DISSENTING OPINION OF JUDGE DEDOV

1. I regret the decisions taken against the applicant, who was dismissed from the office of judge of the national Constitutional Court in the context of an anti-corruption campaign or so-called vetting process. I have serious doubts that the vetting procedure, in view of the circumstances of the present case, was compatible with the Convention standards.

2. I believe that the decision was made without striking a balance between the public interest and the safeguards aimed at protecting judicial immunity, independence and the irremovability of judges. The Court has emphasised (see Baka v. Hungary [GC], no. 20261/12, 23 June 2016, § 172) the importance of “the principle of the irremovability of judges, which – according to the Court’s case-law and international and Council of Europe instruments – is a key element for the maintenance of judicial independence”.

3. The applicant is an ordinary judge who was not involved in any corruption scandals or activity. She did not have any links or inappropriate contacts with organised crime. She did not have any record of misconduct, miscarriage or denial of justice which may have undermined public confidence in the Constitutional Court. As regards professional competence, her judicial career of almost 25 years and appointment to the national Constitutional Court allow me to say that the applicant is one of the most qualified specialists in the country.

4. Moreover, the applicant did not gain any excessive possessions such as to create credible evidence and reasonable suspicions of corruption which would allow the authorities to dismiss her from judicial office. The most valuable asset which the applicant acquired, together with her partner, since the beginning of her career as a judge in 1995 was the 101 sq. m flat worth 61,050 euros (the major part of which was covered by the sale of a prior flat in the sum of 56,000 euros). Since the national authorities were not satisfied with the consistency of the documents showing her sources of income, it appeared unrealistic, in the view of the authorities, for two qualified specialists (the applicant and her partner) to earn and to save about 5,000 euros within 13 years (1992-2005); or to earn 61,050 euros within the 25 years of their careers.

5. This conclusion, against the background of a lack of reasonableness and counterbalancing safeguards, raises doubts about the objectivity of the vetting process. The authorities did not take into account the lack of a substantial difference between income and assets as a counterbalancing factor which militates in favour of the applicant.

6. The reason for the charge is particularly striking – false declaration and concealment of the flat – notwithstanding that the partner declared the flat immediately after the acquisition in 2005 and the applicant declared the flat later in 2011 when her ownership title was officially registered and long before the vetting process had started in 2018. As we know, the declaration of property by the partner is an important indirect safeguard to ensure that the judge herself was not involved in corruption, and this safeguard was not taken into account by the decision-makers.

7. Other “inconsistencies” noted by the authorities are so minor that they are not sufficient to dismiss a judge from office. In any event, the findings in the present case do not support the large-scale corruption declared by the authorities. In this regard, the argument that judges are required to meet particularly high standards of integrity in the conduct of their private matters – this argument was made to support the decision of the national authorities – is hard to accept as relevant to the purpose of the vetting process, namely, the fight against corruption. Taking into account the assessment of the professional competence of the applicant and other judges without credible complaints, one may conclude that the scope of the vetting process was much wider than the fight against corruption, and that the authorities overstepped their margin of appreciation. It is noteworthy that almost all judges of the supreme national courts lost their posts. Did they all fail to meet the high standards of integrity?

8. I should mention some other safeguards to be taken into account in protecting the integrity and irremovability of the applicant as a judge: legal certainty and public hearings. As regards legal certainty, I have a great concern and see a systemic problem here, because the applicant and her partner had to produce very old documents – up to 25 years’ old – most of them from Italy. Moreover, such a harsh burden of proof was applied to the applicant and her partner without any safeguards such as a limitation period. The conclusion of the majority that there has been no violation of Article 6 of the Convention is therefore not compatible with the principles and the further analysis made by the Court in the Oleksandr Volkov judgment ( Oleksandr Volkov v. Ukraine , no. 21722/11, ECHR 2013, in particular § 137). I would recall that in that case the applicant was questioned about events that had taken place 6-7 years before the disciplinary proceedings and the Court found a violation in that case. Here it is proposed to reach the opposite conclusion even though the applicant was put in a much more difficult situation (more than 20 years had elapsed, absence of reasonable suspicion of misconduct).

9. In its judgment in Ramos Nunez De Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, 6 November 2018, in particular, §§ 179, 190 and 191) the Court established certain principles and identified situations where public hearings are necessary, for instance, where the circumstances require the court to form its own impression of litigants by affording them the right to explain their personal situation. These factors are applicable to the present case, taking into account: the fact that the Appeal Chamber is the only judicial body within the vetting process; the seriousness of the consequences for the applicant; and the need to explain her complex property relations with her partner. In any event, the IQC cannot be considered an independent and impartial tribunal as it combines investigation, prosecution and decision-making powers at the same time.

10. I am not against a vetting process if its real purpose is to fight corruption. However, the present case could give a signal to the authorities that the process is not optimal. It could also serve to establish important standards for the future. The Venice Commission in its Opinion no. 978/2020 of 19 June 2020 on the appointment of judges to the Albanian Constitutional Court (CDL-AD(2020)010) also raised some concerns about the vetting process (see § 82 of the Opinion):

“The delegation learned that difficulties were sometimes incurred into, for example for having to provide justification for long-past revenues of spouses ... also there was an overly rigid application of very short (two weeks) procedural deadlines, although in some cases certified documents had to be obtained from abroad”.

The Venice Commission further raised concerns about the intensive removal of judges from the supreme national courts, which made it impossible, for example, for the Supreme Court to appoint candidates to the Constitutional Court. All the factors mentioned above give the impression that the vetting process is not optimal and it certainly needs to be rectified.

[1] For the purpose of this judgment, “liquid assets” means (A) the balance of cash savings at the end of a given calendar year, as determined by the vetting bodies, which should be equal to (B) the carryover cash balance of the applicant and her partner from the previous calendar year, plus (C) the annual income of the applicant and her partner generated during the reporting calendar year as substantiated by legal/official documents, less (D) any expenses (including, but not limited to, living expenses, travel expenses, mortgage repayments). Any discrepancies where (A) is higher than (B + C – D) would give rise to unjustifiable liquid assets that are not supported by the cash flow determined from the documents in the case file.

[2] As obtained from the Appeal Chamber’s website at http://kpa.al/wp-content/uploads/2020/07/vendim-nr.14.2020.pdf

[3] As reported by the local print and broadcast media.

[4] As obtained from the Justice Reform website on http://www.reformanedrejtesi.al/sites/default/files/relacion-shtesa-dhe-ndryshime-ne-ligjin-nr.-84172c-date-21.10.1998-kushtetura-e-r.sh-te-ndryshuar.pdf

[5] As obtained from the Justice Reform website on http://www.reformanedrejtesi.al/sites/default/files/raporti_i_komisionit_te_posacem_parlamentar.pdf

[6] As obtained from the Justice Reform website on http://www.reformanedrejtesi.al/sites/default/files/280616relacion-rivleresimi.pdf