ECHR decision of 05 may 2020 in the case "Kovesi v. Romania" (aplication N 3594/19).
In 2019, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Romania.
The case successfully addressed an aplication that the chief Prosecutor was unable to effectively appeal against the premature termination of his term of office, and that the early termination of the applicant's mandate was an interference with her right to freedom of expression. The case violated the requirements of article 6, paragraph 1, and article 10 of the Convention for the protection of human rights and fundamental freedoms.
FACTUAL BACKGROUND
In 2013, the applicant was appointed by the President of Romania as chief Prosecutor Of the national anti-corruption office of Romania (DNA) for a three-year term. In 2016, the Supreme Council of magistracy of Romania (CSM) (the body responsible for resolving organizational and disciplinary issues in the judicial community) gave a positive opinion on the proposal of the Minister of justice to extend the applicant's term in this position for another three years.
In December 2016, the country held parliamentary elections. A new parliamentary majority and government were formed. In August 2017, the Romanian Minister of justice announced the start of reform of the Romanian judicial system. The changes and related legislative processes have drawn criticism in Romania and abroad.
In February 2018, the Minister of justice of Romania sent a report to the Supreme Council of magistracy of Romania, including a proposal to remove the applicant from office, referring to her public statements regarding the ongoing reforms. By a majority vote, the Supreme Council of magistracy of Romania did not agree to this proposal, and the President of Romania refused to sign a decree removing the applicant from office. The Prime Minister filed a petition to the constitutional court of Romania to resolve the constitutional contradiction caused by the refusal of the President of Romania. The constitutional court of Romania confirmed the existence of a constitutional conflict and ordered the President to sign a decree removing the applicant from the post of chief Prosecutor Of the national anti-corruption Directorate of Romania.
On 9 July 2018, by decree Of the President of Romania, the applicant was dismissed from her post as chief Prosecutor of the national anti-corruption Directorate of Romania.
POINT OF LAW
Regarding compliance with article 6, paragraph 1, of the Convention. (a) Eligibility. (i) the Existence of a right. Although access to the functions performed by the applicant was in principle a privilege that was granted at the discretion of the relevant authority and could not be obtained by enforcing the law, the same approach could not be applied to the termination of the employment relationship in question. The applicant's premature removal from office had a significant impact on her personal and professional situation and prevented her from performing certain duties. Thus, there was a genuine and serious dispute concerning the "right" for which the applicant could have filed a complaint on provable grounds under the provisions of Romanian law, namely the right not to be removed from office, except in cases specifically provided for by law.
(ii) the Civil nature of the law. Disputes between a state and its civil servants are, in principle, within the scope of article 6 of the Convention, except in cases where two complementary conditions are simultaneously met, as elaborated by the European Court of justice in the Grand Chamber's Decision in Vilho Eskelinen and others V. Finland (19 April 2007, application No. 63235/00). First, in its national legislation, the state should explicitly exclude access to the court for persons holding a certain public office or for the category of employees in question. Secondly, this exception must be justified on objective grounds and meet the interests of the state.
There was no provision in Romanian law that" directly " deprived the applicant of the right to access the court. On the contrary, it clearly referred to the right to trial in cases involving the professional activities of prosecutors. Accordingly, the first condition of the above-mentioned decision of the Grand Chamber of the European Court of justice In the case "Vilho Eskelinen and others V. Finland" (Vilho Eskelinen and Others V. Finland) was not fulfilled.
This in itself was sufficient to conclude that the civil aspect of article 6, paragraph 1, of the Convention was applicable. However, in the applicant's case, the court considered it necessary to continue its investigation of the issue and consider the second condition of the above-mentioned Ruling of the Grand Chamber of the European Court of justice in the case of Vilho Eskelinen and others V. Finland. In the legal scheme, when the removal of a person from the post of chief Prosecutor of the National anti-corruption office of Romania was carried out by decree Of the President of Romania on the proposal of the Minister of justice with the consent of the Supreme Council of magistracy of Romania, the absence of any judicial control over the legality of this decision could not be in the interests of the state. High-ranking officials of the court should enjoy, like other citizens of the country, protection from arbitrariness on the part of the Executive authorities, and only supervision by an independent judicial body over the legality of the decision to remove them from office could make the exercise of this right effective. The decision of the constitutional court of Romania regarding the respective competences of the constitutional bodies did not deprive the above-mentioned arguments of their relevance. Therefore, the second condition was also not met.
RESOLUTION
The complaint of a violation of article 6 of the Convention is admissible on the merits.
(b) the Substance of the complaint. The Romanian authorities did not dispute the lack of judicial control in the applicant's case, but argued that the situation was due to the applicant's failure to exhaust available remedies.
With regard to the applicant's ability to appeal to the court against the report of the Minister of justice, which proposed to remove the applicant from office, the constitutional court of Romania noted that this report could not have had any consequences and was only a preliminary document that preceded the introduction of the decree by the President. Moreover, even assuming that the applicant's complaint would have been accepted by the administrative courts, it was clear from the documents provided by the Romanian authorities that non-governmental organizations throughout the country had unsuccessfully attempted to use this remedy, and no other examples of administrative proceedings initiated in respect of a similar document were provided. Thus, in the context of the applicant's case, it was not established that a complaint to the administrative courts against the report of the Romanian Minister of justice would have been an effective domestic remedy.
The right to appeal to the court decisions of the Supreme Council of magistracy of Romania regarding the status and rights of prosecutors was expressly provided by law. However, since the decision of the Supreme Council of magistracy of Romania was in favour of the applicant, she was not interested in appealing it.
With regard to the decree of the President of Romania removing the applicant from office, domestic law did provide for a General opportunity to appeal any administrative decision to the administrative courts, and the presidential decree was an administrative decision in the legal sense. However, the examples provided by the Romanian authorities did not relate to situations similar to the applicant's case. The constitutional court of Romania considered that such consideration was limited to the question of the legality of the presidential decree stricto sensu. In view of the special restrictions imposed by the constitutional court of Romania, a complaint to the administrative court would be effective only for assessing the external signs of the legality of the presidential decree, assuming, accordingly, only a formal study of the normative act. Such an approach would not be an effective remedy in respect of the grievance of the applicant, namely to the fact that the dismissal of the applicant was illegal disciplinary penalty in connection with the Complainant expressed it publicly in the context of legislative reforms, which led to study of fact and domestic law under consideration by a presidential decree.
In view of the above, the applicant did not have an available domestic remedy to effectively appeal to the court the issue that she really intended to question: the reasons for her removal from the post of chief Prosecutor. All possibilities for judicial review were limited to a formal review of the contested presidential decree, while any examination of the proper reasons for the applicant's removal from office, the relevance of the facts that gave rise to her removal, or the existence of legal conditions for the validity of her removal was specifically excluded. Consequently, the degree of judicial review available to the applicant in the circumstances of the present case could not be considered "sufficient".
The European Court rejected the Romanian authorities ' argument that domestic remedies had not been exhausted and concluded that the Romanian authorities had violated the very essence of the applicant's right of access to the court due to the existence of special restrictions on the applicant's case as determined by the decision of the constitutional court of Romania.
RESOLUTION
The case violated the requirements of article 6 of the Convention (adopted unanimously).
Regarding compliance with article 10 of the Convention. The early termination of the applicant's mandate was an interference with her right to freedom of expression. No evidence was provided to show that the measure being appealed was intended to protect the rule of law or any other legitimate purpose. The contested measure was a consequence of the applicant's previous exercise of her right to freedom of expression. In cases where the court found that the interference had no legitimate purpose, it found a violation of the Convention without further consideration of the case. However, in the circumstances of the present case, it was also appropriate to establish whether the intervention was necessary in a democratic society.
The interference complained of was based on the opinion and criticism that the applicant had expressed publicly. The court paid particular attention to the position held by the applicant, according to which the applicant's tasks and responsibilities included expressing her opinion on legislative reforms that were likely to have an impact on the judiciary and its independence, as well as, in particular, on the fight against corruption carried out by the office headed by the applicant. The applicant's position and comments did not contain attacks on other members of the judicial community, nor did they contain criticism of the actions of the judicial authorities in relation to the ongoing legal proceedings. The applicant's statements did not go beyond simple criticism solely from a professional point of view. Consequently, her position and statements, which clearly fell within the scope of matters of significant public interest, required an increased degree of protection for the applicant's freedom of expression and a thorough investigation of any interference, with the accompanying very little discretion granted to the Romanian authorities.
Although the applicant continued to be a Prosecutor, she was prematurely removed from the post of chief Prosecutor. This resignation and its reasons can hardly be reconciled with the need for special attention to the nature of the judicial function as an independent branch of state power and to the principle of independence of prosecutors, which was a key element for maintaining judicial independence. In this context, the applicant's removal violated the very purpose of preserving the independence of the judiciary. In addition, early termination of office was an extremely strict sanction, which undoubtedly had a "deterrent effect", since it dissuaded not only the applicant, but also other prosecutors and judges from participating in public debates in the future on legislative reform affecting the judiciary and, more generally, on issues related to the independence of the judiciary.
Finally, due attention should be paid to the procedural aspect of article 10 of the Convention. In the light of the reasoning that led to the finding of a violation of article 6, paragraph 1, of the Convention in the present case, the court found that the contested restriction on the applicant's right to freedom of expression under article 10 of the Convention was not accompanied by effective and appropriate safeguards against abuse of power.
The removal of the applicant from the post of chief Prosecutor Of the national anti-corruption office of Romania did not pursue a legitimate aim and, moreover, was not a measure "necessary in a democratic society" within the meaning of the said provision of the Convention.
RESOLUTION
The case was a violation of the requirements of article 10 of the Convention (adopted unanimously).