Information Note on the Court’s case-law 244
Camelia Bogdan v. Romania – 36889/18
Judgment 20.10.2020 [Section IV]
Access to court
Inability of a judge to challenge her automatic suspension from duty, with stoppage of salary, pending consideration of her appeal against removal from judicial office: violation
Facts – The applicant is a professional judge. In February 2017 the High Council of the Judiciary (CSM) imposed a penalty on her in the form of her removal from judicial office. In March 2017 she appealed against that decision. The CSM at once ordered her suspension (entailing the stoppage of her salary) with immediate effect.
In December 2017 the High Court of Cassation and Justice allowed the applicant’s appeal in part, ordering her transfer rather than her removal from office. In June 2018 she received retrospective payment of her salary for the period of her suspension.
Law – Article 6 § 1
(i) Applicability – The suspension from duty of a judge who lodged an appeal against a disciplinary decision removing him or her from office was provided for under national legislation (Article 651 § 2 of Law no. 303/2004). It was a temporary measure which had effect ex lege from the date of exercise of the right of appeal until the conclusion of the judicial proceedings.
Referring to the criteria set out in its judgment in Vilho Eskelinen and Others v. Finland [GC] (63235/00, 19 April 2007, Information Note 96) and applicable to all kinds of disputes concerning judges (Baka v. Hungary [GC], 20261/12, 23 June 2016, Information Note 197), and noting that the temporary measure in question had been adopted in the context of the main disciplinary proceedings (Micallef v. Malta [GC], 17056/06, 15 October 2009, Information Note 123), the Court found that the guarantees of Article 6 were also applicable to the suspension in issue.
(ii) Merits – Under the national legislation in force at the material time – which was subsequently amended – there had apparently been no remedy available to the applicant in order to challenge her suspension.
The alleged existence of a domestic judicial practice that would have enabled the applicant nevertheless to obtain effective review of the measure by the courts was not borne out by any of the examples of previous cases cited by the Government.
On the contrary, in one example of a previous ruling adduced by the applicant, the scrutiny performed by the High Court appeared to have been confined to a review of lawfulness, without the court examining the necessity or proportionality of the suspension from duty.
Hence, neither the national legislation nor domestic practice at the material time had made provision for a measure of this kind to be reviewed by a court. Moreover, the fact that suspension decisions adopted at the request of the judicial inspectors were not reviewed by the courts had been confirmed and criticised by the Constitutional Court.
The applicant had therefore been deprived of access to a court (ordinary or otherwise) in connection with her suspension from duty by the CSM, a measure that had left her unable for around nine months to perform her duties as a judge and be paid her salary.
The Government had not advanced any convincing argument to justify this lack of judicial protection. The mere fact that the applicant’s suspension from duty had resulted from the exercise of her right of appeal did not amount to sufficient justification.
The actual essence of the right of access to court had therefore been impaired.
Conclusion: violation (six votes to one).
Article 41: EUR 6,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See also Paluda v. Slovakia, 33392/12, 23 May 2017, Information Note 207)
Official text in French only – loisdumonde.com/?p=57
This is an unofficial English translation of the text.
CASE OF CAMELIA BOGDAN v. ROMANIA
(Application no 36889/18)
Art 6 § 1 • Access to a court • Inability to challenge the automatic suspension of the functions and salary of a judge during the examination of his appeal against his exclusion from the judiciary
October 20, 2020
This judgment will become final under the conditions defined in Article 44 § 2 of the Convention. It can undergo retouching.
In the case of Camelia Bogdan v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Yonko Grozev, President,
Jolien Schukking, judges,
and Andrea Tamietti, Section Registrar,
the application (no 36889/18) directed against Romania and of which a national of that State, Ms Camelia Bogdan (“the applicant”), brought proceedings before the Court under Article 34 of the Convention for the Protection of the Rights of human rights and fundamental freedoms (“the Convention”) on July 18, 2018,
the decision to bring the request to the attention of the Romanian government on February 7 and November 19, 2019,
the parties’ observations,
the deportation of Ms Iulia Motoc, judge elected in respect of Romania (Article 28 of the Rules of Court), and the decision of the President to designate Mr Krzysztof Wojtyczek to sit as ad hoc judge (Article 26 § 4 of the Convention and article 29 § 1 of the regulations).
After deliberating in the council chamber on September 1, 2020,
Delivers the following judgment, adopted on that date:
1. The present application, which relates to disciplinary proceedings against the applicant, a judge at the Bucharest Court of Appeal, concerns the compatibility of this procedure with respect for the principle of the security of legal relations (alleged absence of ” a limitation period for the imposition of a disciplinary sanction on magistrates), with the right of access to a court (alleged impossibility of appealing against the measure prohibiting the exercise of the functions of judge after the contestation of the disciplinary sanction of exclusion from the judiciary), with the requirements of independence and impartiality of the courts (concerning the Superior Council of the Judiciary and the High Court of Cassation and Justice) and with the right to respect for private life (temporary ban from exercising the profession of judge and alleged refusal to ensure the protection of professional reputation). The applicant relies on Articles 6§1 and 8 of the Convention.
2. The applicant was born in 1981 and lives in Bucharest. She was represented by MePopescu, lawyer.
3. The Romanian government (“the Government”) was represented by its agents, most recently Ms. O. Ezer, from the Ministry of Foreign Affairs.
I. The disciplinary investigation
4. On 11 February 2016, the Judicial Inspectorate, the body responsible for the discipline of magistrates, automatically took up facts against the applicant, a judge at the Bucharest Court of Appeal, within the framework of which she- ci, while sitting in a case in which one of the parties was the Ministry of Agriculture, had carried out a training activity for the benefit of several officials of the said ministry from July 17 to August 2, 2014.
5. On 31 March 2016, the Judicial Inspectorate launched a disciplinary investigation against the applicant for disregarding the regime of incompatibilities and prohibitions applicable to magistrates, for failure to comply with the obligation to submit a request for deportation (concerning the ‘case involving the Ministry of Agriculture), as well as for unjustified absence (Article 99 b), i), and k), of Law No. 303/2004 on the status of judges and prosecutors (“Law No. 303 / 2004 ”) – paragraph 28 below). On May 30, 2016, this investigation was closed.
II. Disciplinary action
6. On June 24, 2016, the Chief Inspector of the Judicial Inspectorate referred disciplinary action against the applicant to the Supreme Judicial Council (“the CSM”) for disregarding the regime of incompatibilities and prohibitions. applicable to magistrates (article 99 b) of law no.303 / 2004). In his referral brief, he argued that the applicant had participated in extra-professional activities incompatible with the activity of a magistrate.
7. On an unspecified date, the applicant lodged her defense. Referring, among other things, to an opinion issued on July 14, 2014 by the National Integrity Agency (“ANI”), as well as to an evaluation report produced by the same institution, it maintained that the The training activity in question represented an educational activity and was not such as to generate a situation of incompatibility. In addition, she criticized the Chief Inspector of the Judicial Inspectorate for having links with journalists from a certain press group and for refusing to comply with a request made by her, tending, between others, to have an incompatibility established concerning the judicial inspectors responsible for its investigation. She relied in this regard on a decision of the plenary session of the CSM on the duties of independence, impartiality and confidentiality weighing on judicial inspectors.
8. On 25 January 2017, a hearing took place before the CSM, during which the applicant indicated that she did not wish to make statements and specified that she was basing her defense on the documentary evidence already in the file.
9. On February 8, 2017, the CSM, sitting in plenary session, upheld the disciplinary action, noted the incompatibility situation and ordered the applicant’s exclusion from the judiciary, after having analyzed several documentary evidence (the contract concluded for the training activity, the account statements of the person concerned and the evaluation report produced by the ANI) and the relevant national case law.
10. With regard to the criticisms against the Judicial Inspectorate (see paragraph 7 above), the plenary session of the CSM noted that none of the judicial inspectors involved in the disciplinary investigation had previously worked with the complainant and that, unlike according to the applicant, the latter’s request to have an incompatibility established concerning the judicial inspectors had been rejected by a resolution of 25 May 2016 of the chief inspector of the Judicial Inspectorate. As to the alleged lack of impartiality of the Chief Inspector, the CSM noted that there was no reason to question the respect of this guarantee during the conduct of the disciplinary investigation.
11. On 20 March 2017 the applicant appealed against the disciplinary decision to the High Court of Cassation and Justice (“the High Court”). In support of its dispute, it argued, among other things, of the imprescriptibility of the disciplinary responsibility of magistrates and the incompatibility of such a situation with respect for the principle of the security of legal relations, and it referred in this regard to the case law Oleksandr Volkov v. Ukraine (no.21722 / 11, §§ 135-138, ECHR 2013).
III. The applicant’s suspension from her duties
12. By letter of 23 March 2017, the Human Resources Directorate of the Bucharest Court of Appeal communicated to the applicant a decision of the CSM adopted on 21 March 2017 ordering her suspension from duty with immediate effect. As can be seen from a copy of that letter, the reason for this suspension decision was the exercise by the applicant of an appeal against the disciplinary decision (Article 651 § 1, 2) and 3) of Law no.303/2004 – paragraph 28 below).
13. Following notification of this suspension decision, the applicant no longer benefited from the payment of her wages or the payment by her employer of social security contributions.
14. This decision was effective until December 13, 2017, when the judgment of the High Court was delivered (see paragraph 16 below). On 14 December 2017, the CSM noted the end of the suspension of service measure and ordered the transfer of the applicant to the Târgu-Mureș Court of Appeal.
15. On June 12 and 13, 2018, the Bucharest Court of Appeal paid the applicant the wages due for the period between March 22 and December 13, 2017 and made the retroactive payment of the related social security contributions.
IV. THE HAUTE COURT JUDGMENT
16. By a judgment of 13 December 2017, the High Court, ruling on the applicant’s appeal, confirmed the incompatibility situation as determined by the CSM, but amended the disciplinary sanction, ordering the transfer of the applicant to of the Târgu-Mureș Court of Appeal for a period of six months from January 15, 2018. To do this, the high court ruled that the training activity carried out by the applicant on the basis of a service contract services, in return for the payment of remuneration, was an advisory activity which was prohibited in the case of magistrates because it was incompatible with judicial functions. It found that the applicant had failed to exercise the necessary diligence, imposed by her status as a magistrate, to meet all the required professional requirements.
17. Concerning the ground based on the failure to respect the principle of the security of legal relations (see paragraph 11 above), the High Court noted that article 46 § 7 of law no.317/2004 on the CSM (“the law no. 317/2004 ”- see paragraph 29 below) provided for a limitation period of two years from the commission of the facts for the exercise of disciplinary action and that in this case this period had been respected. According to the high court, the thirty-day deadline, calculated from the end of the disciplinary investigation for the exercise of disciplinary action, had also been observed in this case. While recalling the importance of limitation periods in disciplinary matters, the High Court underlined the specificity of the Romanian system in this area, in particular the referral to the CSM by the Judicial Inspectorate and the conduct of the disciplinary procedure in several stages guaranteeing compliance rights of the parties and not supporting a strict framework within a limitation period. Referring to the Ukrainian case cited by the applicant, it observed that, unlike Romanian law, Ukrainian law did not provide for any limitation period for the dismissal of a judge. In addition, it noted that, in this case, the facts at the origin of the sanction imposed on the person concerned dated back to a long period prior to the date of the imposition of this measure, and that this had not enabled the latter to prepare his defense (Oleksandr Volkov, cited above, §138) The judgment of the High Court was released on January 18, 2018.
V. Information communicated to the press by the authorities
18. Shortly after the ex officio referral to the Judicial Inspectorate, the press office of the Bucharest Court of Appeal received a request from a journalist for the release of information of public interest. That request concerned the complainant’s remuneration during the period between July and August 2014 and the circumstances in which she had participated in the training activity in question.
19. On 24 February 2016, D.G., the head of the press office of the Bucharest Court of Appeal, responded to the request made by the journalist in question by providing him with the requested information. He specified that, on July 21, 2014, an official invitation had been sent to the applicant through the Bucharest Court of Appeal and that on the same date, without however authorizing the disputed activity, the president of the criminal section of this court had taken note of this proposal. Finally, he added that the President of the Criminal Section of the Court of Appeal was not aware of the existence of any remuneration paid in return for the training provided by the applicant. The information thus transmitted by D.G. appeared later in the press.
20. On April 4, 2016, the press office of the Bucharest Court of Appeal received a new request for information from a journalist. On 5 April 2016, the press office informed this journalist about several cases handled by the Judicial Inspectorate since 2012. On that occasion, mention was made of the initiation, on 31 March 2016, of a disciplinary investigation against the applicant ( paragraph 5 above). According to the applicant, the information concerning her appeared in the media on April 4, 2016, ie their communication on April 5, 2016, by the press office.
21. The file shows that the applicant lodged a complaint with the Judicial Inspectorate in which she denounced the disclosure to the press of information which she considered to be confidential and not in conformity with reality. According to the Government’s indications, this complaint was rejected by a resolution of April 28, 2016.
VI. Requests made by the applicant for the protection of her professional reputation
22. According to the applicant, the disciplinary proceedings against her marked the start, at the initiative of a television channel and two websites, of a major press campaign carried out with the aim of discrediting her, by means of allegations of having received sums of money from a party to a lawsuit.
23. Thus, from February 2016, the applicant referred several requests to the CSM, under article 30 of Law no.317 / 2004 (see paragraph 29 below) for the protection of her professional reputation and to that of the judicial system as a whole, in the face of the press campaign in question. Before these proceedings, the applicant argued that the repetitive nature of the defamatory attacks she claimed to have been subjected to was liable to damage not only her professional reputation, but also the image of the judicial system as a whole. In addition, it indicated that it reserved the right to take legal action against the perpetrators of the dissemination of the disputed information.
24. On January 11, 2018, the plenary formation of the CSM rendered a decision, no.26, rejecting a first request made by the applicant, which request concerned statements made by third parties over a period between February 2 and 28. 2016, in a series of television broadcasts and in press articles, according to which the applicant had been paid for the training activity in question by the injured party in a case and had also been offered by that – here his stay during this training, organized during his holidays. To rule on these comments – qualified by the applicant as accusations of corruption and money laundering – the CSM plenary session analyzed the content of the aforementioned press broadcasts and articles and concluded that, even if the information disseminated in the media were sometimes biased, they were justified by the interest of the press to contribute to the debates on the functioning of justice and on the way in which the magistrates carried out their professional tasks, field where the margin of provocation was wider. According to the CSM, it was a question of a mission to inform the public about the training activity carried out by the applicant, without any harm to the reputation or independence of the applicant. , nor to those of the judicial system, would not have been to be deplored. It emerges from the information provided by the Government that the applicant lodged a challenge against the decision of the CSM and that, by a judgment of May 21, 2019 (not on file), the High Court dismissed this appeal for lack of merit. As emerges from the copy of a letter sent on July 26, 2019 by the President of the High Court to the Office of the Agent of the Government, the reasons for this judgment had not been drafted on the latter date.
25. The other requests, which, according to the Government, related to various other aspects of the applicant’s professional activity, were also rejected by the plenary session of the CSM. On appeal by the applicant, all the decisions of this body were confirmed by decisions of the High Court: decision no.27 by a judgment of June 20, 2019, decisions no.28 and 30 by judgments of May 21, 2019, decision no.31 by a judgment of March 14, 2019 and decision No. 32 by a judgment of October 15, 2019. The applicant filed a copy of the High Court’s web page containing summary information relating to the dismissal of her challenges.
26. According to the Government, the reasons for most of these judgments had not yet been clarified during the exchange of observations. Thus, only the copy of the judgment of March 14, 2019 of the High Court rejecting the applicant’s challenge against decision no.31 of the CSM, dated January 11, 2018, was entered into the file by the Government. It appears from the content of that judgment that the applicant’s initial request related, among other things, to statements reproduced in a series of publications – qualified as accusations of forgery by the applicant – and the publication of a bank’s right of reply. . It also emerges as follows: to confirm the decision of the CSM, the High Court found that the main reason for the rejection, by this body, of the applicant’s request lay in the disciplinary sanction and the suspension of the duties imposed on her. ci, measures which, in the eyes of the media, raised doubts as to the professional activity of the person concerned; however, the High Court noted that the plenary formation of the CSM had not discussed the guilt of the applicant, but had only noted that, at the time when the disputed remarks had been made, the disciplinary decision had not yet been canceled by her; the high court then found that the applicant had not contested this argument in the context of her appeal; in fact, it noted that the reasons given by the applicant in support of her appeal related to other aspects (disciplinary sanction, membership of a judicial inspector in a certain organization, the existence of a protocol collaboration between the CSM and the Romanian Intelligence Service) which could not be dealt with in the context of the applicant’s request for the protection of her reputation.
THE RELEVANT INTERNAL AND EUROPEAN LEGAL FRAMEWORK
I. THE CIVIL CODE
27. The relevant provisions of the new Romanian Civil Code, in force since 1 October 2011, read as follows:
“1) Everyone has the duty to respect the rules of conduct imposed by law or custom and to refrain from prejudicing, by their actions or inactions, the rights or legitimate interests of others.
2) Whoever, capable of discernment, disregards this duty is responsible for all damage caused and is required to make full reparation.
3) In the cases expressly provided for by law, a person may be required to make reparation for the damage caused by the act of another (…). ”
II. LAW No. 303/2004 ON THE STATUS OF JUDGES AND ATTORNEYS
28. The relevant articles of Law No. 303/2004, as they were in force at the material time, read as follows:
Article 62 § 4
“During the suspension of functions, the provisions of Articles 5 and 8 relating to the regime of incompatibilities and prohibitions are not applicable to the judge and the prosecutor [concerned]. ”
Article 63 § 2
“In the event of dismissal, acquittal or discharge ordered at the end of criminal proceedings concerning a judge or a prosecutor, the suspension of functions ceases and the person concerned is restored to his previous rights, while [ benefiting, for the recovery of salary rights not paid during the suspension, from the recognition of seniority in the judiciary during this period. ”
Article 64 § 3
“During suspension of office, the judge or prosecutor [receives payment] of medical insurance contributions, according to the law. ”
Article 651 §§ 2 and 3
“[In the event of the exercise of] an appeal against the decision to exclude a judge or a prosecutor from the magistracy, the author of the appeal is suspended from his functions until the pronouncement of a final decision by the competent court.
The provisions of Article 63 § 2 and those of Article 64 § 3 apply. ”
“Constitute a disciplinary fault:
b) ignorance of the legal provisions on incompatibilities and prohibitions concerning judges and prosecutors. ”
“The disciplinary sanctions that may be imposed on judges and prosecutors, in proportion to the seriousness of the facts, are:
e) exclusion from the judiciary. ”
III. LAW No. 317/2004 ON THE SUPERIOR JUDICIAL COUNCIL
29. The relevant articles of Law No. 317/2004, as they were in force at the material time, read as follows:
Article 29 §§ 5 and 7
“The decisions of the plenary formation of the Superior Council of the Magistracy relating to the career and the rights of judges and prosecutors are drafted within twenty days and are notified immediately.
The decisions mentioned in the fifth paragraph may be challenged by any interested person, within fifteen days of their notification or publication, before the administrative litigation section of the High Court of Cassation and justice. Protests will be judged by a panel of three judges. ”
Article 30 §§ 1 and 2
“The Superior Council of the Judiciary has the right and the obligation to seize ex officio to defend judges and prosecutors against any act likely to undermine their independence and impartiality or to create suspicion in this regard. The Superior Council of the Magistracy also defends the professional reputation of judges and prosecutors.
The judge and the public prosecutor who consider that their independence, impartiality or professional reputation has been violated can apply to the Superior Council of the Magistracy, which, as the case may be, can verify the allegations [and] publish the results of its research, seize the competent institution so that it decides on the measures to be adopted, or order any other measure in accordance with the law (…). ”
Article 36 § 2
“The plenary formation of the Superior Council of the Judiciary rules on challenges lodged by judges and prosecutors against decisions made by sections, with the exception of those pronounced in disciplinary matters. ”
Article 46 § 7
“Disciplinary action can be taken within thirty days of the end of the disciplinary investigation, but not beyond two years from the date of the incident. ”
Article 52 § 1
“During the course of the disciplinary procedure, the competent section of the Superior Council of the Judiciary may order, ex officio or at the request of the judicial inspector, the suspension of the magistrate’s functions until the end of the disciplinary procedure if the he exercise of these functions is likely to undermine the conduct of the disciplinary procedure while respecting the principle of impartiality or if the disciplinary procedure is likely to seriously undermine the prestige of justice. ”
IV. RELEVANT INTERNAL PRACTICE
A. Decision No. 774/2015 of the Constitutional Court
30. By its decision no. 774/2015, pronounced on November 10, 2015 and published in the Official Journal on January 6, 2016, the Constitutional Court, which had been seized on the issue of the compatibility of article 52 § 1 of the law no.317 / 2004 with the Romanian Constitution, concluded that the said provision was unconstitutional. The relevant part of that decision reads as follows:
“(…) The [Constitutional] Court holds that the legislator cannot exclude from the infra-constitutional sphere the judicial control that the Constitution provides in disciplinary matters, in application of the [principle of] free access to justice. In fact, when the legislature created (…) the institution of the provisional suspension of the functions of a judge or a prosecutor during the disciplinary proceedings, it forgot to put in place a remedy against this measure. Also the right of access to justice of the targeted person was denied, the provisional suspension ordered by an extrajudicial body thus being excluded from judicial review by a competent court. The fact that this measure can be challenged once the merits of the case have been examined, through an appeal against the decision of the High Judicial Council, does not change the facts of the problem; (…) A remedy has [thus] been configured, which, from the point of view of its effects, is a belated avenue for the defense of the rights and legitimate interests of a person. Consequently, such a remedy [is] illusory and lacks effectiveness, since it cannot represent a remedy which responds quickly, concretely and truly to what has been decreed by the provisional measure (…) . ”
B. Examples of internal practice
31. With regard to the requirement for the independence and impartiality of the courts, the Government has placed on the record examples of High Court case law relating to complaints alleging a lack of independence and impartiality of the courts. CSM and this high court which had been raised by magistrates during disciplinary proceedings against them. Thus, in the first three examples, the High Court analyzed the complaints of the plaintiffs before rejecting them: in a judgment no.37, of February 18, 2019, the High Court, seized of a complaint denouncing a lack of impartiality and independence of the CSM, analyzed the situation presented before it in the light of the case-law of the Court (Oleksandr Volkov, cited above, §§ 109-130); in a judgment n ° 72, of March 18, 2019, the High Court, seized of a complaint aiming a lack of impartiality of its judges given the initiation of disciplinary proceedings against them by the Judicial Inspectorate and by the CSM, analyzed the situation complained of in the light of the Court’s case-law and answered all of the complainant’s arguments; in a judgment no.266, of October 9, 2017, the High Court analyzed a complaint concerning, inter alia, the alleged bias of the Chief Inspector of the Judicial Inspectorate, with reference to the Court’s case law on impartiality and independence. In a final example (a decision before saying right dated January 17, 2019), the High Court authorized its president, who was herself the subject of a disciplinary investigation conducted by the Judicial Inspectorate, not to sit in the formation called upon to rule on a disciplinary appeal concerning another magistrate.
32. As regards the challenge to the measure of suspension of service (article 651 of Law no. 303/2004 – paragraph 28 above) the Government submitted various elements. He thus placed in the file a decision of the plenary formation of the CSM (decision no.495, of April 25, 2017, confirmed by the High Court), by which this body refused to analyze the complaints of the person concerned on the grounds that the suspension decision was only a consequence of the disciplinary decision and that the latter decision could only be overruled by the High Court. He also placed on the record a letter from the CSM dated October 9, 2019, containing a summary of other examples of internal practice. These examples relate to: the rejection by the High Court, for inadmissibility, of a new challenge lodged by the applicant in the present case against another suspension of service measure pronounced in May 2018 (judgment no 3543, of June 21, 2019); the dismissal of a challenge by the Cluj Court of Appeal, for the termination of the proceedings (decision no 187, of April 24, 2010); the rejection by the High Court of a dispute, following the withdrawal of the author thereof (judgment no 49, of January 7, 2011); and the rejection by the High Court of a challenge (judgment no. 4128, of December 15, 2017), for an unknown reason (no information having been provided by the Government in this regard).
33. As for the applicant, she filed a judgment of the High Court of October 13, 2017 rejecting the challenge lodged by a magistrate who found himself in a situation similar to hers. In this judgment, the High Court ruled that its role in this type of litigation was limited to the sole control of the legality of the act criticized, therefore to the verification of the respect, by the authorities, of the legal standards during the adoption. of this act, and that the suspension of functions in the event of an appeal against the decision to exclude the magistracy was provided for by law.
V. EUROPEAN TEXTS
34. The report of the European Commission to the European Parliament and the Council (October 2019) on the progress made by Romania under the Cooperation and Verification Mechanism (“the CVM”) reads as follows in its relevant parts in l ‘species:
“(…) Successive MCV reports have highlighted the pressures exerted on magistrates and judicial institutions, resulting from public attacks by the political world and the media. Since the start of 2018, this situation has been aggravated by the action of the authorities responsible for disciplinary and criminal investigations against magistrates (…). These elements confirm the analysis made by the Commission in the November 2018 report, according to which the Superior Council of the Judiciary is not fulfilling its role of maintaining effective checks and balances to defend the independence of the judicial institutions under pressure ( see recommendation 7). The Superior Council of the Judiciary has reacted to a number of complaints it has received regarding the defense of the independence, reputation and impartiality of judges, but its reaction seems rather modest with regard to the magnitude of the problem. In cases where the Superior Council of the Judiciary has reported defending the independence of the judiciary, it has sometimes raised concerns of potential political bias. (…) ”
I. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION DUE TO NON-COMPLIANCE WITH THE PRINCIPLE OF SECURITY OF LEGAL REPORTS
35. The applicant complained of a failure to respect the principle of the security of legal relations due to the non-existence, alleged by her, in national legislation of a limitation period in matters of disciplinary liability of judges. She relies on Article 6 § 1 of the Convention, which is worded as follows in its relevant parts in the present case:
“Everyone has the right to have their cause heard fairly (…) by an independent and impartial tribunal, established by law, which will decide (…) on disputes over their civil rights and obligations. (…) ”
A. Arguments of the parties
36. The Government indicates that domestic law provides for two limitation periods for the exercise of disciplinary action against magistrates: one of thirty days from the end of the disciplinary investigation and the other of two years. from the commission of the facts (see Article 46 § 7 of Law no.317 / 2004, cited in paragraph 29 above). This would be a peculiarity specific to the area of responsibility of magistrates, which would aim to provide them with a procedure in several stages, with appeals to the domestic courts. The Government then indicated that the case of Oleksandr Volkov v. Ukraine (no.21722 / 11, ECHR 2013), referred to by the applicant, concerned a disciplinary sanction imposed several years after the facts, that the legal system at issue in this case did not provide for any limitation period for exclusion from the judiciary and that as a result the applicant had been prevented from organizing his defense.
37. The applicant replied that domestic law did not provide for any limitation period for the disciplinary liability of judges, but only a period for the limitation of the right to take disciplinary action, which, in her view, amounted to recognizing disciplinary liability. sine die and represents a limitless approach which would seriously threaten the security of legal relationships.
B. Assessment of the Court
38. The Court recalls that the statutory limitation periods, which figure among the legitimate restrictions on the right to a court, have several important purposes: to guarantee legal certainty by fixing an end to actions, to protect potential defendants from late complaints may be difficult to counter, and prevent the injustice that could arise if courts were called upon to rule on events in the distant past based on evidence which could no longer be credited and which was incomplete due to the time which has elapsed (see, for example, Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports of Judgments and Decisions 1996 IV; Stagno v. Belgium, no 1062/07, § 26, 7 July 2009 ; and Howald Mooret others v. Switzerland, nos52067 / 10 and 41072/11, §§ 71-72, March 11, 2014).
39. On the basis of that finding, the Court examined, in the case-law cited by the applicant, the situation of a judge who had been dismissed from his post following dismissal proceedings for “breach of oath ”And who complained before it about the absence in domestic law of limitation periods in this type of procedure. She observed that this magistrate had found himself in a difficult situation, having had to put together a case in his defense with regard to facts, some of which had occurred in the distant past. After noting that domestic law did not provide for limitation periods for the dismissal of a judge for “breach of oath” and underlined that such an unlimited approach to disciplinary cases involving members of the judiciary seriously threatened security legal, it concluded that there had been a violation of Article 6 § 1 of the Convention on account of the infringement of the principle of legal certainty by the absence of a limitation period (see Oleksandr Volkov, cited above, § § 138-140).
40. The Court also recalls that it has stressed on several occasions that the principle of legal certainty, which aims in particular to guarantee a certain stability of legal situations and to promote public confidence in the courts, constitutes one of the fundamental elements of the rule of law (see, for example, Greco-Catholic Parish Lupeni and Others v. Romania [GC], no. 76943/11, § 116 a), 29 November 2016).
41. In the present case, the Court must analyze the question whether the alleged absence of a limitation period for the imposition of a disciplinary sanction on magistrates undermined the fairness of the procedure and the principle of legal security. It notes that the relevant national legislation provided for two limitation periods (see paragraph 29 above) and that the duration of the disciplinary investigation was not limited in time.
42. The Court recalls that, in order to be able to lodge an application under Article 34 of the Convention, a natural person, a non-governmental organization or a group of individuals must be able to claim to be the victim of a violation of the rights recognized in the Convention. Convention. To be able to claim to be the victim of a violation, an individual must have directly suffered the effects of the contested measure. Thus, the Convention does not envisage the possibility of initiating an actiopopularis for the purposes of interpreting the rights recognized therein; nor does it allow individuals to complain about a provision of domestic law simply because it seems to them, without their having directly suffered the effects, that it infringes the Convention (Tănase v. Moldova [ GC], no 7/08, § 104, ECHR 2010, and Burden v. The United Kingdom [GC], no 13378/05, § 33, ECHR 2008).
43. On this last point, the Court notes that, in its complaint, the applicant maintains that the mere absence, in the national legislation, of a limitation period for the imposition of a disciplinary sanction on magistrates is capable of putting endangering respect for the principle of the security of legal relations within the meaning of Article 6 § 1 of the Convention (see paragraph 35 above). It notes that the applicant makes no reference to any direct individual measure to which she was the subject and would have suffered the effects because of the absence of the legal provisions in question (see, conversely, Tănase, cited above, § 108) . Finally, it notes that the applicant is not in the position of a potential victim either (see, conversely, Klass and Others v. Germany, 6 September 1978, § 34, Series A no.28, and Dudgeon v. United Kingdom Uni, 22 October 1981, § 41, Series A no.45), having produced no reasonable and convincing indication of the likelihood of a violation concerning her personally (see, mutatis mutandis, Tauiraet 18autres v. France, no.28204 / 95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-A, pp. 112-131).
44. That being so, the Court is of the opinion, having regard to the formulation of the applicant’s complaint, that the latter seems rather to be complaining in abstracto that the national legislation does not provide for a limitation period for the imposition of ‘a disciplinary sanction against the magistrates, which according to her would constitute a violation of Article 6 § 1 of the Convention. In these circumstances, the applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of the latter.
45. Moreover, even assuming that the applicant could claim to be a victim within the meaning of Article 34 of the Convention, this complaint is in any event inadmissible for the reasons set out below.
46. The Court noted that the applicable domestic law in the matter provided for two limitation periods for the exercise, before the CSM, of disciplinary action against a magistrate: a period of two years from the commission of the facts and a 30 days after the end of the disciplinary investigation (see Article 46 § 7 of Law no. 317/2004, cited in paragraph 29 above). The Court noted that these two time limits provided for by national law relate to the prescription of the right to take disciplinary action. In this case, in the disciplinary proceedings against the applicant, the two limitation periods were observed (see paragraphs 4-6 above). This is, moreover, not disputed by the applicant.
47. As regards the consequences of the absence of a limitation period for the imposition of a disciplinary sanction in the present case, the Court observed that the applicant was not prevented from preparing her defense. In this case, the facts examined by the CSM in 2016-2017 dated from 2014 (paragraphs 4 and 6-9 above) and nothing in the file (paragraphs 7-9 above) allows the conclusion that the applicant may have encountered any difficulty in preparing his defense (see, conversely, Oleksandr Volkov, cited above, §§ 138-140).
48. In the light of the foregoing, the Court cannot detect any appearance of a breach of the principle of the security of legal relations and therefore concludes that this complaint is manifestly ill-founded and that it must be rejected, in accordance with of Article 35 §§ 3 a) and 4 of the Convention.
II. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION DUE TO A LACK OF INDEPENDENCE AND IMPARTIALITY OF THE CSM and the High Court
49. The applicant complained in substance of not having been tried by an “independent and impartial” tribunal during the disciplinary proceedings before the CSM and the High Court, and this, according to her, in breach of Article 6 § 1 of the Convention.
A. Arguments of the parties
50. The Government pleaded that domestic remedies had not been exhausted, on the grounds that the applicant had never raised this complaint before the domestic courts. He adds that the only arguments concerning this complaint were put forward by the applicant before the CSM concerning the judges of the Judicial Inspection (see paragraph 7 above). As for the reference to the OleksandrVolkov case, cited above, made by the applicant before the domestic courts, he said that this referred only to the complaint based on the imprescriptibility of the disciplinary liability of judges (see paragraph 11 above) . The Government referred to examples of domestic practice which, in their view, demonstrated that complaints relating to a lack of impartiality raised by other magistrates had been analyzed by the domestic courts (see paragraph 31 above). On the merits of the complaint, it considers that the applicant’s case was judged by an “independent and impartial” tribunal within the meaning of Article 6 § 1 of the Convention, both during the proceedings before the CSM, and during the of that relating to the appeal brought before the High Court.
51. The applicant alleged that her right to an “independent and impartial” tribunal within the meaning of Article 6 § 1 of the Convention had been infringed in her case, and she referred to a few passages in the report drawn up in October 2019 by the Commission European Commission on Romania’s progress under the Cooperation and Verification Mechanism (see paragraph 34. above). This report is said to be critical of the CSM because of the pressure it has allegedly exerted on High Court judges in certain cases. In addition, the applicant refers to a challenge requesting the annulment of a disciplinary decision, of which she filed three pages in the file, which she brought before the High Court in another case and based on the alleged bias of two magistrates.
B. Assessment of the Court
52. The general principles of exhaustion of domestic remedies are summarized in Vučković and others v. Serbia ([GC] (preliminary objection), nos.17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court recalls, in particular, that the purpose of Article 35 of the Convention is to provide Contracting States with the opportunity to prevent or remedy the violations alleged against them before these allegations are submitted to it. States do not have to answer for their actions before an international body until they have had the opportunity to redress the situation in their domestic legal order. Thus, the complaint which is to be brought before the Court must first be raised, in the forms and deadlines prescribed by domestic law, before the appropriate national authorities (Scoppola v. Italy (no2) [GC], no 10249/03, §§ 68-69, September 17, 2009). Finally, it is for the Government, claiming that it has not been exhausted, to convince the Court that the remedy was effective and available both in theory and in practice at the material time, that is to say that it was accessible, that ‘it was likely to offer the applicant redress for his complaints and that he presented reasonable prospects of success (Sejdovic v. Italy [GC], no.56581 / 00, § 46, ECHR 2006 ‑ II).
53. In so far as the applicant intends to criticize the alleged lack of objective impartiality and independence of the magistrates who ruled in the disciplinary proceedings against her, including judges of the High Court, the Court notes that the applicant has failed to bring this grievance to the attention of the latter court, when appealing against the disciplinary decision of the CSM, when it was open to him to do so (see paragraphs 11 and 16-17 above).
54. On this point, the Court notes that the few examples of case-law provided by the Government show that the High Court, seized of complaints similar to that of the applicant, analyzed the arguments of the interested parties in the light of the Oleksandr Volkov case-law, cited above (see paragraph 31 above).
55. Consequently, the Court accepts the objection of non-exhaustion of domestic remedies raised by the Government. It follows that the applicant did not do what could reasonably be expected of her and that her complaint must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§1. and 4 of the Convention.
III. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCESS TO COURT
56. The applicant complains that she was the subject, on 21 March 2017, of a suspension of her functions (see paragraph 12 above) which could not be challenged in the domestic courts. She relies on Article 6 § 1 of the Convention.
57. The Government considered that the applicant should have lodged a challenge against the decision to suspend her functions before the plenary session of the CSM and then, depending on the outcome of this action, lodge an appeal with the High Court (see article 29 § 7 of Law No. 317/2004, cited in paragraph 29 above). It refers to an example of internal practice which would confirm the administrative character of the procedure, falling within the competence of the CSM, in question (see paragraph 32 above). It also refers to a decision of the Constitutional Court which underlines the importance of access to a court, in particular when applying interim measures (see paragraph 30 above). He claims that in 2018 the legislation in question was repealed and that the new national legislation now provides for the possibility of challenging decisions on suspension of service.
58. The Government also referred, in their additional observations, to a letter from the CSM of 9 October 2019, summarizing some examples of domestic case-law on the challenge of the suspension of service measure (see paragraph 32 above). In addition, he said that since the suspension of duties was of an ex lege character, the policy position of the CSM was to reject this type of challenge.
59. The complainant replies that at the material time there was no effective remedy enabling her to challenge the decision of 21 March 2017 suspending her duties. As for the remedy mentioned by the Government, it maintains that only the grounds relating to the legality invoked with regard to a suspension decision could be the subject of a challenge before the High Court, and not those relating to the proportionality of the measure at issue. In this sense, it provides an example of internal practice (see paragraph 33 above).
60. In the present case, the Court considers that the Government’s objection based on the failure to exercise a challenge against the decision to suspend office is closely linked to the substance of the complaint alleging breach of the right of access to a tribunal, and she decides to appeal to the merits.
61. Finding that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it does not encounter any other ground of inadmissibility, the Court declares it admissible.
B. On the merits
1. Submissions of the parties
62. The applicant complains of a violation of her right of access to a court on account of a lack of guarantees of access to justice to challenge the decision suspending her duties (she refers, in particular, to Paluda v. Slovakia, no33392 / 12, 23 May 2017, and Baka v. Hungary ([GC], no 20261/12, 23 June 2016). She said that, while it is henceforth open to magistrates to challenge this type decision since legislative changes in the meantime, this was not the case at the material time (see Article 651 § 2 of Law no. 3003/2004, cited in paragraph 28 above). adds that she was deprived of her salaries and of medical insurance throughout her suspension from work, and that she was unable to work during the period in question, of approximately nine months, for fear of being inflicted a new disciplinary measure for non-compliance with the regime of incompatibilities and prohibitions applicable to magistrates.
63. The Government confirms that the national legislation expressly provided for the suspension of functions in the event of the exercise of the right of appeal against the disciplinary decision concerning a magistrate and that this measure entailed, among other things, the loss of wages until the end of the legal proceedings. He said, however, that the suspended magistrate was not subject to any of the prohibitions and incompatibilities provided for in the regime applicable to judges and prosecutors. According to him, the applicant complains of the impossibility of lodging a challenge against the contested measure, and not necessarily of an absence of a favorable outcome to such a challenge. Finally, the Government added that the applicant’s suspension from her duties was determined not by the initiation of disciplinary proceedings, but by the exercise by the applicant of the right of appeal. This would differentiate the present case from Paluda, supra.
2. Assessment of the Court
64. The Court observes that the applicant refrained from challenging the decision of the CSM of 21 March 2017 suspending her functions (see paragraph 12 above) on the grounds that there was no effective remedy for doing so ( paragraph 33 above). According to the applicant, no effective remedy was available in domestic law (see paragraph 59 above), whereas, according to the Government, which referred to examples of case-law to support its position (paragraph 32 above), the complainant should have challenged the impugned decision first before the plenary panel of the CSM and then, if necessary, before the High Court (see paragraph 57 above).
65. The Court notes at the outset that national legislation provided for the suspension of the functions of a magistrate in the event of the exercise of the right of appeal against the disciplinary decision excluding the magistracy (see Article 651 § 2 of the Law No. 303/2004, cited in paragraph 28 above). It agrees with the Government in pointing out that this was a temporary measure which produced its effects exlege between the date of exercise of the right of appeal and the end of the legal proceedings, as was moreover the present case (see paragraphs 12-14 above).
66. As regards the existence in domestic law of remedies against such a measure, the Court observes that it is not apparent from the relevant legislation in force at the time of the facts which the applicant had at its disposal any legal remedy which would have enabled him to challenge the contested measure. According to the information provided by the parties, the national legislation was amended after the facts of the case, and it now provides for the possibility of contesting the suspension of functions (see paragraphs 57in fine and 62 above).
67. As regards the examples of case-law submitted by the Government, the Court notes that they are not in a position to confirm the existence of an internal practice which would have allowed the applicant to have access to a court. for the purpose of monitoring the decision to suspend his duties. With regard to decision no 495 of 25 April 2017 of the plenary session of the CSM, the Court notes that this body, although having formally recognized its competence in the matter, refused to analyze the complaints of a magistrate placed in a situation similar to that of the applicant and that her position was endorsed by the High Court (see paragraph 32 above). What is more, according to the Government itself, the CSM’s policy practice was to reject any challenge to the contested measure (see paragraph 58 in fine above).
68. As for the domestic decisions summarized in the letter of the CSM of October 9, 2019, they do not allow the Court to identify a situation likely to confirm the existence of a practice of the domestic courts authorizing the examination of the measure in cause through the remedy mentioned by the Government (see paragraph 58 above). This finding is reinforced by the example of case law provided by the applicant. Indeed, in this example, the examination carried out by the High Court was limited only to a review of legality and therefore did not address the necessity and the proportionality of the measure of suspension of service (see paragraph 33 above).
69. Having regard to the principles set out in paragraph 52 above, the Court considers that, in these circumstances, the applicant cannot be held against the blame for having failed to bring before the plenary session of the CSM a dispute, such as as suggested by the Government. The preliminary objection of non-exhaustion of domestic remedies raised by the latter (see paragraph 57 above) must therefore be rejected.
70. Accordingly, the Court is of the opinion that the applicant was not able to benefit from any form of judicial protection in relation to the decision to suspend her duties. The Court reiterates that the question of the applicability of the guarantee of access to a court is determined by the criteria set out in the Vilho Eskelinen and Others v. Finland ([GC], no.63235/00, § 62, ECHR 2007-II) as applied to all types of disputes involving judges (Baka, cited above, §§105-106). Given that the applicant’s suspension was a temporary measure adopted in the context of the main disciplinary proceedings, the Court considers that the applicability of those guarantees in the present case must also be analyzed in the light of the criteria set out by the Court in the Micallef v. Malta ([GC], no 17056/06, §87, ECHR 2009). In addition, as regards applicability, the Court recalls that the Eskelinen criteria are just as relevant to cases concerning the right of access to a court as they are to those concerning the other guarantees enshrined in this provision. In these circumstances, the Court considers that the guarantees of Article 6 § 1 of the Convention applicable to the main disciplinary proceedings are also applicable to the temporary suspension of the applicant’s functions (see Paluda, cited above, §§ 33-34) . It remains to be determined whether the situation complained of by the applicant amounts to a violation of Article 6 § 1 of the Convention.
71. The Court reiterates that the right of access to a court is not absolute. This right may be subject to limitations provided that they do not restrict or reduce the access of litigants to the judge in such a way or to such an extent that it is infringed in its very substance. Furthermore, these limitations are reconciled with Article 6 § 1 only if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim pursued (Baka, cited above, § 120, and case law cited there).
72. In the present case, the Court observes first of all that neither national law nor domestic practice provided, at the material time, for the possibility of submitting to the judge’s review a decision to suspend the functions imposed on a magistrate. pursuant to article 651 of Law no.303/2004 (see paragraph 28 above).
73. It further notes that the decision of the Constitutional Court, relied on by the Government in support of its arguments (see paragraph 57 above), only confirms this conclusion, since, while emphasizing the importance access to a court during the application of interim measures, the constitutional court criticized the lack of judicial review of suspension decisions adopted at the request of judicial inspectors (see paragraph 30 above).
74. In the present case, the Court cannot fail to note that the decision of the CSM of 21 March 2017 (see paragraph 12 above) was not examined by an ordinary court or by another body exercising judicial functions, and that it could not be (see, mutatis mutandis, Baka, cited above, §121).
75. More specifically, the Court notes that the applicant was deprived of the right of access to a court within the meaning of Article 6 § 1 of the Convention as regards the measure of suspension of her functions, which she had placed for approximately nine months in a situation where it was impossible for him to perform his duties as magistrate and to collect his salaries (see, mutatis mutandis, Paluda, cited above, §§ 52-53).
76. In addition, the Court notes that the Government did not provide convincing arguments to justify the lack of judicial protection to which the applicant was subjected in the present case. The mere fact that the suspension of the applicant’s duties was due to the exercise by her of her right of appeal (see paragraph 63 above) cannot justify the lack of judicial review of the measure at issue (see, mutatis mutandis, Paluda, cited above, § 54).
77. The Court finally reiterates that the Government have not succeeded in proving the effectiveness of any remedy whatsoever which could have enabled the applicant to have the decision to suspend her functions reviewed by the courts ( paragraph 70 above).
78. In these circumstances, the Court considers that the respondent State has infringed the very substance of the applicant’s right of access to a court.
79. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
IV. ON THE ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
80. The applicant complains that she was suspended from her duties throughout the disciplinary proceedings against her and that she was deprived of her salaries and social security contributions throughout the proceedings. than the possibility of taking up another paid job. She also complains that confidential information from the disciplinary investigation file was communicated to the press and that the plenary session of the CSM refused, on January 11, 2018, to protect her professional reputation in the face of the press campaign. allegedly carried out against her (see paragraph 24 above).
The applicant relies on Article 8 of the Convention, which is worded as follows in its relevant part in the present case:
“1. Everyone has the right to respect for his private life (…)
2. There can be interference by a public authority in the exercise of this right only insofar as such interference is provided for by law and constitutes a measure which, in a democratic society, is necessary for security. national, public safety, the economic well-being of the country, the defense of order and the prevention of criminal offenses, the protection of health or morals, or the protection of the rights and freedoms of other. “.
A. On the alleged infringement of the right to privacy by reason of the suspension of functions
1. Arguments of the parties
81. The Government stated that the suspension measure imposed on the applicant on March 21, 2017 ended on December 13, 2017, once the legal proceedings were terminated (see paragraphs 12-14 above), and that the applicant then benefited from the payment of all of his salary rights (including social contributions) by his employer (see paragraph 15 above). He states that, contrary to what the applicant asserts, any incompatibilities and prohibitions arising from the specific regime applicable to judges were irrelevant during the suspension of duties and that the applicant could occupy any other post in the public or private service and exercise any other remunerated activity. This would differentiate the present case from the D.M.T. and D.K.I. vs. Bulgaria (no.29476 / 06, § 63, 24 July 2012). Finally, should the Court find that there was an interference with the applicant’s right to privacy, the Government argued that this interference was provided for by law, pursued a legitimate aim and was proportionate to the aim pursued. .
82. The applicant considers that the interference in question had serious consequences on her situation, not limited to her only salary rights. In this regard, it refers to the case-law in which the Court characterized as interference with the right to respect for private life the impossibility, for individuals placed in situations similar to its own, to hold jobs in the private sector. . The applicant cites in particular the Sidabras and Džiautas v. Lithuania judgments (nos. 55480/00 and 59330/00, § 48, ECHR 2004-VIII), Albanese v. Italy (no.77924 / 01, § 54, 23 March 2006), and Karov v. Bulgaria (no.45964 / 99, § 88, 16 November 2006), as well as, conversely, the Calmanovici v. Romania judgment (no.42250 / 02, §§ 137-139, 1 July 2008). She maintains that the disputed suspension measure was accompanied by a general ban on exercising any other remunerated activity in the public and private sectors, and that she was thus also prevented from developing relations with her peers in a professional context. . It asserts that, according to the domestic law in force at the material time, in addition to being subject to incompatibilities of a judicial nature, the magistrates were subject to incompatibilities of an extrajudicial nature and that the latter were liable to make subject to control by ANI.
2. Assessment of the Court
83. The Court reiterates that professional disputes are not by their nature excluded from the scope of the concept of “private life” within the meaning of Article 8 of the Convention and that they may have repercussions on certain typical aspects. of privacy. These aspects include i) the applicant’s “inner circle”, ii) the possibility for him to establish and develop relationships with others, and iii) his social and professional reputation. A privacy issue generally arises in two ways in litigation of this type: either because of the grounds for the measure in question (in which case the Court adopts the grounds-based approach). ), or – in some cases – because of the consequences on private life (in which case the Court adopts the approach based on the consequences). If the consequences-based approach is followed, the severity threshold to be achieved for each of the above aspects is of crucial importance. The onus is on the Applicant to convincingly establish that this threshold has been met in his case. It is up to him to produce evidence proving the consequences of the measure at issue. The Court will recognize the applicability of Article 8 of the Convention only if these consequences are very serious and affect the private life of the person concerned in a particularly notable way (Denisov v. Ukraine [GC], no. 76639/11, § § 115-116, September 25, 2018).
84. It recalls having set out criteria for assessing the seriousness or gravity of the alleged violations under different regimes. The damage suffered by the applicant is assessed in relation to his life before and after the measure in question. The Court further considers that, in order to determine the seriousness of the consequences in a professional dispute, it is necessary to analyze in the light of the objective circumstances of the case the subjective perception which the applicant claims to be his. Such an analysis encompasses both material and non-material consequences of the measure at issue. The fact remains, however, that it is for the applicant to define and specify the nature and extent of his damage, which must have a causal link with the measure complained of (Denisov, cited above, §117).
85. In the present case, the Court noted that at the basis of the decision to suspend the duties criticized was a legal text which provided for the ex lege application of such a measure as soon as an appeal against the decision of the CSM excluding the judiciary was formed by the person concerned – in this case the applicant (see article 651 § 2 of Law no. 3003/2004, cited in paragraph 28 above). As a result, as no element relating to the applicant’s private life appeared in the grounds for the suspension decision (see paragraph 12 above), the Court will examine whether there were very serious consequences which affected the the applicant’s private life in a particularly notable manner (see paragraph 83 above).
86. First of all, the Court considered whether the applicant’s suspension from her duties and, consequently, the non-payment of wages and social security contributions relating thereto during the period from 21 March to December 13, 2017 had repercussions on the “inner circle” of his private life. As such, it recalls that the pecuniary element of the dispute does not make Article 8 of the Convention automatically applicable (Denisov, cited above, § 122). The Court accepts, as suggested by the Government (see paragraph 81 above), that the contested measure was an interim measure, since the applicant was able to benefit from the payment of all of her salaries and social security contributions after the end. legal proceedings (see paragraph 15 above).
87. Next, given that the applicant was suspended from service because of the contestation of the disciplinary sanction, it appears that the application of the measure in question was closely linked to the length of the proceedings. litigation initiated by the interested party: consequently, any unjustified delay in this last procedure had the result of prolonging the application of the suspension measure. However, as regards the contentious procedure, the Court did not identify any elements which could cast doubt on the diligence and speed with which the national authorities decided the case (see paragraphs 9-16 above).
88. The Court further notes that the question of the loss of income during the application of the contested measure is also linked to the alleged inability by the applicant to occupy another job in the public and private spheres (paragraph 82 above). However, as emerges from the relevant national legislation (see paragraph 28 above), the incompatibilities and prohibitions arising from the specific regime applicable to magistrates were irrelevant during the suspension of functions. In this respect, the present case differs in substance from the cases examined in the case-law cited by the applicant (see paragraph 82 above), since no domestic decision or any legal text prevented the applicant from employing another employment in the public or private sector (see, mutatis mutandis, Calmanovici, cited above, §§ 30 and 50-51; see also, conversely, Sidabras and Džiautas, cited above, §§ 47 and 50; Albanese, cited above, § 54; and Karov, cited above, § 42).
89. As regards the possibilities of forming and maintaining relations with others, the Court notes that the applicant was reinstated in her functions as judge once the contentious proceedings were terminated (see paragraph 14 above) and that, even though her situation among her peers was harmed to a certain extent, there is no evidence to indicate that the consequences complained of by the complainant were so significant as to constitute an interference with her right to respect for private life (see, mutatis mutandis, JB and Others v. Hungary (dec.), nos.45434 / 12 and 2 others, § 133, 27 November 2018). In this context, the Applicant failed to define and specify the nature and extent of her alleged harm.
90. Lastly, with regard to the applicant’s professional reputation, the Court noted that the latter had not adduced any argument which could enable it to conclude that the measure of suspension of service would have reached the high degree of seriousness required by the Article 8 of the Convention, referred to in paragraphs 83-84 above. The complainant’s only arguments concerning the alleged breach of her professional reputation are formulated in the context of the media coverage of her case and the CSM’s alleged refusal to protect her privacy (see paragraph 101 below) .
91. The Court therefore concludes that the contested measure had limited negative repercussions on the applicant’s private life and did not reach the level of seriousness required for a question to arise under Article 8. of the Convention (see, mutatis mutandis, Denisov, cited above, §§ 122-134).
92. Given that the duration of the applicant’s suspension from service is not capable of giving rise to the applicability of Article 8 and that the reasons for this measure did not infringe “private life Of the applicant within the meaning of the same article, the Court considers that this provision is not applicable in the present case and that this complaint must be declared inadmissible for incompatibility ratione materiae with the provisions of the Convention, in application of article 35 §§ 3 a) and 4.
B. On the alleged infringement of the right to privacy due to the communication to the press of information from the disciplinary investigation file and the position adopted in this case by the CSM with regard to the protection of reputation professional
1. On the communication of information to the press
a) Arguments of the parties
93. The Government pleaded for non-exhaustion of domestic remedies. He maintains that the applicant could have brought a tort action for the purposes of the liability of the persons who communicated the information which she considered to be confidential. In this regard, he relies on the decision of Aghenitei v. Romania ([Committee] (dec.), No.64850 / 13, § 40-43, 4 June 2019).
94. The applicant replies that the disciplinary authorities communicated to the press confidential information which did not conform to reality concerning the disciplinary investigation directed against her, for some of them even before the notification to her of the opening of disciplinary proceedings, which, in his view, constituted an interference with his right to privacy within the meaning of Article 8 of the Convention.
b) Assessment of the Court
95. The Court refers first to the principles applicable to the exhaustion of domestic remedies (see paragraph 52 above). It recalls having already received similar complaints in several Romanian cases and having attached particular importance to the impossibility in which the parties had found themselves to identify the persons or the authorities responsible for the “leaks” in question.
96. Thus, in a series of cases, the Court considered that a civil action in tort had proved ineffective for complaints similar to that of the applicant on the grounds, mainly, that the persons or the authorities responsible for “Leaks” could not be identified (Cășuneanuc.Romania, no22018 / 10, § 71, April 16, 2013; Voicu v. Romania, no22015 / 10, §§ 81-82, June 10, 2014; and Apostu v. Romania, no22765 / 12, §110, February 3, 2015).
97. In the present case, the Court finds that the information published in the press, which the applicant describes as confidential, came from official communications made by the press office of the Bucharest Court of Appeal at the express request of journalists (paragraphs 18-20 above). Thus, it considers that the applicant’s case is distinguished from the cases cited in paragraph 96 above. It also refers to the examples of domestic case-law mentioned in the Cășuneanu case (cited above, § 41) containing references to decisions of domestic courts which have carried out an examination on the merits or which have granted compensation to litigants who have complained about ‘a violation of their treaty rights in circumstances similar to those of the present case.
98. In these circumstances, the Court finds no reason to doubt the effectiveness, in the present case, of the action in tort within the meaning of Article 1349 of the New Civil Code (see paragraph 27 above) , indicated by the Government in support of its preliminary objection.
99. Accordingly, the Court accepts the objection of non-exhaustion of domestic remedies raised by the Government, and considers that this complaint must be rejected, pursuant to Article 35 § 4 of the Convention.
2. On the CSM’s position regarding the protection of the applicant’s professional reputation
a) Arguments of the parties
100. The Government indicated that the complaint based on the alleged refusal of the CSM to ensure the protection of the professional reputation of the applicant was premature and specified that the complaints lodged by the applicant against the decisions of the CSM of 11 January 2018 were dismissed. in 2019 (see paragraphs 24 and 25 above), or after the filing of the application. It also indicates that the tort route against media representatives represented, in domestic law, an effective remedy to redress the damage caused by the breaches of the right to reputation. On the merits of the complaint, the Government is of the opinion that the domestic authorities have weighed the right of journalists to freedom of expression and the applicant’s right to respect for her private life. He adds that the information published in the media all concerned a matter of general public interest and that the level of seriousness of the impugned remarks did not reach the threshold required to bring about the application of article 8 of the Convention.
101. The petitioner indicates that the High Court judgment dismissing her challenge to the SCM decision No. 26 had not yet been drafted at the time of submitting observations on the admissibility of the petition and that the statutory time limit for focus had not been observed in this case. She adds that the position of the CSM, consisting in her view of a refusal to ensure the protection of her reputation, was contradictory since, in her view, there was evidence which proved that her superiors were aware of her participation in the training in question. . In his view, the position of this body can be analyzed as an interference of exceptional gravity, which was neither provided for by law nor necessary in a democratic society and which called for a balance against the right to personal liberty. expression of journalists.
b) Assessment of the Court
102. The Court considers that it is not necessary to consider the question whether the applicant’s complaint is premature or whether, in the present case, the applicant has been subjected to violations of her reputation having exceeded the threshold of gravity required for Article 8 of the Convention to apply, since this complaint is in any event inadmissible, for the reasons set out below.
103. Referring to the principles set out in paragraph 52 above, the Court recalls that, for the purposes of applying the rule of exhaustion of local remedies, it must realistically take into account not only the remedies provided for in theory in the legal system of the Contracting State concerned, but also of the context in which they find themselves as well as the personal situation of the applicant. It must therefore examine whether, having regard to all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the domestic remedies (DH and Others v. Czech Republic [GC], no.57325 / 00, § 116, ECHR 2007-IV).
104. In the present case, the Court notes that the applicant, considering that the comments which appeared in the press were defamatory towards her, made several requests for the protection of her reputation before the CSM (see paragraphs 22-23 above ), which were ultimately finally rejected (see paragraphs 24-25 above).
105. With regard to the procedure provided for the defense of the reputation of magistrates, the Court noted that this administrative procedure enabled the CSM to seize ex officio or to be seized in respect of attacks on impartiality, to the independence and professional reputation of magistrates. Furthermore, it emerges from this procedure that the CSM could carry out reputation checks and publish the results (see Article 30 §§ 1 and 2 of Law no.317 / 2004, cited in paragraph 29 above ).
106. In the light of the information at its disposal, the Court notes that the means used by the applicant made it possible to obtain, in the event of a favorable decision, the publication of the results of the verification carried out by the CSM in the event of discovery of an infringement. to professional reputation. Neither the form that the appropriate remedial measures could have taken to alleviate the consequences of attacks on the right to a judge’s reputation, on the one hand, nor the answer to the question of whether the persons at the origin such attacks could defend their cause during the administrative procedure, on the other hand, do not emerge from the legislation governing this procedure. However, on this second aspect, the Court reiterates that it is essential that the authors of disputed assertions be offered a concrete and effective chance to be able to demonstrate that their allegations were based on a sufficient factual basis (see, mutatis mutandis and in the under Article 10 of the Convention, Morice v. France [GC], no 29369/10, § 155, ECHR 2015, and the references cited therein).
107. However, the Court observes that Romanian law provides for persons complaining of defamation through the press, including magistrates, the possibility of bringing an action before the civil courts in order to obtain compensation for the defamation. damage suffered on the basis of article 1349 of the new civil code (see paragraph 27 above). This remedy allows the interested parties to see the civil liability of the authors of the defamatory remarks engaged and compensation for the damages thus suffered. Next, the Court recalls that it had already been seized of several Romanian cases, under Articles 8 or 10 of the Convention, in which the parties concerned had obtained compensation for their damage caused through the press, through civil action. in tort (see, among many others, Aurelian Oprea v. Romania, no 12138/08, §§ 24-28, 19 January 2016; Rusu v. Romania, no 25721/04, §§ 12-13, 8 March 2016; Ghiulfer Predescu v. Romania, no29751 / 09, §§ 9-23, 27 June 2017; and Prunea v. Romania, no 47881/11, §§7-16, 8 January 2019).
108. Having regard to the foregoing, the Court considers that in the present case, before submitting to it her complaint relating to the protection of her reputation, the applicant should have made use of the civil remedy by introducing a action for damages in civil courts.
109. Accordingly, the Court accepts the objection of non-exhaustion of domestic remedies raised by the Government, and considers that this complaint must be rejected, pursuant to Article 35 § 4 of the Convention.
V. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION
110. According to article 41 of the Convention:
“If the Court declares that there has been a violation of the Convention or of its Protocols, and if the internal law of the High Contracting Party allows only imperfect erasure of the consequences of this violation, the Court grants the party injured, if any, just satisfaction. ”
A. Too bad
111. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage which she claims to have suffered as a result of all of the breaches she complained of in the present case, which she claims tainted the disciplinary proceedings against her and have caused him serious damage to his moral integrity and professional career as well as feelings of humiliation and deep suffering. She also seeks compensation for the material damage which she considers to have suffered, the amount of which she estimates at EUR 698 for the six-month delay that the Bucharest Court of Appeal allegedly took in paying her wages and at 5,596 EUR for the days of leave of which she would have been deprived.
112. The Government considered that the amount requested by the applicant for non-pecuniary damage was excessive and considered that a possible finding of a violation would constitute sufficient compensation in the present case. As regards pecuniary damage, he invites the Court to reject the applicant’s claims on the ground, on the one hand, that the applicant was able to recover all the wages due and, on the other hand, that the right internal law and European law only provide for financial compensation for leave not taken in the event of termination of the employment contract.
113. The Court recalls that it found only a violation of Article 6 § 1 of the Convention on account of the lack of access to a court to challenge the suspension decision imposed on the applicant on March 21, 2017. It does not distinguish any causal link between the violation found and the alleged pecuniary damage. The Court therefore rejects the request made in this regard. On the other hand, it considers that the mere finding of a violation does not constitute sufficient compensation in the present case for the non-pecuniary damage suffered by the applicant. Making an assessment on an equitable basis as required by Article 41 of the Convention, it awards the applicant the sum of EUR 6,000 for non-pecuniary damage.
B. Costs and expenses
114. The applicant claimed EUR 6,560 for costs and expenses incurred in connection with the proceedings before the Court and she requested that this sum be paid directly to her lawyer ‘s bank account.
115. The Government did not oppose, in principle, the reimbursement of costs and expenses. It points out, however, that the complainant’s request is accompanied only by an agreement concluded between her and her lawyer, and considers that this is not sufficient supporting documentation.
116. According to the Court’s case-law, an applicant may obtain reimbursement of his costs and expenses only to the extent that their reality, their necessity and the reasonableness of their rate have been established. In addition, legal costs are only recoverable to the extent that they relate to the violation found. In this regard, the Court notes that the applicant only succeeded before it in part of her complaints and that a large part of her observations were devoted to a part of the application declared inadmissible. In such circumstances, it may deem it appropriate to reduce the amount to be awarded for costs and expenses (Denisov, cited above, § 146).
117. In view of the foregoing, and in the light of the documents at its disposal and the criteria set out above, the Court considers it reasonable to award EUR 2,000, all costs combined, for the proceedings before it. As requested, the amount awarded must be paid directly to the bank account indicated by the applicant’s representative (see, for example, Khlaifia and Others v. Italy [GC], no 16483/12, § 288, December 15, 2016).
C. Default interest
118. The Court considers it appropriate to model the rate of default interest on the interest rate on the marginal lending facility of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT
1. Joins to the merits, by majority, the Government’s preliminary objection based on non-exhaustion of domestic remedies, and rejects it;
2. Declares, by majority, the grievance concerning the right of access to a court admissible;
3. Declares, unanimously, the remainder of the complaint inadmissible;
4. Holds, by six votes to one, that there has been a violation of Article 6 § 1 of the Convention;
5. Holds, by six votes to one,
a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement:
i. EUR 6,000 (six thousand euros) in the applicant’s bank account, plus any amount that may be due out of this sum by way of tax, for non-pecuniary damage,
ii. EUR 2,000 (two thousand euros) in the bank account of the applicant’s representative, plus any amount that may be due out of this sum by the applicant as tax, for costs and expenses;
b) that from the expiration of the said period and until payment, these amounts shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during this period, increased by three percentage points;
6. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in French, then communicated in writing on 20 October 2020, in application of Article 77§§2 and 3 of the Regulation.
Andrea Tamietti Yonko Grozev
In accordance with Articles 45 § 2 of the Convention and 74 § 2 of the Rules of Court, a statement of the separate opinion of Judge Wojtyczek is attached to this judgment.
PARTLY DISSENTING OPINION OF
1. With all due respect to the majority, I cannot agree with the declaration of admissibility of the complaint concerning access to a court, nor with the finding of a violation of Article 6 § 1 of the Convention.
2. In my opinion, in the present case, the main problem concerning access to a tribunal arises in terms different from those considered by the Court. Under Romanian law, a magistrate who lodges an appeal to contest a disciplinary measure is suspended from his functions (“the mere fact that the suspension of the functions of the person concerned was due to the exercise by the latter of her right of appeal” (paragraph 76)). This automatic suspension thus constitutes an obstacle to access to a second-degree court which must rule on the merits of the disciplinary case, and may discourage the introduction of such appeals by those concerned. The main problem therefore concerns the appeal against the disciplinary decision itself (it is this appeal which is hampered by the suspension) more than the appeal against the temporary suspension measure. However, since the complaint concerning access to the judge who decides on the merits of the disciplinary case was not raised by the applicant, it was not communicated and a fortiori could not be examined by the Court. .
3. The Romanian Government raised the objection of non-exhaustion of domestic remedies and the majority decided to join this question to the merits of the complaint. In this context, it is appropriate to briefly recall the principles established by the case-law of the Court, as summarized in the Vučković and Others v. Serbia (preliminary objection [GC], nos.17153/11 and 29 others, §§ 70-71, 74, 77, 25 March 2014):
“70. States do not have to answer for their actions before an international body until they have had the opportunity to redress the situation in their domestic legal order. Persons wishing to avail themselves of the Court’s supervisory jurisdiction over complaints directed against a State therefore have an obligation to first use the remedies offered by its legal system (see, among many Others, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV). The Court cannot stress enough that it is not a court of first instance; it does not have the capacity, and it does not suit its function as an international court, to rule on a large number of cases which involve establishing basic facts or calculating financial compensation – two tasks which, in principle and for the sake of effectiveness, are the responsibility of the domestic courts (see the Demopoulos and Others v. Turkey (dec.) [GC], nos 46113/99, 3843/02, 13751/02, 13466/03, 10200 / 04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010, in which the Court cited the principles set out in detail in paragraphs 66 to 69 of the Akdivar and others judgment, including the relevant elements in the present case are recalled below).
71. The obligation to exhaust domestic remedies requires applicants to make normal use of available and sufficient remedies to enable them to obtain redress for the violations they allege. These remedies must exist with a sufficient degree of certainty, in practice as well as in theory, otherwise they lack the desired effectiveness and accessibility (Akdivar and Others, cited above, § 66).
74. In order to be considered effective, a remedy must be capable of directly remedying the situation complained of and present reasonable prospects of success (Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no.56581 / 00, § 46, ECHR 2006-II). However, the mere fact of harboring doubts as to the prospects of success of a given remedy which is not obviously doomed to failure does not constitute an appropriate reason for not using the remedy in question (Akdivar and Others, cited above, § 71, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).
77. As regards the burden of proof, it is for the Government claiming failure to exhaust it to convince the Court that the remedy was effective and available both in theory and in practice at the material time. Once this has been demonstrated, it is up to the applicant to establish that the remedy referred to by the Government was in fact used or that, for some reason, it was neither adequate nor effective in view of the facts. of the cause, or even that certain specific circumstances exempted the person concerned from exercising it (Akdivar and Others, cited above, § 68, Demopoulos and Others, cited above, § 69, and McFarlane v. Ireland [GC], no 31333 / 06, § 107, September 10, 2010). ”
4. In the present case, the Romanian Government, in pleading the non-exhaustion of domestic remedies, refers in particular to decision No. 774/2015 of the Romanian Constitutional Court dated 10 November 2015. The reasoning of the judgment of the European Court of Human Rights mentions this decision and quotes a passage of its motivation.
The said decision merits further presentation and examination. It rules on a question raised on the occasion of a case brought before the High Court of Cassation and Justice by two magistrates who had been suspended from their functions on the basis of article 52 § 1 of Law no.317 / 2004 on the Superior Council of the Judiciary. During the examination of this case, the High Court of Cassation and Justice had decided to refer to the Constitutional Court a question concerning the constitutionality of the legislative provision in question, considering that it limited the right of access to the judge. The Constitutional Court found that the contested legislative provision was non-constitutional. In addition, she asserted that the shortcomings in the legislation should be corrected by changes in the existing legislation. She ordered the High Court of Cassation and Justice to directly apply the Constitution pending the adoption of new legislation, and therefore to allow access to this jurisdiction. The Constitutional Court thus imposed the direct application of article 21 of the Romanian Constitution, which guarantees the right of access to justice, and of article 134 § 3, which provides that the decisions of the Supreme Council of magistracy in disciplinary matters can be challenged before the High Court of Cassation and Justice.
This case shows that in a situation where access to the judge was not open to the persons concerned, they nevertheless had an effective judicial mechanism enabling them to obtain success and have the merits of their case examined. grievance by a judge. The remedies existing in Romanian law have therefore made it possible to effectively unlock – and without waiting for legislative reforms – access to the judge despite the existence of legislation deemed unconstitutional because it does not provide such access. In these conditions, it is difficult to follow the majority when it asserts that there was no effective judicial remedy, while the decision presented above clearly proves the contrary in the case of certain provisions of the same law, other than that applicable in the present case. One gets the impression that the majority cites the decision of the Constitutional Court without considering the substance and the lessons of that decision.
Although the Romanian Government has presented the above-mentioned decision very succinctly, it should in my opinion be admitted that it has met the requirements of the burden of proof incumbent upon it, because the content of this decision speaks for itself.
5. It may be objected that the case-law of the Court, concerning other countries which have concrete control of the constitutionality of laws (control by way of exception), considers that the request for such control is not a remedy to be exhausted before filing an application with the European Court of Human Rights. In the Italian context, the Court has indeed expressed the following opinion (Spadea and Scalabrino v. Italy, 28 September 1995, § 24, Series A no.315-B):
“(…) The Court recalls that in the Italian legal system an individual does not have direct access to the Constitutional Court to invite it to verify the constitutionality of a law: only one has the power to seize it, to the request of a litigant or ex officio, a court which hears the merits of a case. Consequently, such a request cannot amount to a remedy the exhaustion of which Article 26 requires (see, mutatis mutandis, the Brozicek v. Italy judgments of 19 December 1989, Series A no. 167, p. 17, para. 34, and Padovani v. Italy of 26 February 1993, Series A no 257-B, p. 19, para. 20). ”
This possible objection raises several observations. First, since the adoption of this approach the Court has developed the principle of subsidiarity very strongly. At the same time, the attitudes of national courts have also changed completely. These are much more sensitive today to questions of implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Second, the reservations made in the Italian context must be re-examined in the Romanian context. Court approaches may vary from state to state.
Third, as explained, the example judgment cited confirms the effectiveness of the objection of unconstitutionality raised in the Romanian context.
Fourth, if an individual cannot appeal directly to the Constitutional Court, he can nevertheless successfully apply to the trial judge for a referral of a question of constitutionality to the Constitutional Court. In addition, “the Court does not exclude that, where a preliminary ruling mechanism exists, the refusal of a domestic judge to ask a preliminary question may, in certain circumstances, affect the fairness of the proceedings – even if said judge is not called upon to rule in the last instance (…) – that the court competent to give preliminary rulings be internal (see the Coëme and others judgments [v. Belgium, nos. 32492/96, 32547/96, 32548 / 96, 33209/96 and 33210/96, § 114, ECHR 2000-VII], Wynen [v. Belgium, no 32576/96, §§ 41-43, ECHR 2002-VIII,] and Ernst and others [c. Belgium, no 33400/96, § 74, 15 July 2003]) or Community (…) ”(Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 59, 20 September 2011). According to the logic of the case law concerning Italy, we should also rule out all appeals subject to prior screening, such as the cassation appeal (or a similar appeal) in certain States, because in these cases the litigant does not have a direct access to the trial judge, it is another judge who decides whether or not to forward the appeal lodged to the latter.
6. Whatever the assessment of the need to refer a question of constitutionality to the Constitutional Court as a condition for the exhaustion of domestic remedies, it is not decisive in the present case. This judgment, based on the observations of the parties, cites a number of Romanian judicial decisions which allow access to the judge to challenge the suspension of a magistrate, pending the substantive examination of appeals concerning disciplinary sanctions. (paragraphs 31, 32, 33, 67 and 68). In particular, the judgment gives the following information:
“33. As for the applicant, she filed a judgment of the High Court of October 13, 2017 rejecting the challenge brought by a magistrate who found himself in a situation similar to hers. In this judgment, the High Court ruled that its role in this type of litigation was limited to the sole control of the legality of the act criticized, therefore to the verification of the respect, by the authorities, of the legal standards during the adoption. of this act, and that the suspension of functions in the event of an appeal against the decision to exclude the magistracy was provided for by law. ”
The case-law presented therefore clearly shows that the applicant could bring an action before a national court.
7. However, the majority consider that the control exercised by the national courts is insufficient and form the following opinion:
“68. As for the domestic decisions summarized in the letter of the CSM of October 9, 2019, they do not allow the Court to identify a situation likely to confirm the existence of a practice of the domestic courts authorizing the examination of the measure at issue through the remedy mentioned by the Government (see paragraph 58 above). This finding is reinforced by the example of case law provided by the applicant. Indeed, in this example, the examination carried out by the High Court was limited only to a review of legality and therefore did not address the necessity and the proportionality of the measure of suspension of service (see paragraph 33 above). ”
I note that the nature and intensity of the judge’s control over acts of public power vary according to the nature of the powers exercised and, in particular, according to the freedom of action left to state bodies. The principle of proportionality is a principle of law which circumscribes the exercise of powers in cases where the law leaves a margin of appreciation or at least partially discretionary power to state bodies. Ubi discretionalis potestas (i.e. libertas decidendi), ibi proportionalitas. Ubi proportionalitas, ibi discretionalis potestas.
The request to review the proportionality of a law enforcement action only makes sense if the body which took the impugned decision had a certain margin of appreciation or a minimum of discretion. If a measure must be applied “automatically” whenever certain legal conditions are met, the proportionality review of the application decision is excluded. The complaint based on the failure to respect the principle of proportionality by a body responsible for applying the law and exercising a related competence is quite simply untenable in national law (compare with Károly Nagy v. Hungary [GC], no 56665/09, § § 60-63, September 14, 2017). On the other hand, in such cases, the complaint alleging non-respect of the principle of proportionality has a meaning and can be defensible if it is directed against the legislator, which presupposes the existence of a judicial mechanism of control of the law (on general measures imposed by law, compare with the considerations expressed by Sir Nicolas Bratza in paragraph 4 of his concurring opinion appended to Animal Defenders International v. United Kingdom [GC], no 48876/08, ECHR 2013). In these circumstances, to require a judicial review of proportionality relating to law enforcement decisions when the enforcement authority exercises a related jurisdiction without first calling into question that jurisdiction itself does not seem to me to be rational.
8. The requirement to check proportionality, posed by the majority in paragraph 68, therefore goes to the substance of the applicable law and calls into question the choice of the legislator to establish certain measures as an “automatic” consequence of certain legal conditions. If the judge is to review the necessity and proportionality of the suspension measure, then the competent authority must have the powers which allow it to choose the measures to be taken and to assess their necessity and proportionality. Thus the reasoning for this judgment requires – implicitly – to replace the related power, conferred on an organ of the State, by at least partially discretionary power. In other words, the applicable law is declared implicitly – one could say indirectly – contrary to the Convention for lack of discretionary power.
This approach raises several objections. First, it seems at odds with the conclusion reached by the Court under Article 8. The Court takes the following position – rightly – in this regard (paragraph 92):
“Since the duration of the Applicant’s suspension from service was relatively short to trigger the applicability of Article 8 and the reasons for this measure did not infringe the Applicant’s ‘private life’ within the meaning of the same article, the Court considers that this provision is not applicable in the present case and that this complaint must be declared inadmissible for incompatibility ratione materiae with the provisions of the Convention, in application of Article 35 §§ 3 a) and 4. ”
For the Court, the content of the Romanian legislation concerning the suspension of magistrates during disciplinary proceedings does not pose a problem with regard to the material rights guaranteed by the Convention.
Second, if one wishes to question the content of legislative rules establishing certain measures affecting individuals, it should be done explicitly, after careful consideration and with detailed and persuasive motivation, based on substantive rights and not on rights. formalities such as those guaranteed in Articles 6 or 13. I note, in passing, that in certain cases, the Court considers that the margin of decision-making freedom granted to the authorities responsible for applying the law is too low and therefore incompatible with the Convention (see, for example, Calmanovici v. Romania, no 42250/02, § 153, 1 July 2008), while in many others it finds violations of the Convention because of an excessively broad discretion (see for example De Tommaso v. Italy [GC], no 43395/09, § 124, 23 February 2017, and Shalimov v. Ukraine, no 20808/02, § 88, 4 March 2010).
Third, Article 6 of the Convention does not regulate the extent of discretionary or related power to be conferred on state organs. This article grants the right of access to a judge who rules on defensible complaints and not to a judge who applies in each case the principle of proportionality to review the contested measures. As the Court very aptly recalled in the Karoly Nagy v. Hungary (cited above, § 61), “Article 6 § 1 does not provide for ‘rights and obligations’ of a civil character any specific material content in the legal order of the Contracting States: the Court cannot create, by way of interpretation of Article 6 § 1, a substantive law having no legal basis in the State concerned ”. However, the approach adopted by the majority results in declaring contrary to Article 6 situations in which the law grants state organs a related competence, thus imposing the creation of rights which do not exist in national law.
9. I also note that the fact that appeals brought in other cases have not resulted in favorable decisions does not in itself prove their ineffectiveness, especially if the issues raised were new. This effectiveness must be assessed taking into account the possible scope of arguable complaints and the effects of a decision allowing an appeal, as provided for by national law. The latter may be provided for in national law or highlighted by case law in other types of cases as long as national law does not exclude similar effects in cases of the type brought before the Court.
10. In conclusion, it should be noted that the case law cited in the reasons for this judgment proves the existence of effective remedies. The control exercised by the Romanian judge seems to extend to all the claims arguable in national law. The applicant’s complaint regarding the right of access to a court therefore seems manifestly ill-founded.
11. The approach adopted by the majority implicitly calls into question the legislation granting state organs a related competence without considering in depth the question of the compatibility of such competences with the Convention. It also calls into question the principle of subsidiarity which requires in particular the exhaustion of domestic remedies.