CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 octobre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 31399/14 Milan USNUL against the Czech Republic   The European Court of Human Rights (Fifth Section), sitting on 12   October 2023 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   31399/14) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 April 2014 by a Czech national, Mr Milan Usnul, who was born in 1950 and lives in Prague (“the applicant”), and who was represented by Mr J. Válek, a lawyer practising in Prague; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns alleged violations of Article 6 of the Convention and Article 2 § 1 of Protocol No. 7 in disciplinary proceedings against the applicant. 2.     On 23 May 2012 the Minister of Justice, acting in the capacity of a   disciplinary petitioner, lodged a disciplinary action against the applicant, an enforcement officer, with the disciplinary chamber of the disciplinary court, which was the Supreme Administrative Court. The applicant was charged with two acts of misconduct which had occurred in November 2011, and in which one of his employees had also taken part, in the context of enforcement proceedings ordered at the request of a private company to recover a debt of 3,500,000 Czech korunas (CZK – 138,959 euros (EUR)), as well as procedural and enforcement costs, amounting to CZK 6,165,178 (EUR   244,773) in total. The Minister proposed that the applicant be given a   disciplinary sanction in the form of a fine of CZK 1,000,000 (EUR 39,703). At a public hearing before the disciplinary court, the Minister amended his proposal, leaving it to the disciplinary court’s discretion to determine the amount of the fine. 3 .     On 3 July 2012 the applicant submitted his comments on the disciplinary action, raising several arguments including on the exclusion of fault. 4 .     On 9 April 2013 the disciplinary court, having heard the parties, found the applicant partly guilty of having repeatedly breached his duty to control the activities of his enforcement office as set out in section 13 of the Enforcement Procedure Act (Law no. 120/2001, as amended), thereby having committed a disciplinary offence under section 116(2)(a) of the Act, that is, a breach of the obligations laid down by a statutory or professional regulation or a resolution of the Enforcement Officers Chamber. The court fined the applicant CZK 25,000 (EUR 970) under section 116(3)(c) of the Act, as amended by Law no. 183/2009 in force as from 26 June 2009, which provided for various sanctions for disciplinary misconduct including a reprimand, a   written reprimand, a fine of up to a hundred times the amount of the general assessment base established under the law on pension insurance for the calendar year two years preceding the calendar year in which the disciplinary misconduct took place, and removal from office. At the relevant time, the maximum possible fine was CZK 2,409,100 (EUR 54,673). 5 .     The applicant lodged a constitutional complaint alleging a violation of his right to a fair trial guaranteed by Article 36 of the Czech Charter of Fundamental Rights and Freedoms on account of (i)   the lack of substantive appeal against the disciplinary decision, and (ii)   the failure of the disciplinary court to observe certain procedural principles, as well as the manner of the assessment of the case. The applicant joined to his constitutional complaint a   petition for the repeal of section   21 of Act no. 7/2002 on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers, which did not allow appeals against decisions taken in disciplinary proceedings. 6 .     On 15 October 2013 the Constitutional Court (IV. ÚS 2047/13) dismissed the applicant’s constitutional complaint. It held that it did not have jurisdiction to review compliance with ordinary laws, but only with constitutional law. As to the impossibility of applying for a review of the decision delivered in the disciplinary proceedings, the court referred to its plenary decision no. Pl. ÚS 33/09, dated 29 September 2010, concerning disciplinary proceedings against judges, in which it had concluded that the legal regulation not allowing a defendant in disciplinary proceedings to appeal against a decision of the disciplinary chamber was not unconstitutional. It found that the conclusions in its plenary decision were relevant in its decision-making in cases of disciplinary misconduct on the part of enforcement officers. Lastly, the Constitutional Court stated that the disciplinary court had dealt with all the questions of fact and law arising, having taken into account legislative changes adopted in the meantime. THE COURT’S ASSESSMENT 7.     The applicant complained that his right to fair trial had been violated on account of the lack of a right of appeal against the decision of the disciplinary court. He had not been able to obtain an effective review of the disciplinary decision, although he had been found guilty of a breach of his duties as an enforcement officer as set out in the statutory regulations, for which, apart from the sanction of a warning, he had been liable to a fine of up to CZK 2,500,000. He argued in that connection that the review carried out by the Constitutional Court was limited to constitutional compliance. He further argued that exceptions to the right of appeal in criminal matters had to be narrowly interpreted. In that connection, he argued that the disciplinary chamber of the Supreme Administrative Court, which had found him guilty of a disciplinary offence, was not the highest tribunal within the meaning of Article 2 of Protocol No.   7 as (i)   it was not composed exclusively of professional judges, but also of representatives of other legal professions who did not have to meet the conditions for serving as a judge of the highest tribunal, and (ii)   the Supreme Administrative Court served as the highest judicial body within the meaning of Article 2 of Protocol   No. 7 only in administrative, and not disciplinary matters. 8.     The Court has recently held that under Czech law, disciplinary proceedings against an enforcement officer did not involve the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention (see Grosam v. the Czech Republic [GC], no. 19750/13, §§ 117-22, with further references, 1   June 2023). The Court considered, in particular, that disciplinary misconduct under section 116 of the Enforcement Procedure Act, for which the fine of CZK   350,000 (EUR 13,554 at the time) had been imposed on the applicant in that case, was not formally classified as a criminal offence but as a disciplinary offence under domestic law. Moreover, section   116 of the Enforcement Procedure Act did not apply to the whole population but only to enforcement officers as members of a professional group, and was undeniably designed to ensure that they complied with the specific rules governing their professional conduct. As regards the third of the “ Engel criteria” to be considered in determining whether or not there was a “criminal charge” (see Engel and Others v. the Netherlands , 8 June 1976, § 82, Series A no. 22), namely the nature and degree of severity of the penalty, the Court found that although the amount of the fine the applicant risked incurring might appear substantial – up to CZK 800,000 (EUR 30,981 at the relevant time) – that did not suffice for that sanction to be regarded as “criminal” in the autonomous sense of Article 6. The Court added, in that vein, that it had already had an opportunity to examine the applicability of Article 6 under its criminal head to disciplinary proceedings against enforcement officers (bailiffs) and that it had held that the proceedings in question had not involved the determination of a “criminal charge”, even though the disciplinary sanction at stake in that case had been removal from office. 9 .     In the present case, the Court considers that, as in Grosam , the first and second Engel criteria (the legal classification of the offence under national law, and the very nature of the offence) are not met because the misconduct for which the fine was imposed on the applicant is not formally classified as a criminal offence but as a disciplinary offence under domestic law. Moreover, the applicant, similarly to the applicant in Grosam , was fined on the basis of section 116 of the Enforcement Procedure Act (see paragraph 3 above), the scope of which is limited to enforcement officers as the members of a professional group. Regarding the third Engel criterion, namely the nature and degree of severity of the penalty, the Court notes that the domestic law has undergone certain developments in comparison with the provisions in force at the relevant time in Grosam (see paragraph   4 above). Admittedly, the maximum amount of the possible fine may indeed appear substantial. The Court considers, however, that the sanction which was imposed on the applicant, while still a typical disciplinary measure for professional misconduct, represented a fraction of the maximum possible fine. 10.     Lastly, it is relevant to note that even if the most severe sanction had been imposed on the applicant, namely removal from office, it would not have prevented him from practising any other profession within his field of expertise or practising law in another capacity within the legal profession (see, mutatis mutandis , Oleksandr Volkov v. Ukraine , no. 21722/11, § 93, ECHR   2013; Rola v. Slovenia , nos. 12096/14 and 39335/16, § 66, 4   June   2019; and Xhoxhaj v. Albania , no. 15227/19, § 245, 9 February 2021). 11 .     In view of the above, the Court considers that the facts of the present case do not give grounds for a conclusion that the disciplinary proceedings against the applicant entailed the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention. 12.     Reiterating its conclusions in Grosam that Article 6 is applicable under its civil head to disciplinary proceedings against enforcement officers (see Grosam , cited above, §§ 109-10), the Court will examine the present case from this perspective. 13.     The Court does not discern any sign of arbitrariness or manifest unreasonableness in the approach of the disciplinary court regarding its assessment of the present case. Regarding, in particular, the extent of the review carried out by the disciplinary court, the Court notes that all the arguments and questions raised by the applicant, including issues of the alleged exclusion of fault, were duly heard and examined by the disciplinary court. The factual and legal reasons for its decision, which do not appear arbitrary or manifestly unreasonable, were set out at length. 14.     As to the lack of a right of appeal against the decision of the disciplinary court, the Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation (see Grosam , cited above, §   136 with further references) and that, in any event, the applicant had the opportunity to lodge a constitutional complaint, which was examined on the merits by the Constitutional Court (see paragraphs 5-6 above). 15.     It follows that the complaints under Article 6 § 1 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4. 16.     Lastly, examining this complaint from the perspective of Article 2 of Protocol No. 7, also relied on by the applicant, the Court reiterates that the concept of “criminal offence” used in the first paragraph of Article 2 of Protocol No. 7 corresponds to that of “criminal charge” in Article 6 § 1 of the Convention (see Grosam , cited above, § 140). Having regard to its finding that Article 6 of the Convention is not applicable under its criminal head to the disciplinary proceedings in question (see paragraphs 9-11 above), the Court finds that Article 2 of Protocol No. 7 is not applicable either. 17.     It follows that this complaint is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 9 November 2023.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President