Communicated on 14 September 2015

THIRD SECTION

Application no. 45605/13 Eugen IACOBESCU against Romania lodged on 14 July 2013

STATEMENT OF FACTS

The applicant, Mr Eugen Iacobescu , is a Romanian national, who was born in 1948 and lives in Slatina .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

On 18 February 2011 the applicant was assigned by his superiors to carry out a criminal investigation for attempted murder that had been opened against A.S. on the same day.

From 2001 the Olt Prosecutor ’ s Office had opened more than one hundred and twenty criminal files on A.S. ’ s name, but none of them had reached the trial stage of the proceedings allegedly on account of his close ties with the family of a prominent Romanian politician.

2. The disciplinary proceedings opened against the applicant

On 16 June 2011 the Disciplinary Commission for Prosecutors (“the Commissions”) brought disciplinary proceedings against the applicant before the Prosecutor ’ s Section of the Superior Council of Magistrates (“the Prosecutor ’ s Section”) for disclosing confidential information from the criminal file and for being seriously negligent in exercising his profession. In particular, the Commission argued that in his statements made to the press after he had been assigned by his superiors to carry out the criminal investigation opened against A.S. , the applicant had disclosed information about the evidence adduced to the criminal file.

On 8 February 2012 the Prosecutor ’ s Section found the applicant guilty of disclosing confidential information from the criminal file and of being seriously negligent in exercising his profession and punished him by ordering his temporary transfer for three months to a different prosecutor ’ s office. It noted that on 20 February 2011, after he had been assigned by his superiors to carry out the criminal investigation opened a gainst A.S., the applicant had made some press statements about the impugned proceedings. According to an article published on the same day in a national newspaper the applicant was quoted by saying that “we have strong evidence against him. In addition to the witnesses who are family members we have anonymous witnesses. We have overwhelming evidence against him such as witness statements and transcripts of telephone conversations”. As a result of the applicant ’ s statements the prosecutor general attached to the Craiova Court of Appeal ’ s Prosecutor ’ s Office transferred the case to a different prosecutor ’ s office on the ground that suspicions had been expressed publicly concerning the alleged lack of impartiality in solving the case. Subsequently, on 24 and 25 March 2011, while complaining that the file had been transferred from him, the applicant was quoted by a news agency, several national papers and a live national television programme as stating in respect to A.S. ’ s case that “there are clues that the medical papers had large sums of money behind them”. Also “a week or two ago the defendant was saying in one of the recordings that people should remain calm because the criminal file will be transferred, and please note that it was transferred” and “A.S., using his relatives, paid A.F. 200,000 euros (EUR) to ask his son to withdraw his complaint”.

The Prosecutor ’ s Section held that by disclosing the content of confidential recordings to unauthorised persons, while the measures to intercept A.S. ’ s conversation were still in place, the applicant had breached his lawful duty to observe the confidentiality of that information and had impeded the proper conduct of the criminal investigation pending against A.S. The information in question had been confidential because at the time of his first statements the minutes of the recordings had not been attached to the file and also because according to the criminal procedure rules the criminal investigation stage of the proceedings was not public. Consequently, the applicant had foreseen and accepted that his actions might have affected the criminal investigation. Moreover the applicant had breached the relevant rules and regulations concerning the interactions between prosecutors and the media. Even if the applicant had been authorised by the superior prosecutor on 19 February 2011 to provide information to the press about the case, he should have provided only general information that could not have affected the criminal investigation.

The applicant appealed on points of law ( recurs ) against the decision. He argued that the disciplinary proceedings opened against him had breached his right to freedom of expression and that the general statements he had made before the press had not breached any rules concerning the confidentiality of the criminal investigation. The legal classification of his acts as disciplinary misconduct breached the decisions of the Plenary of the Superior Council of Magistrates on the matter. Also his disciplinary liability had been established based on incomplete, biased and ambiguous evidence which did not concern the disciplinary proceedings, but the criminal proceedings. Moreover, he had been authorised by the superior prosecutor to provide the press with information on the case and he had done so by referring to general information that could not have impeded the criminal investigation opened against A.S. In this connection the applicant contended that A.S. had been convicted by the domestic courts for his actions and they had not established that the criminal proceedings opened against him had been affected in any way. After the prosecutor general attached to the Craiova Court of Appeal ’ s Prosecutor ’ s Office had issue d the public order to transfer the case by relying on subjective reasons which had publicly discredited him morally and professionally, he had simply exercised his lawful right to a rebuttal and had informed the media about the unjustified accusations brought against him. He had publicly requested the help of the Superior Council of Magistrates on the matter, but he was refused. On 24 March 2011 he no longer needed an authorisation from the superior prosecutor for his actions because the criminal investigation against A.S. had ended and the tapping of his phone conversations had continued only in respect of the phone used by A.S. from prison. His actions had only intended to shed a positive light on the activity of the Olt Prosecutor ’ s Office and to inform the public opinion on the existence of sufficient evidence against A.S. for the latter to be brought to justice after he had managed to avoid it for ten years.

By a final judgment of 14 January 2013 the Court of Cassation dismissed the applicant ’ s appeal on points of law. It held that the first-instance court had correctly applied and interpreted the relevant legal provisions, rules and regulations and had relied on relevant, lawful and sufficient evidence in respect of the disciplinary proceedings opened against him. Also, a logical examination of the content of the transcripts of A.S. ’ s conversations rebutted the applicant ’ s argument that the information provided to the press was not confidential. Moreover, on 25 February 2011 the superior prosecutor had expressly asked the applicant to refrain from providing the press with information from the file. The applicant ’ s arguments concerning his right to freedom of expression and the public ’ s interest in the information were unable to justify the breach by the applicant of his legal and professional duties. Freedom of expression like the freedom to impart information were not absolute and the applica nt had overstepped the limits of his right, namely to confer some transparency to the act of justice. His right to rebuttal could not have justified his actions either given the way he had acted. The applicant ’ s arguments that he was unjustly discredited were simple statements which were irrelevant for a review on the decision of the first-instance court and its conclusion that the elements of the applicant ’ s disciplinary liability had been met.

B. Relevant domestic law

1. Law 303/2004 on the status of judges and prosecutors

Article 97( 1) provides that t he disciplinary sanctions that can be imposed on a judge or prosecutor found guilty of misconduct are listed in Article 100 as follows: reprimand, withholding of increment, discharge and transfer to a different court or prosecutor ’ s office , and removal of the magistrate from office.

Non-observance of the secrecy of deliberations or of the acts or documents that have a secret nature as well as serious n egligence in exercising the profession are considered disc iplinary offences under Article 99 § 1 letters d) and h ) respectively.

2. Law 317/2004 regarding the Superior Council of Magistracy

Pursuant to Article 44 (1), the disciplinary proceedings against judges and prosecutors are carried out by SCM through its sections.

An appeal on points of law is available against the decision of the SCM ’ s section and is to be examined by a five-judge panel of the High Court of Cassation and Justice (Article 51 (3)).

3. The best practice guidelines for the cooperation of courts and prosecutor ’ s office with the media

The SCM adopted best practice guidelines for the cooperation of courts and prosecutor ’ s offices with the media. The document was published on the SCM ’ s website and was communicated to all courts and prosecutor ’ s offices. Recommendation no. 5 § 4 of those guidelines reads as follows:

“Information released to journalists may not jeopardise the judicial proceedings, the principle of confidentiality or any other right recognised by domestic laws or by international treaties on fundamental rights to which Romania is a party.”

COMPLAINT

The applicant complains under Article 10 of the Convention that by the disciplinary punishment imposed on him the domestic authorities have unlawfully and disproportionately breached his right to freedom of expression by impeding him from informing the public opinion on the actions taken against a notorious individual with political connections and from taking a stand against the transfer of the criminal file. Moreover, the relevant domestic legislation concerning disciplinary proceedings against magistrates lacked clarity and foreseeability.

Q UESTION TO THE PARTIES

Has there been an interference with the applicant ’ s freedom of expression, in particular his right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2?