Information Note on the Court’s case-law 240

May 2020

Kövesi v. Romania - 3594/19

Judgment 5.5.2020 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Inability of chief prosecutor to effectively challenge premature termination of mandate: violation

Article 10

Article 10-1

Freedom of expression

Premature termination of chief prosecutor’s mandate following public criticism of legislative reforms: violation

Facts – In 2013 the applicant was appointed as chief prosecutor of the National Anticorruption Directorate (“the DNA””) by the President of Romania for a three year term. In 2016 the Higher Council of the Judiciary (“the CSM”) (the body responsible for manageme nt and disciplinary matters within the judiciary) gave a favourable opinion to the proposal by the Minister of Justice to reappoint the applicant for a further three-year term.

Parliamentary elections took place in December 2016. A new parliamentary major ity was formed and a new government established. In August 2017 the Minister of Justice announced a thorough reform to the judicial system. The amendments and related legislative process drew criticism in Romania and internationally.

In February 2018 the Minister of Justice sent the CSM a Report, including a proposal for the applicant’s removal from her position and referring to public statements she had made in relation to the reforms. The CSM decided by a majority of votes not to endorse the removal prop osal and the President of Romania refused to sign it off. The Prime Minister lodged an application with the Constitutional Court to resolve the constitutional conflict caused by the President’s refusal. 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.

On 9 July 2018 the applicant was removed from her position by presidential decree.

Law – Article 6

(a ) Applicability

(i) Existence of a right – Although access to the functions performed by the applicant constituted in principle a privilege that could be granted at the relevant authority’s discretion and could not be legally enforced, that could not be the case regarding the termination of such an employment relationship. The applicant’s premature removal from her position had had a decisive effect on her personal and professional situation preventing her from continuing to carry out certain duties. As such, there was a genuine and serious dispu te over a “right” which the applicant could claim on arguable grounds under domestic law, notably the right not to be dismissed from her functions outside the cases specifically provided for by law.

(ii) Civil nature of the right – Disputes between the Sta te and its civil servants fell in principle within the scope of Article 6 except where both the cumulative conditions set out by the Grand Chamber in the case of Vilho Eskelinen and Others v. Finland had been satisfied. Firstly, the State in its national l aw had to have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion had to be justified on objective grounds in the State’s interest.

There was no provision in the domestic legal system “expressly” ex cluding the applicant from the right of access to a court. On the contrary, domestic law expressly provided for the right to a court in matters concerning the career of prosecutors. The first condition of the Eskelinen test had therefore not been met.

That , in itself, was sufficient to conclude that Article 6 § 1 was applicable under its civil limb. However, in the applicant’s case the Court considered it useful to continue its examination and consider the second condition of the Eskelinen test. In a legal framework where the removal from office of the chief prosecutor of the DNA had been decided on by the President following a proposal by the Minister of Justice with the endorsement of the CSM, the absence of any judicial control of the legality of the deci sion of removal could not be in the interest of the State. Senior members of the judiciary should enjoy – as other citizens – protection from arbitrariness from the executive power and only oversight by an independent judicial body of the legality of such a removal decision was able to render such a right effective. The Constitutional Court’s ruling concerning the respective competencies of the constitutional bodies had not deprived those considerations of their pertinence. The second condition had not been fulfilled.

Conclusion : Article 6 applicable.

(b) Merits – 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 si tuation at hand.

As regards the possibility for the applicant to contest before the courts the Report of the Minister of Justice proposing her removal, the Constitutional Court had considered that the Report could not produce any effects by itself and was just a preliminary act leading to the adoption of the presidential decree. Moreover, even assuming that a complaint against that act would have been admissible before the administrative courts, it was apparent from the documents submitted by the Government that non-governmental organisations throughout the country had tried that avenue without success and no other example of administrative proceedings instituted against a similar document had been submitted. Therefore, it had not been established in the con text of the applicant’s case that a complaint to the administrative courts against the Report of the Minister of Justice would have been an effective domestic remedy.

The right to challenge before a court the decisions adopted by the CSM with respect to th e prosecutors’ careers and rights was expressly provided for by law. However, since the decision adopted by the CSM had been favourable to her, the applicant had no interest in contesting it.

As regards the president’s removal decree, domestic law did inde ed provide for a general possibility to contest before the administrative courts any administrative decision and a presidential decree was an administrative decision within the meaning of that law. However, the examples submitted by the Government did not concern situations similar to the applicant’s. The Constitutional Court had considered that such a review was limited to the lawfulness stricto sensu of the decree. In view of the specific limits set by the Constitutional Court, a complaint before the admi nistrative courts would have been effective only for having the external legality of the presidential decree examined, hence offering only a formal review. Such an avenue would not have been an effective remedy for the core of the applicant’s complaint – t he fact that her removal had been an illegal disciplinary sanction triggered by her opinions expressed publicly in the context of legislative reforms – which would have called for an examination of the merits and the internal legality of the decree in ques tion.

In view of those considerations, the applicant did not have an available domestic remedy for effectively attacking in court what she really intended to challenge, namely the reasons of her removal from the position of chief prosecutor. All possibilit y of judicial review had been limited to the formal review of the removal decree, while any examination of the appropriateness of the reasons, the relevance of the alleged facts on which the removal had been based or the fulfilment of the legal conditions for its validity, had been specifically excluded. Therefore, the extent of the judicial review available to the applicant in the circumstances of the current case could not be considered “sufficient”.

The Court dismissed the Government’s objection as to th e non-exhaustion of domestic remedies and concluded that the respondent State had 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.

Conclusion : violation (unanimously).

Article 10: The premature termination of the applicant’s mandate constituted an interference with her right to freedom of expression. No evidence had been brought to show that the impugned measure had served the aim of protecting the rule of law or any other legitimate aim. The measure had been a consequence of the previous exercise of her right to freedom of expression. In cases where it concluded that the interference had not pursued a legitimate aim, the Court found a violation of the Convention without further investigation. However, in the circumstances of the case, it was useful to establish also whether the interference had been necessary in a democratic society.

The impugned interference had been prompted by the views and criticisms that the applicant had publicly expressed. The Court attached particular importance to the office held by the applicant, whose functions and duties included expressing her opinion on 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. Her views and statements had not contained attacks against other members of the judiciary; nor had they concerned criticis ms with regard to the conduct of the judiciary when dealing with pending proceedings. Her statements had not gone beyond mere criticism from a strictly professional perspective. Accordingly, the applicant’s position and statements, which clearly fell withi n 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 authorit ies of the respondent State.

Although the applicant had remained on as a prosecutor, she had ultimately been removed from her position as chief prosecutor before the end of her mandate. That removal and the reasons justifying it could 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 was a key element for the maintenance of judicial independence. Agai nst that background, her removal defeated the very purpose of maintaining the independence of the judiciary. Furthermore, the premature termination had been a particularly severe sanction, which undoubtedly had a “chilling effect” in that it had to have di scouraged not only her but also other prosecutors and judges in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary.

Lastly, due account had to be taken of the procedural aspect of Article 10. In the light of the considerations that led it to find a violation of Article 6 § 1, the Court considered that the impugned restrictions on the applicant’s exercise of her right to freedom of expression unde r Article 10 had not been accompanied by effective and adequate safeguards against abuse.

The applicant’s removal from her position of chief prosecutor of the DNA had not pursued a legitimate aim and, moreover, was not a measure “necessary in a democratic society” within the meaning of that provision.

Conclusion : violation (unanimously).

(See Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Information Note 96 , and compare Suküt v. Turkey (dec.), 59773/00, 11 September 2007, Information Note 100 ; Baka v. Hungary [GC], 20261/12, 23 June 2016, Information Note 197 ; Wille v. Liechtenstein [GC], 28396/95, 28 October 1999, Information Note 11 ; Brisc v. Romania , 26238/10, 11 December 2018, Information Note 224 ; Ku deshkina v. Russia , 29492/05, 26 February 2009, Information Note 116 ; Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184 . See also Recommendation Rec(2000)19 on the Role of Public Prosecution in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000)

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