European Court of Human Rights

 

FOURTH SECTION

CASE OF KÖVESI v. ROMANIA

(Application no. 3594/19)

 

 

 

JUDGMENT

 

STRASBOURG

5 May 2020

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kövesi v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Jon Fridrik Kjølbro, President,
          Faris Vehabović,
          Iulia Antoanella Motoc,
          Branko Lubarda,
          Stéphanie Mourou-Vikström,
          Georges Ravarani,
          Péter Paczolay, judges,
and Andrea Tamietti, Section Registrar,

Having regard to:

the above application against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Laura-Codruța Kövesi (“the applicant”), on 28 December 2018,

the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

the comments submitted by the Open Society Justice Initiative, the International Bar Association’s Human Rights Institute and the Helsinki Foundation for Human Rights, who were granted leave to intervene by the President of the Section,

Noting that on 30 January 2019 the Government were given notice of the application and that the application was granted priority under Rule 41 of the Rules of Court,

Having deliberated in private on 24 March 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The applicant complained that she had been denied access to a court to contest the premature termination of her mandate as chief prosecutor of the National Anticorruption Directorate. She also complained that her mandate had been terminated as a result of the views and positions that she had expressed publicly in her professional capacity concerning legislative reforms affecting the judiciary. She relied on Articles 6 § 1, 10 and 13 of the Convention.

THE FACTS

1.  The applicant was born in 1973 and lives in Bucharest. She was represented by Ms N.T. Popescu, a lawyer practising in Bucharest.

2.  The Romanian Government (“the Government”) were represented by their Agent, Mr V. Mocanu of the Ministry of Foreign Affairs.

I. Appointment of the applicant as chief prosecutor of the National Anticorruption Directorate

3.  On 15 May 2013, after seventeen years of service as a prosecutor - including six years as Prosecutor General of the prosecutor’s office attached to the High Court of Cassation and Justice - the applicant was appointed by the President of Romania, by Decree no. 483/2013, as chief prosecutor of the National Anticorruption Directorate (Direcţia Naţională Anticorupţie - hereinafter “the DNA”) for a three-year term, until 16 May 2016.

4.  In that capacity, the applicant carried out managerial tasks and coordinated the entire activity of the DNA, a department of the prosecutor’s office attached to the High Court of Cassation and Justice specialised in the investigation of medium-to high-level corruption crimes.

 

6.  In the beginning of 2016 the Minister of Justice submitted for endorsement by the CSM a proposal to reappoint the applicant to the position of chief prosecutor of the DNA for a new three-year term. In support of her proposal, the Minister mentioned that the applicant had organised the institution she ran with utmost efficiency and she had tackled corruption at the highest level, facts recognised both at national and international level. Her efforts had also been oriented towards the fulfilment of the obligations assumed by Romania within the European Commission’s Mechanism for Cooperation and Verification as regards the reform of the judicial system.

7.  On 28 March 2016 the section for prosecutors of the CSM gave a favourable opinion to the proposal by the Minister of Justice. In order to reach its decision the CSM had examined the Minister’s proposal, a report drafted by the Human Resources Department of the Ministry of Justice, the applicant’s curriculum vitae and her declarations of interest and of non‑affiliation to the secret services before 1990. In addition, the applicant was interviewed by the section for prosecutors of the CSM. The CSM observed that in 2015 the number of indictments had been higher than in 2012 while the number of people in high positions sent to trial had increased compared to 2012. The number of cases solved in 2015 had also increased compared to 2014. The CSM concluded that the applicant’s activity as chief prosecutor of the DNA had been remarkable, with results appreciated also at international level. The panel endorsed the Minister’s proposal unanimously.

 

II. Parliamentary elections of 2016 and subsequent developments

9.  After the parliamentary elections which took place on 11 December 2016 a new parliamentary majority was formed and a new government was established in January 2017.

10.  On 31 January 2017, the newly formed government adopted an emergency ordinance which modified certain provisions of the Criminal Code and the Code of Criminal Procedure (Government Emergency Ordinance no. 13/2017). The main amendments brought in by the Ordinance concerned the decriminalisation of abuse of office committed on the occasion of approval or adoption of all types of legislation when the damage was lower than 200,000 Romanian lei (ROL - approximately 44,000 euros (EUR)) and a lower punishment for the said crime when the damage was higher than the ROL 200,000 threshold. The Ordinance also provided for the decriminalisation of all acts of aiding and abetting committed by relatives up to the second degree.

11.  The adoption of the above ordinance generated demonstrations of protest throughout the country and internationally.

12.  In this context, on 2 February 2017 the DNA issued a press release informing the public that a complaint had been lodged concerning the manner in which certain pieces of legislation had been adopted and that checks were being conducted in that connection.

13.  On 27 February 2017 in another press release, the DNA informed the public that, after looking into the circumstances giving rise to the above‑mentioned complaint, no incidents of corruption had been revealed. Nevertheless, it had been decided to send the file to the prosecutor’s office attached to the High Court of Cassation and Justice, the competent authority to continue the investigation into possible offences consisting of intentionally presenting misleading data to Parliament or the President as regards the activity of the Government or a ministry in order to conceal the commission of acts against the State’s interests, removal or destruction of documents, removal or destruction of evidence and forgery. The press release went on to summarise the facts on which the above decision had been based as revealed by the investigation. It mentioned that Ordinance no. 13/2017 (see paragraph 10 above) had been adopted by the Government without being included on the agenda of their meeting and without allowing the necessary time for endorsement by the competent institutions. Moreover, an unfavourable opinion had been destroyed and entries in the correspondence registry at the office of the Minister of Justice had been modified in order to conceal the receipt of the draft ordinance for endorsement.

14.  On 3 July 2017, following a request by the Minister of Justice, the CSM ordered an inspection to be conducted at the DNA with the aim of determining the efficiency of its management and the fulfilment by the management of their duties as provided by law and internal regulations, and whether the staff respected the procedural rules and internal regulations. The inspection concerned the period between 1 January 2016 and 30 June 2017. The findings of the inspection were included in a 509-page report drafted on 15 September 2017 by the Department of Judicial Inspection for Prosecutors of the CSM. The inspection report pointed out that the applicant had fulfilled all the requirements of her position by creating a harmonious team capable of reaching a good level of performance in the investigation of corruption crimes. She was described as having good communication and conflict-resolution skills, efficiency and authority. The report concluded that the applicant fully complied with all the requirements needed to continue carrying out her role.

15.  On 23 August 2017 the Minister of Justice announced that a thorough reform of the judicial system was being planned. Subsequently, on 27 September 2017 Parliament decided to create a special parliamentary commission with the purpose of recommending changes to certain legal provisions in the field of criminal and civil law and justice.

16.  The work of the above commission started on 25 October 2017 with the reform of the three basic laws of the Romanian justice system: Law no. 303/2004 on the status of judges and prosecutors (see paragraph 73 below), Law no. 304/2004 on the organisation of the judiciary (see paragraph 74 below) and Law no. 317/2004 on the CSM (see paragraph 75 below).

17.  The amendments to the three above-mentioned laws and the related legislative process have drawn criticism in Romania and internationally. At the domestic level, this took the form, inter alia, of: two negative opinions of the CSM; a memorandum for the withdrawal of the amendments signed by almost 4,000 judges and prosecutors; silent protests of judges and prosecutors in front of the courts and public prosecutors’ offices; parliamentary questions and speeches by representatives of the opposition in the Romanian Parliament, to the Constitutional Court and also to international institutions, including the Venice Commission; protests by civil society organisations.

III. request by the Minister of Justice to REMOVE the applicant from her position AS chief prosecutor of the DNA

18.  On 23 February 2018 the Minister of Justice sent the CSM a document entitled “Report on managerial activity at the DNA” (“the Report”) which included a proposal for the applicant’s removal from her position. The Report outlined its proposal in its introduction as follows:

“The present report is the position of the Minister of Justice, determined by his constitutional role as provided by Article 132 of the [Constitution of Romania], which, referring to the status of prosecutors, establishes in paragraph 1 that ‘prosecutors [must] conduct their activity in accordance with the principles of legality, impartiality and hierarchic supervision, under the authority of the Minister of Justice’. It was drafted on the basis of the debates which had grown in volume in the public space during the past year, between February 2017 and February 2018, debates which have profoundly divided public opinion, and engendered, at unprecedented levels in the recent history of Romania, personal attacks and the questioning of constitutional, European and universal values ... [They] have skewed the opinions of European and international forums in respect of Romania, have triggered evaluation mechanisms never before used against our country, threatening the fulfilment of the objectives assumed and endangering the rule of law.”

19.  The Report further mentioned that its findings and conclusions referred solely to the period between February 2017 and February 2018 and concerned specifically the applicant’s managerial activity as chief prosecutor of the DNA. The Report mentioned that it was based on a previous report by the Minister of Justice concerning the evaluation of the managerial efficiency and the manner of fulfilment of her obligations by the chief prosecutor of the DNA as well as on the CSM’s inspection report of 15 September 2017 (see paragraph 14 above). It concluded that, however, “the decision would not be taken exclusively based on the inspection report”. The introduction of the Report ended as follows:

“The conclusions of the current Report are based, therefore, on evidence gathered from the beginning of the reference period until the present, on an analysis of decisions, facts and specific actions, including of the public statements made by the chief prosecutor of the DNA, as reflected in documents drawn up by public authorities at the end of the period concerned, on which the mentioned report of the Department of Judicial Inspection for Prosecutors is based.”

20.  The Report continued by detailing the reasons justifying the applicant’s removal from her position. Firstly, it was mentioned that, during a period of one year, three complaints had been lodged with the Constitutional Court concerning alleged breaches of the Constitution by the DNA. In two of these cases, breaches of the Constitution had been found.

21.  The first case concerned Constitutional Court decision no. 68 of 27 February 2017, from which the Report quoted as follows:

“The public prosecution office [Ministerul Public], as part of the judicial authority, considered itself competent to check the utility, the compliance with the legislative process and, implicitly, the lawfulness of the adoption of a Government’s emergency ordinance. Such behaviour implies a serious breach of the principle of separation of powers in the State, as guaranteed by Article 1(1) of the Constitution, because not only did the public prosecution office overstep its remit as provided by the Constitution and law but it also arrogated competences which belong to the legislature or to the Constitutional Court. ... By examining the circumstances of the adoption of Government Emergency Ordinance no. 13/2017 ... the DNA assumed the competence to conduct a criminal investigation in a field which was outside the legal framework, which might lead to institutional deadlock ... Therefore, the court acknowledges the existence of a constitutional conflict between the public prosecution office - the DNA, on one side, and the Romanian Government, on the other ...”

Based on the findings of the above decision and the fact that the applicant had publicly stated that she had personally taken responsibility for the investigation in this case, the Report concluded that the applicant had overstepped the limits of her competences as chief prosecutor.

22.  The second case concerned Constitutional Court decision no. 611 of 3 October 2017, in which the court concluded that there was a constitutional conflict between the Romanian Parliament on one side and the public prosecution office on the other, generated by the applicant’s refusal to appear before the Special Investigation Commission established by Parliament in order to investigate aspects concerning the organisation of the 2009 presidential elections. The Constitutional Court held that the applicant, in her capacity as chief prosecutor of the DNA, had refused to comply with three summonses to appear before the above-mentioned commission and informed the Commission in writing that she did not know of any aspects which might serve for the parliamentary investigation in question. The Constitutional Court considered that the applicant’s conduct - more specifically her failure to reply to two specific questions addressed by the commission - had blocked the activity of that commission. The Report further quoted the following from the Constitutional Court’s decision:

“... [B]y her attitude, the chief prosecutor of the DNA, not only excluded a priori any good-faith cooperation with the authority which exercises the people’s sovereignty - the Romanian Parliament - but also refused to participate in the clarification of certain aspects in connection with an event of public interest (her presence on the evening of 6 December 2009, the date on which the presidential elections took place, together with other people holding public positions - the director and the deputy director of the Romanian Information Service and senators –, at the house of Senator G.O. ...”

The Report concluded in this connection that the applicant, behaving as described in the Constitutional Court’s decision, had refused to cooperate with the representative public authorities and had refused to give information that was in the public interest. This had showed the “confusion made by the DNA chief prosecutor between her private life and her important position in a State public authority”.

23.  The third case concerned decision no. 757 of 23 November 2017, adopted by the Constitutional Court following a request by the President of the Senate to resolve a constitutional conflict between the Government on one side and the public prosecution office on the other. The constitutional conflict had allegedly been generated by the opening of an investigation by the DNA against several public officials, including a member of the Government, for corruption in connection with the adoption of a Government decision. In this case, the Constitutional Court held that there was no constitutional conflict and that the prosecutors were competent to investigate possible criminal acts committed in connection with the adoption of an individual administrative decision, such as the decision in question. On this point, the Minister considered that the above‑mentioned decision of the Constitutional Court was yet another reason justifying the applicant’s dismissal, because it showed that the DNA had overstepped the limits of its competencies when it had decided to investigate the utility of the adoption of a Government decision.

24.  The Minister further stated that this finding was also proved by a press release, issued by the DNA in connection with the above investigation, in which it was mentioned that the initiation of the Government ordinance in question had been done in breach of the procedure for the drafting, endorsement and presentation of legislative proposals. The Minister considered that by issuing the press release in question the applicant had overstepped the limits of her competencies. Moreover, he further alleged that the applicant had subsequently withdrawn this press release, which, in his opinion, showed that she had refused to accept her error.

25.  Another reason justifying the applicant’s removal from her position was the fact that she had got personally involved in the investigations conducted by the prosecutors under her supervision. In support of this statement the Minister quoted parts of a public statement made by the applicant in connection with the investigation concerning Ordinance no. 13/2017 (see paragraph 10 above) as follows:

“I personally take responsibility for the investigation in this case together with [prosecutors] D. and U. We have not moved one millimetre to the left or to the right without me saying yes.”

This, in the Minister’s opinion showed that the applicant lacked managerial skills.

26.  The Report continued by mentioning that the CSM inspection report (see paragraph 14 above) had found one instance of a possible disciplinary offence allegedly committed by the applicant as well as one instance of authoritarian behaviour, both in the human-resources field.

27.  Another element justifying the applicant’s dismissal was based on a press release issued on 12 January 2018 by the Department of Judicial Inspection of the CSM in which it was stated that disciplinary proceedings were pending against the applicant for several disciplinary offences in relation to professional honour and her behaviour towards colleagues.

28.  The Report then continued, on twelve out of the remaining nineteen pages, to detail various statements made by the applicant in public. The relevant parts of the Report read as follows:

“For instance, in a speech held at the Moldova-Romania Justice Forum, second edition, Bucharest 23-24 November 2017, in her capacity as representative of the institution she runs, the chief prosecutor of the DNA said that the Constitutional Court ‘[had] adopted in 2016 a decision declaring the text of law defining the crime of abuse of office constitutional only if by the phrase ‘in a defective manner’ was to be understood as ‘by breaching the law’. This is the reason why prosecutors [could] only investigate acts of abuse of office committed by breaching primary legislation, concluding that ‘it [was] evident that society remain[ed] unprotected from such practices after last year’s decision of the Constitutional Court’. She then continued to give some examples from the cases of the DNA, emphasising that ‘following the aforementioned Constitutional Court decision, in 2017, 245 files had been closed and 188 million euros [EUR] - damage caused to public funds - could no longer be recovered by the State. Besides the losses of millions of euros to the State budget, the whole of society will watch how those in public office will be busy satisfying interests different from the interest of the community. And then we pose a legitimate question: in the context of the proposed legislative changes concerning abuse of office and when millions of euros are lost by society through these actions, is it justified to limit the investigations?”

The Report mentioned that these statements, repeated by the applicant in the media on several other occasions, showed that she actually contested the general and binding character of the decisions adopted by the Constitutional Court and that she considered herself as being “both legislature and Constitutional Court”.

29.  Further on, the Report mentioned that, in the beginning of 2017, the applicant had stated to the British Broadcasting Corporation that she had been afraid of the dismantling of the DNA and talked about “daily threats against the judicial system”, mentioning that she had been afraid of legislative changes which might affect the fight against corruption, modify the jurisdiction of or even dismantle the institution she ran. Moreover, the Report stated that in an interview with Euronews the applicant had “criticised harshly some draft laws which [had been the subject at that time of] parliamentary debate, accusing politicians and businessmen of being against the efforts being made to clean one of the most corrupt countries in the European Union”. In addition, the Report set out that in an interview with the newspaper Libertatea the applicant had stated that the legislative amendments discussed by Parliament had in fact been “a pretext to eliminate the investigators’ capacity to uncover and solve crimes” and that “the fight against corruption w[ould] be terminated”. The Report concluded that these statements showed the applicant’s “obsessive fear” of losing her position as head of the DNA.

30.  In its final part, the Report also mentioned that in the last period the number of acquittals in the cases sent to the courts by the DNA had increased, a fact which raised questions about the manner in which the fundamental rights were being respected by the chief of the DNA. Moreover, the applicant was also criticised briefly for one example of lack of involvement in identifying and eliminating abuses by prosecutors under her supervision, one example of a lack of promptness in solving a case and one example of lack of reaction to a complaint concerning alleged unprofessional behaviour lodged against a prosecutor under her supervision.

31.  The Report concluded as follows:

“The DNA is not identified with its chief prosecutor, whose actions in the past year, have showed that they may endanger the institution she runs, by excess of authority, discretionary behaviour, defying the authority of Parliament and the Government’s role and competences, [and] contesting the decisions and the authority of the Constitutional Court. ... The [applicant’s] behaviour has created a crisis without precedent in the recent history of this country, which has made Romania, incorrectly, the subject of concerns, actions, facts, statements, [and] institutional reactions, at the national, European and international levels, with effects in the economic and social fields.

The chief prosecutor of the DNA has abused the trust of the representatives of international forums, and of the citizens of this country, spreading in the public space information without any real, legal or constitutional basis. She has created for herself an image of an anti-corruption hero based on this trust and [behind a] lack of transparency. This situation cannot continue because we are talking about the protection of the national interest ...”

32.  The Report ended as follows:

“In view of the above-mentioned elements it has been overwhelmingly proved that the chief prosecutor of the DNA, through all the facts presented here, has exercised and is currently carrying out her role in a discretionary manner, turning the anti-corruption activities and the DNA away from their constitutional and legal role. For these facts, intolerable in a State of the rule of law, I am hereby putting in motion the procedure for the removal of [the applicant] from her position as chief prosecutor of the DNA on the basis of Article 54(4) taken together with Article 51(2) letter b of Law no. 303/2004 on the status of judges and prosecutors.

This report, accompanied by the proposal for the removal of the DNA chief prosecutor will be transferred to the section for prosecutors of the CSM and to the President of Romania for decision, in accordance with legal prerogatives.”

IV. proceedings before the CSM

33.  In a letter dated 26 February 2018 and bearing the “received” stamp of the DNA of 27 February 2018, the applicant was informed by the CSM that she was summoned to appear at a hearing of its section for prosecutors on 27 February 2018 in order to present her point of view as regards the proposal for her removal from her position made by the Minister of Justice. A copy of the Report was enclosed with the letter.

34.  On 27 February 2018 a hearing took place before the section for prosecutors of the CSM, during which statements from the Minister of Justice and the applicant were heard.

35.  The applicant submitted, both orally and in writing, that the Minister had never requested any point of view or clarifications from her in connection with the elements on which the removal proposal had been based. Moreover, the Report had referred to the period between February 2017 and February 2018 but the report of the Department of Judicial Inspection to which it made reference concerned a period which had ended in the first term of 2017 (see paragraphs 14 and 19 above). On this point, the applicant submitted a copy of a favourable evaluation report concerning her activity for the period between 2016 and the first term of 2017.

36.  The applicant went on to reply to each of the criticisms raised in the Report.

37.  As regards decisions nos. 68 and 611 of the Constitutional Court (see paragraphs 21 and 22 above), the applicant stated that on the website of that court there were fifty decisions in which constitutional breaches had been found, including the two decisions in question. However, there had been no other request for the sanctioning or dismissal of the heads of the institutions involved or of the legislative authorities which had adopted the legal provisions found to be in breach of the Constitution. The fact that, out of the thirteen constitutional conflicts found by the Constitutional Court in the past fourteen years, only two referred to the DNA did not prove that that institution had engaged in systematic breaches of the Constitution. The applicant submitted that decision no. 68, in which the Constitutional Court had found a constitutional conflict between the DNA and the Government, had been the first of its kind in the Romanian legal system and the first time that the Constitutional Court had examined the lawfulness of a decision to open an investigation. Nevertheless, as the decisions of the Constitutional Court did not have retroactive effect, at the time of the opening of the investigation in question she could not have foreseen the interpretation given by the Constitutional Court to the relevant legal provisions in its subsequent decision. In respect of decision no. 611 the applicant explained that her refusal to appear before the parliamentary commission in question and her subsequent written reply to the enquiries of that commission had also become the object of a disciplinary investigation by the Department of Judicial Inspection of the CSM, finalised with a decision to close the case since no breach of law or of behavioural standards for prosecutors had been found.

38.  As regards the criticism that she had overstepped the limits of her competencies by issuing a particular press release (see paragraph 24 above), the applicant explained that, on 22 September 2017, in reply to questions received from the media, the DNA had issued a press release informing the public that an investigation against several suspects (including a number of high office holders, members of the Government and members of parliament) for corruption crimes had been ongoing. The applicant further explained that the press release, which had contained no reference to the utility of the adoption of the Government decision in question, had never been withdrawn and it could still be consulted on the website of the DNA.

39.  As regards the possible disciplinary offence and authoritarian behaviour mentioned in the CSM inspection report (see paragraph 26 above), the applicant explained that these two issues had been subsequently investigated by the CSM and found to be groundless.

40.  With respect to the reference to the CSM’s press release on the subject of disciplinary actions being instituted against the applicant (see paragraph 27 above) the applicant clarified that the disciplinary proceedings had not yet been finalised and thus the facts held against her were still under investigation and had not yet been proved.

41.  Concerning the public statements quoted in the Report (see paragraphs 28 and 29 above), the applicant contended that she had expressed her point of view in connection with legislative proposals and the manner in which these proposals might have affected the prosecutions service’s activity, which had not been prohibited by law.

42.  The Report also mentioned that her statements had severely affected Romania’s image (see paragraph 31 above). On that point the applicant submitted that this allegation had not been based on any objective element. In addition, it had been public knowledge that she had been joined in her statements about the legislative amendments in question by other judicial institutions as well as thousands of judges and prosecutors and their professional associations. Moreover, the CSM itself had issued a negative opinion about the same legislative amendments (see paragraph 17 above).

43.  The applicant also made reference to the positive assessments of the DNA during the period she had led the institution. In that connection, she mentioned the GRECO (Groupe d’États contre la corruption - Group of States Against Corruption) Fourth round evaluation report issued on 22 January 2016 and the EU anti‑corruption report issued by the European Commission on 3 February 2014, which had considered the DNA as one of the five examples of good practices in the field of anti-corruption at EU level, as well as the reports of the European Commission on Romania’s progress under the cooperation and verification mechanism of 2016 and 2017 (see paragraphs 83-86 below).

44.  Lastly, the applicant made reference to statistical data showing the good results obtained by the DNA in the course of the years 2016 and 2017, especially as regards the low acquittal rate in the cases sent to trial as well as a high rate of recovery of the damage to the State budget caused by corruption offences. She concluded by giving examples which proved the efficiency of her management in several areas of activity.

45.  On 27 February 2018, following a session held in the presence of the Minister of Justice and the applicant, the section for prosecutors of the CSM issued its decision, replying negatively to the Minister’s proposal.

46.  In the above decision the CSM held that Article 51 of Law no. 303/2004 on the status of judges and prosecutors (see paragraph 73 below) provided for a special legal framework for removal from senior positions, setting forth not only the situations in which this may occur but also the elements which must be examined for the assessment of the four managerial criteria, namely the efficient organisation of work, behaviour and communication skills, responsibility, and managerial skills. However, the CSM observed that the removal proposal did not refer to a specific breach of legal obligations and did not mention the specific managerial criteria concerned. The CSM noted that, even after clarifications offered by the Minister during the hearing, there had been no actual examples of the alleged unlawfully used resources, behavioural inadequacies, unfulfilled legal obligations or instances of inadequate management skills. Therefore, based on the documents in its possession (the Report by the Minister of Justice, the decisions of the Constitutional Court and other documents referred to in the Report, the applicant’s personnel file, the decisions of the CSM and the other documents mentioned in the applicant’s submissions), the CSM went on to examine the four indicators of managerial aptitude provided by law in the light of the evidence put forward by the Minister.

47.  It was firstly contended that the interpretation by the DNA of certain legal provisions in a different manner than the one subsequently adopted by the Constitutional Court could not be understood as a systematic breach of the Constitution, as alleged in the Minister’s Report. The CSM held that the decisions of the Constitutional Court such as the ones in question did not have retroactive effect and abidance by these decisions by public authorities could only be evaluated after the adoption of the decisions in question. The CSM further noted in that connection that the Constitutional Court decisions in question had also included dissenting opinions, which showed that the legal provisions under scrutiny had been subject to different interpretations. In addition, it was mentioned that no other decisions similar to decision no. 68, in which the Constitutional Court examined the lawfulness of a criminal investigation (see paragraph 21 above), had ever been adopted by the Constitutional Court.

48.  As regards decision no. 611 (see paragraph 22 above), the CSM also noted that a disciplinary investigation had been conducted by its judicial inspectorate department, which concluded that no fault could be established on the part of the applicant for her refusal to appear before the special parliamentary commission in question. Moreover, the applicant’s actions in that context had been in accordance with the previous case-law of the Constitutional Court as well as a previous decision adopted by the plenary of the CSM on 24 May 2007, the gist of both being that judges and prosecutors cannot be summoned to appear before parliamentary commissions because, according to the Constitution, they are part of the judicial authority.

49.  As regards decision no. 757 (see paragraph 23 above), the CSM noted that the Constitutional Court had held that the DNA was not competent to investigate the utility of the adoption of individual administrative decisions but was, in fact, competent to investigate any actions committed or resulting facts in connection with the initiation of an individual administrative decision. Therefore, in the opinion of the CSM, this decision of the Constitutional Court could not justify the Minister’s statement that the applicant had overstepped the limits of her competencies. As concerns the failure to accept responsibility for her errors, held against the applicant in the Report owing to an alleged withdrawal of a press release (see paragraph 24 above), the CSM observed that the press release in question was still available on the website of the DNA, and therefore that the allegations made had been disproved.

 

51.  With respect to the mention of the disciplinary action pending against the applicant as a reason for her dismissal (see paragraph 27 above), the CSM held that this aspect could not be examined since the disciplinary proceedings were pending.

52.  The CSM continued with an analysis of the public statements made by the applicant cited as evidence justifying her removal from her position (see paragraphs 28 and 29 above). On this point it was concluded that the statements referred to in the Report could not be understood as a contestation of the binding character of Constitutional Court decisions. Furthermore, quoting from the case of Baka v. Hungary ([GC], no. 20261/12, 23 June 2016), the CSM concluded that:

“Expressing a point of view on or a criticism of the text of a Law cannot be considered a contestation of the authority or of the decisions of Parliament: on the one hand because public debate is a component of the legislative process; and on the other hand because expressing a point of view (in conferences, debates, specialised articles or interviews) about a text proposed for adoption does not put into question the authority or the decisions of Parliament, nor their constitutional right to legislate; these represent the expression of a professional opinion over legal provisions.“

53.  Further on, the remaining arguments in the Report as well as the statistical data on which they were based were disproved one by one by the CSM, who concluded that there was no evidence that the applicant’s management was inadequate.

54.  In view of the above, the CSM decided by a majority of votes (the exact record of the vote is not in the public domain) not to endorse the removal proposal by the Minister of Justice, based on the provisions of Article 54(4) taken together with Article 51(2) letter b, (3)-(6) of Law no. 303/2004 (see paragraph 73 below).

V. The President’s refusal to sign THE REMOVAL decree in respect of the applicant and the complaint to the Constitutional Court

55.  On 16 April 2018 the President of Romania gave a press statement in which he explained that in view of the lack of endorsement from the CSM and owing to the unconvincing reasons put forward, he would not sign off on the proposal to remove the applicant from her position submitted by the Minister of Justice.

56.  On 23 April 2018 the Prime Minister lodged with the Constitutional Court an application to resolve the constitutional conflict firstly between the Minister of Justice and the President and secondly between the Government and the President, caused by the President’s refusal to follow up on the request for removal of the chief prosecutor of the DNA. In the application it was stated that in the procedure for appointment and removal of chief prosecutors the main role is held by the Minister of Justice, while the President, who does not have the right to veto such a proposal, is obliged to sign off on the proposal.

57.  The request was forwarded by the Constitutional Court to the President of Romania and the Minister of Justice, who were asked to send their comments.

58.  The President of Romania argued that, in fact, by using the term “proposal of the Minister of Justice”, Law no. 303/2004 gave the President as an administrative authority the power to examine the lawfulness and the advisability of such a proposal. He considered that there was no constitutional conflict in the current case and that he had the right by law to refuse to sign off on the proposal by the Minister, especially in the absence of the endorsement by the CSM.

59.  The Minister of Justice submitted that the request as lodged by the Prime Minister should be admitted and the Constitutional Court should order the President what conduct to follow, namely to issue the removal decree.

60.  A hearing was held on 10 May 2018, in a public session in the presence of the Minister of Justice and the representative of the President of Romania.

61.  On 30 May 2018 the Constitutional Court, sitting as a panel of nine judges, adopted its decision on the matter with three dissenting opinions.

62.  In reply to an allegation by the President of Romania that his refusal to sign the removal decree should have been challenged by the Minister of Justice before the administrative courts, the Constitutional Court held that the relationship between the President and the Minister of Justice fell within the sphere of constitutional law. The administrative courts were competent to examine only the lawfulness of an administrative decision, more specifically in the current case the lawfulness of the procedure for the applicant’s removal from her role. In this context the court explained as follows:

“69. A decree of the President is an administrative decision but this does not mean that the relationships with the other public authorities leading to the adoption of the decree fall within the ambit of administrative law ...

72. In the light of the above it is apparent that, in a first phase, between the Minister of Justice and the President, constitutional-law relationships are established, and a decision issued by the President or a refusal to issue the decision entails an administrative-law relationship only as regards the examination of the lawfulness of the removal procedure. This is why, in the first phase the Constitutional Court has competence and, in a second phase, the administrative courts [are competent].

73. The legal issue put before the Constitutional Court is to determine the limits and meaning of the phrase ‘under the authority of the Minister of Justice’, as provided in Article 132(1) of the Constitution taken in conjunction with Article 94 letter c) of the Constitution, an issue which concerns a pure constitutional-law relationship. Depending on the interpretation given by the [Constitutional] Court to this phrase, the limits of the Minister’s and the President’s competencies are set. Therefore, the two authorities must apply the decision of the Constitutional Court, and the control over the enforcement and respect of that decision cannot be done by the administrative courts but again by the Constitutional Court. Hence, the administrative courts have competence to examine stricto sensu the lawfulness of the decree or the refusal to issue the decree as follows: its issuing authority, its legal bases, the existence of the removal proposal by the Minister of Justice and the forwarding of this proposal to the CSM for its endorsement, the signature and, if needed, its publication in the Official Gazette. The Constitutional Court is competent to resolve conflicts of competence between the two authorities arising out of their different interpretation of the applicable constitutional provisions, as in the current case. ...

78. ... Therefore, having in mind the magnitude, the importance and the scope of the constitutional-law relationship found, the administrative-law relationship must be reduced only to the legality aspects referred to in paragraph 73 above.”

63.  The court further held that it was evident from the examination of the President’s submissions that he had in fact acknowledged the regular nature and lawfulness of the proposal in question, but had objected to its utility. On that point the court held that, in the context of removal from a leading position held on the basis of Article 94 letter c) of the Constitution (see paragraph 71 below), the President could only check that the proceedings were regular and did not have discretionary powers with regard to the utility of the removal. As regards the CSM’s decision not to endorse the Minister’s proposal, the court held that its value was just to assist the Minister in his decision on whether to follow through or not on that proposal. Nevertheless, the court held that none of those elements could affect the Minister’s authority in the matter of proposals for appointment or removal of senior prosecutors, as provided by the Constitution. It was emphasised that neither the President nor the Constitutional Court were authorised to verify the reasons put forward by the Minister of Justice in his proposal.

64.  The court concluded as follows:

“117. ... [T]he President of Romania openly considered himself entitled to a discretionary power, which does not exist under the Constitution, and which consequently annulled the minimum discretionary competences of the Minister of Justice, this representing eo ipso a breach of Article 132(1) of the Constitution.

118. Therefore, examining the constitutional texts and the relevant legal framework, the Court considers that the removal procedure initiated by the Minister of Justice, taking into account that the President had no objections as to its regular nature, fulfills the legality criteria such that the President should have issued the decree for the [applicant’s] removal. ... As a result, the position of the President of Romania not to exert his constitutional powers led to the impossibility for the Minister of Justice to exert his own constitutional powers conferred by Article 132(1) of the Constitution. Thus, it led to institutional deadlock between the two authorities, which prevented the putting into use and the finalisation of the Minister’s proposal for removal by virtue of Article 132(1) of the Constitution, in the sense that the proposal would come into full force, in line with the relevant constitutional provisions. As a consequence, the removal proposal by the Minister of Justice has produced only procedural effects as it has been initiated, reviewed by the CSM and sent to the President of Romania, but its substantial effects have been denied. ...”

65.  In view of the above, the Constitutional Court confirmed the existence of a constitutional conflict and ordered the President to sign off on the decree for the applicant’s removal from her position as chief prosecutor of the DNA.

66.  The decision was published in the Official Gazette on 7 June 2018, the date on which it became final and generally binding.

VI. The applicant’s removal from her position AS chief prosecutor

67.  On 9 July 2018 by Decree no. 526 (“the presidential decree”) the President of Romania removed the applicant from her position. The presidential decree was published in the Official Gazette and entered into force the same day.

VII. Other aspects

68.  Following the adoption by the CSM of its decision of 27 February 2018 (see paragraphs 45-54 above), several non-governmental organisations lodged with the courts applications for the suspension of the removal proposal and of the Report of the Minister of Justice. These applications were rejected, without being examined on the merits, as being devoid of purpose after the adoption of the presidential decree (see paragraph 67 above).

69.  In letters of 20 May 2019 in reply to an enquiry by the Government’s Agent, the High Court of Cassation and Justice and the Bucharest Court of Appeal stated that there was no case registered on their role concerning a complaint by the applicant against the Report, Constitutional Court decision no. 358/2018 or the presidential decree. The Bucharest Court of Appeal furthermore stated that it had had no other previous cases with similar situations.

70.  In a letter of 20 May 2019 in reply to a request by the Government’s Agent the CSM mentioned that the section for prosecutors had resolved in the past two disciplinary actions lodged by their Department of Judicial Inspection against the applicant. In both cases the disciplinary actions had been dismissed as unfounded. The letter further mentioned that at that time there were two other disciplinary actions pending against the applicant. According to information made public by the CSM, on 13 and 24 June 2019 these two disciplinary actions were also dismissed by its section for prosecutors.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE

A.    Constitution of Romania

71.  The relevant articles of the Constitution provide as follows:

Chapter II - The President of Romania

Article 94 - Other powers

“The President of Romania has the following other powers:

...

c). appoints to public functions, under the conditions provided by law;

...”

Chapter VI - The Judiciary

Section I - The courts

Article 126 - Courts of law

“...

(6) Judicial control over all administrative decisions issued by public authorities is guaranteed before the administrative courts with the exception of those decisions concerning the relationship with Parliament and the military. ...”

Section II - The public prosecution office [Ministerul Public]

Article 131 - Role of the public prosecution office

“(1) Within the judiciary, the public prosecution office represents the general interests of the society and protects the rule of law as well as the rights and freedoms of citizens.”

Article 132 - Status of public prosecutors

“(1) Public prosecutors shall carry out their activity in accordance with the principles of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”

Section III - Higher Council of the Judiciary [the CSM]

Article 133 - Role and structure of the CSM

“(1) The CSM shall guarantee the independence of the judiciary.”

Title V - The Constitutional Court

Article 146 - Powers

“The Constitutional Court has the following powers:

...

e). it decides on legal disputes of a constitutional nature between public authorities, at the request of the President of Romania, the President of either of the Chambers, the Prime Minister, or the President of the CSM; ...”

Article 147 - Decisions of the Constitutional Court

“(4) The decisions of the Constitutional Court shall be published in the Official Gazette. From their publication date, they are generally binding without retroactive effect.”

B.     Law no. 47/1992 on the organisation and functioning of the Constitutional Court

72.  Law no. 47/1992, as in force at the relevant time, provides as follows:

Article 11

“(1) The Constitutional Court shall render decisions, rulings and it shall issue advisory opinions, as follows:

A. Decisions, in cases in which:

a) it shall pronounce on the constitutionality of Laws, before their promulgation, when a case has been submitted by the President of Romania, by one of the Presidents of the two Chambers of Parliament, by the Government, by the High Court of Cassation and Justice, by the ombudsman, by a number of at least fifty deputies or of at least twenty-five senators, as well as automatically on proposals to revise the Constitution;

b) it shall pronounce on the constitutionality of the treaties or other international agreements, before their ratification by Parliament, when a case has been submitted by one of the Presidents of the two Chambers, by a number of at least fifty deputies or of at least twenty-five senators;

c) it shall pronounce on the constitutionality of the standing orders of Parliament when a case has been submitted by one of the Presidents of the two Chambers, by a parliamentary group or by a number of at least fifty Deputies or of at least twenty‑five senators;

d) it shall decide on the exceptions raised before courts of law or of commercial arbitration regarding the unconstitutionality of Laws and ordinances, as well as on those brought up directly by the ombudsman;

e) it shall resolve the legal disputes of a constitutional nature between public authorities when a case has been submitted by the President of Romania, by one of the Presidents of the two Chambers, by the Prime Minister, or by the President of the CSM;

f) it shall decide on the objections regarding the constitutionality of a political party.

Article 34

“(1) The Constitutional Court shall resolve legal disputes of a constitutional nature between public authorities, following a request by the President of Romania, or one of the Presidents of the two Chambers, or the Prime Minister, or the President of the CSM. ...”

Article 35

“(1) Upon receipt of the request, the President of the Constitutional Court shall notify the parties in conflict of it, asking them to express in writing their viewpoint on the subject matter under dispute and the possible ways for it to be resolved, to be submitted within a certain time-limit. The President shall appoint a judge-rapporteur.

(2) At the date when the last viewpoint has been received, but not later than twenty days following the receipt of the request, the President of the Constitutional Court shall set the date for a hearing to which he or she shall summon the parties involved in the dispute. The hearing shall take place on the day set by the President of the Constitutional Court regardless of whether either of the public authorities involved has failed to meet the deadline for presenting its point of view.

(3) The hearing shall take place on the basis of the report presented by the judge­ rapporteur, of the request submitted to the Court, of the viewpoints presented in accordance with paragraph (1) above, of the evidence given and the parties’ arguments.”

Article 36

“The decision which resolves the legal conflict of a constitutional nature shall be final and it shall be served on both the applicant, and the parties in dispute before its publication in the Official Gazette of Romania, Part I.”

C.    Law no. 303/2004 on the status of judges and prosecutors

73.  At the relevant time, Law no. 303/2004 included the following provisions as regards the career of prosecutors:

Article 1

“[The activities of officers of the court (magistratura) are those] performed by judges with the aim of ensuring justice and by prosecutors with the aim of protecting the general interests of society, the rule of the law and the rights and freedoms of citizens.”

Article 3

“(1) Prosecutors appointed by the President of Romania enjoy tenure and are independent, in accordance with the law.

(2) Prosecutors who have tenure may be transferred, seconded or promoted only with their agreement. They can be demoted, suspended or dismissed from their positions only in accordance with the provisions of the current law.”

Article 11

“(1) Judges and prosecutors may participate in writing for publications, may write articles, specialist papers, literary or scientific works and may participate in audiovisual broadcasts, except for those of a political nature.

(2) Judges and prosecutors may be members of examination commissions or of committees for drafting legislation, internal or international documents.

(3) Judges and prosecutors may be members of scientific or academic societies, as well as of any legal entities of private law that do not have a pecuniary-related purpose.”

Article 51

“...

(2) The removal of the judges from senior positions shall be decided by the CSM, either automatically or following a proposal by the general assembly [of judges] or of the court president, for the following reasons:

a) if they no longer fulfil one of the requirements for appointment into a leading position;

b) in the event of inappropriate exercise of management duties relating to effective organisation, to behaviour and communication, to the assumption of responsibilities and to management skills;

c) following application of a disciplinary sanction.

(3) When examining the effective organisation, the following main criteria are to be taken into account: appropriate use of human and material resources; evaluation of needs; crisis management; relation between invested resources and obtained results; management of information; organisation of professional training; and improvement and assignment of tasks within the courts or prosecutor’s offices.

(4) When examining behaviour and communication skills, the following main aspects are to be taken into account: behaviour and communication with judges, prosecutors, auxiliary personnel, the users of the legal system, individuals involved in the justice system, other institutions, the media, ensuring access to information of public interest in that court or prosecutor’s office and transparency in leadership.

(5) When examining the assumption of responsibility, the following main aspects are to be taken into account: fulfilment of duties provided in legislation and regulations; implementation of national and sequential strategies in the field of the judiciary; and the observance of the principle of random case distribution or, the case being, of cases distribution based on objective criteria.

(6) When examining management skills, the following main aspects are to be taken into account: organisational ability; quick decision-making ability; resistance to stress; self-improvement; analytical ability; systematic working; foresight; strategy and planning in the short, medium and long term; initiative; and capacity to adapt quickly. ...”

Article 54

“(1) The Prosecutor General of the prosecutor’s office attached to the High Court of Cassation and Justice, his or her first deputy and deputy, the chief prosecutor of the National Anticorruption Directorate, his or her deputies, the chiefs prosecutors of the sections within these prosecutor’s offices, and the chief prosecutor of the Directorate for Investigation the Offences of Organised Crime and Terrorism and her or his deputies, shall be appointed by the President of Romania, following proposals by the Minister of Justice, with the endorsement of the CSM from among the prosecutors with at least ten years’ length of service as judges or prosecutors, for a three-year term of office which is renewable only once.

(2) Article 48 paragraphs (10)-(12) shall apply accordingly.

(3) The President of Romania may refuse only in a reasoned form appointments to the positions in paragraph (1), while notifying the public of the reasons for the refusal.

(4) The removal of prosecutors from the positions in paragraph (1) is effected by the President of Romania following a proposal by the Minister of Justice, who may act proprio motu, following a request by the general assembly [of prosecutors], or ... at the request of the Prosecutor General of the prosecutor’s office attached to the High Court of Cassation and Justice or of the chief prosecutor of the National Anticorruption Directorate, with the endorsement of the CSM, for the reasons provided in Article 51 paragraph (2), which shall apply accordingly.”

D.    Law no. 304/2004 on the organisation of the judiciary

74.  Article 66(2) of Law no. 304/2004 on the organisation of the judiciary, as in force at the relevant time, provides that the prosecutor is independent as regards the decisions adopted. Moreover, Article 69 of the Law reads as follows:

Article 69

“(1) The Minister of Justice, when he or she considers it necessary, on his or her own motion or at the request of the CSM, exercises his or her oversight over prosecutors, through prosecutors specially appointed for this by the Prosecutor General of the prosecutor’s office attached to the High Court of Cassation and Justice, or by the chief prosecutor of the National Anticorruption Directorate, by the chief prosecutor of the Department for the Investigation of Organised Crime and Terrorism, or by the Minister of Justice.

(2) Oversight consists of the examination of managerial efficiency, the manner in which prosecutors carry out their work and the manner in which they interact professionally with litigants and other individuals involved in the activities conducted by the prosecutors’ offices. Oversight does not concern measures ordered by the prosecutor in the course of investigations or the decisions adopted.

(3) The Minister of Justice may ask the Prosecutor General of the prosecutor’s office attached to the High Court of Cassation and Justice, or the chief prosecutor of the National Anticorruption Directorate to submit reports about the activity of prosecutors’ offices and may give written guidelines as to the measures to be adopted in order to prevent and combat crime in an efficient manner.”

E.     Law no. 317/2004 on the functioning and organisation of the CSM

75.  Article 29(7) of Law no. 317/2004 provides that decisions adopted by the CSM with respect to the career and the rights of judges and prosecutors are subject to appeal by any interested person to the administrative section of the High Court of Cassation and Justice.

F.     Law no. 554/2004 on administrative proceedings

76.  The relevant provisions of Law no. 554/2004, as in force at the relevant time, read as follows:

Article 1

“(1) Individuals who consider themselves injured in respect of a legitimate right or interest by a public authority, through an administrative decision, or as a consequence of such an authority’s failure to resolve a petition within the timeframe provided by law may lodge before the competent administrative court an application to annul the contested decision, to acknowledge the claimed right or the legitimate interest, and to repair the damage sustained as a consequence thereof. The legitimate interest may be both private and public. ...”

G.    Relevant domestic practice

 

 

79.  In decision no. 866 adopted on 28 November 2006 the Constitutional Court held that the public prosecutor’s office (Ministerul Public) is by virtue of Articles 131 and 132 of the Constitution a component of the national justice system which is part of the judiciary. Prosecutors and judges have the same status under the Constitution (magistraţi). The court further held that Law no. 303/2004 had established, based on the above‑mentioned constitutional principles, identical or similar rules applicable both to judges and prosecutors concerning the grounds for recusal and restrictions, their admission in their profession (în magistratură), their appointment, their rights and obligations or their legal responsibilities. In the circumstances of the case, the court found that judges and prosecutors were on the same level owing to their similar constitutional status and noted that a prosecutor may be promoted to the position of judge at the High Court of Cassation and Justice.

II. RELEVANT INTERNATIONAL MATERIALS

A.    Relevant international materials concerning the independence of prosecutors

1.    Council of Europe

80.  The relevant extracts from the Opinion on Amendments to Law no. 303/2004 on the status of judges and prosecutors (see paragraph 73 above), Law no. 304/2004 on judicial organisation (see paragraph 74 above) and Law no. 317/2004 on the CSM (see paragraph 75 above) adopted by the Venice Commission at its 116th Plenary Session (Venice, 19‑20 October 2018) read as follows:

“12. The overall functioning of the Romanian judiciary has been the subject of yearly assessment (and recommendations) under the EU Mechanism of Cooperation and Verification, established upon Romania’s accession to the EU. While previous reports prepared in the context of this mechanism had noted that important progress in the reform of the judiciary had been made, the most recent report (in November 2017) expressed concern that this progress might be affected by the political situation and developments such as the adoption, in January 2017, of a Government Emergency Ordinance to de-criminalise certain corruption offences, and, lately, the controversy created around the revision of the three draft laws.

13. The legislative process took place in a context marked by a tense political climate, strongly impacted by the results of the country’s efforts to fight corruption. The Anti-Corruption Directorate (DNA) carried out a high number of investigations against leading politicians for alleged corruption and related offenses and a considerable number of Ministers or members of parliament were convicted. This successful fight against corruption was widely praised on an international level....

15. At the same time, there are reports of pressure on and intimidation of judges and prosecutors, including by some high-ranking politicians and through media campaigns. Pending amendments to the Criminal Code and Criminal Procedure Code, which will be the subject of a separate opinion of the Venice Commission, are alleged to have the potential of undermining the fight against corruption.

16. In these circumstances, the recent controversy over the dismissal of the Chief anti-corruption prosecutor, beyond the questions that it raises about existing and future mechanisms of dismissal (and appointment) from/to leading positions within the Romanian judiciary, is a clear illustration of existing difficulties and blockages in terms of inter-institutional dialogue and co-operation.

17. This context makes any legislative initiative, which has the potential of increasing the risk of political interference in the work of judges and prosecutors, particularly sensitive. ...”

81.  As regards appointments or dismissals from senior positions in the prosecution service the above-mentioned opinion states as follows:

“46. The Venice Commission notes in its Rule of Law Checklist, concerning the prosecution service, that ‘[t]here is no common standard on the organisation of the prosecution service, especially about the authority required to appoint public prosecutors, or the internal organisation of the public prosecution service. However, sufficient autonomy must be ensured to shield prosecutorial authorities from undue political influence. ...’

47. The Venice Commission, when assessing existing appointment methods, has paid particular attention to the necessary balance between the need for the democratic legitimacy of the appointment of the head of the prosecution service, on the one hand, and the requirement of depoliticisation, on the other. From this perspective, in its view, an appointment involving the executive and/or the legislative branch has the advantage of giving democratic legitimacy to the appointment of the chief prosecutor. However, in this case, supplementary safeguards are necessary to diminish the risk of politicisation of the prosecution office. As in the case of judicial appointments, while different practical arrangements are possible, the effective involvement of the judicial (or prosecutorial council), where such a body exists, is essential as a guarantee of neutrality and professional, non-political expertise. ...

55. This being said, the proposed appointment system may not be considered without taking into account recent developments related to the proposal made by the Minister of Justice for the dismissal of the DNA chief prosecutor, and its refusal by the Romanian President, as well as the related Decision of the Constitutional Court (CCR Decision no. 358 of 30 May 2018).

56. In its decision, the Court explicitly stated, thereby interpreting Article 94 (c) and Article 132 (1) of the Constitution (these provisions are silent on the issues of appointment / [removal] of chief prosecutors, which are regulated by Law no. 303/2014), that the President has no refusal power in the [removal] process. The Court explained, in particular, that the President’s power in the dismissal procedure is limited to examining the legality of the procedure ... and does not include a power for the President to analyse, on the merits, the dismissal proposal and its opportunity. In the view of the Court, by assessing the evaluation made by the Minister of Justice of the work of the DNA Head, the President had placed himself above the Minister’s authority in this procedure, which was unconstitutional.

57. The Court further established that the position expressed by [the CSM] (in the future, Prosecutors’ Section), shall serve, for the Minister of Justice, as an advisory reference regarding both the legality and the soundness of the dismissal proposal, while for the President, in view of the President’s - more limited - competence in the procedure, it shall only serve as advice in respect of legality issues (paragraph 115 of the Decision).

58. These are interpretations of high importance for relevant future [removal] regulations and, it seems also, for the appointment of chief prosecutors. To sum up, the decision gives the Minister of Justice the crucial power in removing high‑ranking prosecutors, while confining the President in a rather ceremonial role, limited to certifying the legality of the relevant procedure. The weight of [the CSM] (under the system which is currently proposed, its Prosecutors’ Section) is also considerably weakened, taken into account the increased power of the Minister of Justice and the limited scope of the influence that it may have on the President’s position (only on legality issues).

59. In a previous decision, the Constitutional Court examining the constitutionality of the draft law amending Law no. 303/2014, had concluded that the amendment reducing (to one refusal) the power of the President to refuse the appointment proposal made by the Minister of Justice for the function of chief prosecutor, did not raise issues of constitutionality. In that context, the Court had stressed that the Minister of Justice plays a central role in the appointment of chief prosecutors. By contrast, in an earlier decision of 2005, the Court had ruled that the role of the President in the appointment procedure of prosecutors could not be purely formal. These different judgments are hard to reconcile and the precise constitutional situation for appointments remains therefore somewhat unclear.

 

61. The judgment leads to a clear strengthening of the powers of the Minister of Justice with respect to the prosecution service, while on the contrary it would be important, in particular in the current context, to strengthen the independence of prosecutors and maintain and increase the role of the institutions, such as the President or the [CSM], able to balance the influence of the Minister. The Constitutional Court has the authority to interpret the Constitution in a binding manner and it is not up to the Venice Commission to contest its interpretation of the Constitution. The Constitutional Court based its decision on Article 132 (1) of the Constitution (“Public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice”), in relation to Article 94 (c) of the Constitution, stating that the President has, inter alia, “to make appointments to public offices, under the terms provided by law”. To strengthen the independence of the prosecution service and individual prosecutors, one key measure would therefore be to revise, in the context of a future revision of the Romanian Constitution, the provisions of Article 132 (1) of the Romanian Constitution. At the legislative level, it could be considered, as far as dismissal is concerned, to amend Law no. 303 in such a way as to give to the opinion of the [CSM] a binding force.”

63. The Venice Commission acknowledges that there are no common standards requiring more independence of the prosecution system, and that “a plurality of models exist” in this field. However, only a few of the Council of Europe member states have a prosecutor’s office under the executive authority and subordinated to the Ministry of Justice (e.g. Austria, Denmark, Germany, the Netherlands) and “a widespread tendency to allow for a more independent prosecutor’s office, rather than one subordinated or linked to the executive” may be observed. ...

65. More generally, in view of the difficulties highlighted during the exchanges it had in Romania, the Commission stressed the importance “of a unified and coherent regulation of the status of prosecutors, with clear, strong and efficient guarantees for their independence” and invited the Romanian authorities “to review the system” in order to address the shortcomings. The Commission also suggested that, in the context of a more comprehensive reform, the independence principle be added to the list of principles related to prosecutors’ functions.

66. To date, no such comprehensive change has taken place in Romania, while in the current situation of conflict between prosecutors and some politicians, due to the fight against corruption, this change would be even more important.”

82.  In its recent Opinion adopted at its 119th Plenary Session (Venice, 21‑22 June 2019) on the Emergency Ordinance amending the three laws of the justice system (see paragraph 17 above), the Venice Commission mentioned that:

“... [T]he scheme of appointment and dismissal of the top prosecutors remains essentially the same, with the Minister of Justice playing a decisive role in this process, without counter-balancing powers of the President of Romania or the [CSM]. It is recommended to develop an appointment scheme which would give the Prosecutors’ Section of the [CSM] a key and pro-active role in the process of the appointment of candidates to any top position in the prosecution system;”

83.  The Fourth Round Evaluation Report on Corruption prevention in respect of members of parliament, judges and prosecutors in Romania adopted in December 2015 by GRECO reads as follows in its relevant parts:

“3. ... [T]he conditions for the appointment and dismissal of some of the holders of top prosecutorial functions exposes them excessively to possible influence from the executive....

13. ...In recent years, there have been several attempts by the parliament to amend the criminal law mechanisms, also to undermine the authority and powers of such agencies as the National Integrity Agency and the National Anti‑corruption Directorate. Such attempts have often failed thanks to timely opposition and reactions both from within and from outside the country.

130. In The GET’s view, although the individual independence of prosecutors is guaranteed in legislation, the subjection to the Ministry of Justice still bears a risk of undue political pressure, for instance through the renewal of the term of office (limited to three years) and through the mechanism of revocation, which mirrors the appointment process. ...GRECO recommends that the procedure for the appointment and removal for the most senior prosecutorial functions other than the Prosecutor General, under article 54 of Law 303/2004, include a process that is both transparent and based on objective criteria, and that [the CSM] is given a stronger role in this procedure.”

84.  A subsequent GRECO Evaluation Report on Corruption prevention in respect of members of parliament, judges and prosecutors in Romania adopted in December 2017 reads as follows in its relevant parts:

“11. GRECO recalls that excessively hasty legal amendments without proper consultations, whether by the government or the parliament (the distinction is not always clear either - see the contextual information in recommendation xiii) remains a problematic area in Romania, especially when the measures are perceived as undermining the country’s integrity and anti-corruption efforts and as serving partisan interests. There have been several such examples recently, for instance with regard to the definition of the offence of abuse of office which triggered large street protests and was repealed a few days later, with two ministers resigning including the justice minister. ...

 

 

80. Regarding all the other senior prosecutorial functions, the appointment is proposed to be done exclusively by the [section for prosecutors] of the [CSM]. The legislative proposal submitted to the Chamber of Deputies also stipulates that the revocation of the prosecutors from all the senior prosecutorial functions is done exclusively by the [section for prosecutors of the CSM].

81. GRECO takes note of the information submitted by the Romanian authorities. It understands that the above proposal from [the CSM] ..., mentioned in Romania’s submission of information in June 2017, was not endorsed by the government despite the fact that it addressed underlying concerns which had led to this recommendation.

82. GRECO cannot disregard the fact that subsequently to the information provided to GRECO in June, the government presented in August 2017 a legislative proposal/package on the judiciary, which led to yet another wave of massive protests and negative reactions, considering that the proposals were a threat to the independence of the judiciary. The profession of magistrates largely joined the protests. In a move described as unprecedented, more than half of Romanian judges and prosecutors signed a memorandum calling to abandon this legislative project, pointing out that it had been launched without proper prior consultations, impact assessments, details on the content and motives etc. The proposals aimed at giving a more central role to the Government, i.e. by abolishing the involvement of the President in appointments (and thus giving a greater responsibility to the Minister of Justice) and by integrating the judicial inspectorate under the umbrella of the Ministry of Justice.

83. Bearing in mind the specific purposes of the present recommendation xiii, these proposals appeared to take at first sight the opposite direction. On 19 October 2017, media reported that the controversial draft proposals of the government - despite largely negative opinions - were still going to Parliament and in the beginning of November 2017, public protests (involving also opposition parties and personalities) against the proposals in Parliament, were reported in Romanian media. ...”

2.    European Union

85.  The Report from the Commission to the European Parliament and the Council on progress in Romania under the cooperation and verification mechanism (“the CVM”) of 27 January 2016 mentioned as follows in its relevant parts:

“The track record of the institutions involved in fighting high-level corruption remains strong, with regular indictments and conclusion of cases concerning senior politicians and civil servants. The National Anti-Corruption Directorate (DNA) reported an increased number of signals from the public: this seems to reflect a public confidence in the institution which is also reflected in opinion polls. ... The track record of the key judicial and integrity institutions to address high-level corruption has remained impressive.”

86.  In the following year’s Report from the Commission to the European Parliament and the Council on progress in Romania under the CVM published on 25 January 2017 it was stated that:

“CVM reports have been able to report a steadily growing track record in terms of investigating, prosecuting and deciding upon high-level corruption cases over the years, with a clear acceleration after 2011. ... The National Anti-Corruption Directorate (DNA) and the High Court of Cassation and Justice (HCCJ) have established an impressive track record in terms of solving high and medium-level corruption cases.”

87.  Recommendation no. 1 of the European Commission CVM Report of 15 November 2017 reiterated the recommendation put forward by the European Commission in previous CVM reports to Romania to “put in place a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission.” In the view of the European Commission, the fulfilment of this recommendation would “also need to ensure appropriate safeguards in terms of transparency, independence and checks and balances, even if the final decision were to remain within the political sphere.”

88.  On 23 February 2018 the European Commission issued the following statement in connection with the Romanian Justice Minister’s proposal to remove the chief prosecutor of the DNA from her position:

“The Commission is following the latest developments closely and with concern. The independence of Romania’s judicial system and its capacity to fight corruption effectively are essential cornerstones of a strong Romania in the European Union as reminded by the President and First Vice-President in their joint statement just last month. The Commission will follow developments on the ongoing procedures engaged against the Chief DNA prosecutor closely.

In previous CVM reports, the fact that the DNA had maintained its track record in the face of intense pressure was noted as a sign of sustainability. The Commission also noted in its report that, were that pressure to start to harm the fight against corruption, the Commission may have to reassess this conclusion.”

3.    United Nations

89.  In its Concluding observations on the fifth periodic report of Romania of 11 December 2017, the Human Rights Committee stated as follows:

“7. The Committee is concerned about allegations of persistent corruption in all branches of Government, including the judiciary and prosecutors, and its negative impact on the full enjoyment of the rights guaranteed by the Covenant and by parliamentary initiatives to reverse anti-corruption legislation. The Committee is also concerned about reports that the head of the National Anti-Corruption Directorate (DNA) was subjected to harassment in connection with her work....

The State party should strengthen its efforts to combat corruption in all branches of Government and provide the necessary protection to officials involved in anti-corruption efforts.”

B.     Relevant international materials concerning the freedom of expression of prosecutors

 

“6. States should also take measures to ensure that public prosecutors have an effective right to freedom of expression, belief, association and assembly. In particular they should have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organisations and attend their meetings in a private capacity, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organisation. The rights mentioned above can only be limited in so far as this is prescribed by law and is necessary to preserve the constitutional position of the public prosecutors. In cases where the rights mentioned above are violated, an effective remedy should be available.

...

16. Public prosecutors should, in any case, be in a position to prosecute without obstruction public officials for offences committed by them, particularly corruption, unlawful use of power, grave violations of human rights and other crimes recognised by international law.”

As regards the relationship between public prosecutors and the executive and the legislature, the Committee of Ministers recommended the following:

“11. States should take appropriate measures to ensure that public prosecutors are able to perform their professional duties and responsibilities without unjustified interference or unjustified exposure to civil, penal or other liability. However, the public prosecution should account periodically and publicly for its activities as a whole and, in particular, the way in which its priorities were carried out.”

91.  The Consultative Council of European Prosecutors in its Opinion No. 9 (2014) on European norms and principles concerning prosecutors of 17 December 2014 recognised that prosecutors enjoyed the right to freedom of expression and association in the same manner as other members of society, and pointed out that in exercising these rights, “they must take into account the duty of discretion and be careful not to jeopardise the public image of independence, impartiality and fairness which a prosecutor must always uphold”. As regards the independence of prosecutors, the Council of European Prosecutors stated as follows:

“IV. The independence and autonomy of the prosecution services constitute an indispensable corollary to the independence of the judiciary. Therefore, the general tendency to enhance the independence and effective autonomy of the prosecution services should be encouraged.

V. Prosecutors should be autonomous in their decision-making and should perform their duties free from external pressure or interference, having regard to the principles of separation of powers and accountability. ...

33. Independence of prosecutors - which is essential for the rule of law - must be guaranteed by law, at the highest possible level, in a manner similar to that of judges. In countries where the public prosecution is independent of the government, the state must take effective measures to guarantee that the nature and the scope of this independence are established by law. In countries where the public prosecution is part of or subordinate to the government, or enjoys a different status that the one described above, the state must ensure that the nature and the scope of the latter’s powers with respect to the public prosecution is also established by law, and that the government exercises its powers in a transparent way and in accordance with international treaties, national legislation and general principles of law. ...

35. The independence of prosecutors is not a prerogative or privilege conferred in the interest of the prosecutors, but a guarantee in the interest of a fair, impartial and effective justice that protects both public and private interests of the persons concerned.

36. States must ensure that prosecutors are able to perform their functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.

37. Prosecutors should, in any case, be in a position to prosecute, without obstruction, public officials for offences committed by them, particularly corruption, unlawful use of power and grave violations of human rights.

38. Prosecutors must be independent not only from the executive and legislative authorities but also from other actors and institutions, including those in the areas of economy, finance and media. ...

53. The proximity and complementary nature of the missions of judges and prosecutors create similar requirements and guarantees in terms of their status and conditions of service, namely regarding recruitment, training, career development, salaries, discipline and transfer (which must be affected only according to the law or by their consent). For these reasons, it is necessary to secure proper tenure and appropriate arrangements for promotion, discipline and dismissal.”

92.  The United Nations Guidelines on the Role of Prosecutors adopted in 1990 (session from 27 August until 7 September) contain the following relevant provisions:

“8. Prosecutors like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organization.”

93.  In its Report on freedom of expression, association and peaceful assembly of judges and prosecutors, submitted before the United Nations Human Rights Council in 24 June 2019, the UN Special Rapporteur on the independence of judges and lawyers recommended that:

“98. Any charge or complaint against judges or prosecutors relating to the exercise of their fundamental freedoms should be brought before an independent authority, such as a judicial or prosecutorial council, or a court. Disciplinary proceedings should be determined in accordance with the law, the code of professional conduct and other established standards and ethics.

99. Removal from office should only be imposed in the most serious cases of misconduct, as provided in the professional code of conduct, and only after a due process hearing granting all guarantees to the accused.

100. Decisions in disciplinary proceedings should be subject to an independent review.

102. As a general principle, judges and prosecutors should not be involved in public controversies. However, in limited circumstances they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

94.  The applicant complained that she had been denied access to a court to defend her rights in relation to her disciplinary dismissal from the position of chief prosecutor of the DNA. She relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    Admissibility

1.    Applicability of Article 6 § 1 of the Convention

(a)    The Government’s objection

95.  The Government submitted that Article 6 § 1 of the Convention was not applicable in the current case.

 

 

98.  In the light of the above, the Government did not deny that the applicant may have had a civil right at stake in the current case but concluded that she could and should have exercised her civil right before the administrative courts.

(b)    The applicant’s reply

99.  The applicant maintained that Article 6 § 1 was applicable in her case since the right to carry out her functions as chief prosecutor until the expiry of her three-year mandate had been clearly provided by the relevant domestic law, specifically Article 54(1) of Law no. 303/2004 (see paragraph 73 above).

 

101.  The dispute in the current case had involved a disciplinary sanction. The reasons put forward by the Minister for her removal had been examined by the judiciary disciplinary body and considered unfounded. In these circumstances, she concluded that the current case clearly concerned a dispute over a civil right which fell within the scope of Article 6 § 1 of the Convention.

 

(c)     The third-party intervener’s position

103.  Open Society Justice Initiative submitted that the dismissal of a chief prosecutor was a dispute over a civil right and fell under the scope of Article 6 § 1 of the Convention as it had to be surrounded by the guarantees provided by the said Article in order to safeguard the independence of chief prosecutors as a component of the rule of law.

(d)    The Court’s assessment

 

(i) General principles

 

106.  With regard to the existence of a right, the Court has consistently held that the starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. Article 6 § 1 does not guarantee any particular content for “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Regner, cited above, § 100 and further references cited therein).

 

 

 

110.  Lastly, the Court has held that, while access to employment and to the functions performed may constitute in principle a privilege that cannot be legally enforced, this is not the case regarding the continuation of an employment relationship or the conditions in which it is exercised. In the private sector, labour law generally confers on employees the right to bring legal proceedings challenging their dismissal where they consider that they have been unlawfully dismissed, or unilateral substantial changes have been made to their employment contract. The same is applicable, mutatis mutandis, to public-sector employees, save in cases where the exception provided for in Vilho Eskelinen and Others (cited above) applies (see Regner, cited above, § 117). In Baka, for instance, the Court recognised the right of the President of the Supreme Court of Hungary to serve his full term of six years in the absence of the specific grounds for its termination provided for under Hungarian law (see Baka, cited above, §§ 107-11).

(ii) Application of the above principles to the present case

(α)    Existence of a right

111.  The applicant complained of the lack of judicial review for what she considered as an unfair removal from the position she occupied.

 

 

 

115.  In these circumstances, the Court considers that, although access to the functions performed by the applicant in the present case constitutes in principle a privilege that can be granted at the relevant authority’s discretion and cannot be legally enforced, this cannot be the case regarding the termination of such an employment relationship (see, mutatis mutandis, Regner, cited above, § 117). Furthermore, the Court observes that the applicant’s premature removal from her position had a decisive effect on her personal and professional situation preventing her from continuing to carry out certain duties at the DNA (see, mutatis mutandis, Regner, cited above, § 115).

 

(β)    Civil nature of the right

 

 

 

 

121.  Accordingly, in the light of the domestic legislative framework, the Court considers that the applicant could arguably claim to have had an entitlement under Romanian law to protection against alleged unlawful removal from her position as chief prosecutor of the DNA during her mandate (see, mutatis mutandis, Baka, cited above, § 109).

 

123.  Therefore, in the light of the foregoing, it cannot be concluded that national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the termination of the applicant’s mandate. The first condition of the Eskelinen test has therefore not been met.

 

125.  In these circumstances the Court considers that Article 6 applies under its civil head and that the Government’s objection of lack of jurisdiction ratione materiae should be dismissed.

2.    Six months

(a)    The Government’s objection

 

(b)    The applicant’s reply

127.  The applicant contended that the six-month time-limit had started to run on 9 July 2018, the date of the entry into force by publication in the Official Gazette of presidential decree no. 526/2018, which had been the official decision revoking her from her position (see paragraph 67 above). Neither the Report of the Minister of Justice nor the decision of the Constitutional Court had had any immediate effect on her mandate as chief prosecutor. She pointed out that under the Constitution the appointment and removal of judges and prosecutors from their position was done by presidential decree. Therefore, she asked the Court to reject the Government’s objection and to conclude that she had complied with the six‑month time-limit.

(c)     The Court’s assessment

128.  The Court observes that the applicant’s complaint under Article 6 § 1 concerns the lack of access to a court in respect of her removal from her position as chief prosecutor of the DNA, removal which she considered had been based on her views concerning the proposed or adopted legislative reforms affecting the judiciary.

 

130.  Therefore, the Court considers that the start of the six‑month time‑limit in connection with the object of the current case is the date of the adoption and publication in the Official Gazette of the presidential decree removing the applicant from her position, namely 9 July 2018.

 

3.    Exhaustion of domestic remedies

132.  The Government further submitted that the applicant had failed to exhaust the available domestic remedies in connection with her complaints under Article 6 § 1 of the Convention.

133.  The Court considers that in the particular circumstances of the case, the Government’s objection is so closely linked to the substance of the applicant’s complaint under Article 6 § 1 of the Convention that it should be joined to the merits.

4.    Other grounds for inadmissibility

134.  The Court notes that the complaint under Article 6 § 1 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions and third-party comments

(a)    The applicant

 

136.  She argued that the Report of the Minister of Justice could not be considered an administrative decision within the scope of administrative law as it had not produced any effects in itself, instead requiring the intervention of the President or the Constitutional Court. The Report had been merely a preliminary act, a proposal which had to pass first through the scrutiny of the CSM and subsequently to be transposed in a decree issued by the President of Romania. The applicant mentioned that even the Constitutional Court had acknowledged this fact in its decision no. 358 of 30 May 2018 (see paragraph 64 above).

 

138.  In the applicant’s view, her access to court had been obstructed not by means of an express exclusion but by the fact that the measure subject to challenge - the premature termination of her mandate of chief prosecutor - had been imposed by a generally binding decision of the Constitutional Court and therefore, could not have been reviewed by an administrative court. She made reference in that connection to the operative provisions of the Constitutional Court decision in question (see paragraph 65 above).

 

140.  The applicant further submitted that throughout the entire evaluation and removal process initiated by the Minster of Justice, she had never been asked to present any documents or information and she had not been given the opportunity to present her own views. Therefore, in her view, the process leading to the Minister’s proposal for her removal had lacked transparency and integrity, and had failed to comply with the legal requirements. Subsequent to the lack of endorsement of the Minister’s proposal by the CSM and then the President’s refusal to adopt the removal decree, proceedings before the Constitutional Court had been initiated by the Minister of Justice and the Prime Minister. Those constitutional proceedings, by their specific nature provided by Law no. 47/1992, had not involved the applicant in any way. However, they had touched on the lawfulness of the removal procedure and had had a direct effect on her due to the order given to the President to issue the removal decree. Therefore, in the applicant’s opinion, she had been deprived of the guarantees of a fair trial as provided by Article 6 § 1.

 

(b)    The Government

142.  The Government maintained that the applicant could have vindicated her civil rights before the administrative courts. They submitted that the applicant could have contested, directly before the administrative courts, the Report of the Minister of Justice, the decision of the CSM of 27 February 2018 (see paragraphs 45-54 above) or the removal decree issued by the President.

(c)     The third-party intervener

143.  The Open Society Justice Initiative submitted that there was a general consensus that the appointment and dismissal process of chief prosecutors should be robust in order to secure their independence and should avoid political nominations or dismissal processes that expose them to political pressure or influence. In this regard, international and regional bodies, such as the Venice Commission, GRECO, the United Nations Office on Drugs and Crime (UNODC), the United Nations Special Rapporteur on the independence of judges and lawyers, the Inter-American Commission on Human Rights, and the European Commission had linked the independence of prosecution services with the existence of merit-based, transparent and accountable appointments and dismissals procedures in respect of their heads.

144.  The Open Society Justice Initiative also observed that a number of international and regional bodies had recognised the right of prosecutors to an effective remedy in dismissal and disciplinary proceedings. For example, the UN Guidelines on the Role of Prosecutors set out that decisions made in the context of disciplinary hearings had to be subject to “independent review”. In their report on the status and role of prosecutors, the UNODC cited and confirmed this standard set out in the Guidelines. Also, the UN Special Rapporteur on the independence of judges and lawyers stressed that “the dismissal of prosecutors should be subject to strict requirements, which should not undermine the independent and impartial performance of their activities”. As a consequence, prosecutors “should in any case have the right to challenge - including in court - all decisions concerning their career, including those resulting from disciplinary proceedings”. The Inter‑American Commission on Human Rights held that, there should be a possible review of a prosecutor’s dismissal decision by a higher body, which would examine the facts of the case and the law, and ensure “a suitable and effective judicial recourse against possible violations of rights that [had] happened during the disciplinary process”. The Commission also highlighted the importance of the right to a review in cases where dismissal “may be an implied sanction”, constituting a “misuse of power to punish a justice operator for some action or decision he or she [had taken]”.

2.    The Court’s assessment

(a)    General principles

 

 

 

(b)    Application of those principles to the present case

148.  In the present case, the Government did not dispute the lack of judicial review in the applicant’s case, but contended that it had been due to the applicant’s failure to exhaust the various remedies available in the situation at hand (see paragraph 142 above).

 

 

 

152.  The Court observes that domestic law does indeed provide for a general possibility to contest before the administrative courts any administrative decision and a presidential decree is an administrative decision within the meaning of this law (see paragraph 76 above). However, the examples submitted by the Government do not concern situations similar to the applicant’s, specifically the adoption by the President of a decree for the removal of a prosecutor from a senior position following a specific order in that connection by the Constitutional Court.

 

 

 

156.  In this context, the Court also notes the growing importance which Council of Europe and European Union instruments attach to procedural fairness in cases involving the removal or dismissal of prosecutors, including the intervention of an authority independent of the executive and the legislature in respect of decisions affecting the appointment and dismissal of prosecutors (see paragraphs 80-88 above).

157.  On the basis of the above-mentioned considerations, the Court dismisses the Government’s objection as to the non-exhaustion of domestic remedies and concludes that the respondent State impaired the very essence of the applicant’s right of access to a court owing to the specific boundaries for a review of her case set down in the ruling of the Constitutional Court.

158.  There has accordingly been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

159.  The applicant complained that her mandate as chief prosecutor of the DNA had been terminated as a result of the views concerning legislative reforms affecting the judiciary that she had expressed publicly, in her professional capacity. She alleged that there had been a violation of Article 10 of the Convention, which, in so far as relevant, provides:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.    Admissibility

 

161.  The applicant reiterated her arguments made under Article 6 § 1 of the Convention (see paragraphs 127 and 135-137 above).

 

163.  The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions and third-party comments

(a)    The applicant

 

 

 

167.  Furthermore the applicant submitted that the infringement of her right to freedom of expression had not pursued a legitimate aim either. She argued that the statements made in the Minister’s Report that her opinions had affected the image of Romania and undermined certain institutions had not been supported by any evidence. The applicant referred to reports by prominent international institutions (see paragraphs 80-89 above) as well as to numerous prizes and honours she had received for her achievements in the fight against corruption from non-governmental organisations, governments and diplomatic missions of European countries and the United States.

168.  Lastly the applicant contended that no convincing argument had been put forward by the Government to prove that her removal from her leading position, which had obviously been a disproportionate measure, had pursued a pressing social need.

(b)    The Government

 

170.  They argued that the evaluation in the Report of the Minister of Justice had addressed all aspects considered by the legislature: efficient organisation of work, behaviour, communication skills, responsibility, and managerial skills. The applicant’s public statements had been examined in accordance with the law by virtue of the Minister of Justice’s legal authority to examine issues concerning communication, as part of the entire evaluation process. Also, the Government pointed out that the applicant had not been prevented from participating in television and radio programmes and that no prosecutor, much less one with such an important position, should have made appearances of a political nature and/or appearances that could have called into question the independence of the judiciary or demeaned judges and prosecutors or others. It was clear in these circumstances that the applicant’s communication skills had been assessed from the point of view of the position held and the need for extremely high‑level management skills.

171.  They concluded that the applicant’s right to freedom of expression had not been breached.

(c)     Third-party interveners

(i) International Bar Association’s Human Rights Institute

 

 

174.  Furthermore, the IBAHRI referred to the fact that it was not only a right but also a duty of all legal professionals to raise issues of public concern if the reason for that was a desire to improve the legal system. Prosecutors, as actors of the justice system, had an obligation to the legal system and to the public interest. Therefore, they were free to publicly discuss, criticise or raise allegations related to public officials, the actions of State institutions, existing poor legal or administrative practices and the justice system, if the reason for doing so was the desire to improve the legal system. They considered it went without saying that raising an issue of alleged corrupt practices, abuse of power, or major disregard or threats to the rule of law in the country had to be part of a necessary and permitted debate in a democratic society.

175.  The IBAHRI also mentioned that the Guarantees for the Independence of Justice Operators, adopted by the Inter‑American Commission of Human Rights, stated that “as public officials, ... prosecutors ... enjoy[ed] a right of freedom of expression that [wa]s quite broad, as this right [wa]s necessary to explain to society, for example, certain aspects of national interest and relevance”. Moreover, in Advisory Opinion OC-5/85, the Inter-American Court of Human Rights emphasised that freedom of expression was “a conditio sine qua non for the development of ... trade unions”. Therefore, in the same way, prosecutors’ freedom of expression was a conditio sine qua non for the fair administration of justice and an effective justice system.

(ii) Helsinki Foundation for Human Rights

176.  The Helsinki Foundation for Human Rights (“the HFHR”) submitted an overview of the most important standards concerning the independence of prosecutors, starting with the United Nations Guidelines on the Role of Prosecutors adopted in 1990 (see paragraph 92 above) and the Status and Role of Prosecutors published in 2014 by the UN Office on Drugs and Crime and the International Association of Prosecutors. They noted that significant standards had also been developed within the system of the Council of Europe. Particularly worth mentioning here was the Recommendation of the Committee of Ministers (2000)19 on the role of public prosecution in the criminal-justice system (see paragraph 90 above). The Recommendation did not advise against making the prosecution service subordinate to government. However, governmental powers should be exercised in a transparent way and in accordance with the law. Any instructions to prosecutors should have written form and be issued with adequate guarantees. Moreover, instructions not to prosecute in specific cases should not as a principle be allowed.

177.  The HFHR observed that the majority of the soft-law documents adopted within the framework of international organisations and the documents regarding prosecutorial independence developed by professional associations of prosecutors underlined the importance of respecting and protecting prosecutors’ freedom of expression. For example, the Explanatory note of the Rome Statute of the International Criminal Court stated that prosecutors were free to participate “in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice”, although they should not comment on pending cases or undermine the integrity of the courts.

178.  The HFHR also provided examples of the excessive influence of the Government on the functioning of the prosecution service in Poland and its negative impact on the effectiveness of human-rights protection, starting with the reform of the prosecution service of 2016.

2.    The Court’s assessment

(a)    Existence of an interference

 

 

 

182.  In Kayasu (cited above, § 80), the Court found that the applicant’s disciplinary sanctions had been based both on the content and format of texts drafted by the applicant (a criminal complaint against an army general and a decision to open a criminal investigation against the same general taken in the applicant’s capacity as prosecutor) as well as on the passing of these texts onto the media, both of which were considered to have been connected to the applicant’s right to freedom of expression, which included the freedom to communicate opinions and information.

183.  Turning to the current case, the Court must first ascertain whether the measure complained of amounted to an interference with the applicant’s exercise of freedom of expression.

 

 

 

 

188.  Therefore, in view of the above and having regard to the sequence of events in their entirety (see paragraphs 9-18 above), rather than as separate and distinct incidents, there is prima facie evidence of a causal link between the applicant’s exercise of her freedom of expression and the termination of her mandate.

 

 

(b)    Whether the interference was justified

(i) Prescribed by law

 

 

 

194.  It follows from the applicant’s submissions that the salient issue in this case is not whether the above-mentioned legal provisions are in principle sufficiently foreseeable, in particular in their use of the terms “behavior” and “communication”, but whether the views expressed by the applicant had been the underlying reason for her removal from her post. For the Court this issue is closely related to the question whether the interference was necessary in a democratic society in the circumstances of the present case and in light of the legitimate aim pursued.

 

(ii) Legitimate aim

 

 

 

 

(iii) Necessary in a democratic society

(α)    General principles

200.  The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court, were restated, inter alia, in Baka (cited above, § 158-61).

 

202.  In the context of Article 10 of the Convention, the Court must take account of the circumstances and overall background against which the statements in question were made. It must look at the impugned interference in the light of the case as a whole, attaching particular importance to the office held by the applicant, her or his statements and the context in which they were made (see Baka, cited above, § 166, with further references).

203.  Lastly, in order to assess the justification of an impugned measure, it must be borne in mind that the fairness of proceedings and the procedural guarantees afforded to the applicant are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10. The Court has already found that the absence of an effective judicial review may support the finding of a violation of Article 10 (see Baka, cited above, § 161, and the cases cited therein).

(β)    Application of those principles to the present case

204.  Turning to the current case, the Court reiterates its finding that the impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in the exercise of her right to freedom of expression (see paragraph 190 above). It observes in this regard that the applicant expressed her views on the legislative reforms at issue in her professional capacity as chief prosecutor of the DNA. The applicant also used her legal power to start investigations into suspicions of corruption crimes committed by members of the Government in connection with highly disputed pieces of legislation and to inform the public about these investigations (see paragraphs 12, 13 and 24 above). She also availed herself of the possibility to express her opinion directly in the media or during professional gatherings (see paragraphs 28 and 29 above).

205.  The Court attaches particular importance to the office held by the applicant (chief of the national anticorruption prosecutor’s office), whose functions and duties included expressing her opinion on the legislative reforms which were likely to have an impact on the judiciary and its independence and, more specifically, on the fight against corruption conducted by her department. It refers in this connection to recommendation (REC(2000)19 of the Committee of Ministers of the Council of Europe, which recognises that prosecutors should have the right to take part in public discussions on matters concerning the law, the administration of justice and the promotion and protection of human rights, and they should be in a position to prosecute without obstruction public officials for offences committed by them, particularly corruption (see paragraph 90 above).

 

207.  On the contrary, the applicant expressed her views and criticisms on legislative reforms affecting the judiciary, on issues related to the functioning and reform of the judicial system and the prosecutor’s competence to investigate corruption offences, all of which are questions of public interest. Her statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the Court considers that the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for her freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State.

208.  Furthermore, the proceedings for the applicant’s removal from the office of chief prosecutor of the DNA were initiated by the Minister of Justice on 23 February 2018 (see paragraph 18 above), a little more than one year and two months before the end of the fixed term of her mandate applicable under the legislation in force at the time of her appointment (16 May 2019 - see paragraph 8 above). Although the applicant remained on as a prosecutor, she was ultimately removed from her position as chief prosecutor on 9 July 2018 (see paragraph 67 above) before the end of her mandate. This removal and the reasons justifying it can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the independence of prosecutors, which - according to Council of Europe and other international instruments - is a key element for the maintenance of judicial independence (see paragraphs 90-93 above). Against this background, it appears that the premature removal of the applicant from her position as chief prosecutor of the DNA defeated the very purpose of maintaining the independence of the judiciary.

 

210.  Lastly, due account should be taken of the procedural aspect of Article 10 (see paragraph 203 above). In the light of the considerations that led it to find a violation of Article 6 § 1 of the Convention (see paragraphs 145-158 above), the Court considers that the impugned restrictions on the applicant’s exercise of her right to freedom of expression under Article 10 of the Convention were not accompanied by effective and adequate safeguards against abuse.

(iv) Conclusion

211.  On the basis of the above arguments, and keeping in mind the paramount importance of freedom of expression on matters of general interest, the Court is of the opinion that the applicant’s removal from her position of chief prosecutor of the DNA did not pursue any of the legitimate aims listed in Article 10 § 2 and, moreover, was not a measure “necessary in a democratic society” within the meaning of that provision.

 

III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 6 § 1 AND 10 OF THE CONVENTION

213.  The applicant also complained, under Article 13 taken in conjunction with Articles 6 § 1 and 10 of the Convention, that she had been deprived of an effective domestic remedy in relation to the premature termination of her mandate as chief prosecutor of the DNA. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

 

215.  The Court reiterates that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).

216.  The Court notes, however, that the role of Article 6 in relation to Article 13 is that of lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Kuznetsov and Others v. Russia, no. 184/02, § 87, 11 January 2007, and Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007). Given the Court’s findings under Article 6 § 1 of the Convention (see paragraph 158 above), the present complaint does not give rise to any separate issue (see, for instance, Baka, cited above, § 181).

217.  Consequently, the Court holds that it is not necessary to examine the admissibility and merits of the complaint under Article 13 in conjunction with Articles 6 § 1 and 10 of the Convention separately.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

218.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

219.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Joins to the merits the Government’s preliminary objection as to the non-exhaustion of domestic remedies, and dismisses it;

2.      Declares the applicant’s complaints under Article 6 § 1 and Article 10 of the Convention admissible;

3.      Holds that there has been a violation of Article 6 § 1 of the Convention;

4.      Holds that there has been a violation of Article 10 of the Convention;

 

Done in English, and notified in writing on 5 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.ure_p_2}

Andrea Tamietti                                                                 Jon Fridrik Kjølbro
       Registrar                                                                              President