ECHR ruling of October 20, 2020 in the case "Camelia Bogdan v. Romania"" (aplication No. 36889/18).
In 2018, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Romania.
In the case, an aplication was successfully considered about the applicant's lack of an opportunity to appeal against her automatic removal from the official duties of a judge with the suspension of salary payment until the completion of consideration of her complaint about exclusion from the judicial magistrate. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant is a professional judge. In February 2017, the Supreme Council of the Magistracy applied a disciplinary penalty to the applicant in the form of an exception from the judicial magistrate. In March 2017, the applicant appealed against this decision. The Supreme Council of the Magistracy immediately decided to suspend the applicant from performing her official duties (which meant the termination of payment of wages), and this decision immediately entered into force.
In December 2017, the High Court of Cassation of Justice of Romania partially satisfied the applicant's complaint, deciding to transfer her to another position, rather than exclude her from the magistrate. In June 2018, the applicant received a salary for the entire period of suspension from work.
Regarding compliance with article 6, paragraph 1, of the Convention. (i) Applicability of article 6 of the Convention. The suspension from the duties of a judge who files a complaint against a disciplinary decision to exclude him or her from the magistrate refers to the measures provided for by Romanian law (paragraph 2 of article 651 of Law No. 303/2004). This measure is temporary and takes effect ex lege from the date of exercise of the right to appeal until the end of the trial.
Referring to the criterion developed in the case "Vilho Eskelinen and Others v. Finland" (Judgment of the Grand Chamber of the European Court of Justice of April 19, 2007, complaint No. 63235/00), which is applicable to all disputes concerning judges (see the Judgment of the European Court in the case "Baka v. Hungary" of June 23, 2016, complaint No. 20261/12 (See: Precedents of the European Court of Human Rights. Special issue. 2017. N 10)), and noting that the interim measure in question was taken in the context of the main disciplinary proceedings (see The decision of the Grand Chamber of the European Court of Justice in the case "Micallef v. Malta" (Micallef v. Malta) of October 15, 2009, complaint No. 17056/06 (See: Precedents of the European Court of Human Rights. Special Issue. 2017. N 10)), the European Court decided that the guarantees of Article 6 of the Convention also apply to the applicant's removal from official duties in the present case.
(ii) The substance of the complaint. According to the Romanian legislation in force during the period relating to the circumstances of the case, which was subsequently changed, it is obvious that there was no legal remedy available to the applicant in relation to appealing the fact of her suspension from the performance of official duties.
The alleged existence of judicial case-law in Romania, which would nevertheless allow the applicant to achieve an effective consideration by the Romanian courts of the measure applied to her, was not confirmed by any of the examples from the already considered cases that the Romanian authorities would have cited.
On the contrary, in one of the first examples from the judicial practice referred to by the applicant, the High Court of Cassation of Justice of Romania limited itself only to considering the issue of legality without examining the aspect concerning the necessity or proportionality of the removal of a judge from office.
Consequently, neither the Romanian legislation nor the domestic judicial practice in the relevant period contained a rule that the application of such a measure, as in the present case, would be investigated by the court. Moreover, the fact that decisions on dismissal from official duties taken at the request of judicial inspectors were not considered by the Romanian courts was confirmed and criticized by the Constitutional Court of Romania.
In view of the above, it can be concluded that the applicant was deprived of access to the court (ordinary or otherwise) as a result of her suspension from her official duties by the Supreme Council of the Magistracy, which for about nine months prevented her from performing her duties as a judge and receiving wages.
The Romanian authorities did not provide any convincing explanation for the lack of judicial protection. The mere fact that the applicant's removal from the performance of her official duties was due to the exercise of her right to file a complaint cannot be a sufficient justification for this.
Thus, the very essence of the applicant's right to access to the court was violated.
The case involved a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 6,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.