Information Note on the Court’s case-law 244

October 2020

Camelia Bogdan v. Romania - 36889/18

Judgment 20.10.2020 [Section IV]

Article 6

Disciplinary proceedings

Article 6-1

Access to court

Inability of a judge to challenge her automatic suspension from duty, with stoppage of salary, pending consideration of her appeal against removal from judicial office: violation

Facts – The applicant is a profession al judge. In February 2017 the High Council of the Judiciary (CSM) imposed a penalty on her in the form of her removal from judicial office. In March 2017 she appealed against that decision. The CSM at once ordered her suspension (entailing the stoppage of her salary) with immediate effect.

In December 2017 the High Court of Cassation and Justice allowed the applicant’s appeal in part, ordering her transfer rather than her removal from office. In June 2018 she received retrospective payment of her salary fo r the period of her suspension.

Law – Article 6 § 1

(i) Applicability – The suspension from duty of a judge who lodged an appeal against a disciplinary decision removing him or her from office was provided for under national legislation (Article 65 1 § 2 of Law no. 303/2004). It was a temporary measure which had effect ex lege from the date of exercise of the right of appeal until the conclusion of the judicial proceedings.

Referring to the criteria set out in its judgment in Vilho Eskelinen and Others v. Finland [GC] (63235/00, 19 April 2007, Information Note 96 ) and applicable to all kinds of disputes concerning judges ( Baka v. Hungary [GC], 20261/12, 23 June 2016, Information Note 197 ), and noting that the temporary measure in question had been adopted in the context of the main disciplinary proceedings ( Micallef v. Malta [GC], 17056/06, 15 October 2009, Information Note 123 ), the Court found that the guarantees of Article 6 were also applicable to the suspension in issue.

(ii) Merits – Under the national legislation in force at the material time – which was subsequently amended – there had apparently been no remedy available to the applicant in order to challenge her suspension.

The alleged existence of a domestic judicial practice that would have enabled the applicant nevertheless to obtain effective re view of the measure by the courts was not borne out by any of the examples of previous cases cited by the Government.

On the contrary, in one example of a previous ruling adduced by the applicant, the scrutiny performed by the High Court appeared to have b een confined to a review of lawfulness, without the court examining the necessity or proportionality of the suspension from duty.

Hence, neither the national legislation nor domestic practice at the material time had made provision for a measure of this ki nd to be reviewed by a court. Moreover, the fact that suspension decisions adopted at the request of the judicial inspectors were not reviewed by the courts had been confirmed and criticised by the Constitutional Court.

The applicant had therefore been de prived of access to a court (ordinary or otherwise) in connection with her suspension from duty by the CSM, a measure that had left her unable for around nine months to perform her duties as a judge and be paid her salary.

The Government had not advanced a ny convincing argument to justify this lack of judicial protection. The mere fact that the applicant’s suspension from duty had resulted from the exercise of her right of appeal did not amount to sufficient justification.

The actual essence of the right of access to court had therefore been impaired.

Conclusion : violation (six votes to one).

Article 41: EUR 6,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Paluda v. Slovakia , 33392/12, 23 May 2017, Information Note 207 )

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