposed cumulatively ( cúmulo jurídico das penas disciplinares aplicadas ), unanimously ordered a single penalty of 240 days’ suspension from duty. 68.     The decision of 30 September 2014 was taken by a formation comprising twelve of the seventeen members of the CSM (seven judges, including the President of the CSM, and five non-judicial members). 69.     The applicant stated that she had actually been suspended from duty for only 100 days, as enforcement of the remainder of the penalty had become time-barred. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Portuguese Constitution 70 .     The relevant provisions of the Portuguese Constitution read as follows: Article 2 – Democratic State based on the rule of law “The Portuguese Republic is a democratic State based on the rule of law, the sovereignty of the people, plural democratic expression and political organisation, on respect for and guaranteed exercise of fundamental rights and freedoms and on the separation and interdependence of powers, with a view to achieving economic, social and cultural democracy and deepening participatory democracy.” Article 203 – Independence “The courts are independent and are subject only to the law.” Article 212 § 3 – The administrative and fiscal courts “The administrative and fiscal courts shall rule on actions and appeals aimed at determining disputes arising out of legal relationships in the administrative and fiscal spheres.” Article 215 § 4 – Judges of the ordinary courts “Recruitment to the Supreme Court shall be by competition, based on candidates’ curriculum vitae. It shall be open to judges and prosecutors and to other lawyers of particular merit, under the conditions determined by statute.” Article 216 – Guarantees and incompatible activities “1.     Judges shall have guaranteed tenure. They may not be transferred, suspended, compelled to retire or removed from office, save in those cases provided for by law. 2.     Judges may not be held personally liable for their decisions, save in the exceptional cases provided for by law. 3.     Serving judges may not hold any other position in the public or private sector, with the exception of unpaid teaching or academic research positions in the legal field as permitted by law. 4.     Serving judges may not be seconded to positions unrelated to the work of the courts without the authorisation of the competent High Council. 5.     The law may specify other activities that are incompatible with the performance of a judge’s duties.” Article 217 § 1 – Appointment, assignment, transfer and promotion of judges “Decisions on the appointment, assignment, transfer and promotion of the judges of the ordinary courts, and on disciplinary action against them, shall be taken by the High Council of the Judiciary, in accordance with the law.” Article 218 §§ 1 and 2 – High Council of the Judiciary   “1.     The High Council of the Judiciary shall be presided over by the President of the Supreme Court and 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 their peers ... 2.     The rules concerning the guarantees enjoyed by judges shall apply to all members of the High Council of the Judiciary.” Article 266 – Basic principles “1.     The p