Legal summary

January 2023

Cotora v. Romania - 30745/18

Judgment 17.1.2023 [Section IV]

Article 6

Disciplinary proceedings

Article 6-1

Fair hearing

Judicial disciplinary sanction fairly imposed by National Judicial and Legal Service Commission and adequately reviewed by High Court of Cassation and Justice: no violation

Facts – In 2013 Romania’s Ministry of Justice ran a competition for the appointment of new Vice‑Presidents to various courts, including the Court of Appeal of which the applicant was President. The National Anti-corruption Directorate reported to the National Judicial and Legal Service Commission (“the Commission”) that the applicant had tried to influence particular members of the Selection Panel for the competition in order to further the prospects of two male candidates over those of the two female candidates. The Judicial Inspectorate of the Commission carried out a pre‑action disciplinary investigation and subsequently applied to the Commission’s Judicial Disciplinary Board to commence disciplinary proceedings against the applicant for interference with the professional activities of a fellow judge. The Board found the applicant guilty and sanctioned her by reducing her salary for three months. She sought a review of that decision by the High Court of Cassation and Justice, which upheld it.

Law – Article 6 § 1:

1. Applicability – The Court had previously held Article 6 § 1 of the Convention to be applicable under its civil head to disciplinary proceedings instituted against judges or government lawyers involving sanctions such as removal from office, demotion or salary reduction. It saw no reason to hold otherwise in the present case.

Conclusion: Article 6 § 1 applicable.

2. Merits –

(a) As to whether the Judicial Disciplinary Board proceedings had been compliant with Article 6 § 1 – The case was different from those in which the Court had criticised the fact that disciplinary action taken against judges or government lawyers, or action having direct consequences for their continued service, had not been the subject of a legality review by an independent body (see Kövesi v. Romania and Baka v. Hungary [GC]). In this case a disciplinary sanction had been imposed on the applicant following proceedings conducted before the Judicial Disciplinary Board, a body competent to adjudicate on disciplinary allegations against judges and bound to apply a specific procedure. Accordingly, the Court regarded it as necessary, before anything else, to determine whether the proceedings before that body had satisfied the requirements of Article 6 § 1 of the Convention.

(i) As to whether the Judicial Disciplinary Board had been a “tribunal” for purposes of Article 6 § 1 – The Commission was a body established by law, under the Constitution and the National Judicial and Legal Service Act (Law no. 317/2004). It had full power to carry out a pre‑action investigation through the Judicial Inspectorate, adjudicate on disciplinary allegations against a judge and render a disciplinary decision. The Judicial Disciplinary Board was competent to determine and assess the facts of such a case and their legal consequences after an examination of the evidence. Furthermore, judges and government lawyers against whom proceedings were brought before it could be represented or assisted by a fellow judge or government lawyer, or by counsel of their choosing; they were to be interviewed and afforded the opportunity to submit a written answer to the allegations and were entitled to inspect any documents on record and seek the introduction of evidence in their defence. What was more, the statutory provisions on disciplinary proceedings of the Commission were supplemented by the general rules set down in the Code of Civil Procedure. Accordingly, the Judicial Disciplinary Board was a “judicial body with full jurisdiction” for the purposes of Article 6 (see Olujić v. Croatia ).

(ii) As to whether the Judicial Disciplinary Board had been “independent” and “impartial” – On the principles stated in Denisov v. Ukraine [GC], there was nothing to prove bias on the part of, or cast doubt on the subjective impartiality of, the members of the Judicial Disciplinary Board. The Court therefore directed its inquiry to their objective impartiality and considered together the concepts of independence and objective impartiality, which were closely linked.

The members had been elected from the ranks of the judiciary during General Meetings of the Judicial and Legal Service (not in itself a violation of the principle of judicial independence) to serve non‑renewable six‑year terms; they had been hierarchically independent and subject to removal only in certain circumstances expressly laid down by law. There was nothing to prove bias on the part of the members concerned, or to cast doubt on their independence. Nor was there any apparent reason to doubt their objective impartiality.

(iii) As to whether the Judicial Disciplinary Board proceedings had been “fair” – The law had provided specific procedural safeguards, and decisions of the Commission had been reviewable by the High Court of Cassation and Justice. In the circumstances, the proceedings before the Judicial Disciplinary Board had afforded the applicant the opportunity to present a case in her defence.

Specifically, the Judicial Inspectorate of the Commission had made all the material in the record of the disciplinary investigation available to the applicant; she had been interviewed in person, as had 15 witnesses; and she had been able to introduce documentary evidence in her defence. The Judicial Inspectors had given detailed reasons for rejecting some of her evidence requests and had gone on to determine the facts from the evidence on record.

In the proceedings before the Judicial Disciplinary Board, the applicant had been able to participate in all hearings with the aid of counsel of her choosing, set out her defence orally, call witnesses, file a written answer to the allegations, secure consideration of all her objections, place further evidence on record and lodge written submissions. After considering all the evidence on record and dealing with the applicant’s main arguments and requests for evidence, the Board had found the applicant guilty of the disciplinary offence of interfering with the activities of other judges. The assessment arrived at by the Judicial Disciplinary Board in the case did not appear to be arbitrary or manifestly unreasonable, and the disciplinary proceedings could not be regarded as “unfair” for the purposes of Article 6 § 1.

(b) As to whether the “subsequent review” by the High Court of Cassation and Justice had afforded the safeguards required by Article 6 § 1 – The Court had previously held (see Ramos Nunes de Carvalho e Sá v. Portugal [GC]) that in assessing whether, in a given case, the extent of the review carried out by the domestic courts was sufficient, regard must be had to the powers of the judicial body in question and to the following three factors:

(i) The subject-matter of the decision under challenge, which in this case had concerned the question whether the applicant had breached her professional obligations. It was clear from the Commission’s remit under national law (as a self-governing oversight body for judges and government legal officers, with the broader objective of ensuring an independent justice system) that in order to answer that question the Commission had had to exercise its discretion. But in so doing it had not been engaged in a classic exercise of administrative discretion in a specialised area of law.

(ii) The manner in which the Commission had arrived at its decision and the procedural safeguards afforded by the disciplinary proceedings. The disciplinary decision had been taken at the conclusion of proceedings which had offered procedural safeguards satisfying the requirements of Article 6 § 1.

(iii) The content of the dispute and the grounds of challenge. The Court’s only task was to ascertain whether the review conducted by the domestic court had been sufficient; it was not to determine whether the Commission’s decision to sanction the applicant had been lawful under domestic law.

Although review by the High Court of Cassation and Justice had in principle been confined solely to the grounds of illegality expressly set out in the Code of Civil Procedure, that court had analysed both the legality and the merits of the disciplinary decision in question. It had dealt with the arguments raised by the applicant in support of her grounds of review. It had made a fresh analysis of the allegations against the applicant, relying on the evidence on record (witness statements and transcripts of telephone conversations) to conclude that the Commission had correctly assessed the facts in finding the applicant guilty of the disciplinary offence under the statute.

On balance, the High Court of Cassation and Justice had shown that it had jurisdiction to engage with the issues of fact which it saw as relevant and with the legal characterisation of the applicant’s conduct as a disciplinary offence. It was apparent from the legal provisions in place that, had the High Court of Cassation and Justice found merit in the applicant’s grounds of review, it would have had the power to quash the Commission’s decision and remit the case to it to be considered afresh.

It was accepted that the High Court of Cassation and Justice had not had jurisdiction to determine the appropriate sanction, a question which undeniably involved the exercise of the discretion vested in the Commission regarding disciplinary matters. In the Court’s view, that discretion was warranted by the specific, highly important role which the Constitution gave to the Commission as a self‑governing oversight body for judges and government lawyers and one whose aim was to ensure an independent justice system.

It was accordingly apparent that the extent of the review carried out by the High Court of Cassation and Justice in this case had been sufficient.

Conclusion: no violation (unanimously).

(See also Olujić v. Croatia , 22330/05, 5 February 2009, Legal summary ; Tsanova-Gecheva v. Bulgaria , 43800/12, 15 September 2015, Legal summary ; Baka v. Hungary [GC], 20261/12, 23 June 2016, Legal summary ; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal summary ; Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 et al., 6 November 2018, Legal summary ; Kövesi v. Romania , 3594/19, 5 May 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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