CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 avril 2025

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margin-bottom:14pt } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .sAADC4627 { height:69.2pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   FOURTH SECTION CASE OF BĂDESCU AND OTHERS v. ROMANIA (Applications nos. 22198/18 and two others – see appended list)   JUDGMENT   Art 7 • Nullum crimen sine lege • Nulla poena sine lege • Alleged lack of foreseeability of legal basis for judges’ conviction for abuse of office   • Statutes criminalising abuse of office at relevant time, together with case-law interpreting them, drafted with sufficient precision • Applicants capable, being judges, of discerning risk of criminal conviction to reasonable degree in view of circumstances, without guarantee of judicial independence being called into question • Interpretation relied on by domestic courts’ to establish applicants’ individual liability consistent with essence of offence in question   Prepared by the Registry. Does not bind the Court .   STRASBOURG 15   April 2025   FINAL   15/09/2025   This judgment became final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision.   In the case of Bădescu and Others v.   Romania , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia, President ,   Jolien Schukking,   Faris Vehabović,   Ana Maria Guerra Martins,   Anne Louise Bormann,   András Jakab , judges ,   Ioan Florin Streteanu, ad hoc judge , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the applications (nos.   22198/18, 48856/18 and 57849/19) against Romania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Ms   Liliana Bădescu (“the first applicant”), Ms   Dumitriţa Piciarcă (“the second applicant”) and Ms   Veronica Cîrstoiu (“the third applicant”), on the various dates indicated in the appended table; the decision to give notice to the Romanian Government (“the Government”) of the complaint under Article   7 of the Convention and to declare inadmissible the remainder of the applications; the parties’ observations; the decision of the President of the Chamber to appoint Mr   Ioan Florin Streteanu to sit as an ad hoc judge (Article   26   §   4 of the Convention and Rule   29 §   1), as Mr   Sebastian Răduleţu, the judge elected in respect of Romania, was unable to sit in the case (Rule   28); Having deliberated in private on 25   March 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The case concerns the alleged lack of foreseeability of the legal basis for the conviction of the applicants, who were judges, on charges of abuse of office. They relied on Article   7 of the Convention. THE FACTS 2.     The applicants were born in 1957, 1955 and 1957, respectively, and live in Bucharest. The first applicant was represented by Mr I.V. Stănoiu, lawyer, the second applicant by Ms   A.   Cojocaru, lawyer, and the third applicant by Mr   C.L.   Popescu, lawyer. 3.     The Government were represented by their Agent, Ms   O.F. Ezer, of the Ministry of Foreign Affairs. BACKGROUND TO THE CASE 4.     The three applicants were judges of the Criminal Division of the Bucharest Court of Appeal (“the Court of Appeal”). 5 .     In a final judgment of 4   April 2011 the Court of Appeal, sitting as a bench of which the applicants were not members, sentenced S.D. to seven years’ imprisonment for various financial offences and ordered him, jointly and severally with other defendants, to pay damages in order to make good the pecuniary damage caused to the civil party. 6 .     S.D. lodged two extraordinary appeals for annulment of the final judgment of 4   April 2011 with the Court of Appeal. By law, such extraordinary appeals were heard by a bench of three judges. S.D.’s first extraordinary appeal was declared inadmissible, and he withdrew the second . 7 .     On 23   November 2011 S.D. lodged a third extraordinary appeal, alleging that he had been prosecuted more than once for the same acts. 8 .     The case was assigned randomly to a bench composed of the three applicants. 9 .     In a final judgment of 22   February 2012 the Court of Appeal, sitting as a bench composed of the three applicants, allowed the third extraordinary appeal (see paragraph   7 above) and set aside S.D.’s conviction, without examining the civil aspect of the case. It noted that, in the context of a separate investigation, S.D. had previously been prosecuted for acts relating in part to those for which he had been convicted in the final judgment of 4   April 2011   (see paragraph   5 above). It found that the criminal investigation in that case had resulted in a discontinuance decision, which had been upheld in a decision of the Craiova Court of Appeal delivered on 27   September 2010. The Court of Appeal concluded that, as S.D. had been prosecuted twice, there had been a breach of the ne bis in idem principle in the case before it. 10 .     On an unspecified date in 2013, following a criminal complaint by R.A., a criminal investigation was opened against the third applicant and other individuals on a number of corruption-related charges. In an indictment of 15   November 2013 the third applicant was committed to stand trial on several charges, including that of accepting bribes in connection with the delivery of the judgment of 22   February 2012   (see paragraph   9 above). 11 .     In a judgment of 26   March 2016, which was upheld by the High Court of Cassation and Justice (“the High Court”) in a final judgment of 2   June 2016, the Constanţa Court of Appeal sentenced the third applicant to seven years’ imprisonment for accepting a bribe, influence-peddling, fraud, forgery and complicity in money-laundering. She was accused of having accepted the sum of 630,000   euros (EUR) in February 2012 as a bribe for delivering, together with the other two applicants, a decision allowing S.D.’s extraordinary appeal. 12 .     The third applicant served her sentence until she was released on licence on 17   October 2017. 13 .     In the meantime, in a judgment of 25   October 2016 the Court of Appeal, ruling on an application to reopen proceedings in view of the third applicant’s conviction (see paragraph   11 above), had set aside the judgment of 22   February 2012 (see paragraph   9 above) and adjourned S.D.’s third extraordinary appeal (see paragraph   7 above) for judgment at a later date. In a judgment of 15   November 2016 the Court of Appeal took note of S.D.’s withdrawal of his third extraordinary appeal. THE DISCIPLINARY PROCEEDINGS AGAINST THE THREE APPLICANTS 14 .     On 27   April 2012 a disciplinary investigation was opened in respect of the applicants following a number of articles in the press on the setting-aside of S.D.’s conviction (see paragraph   9 above). 15 .     Relying on Articles   99   (t), 99 1 §   2 and   100 of Law no.   303/2004 on the status of judges and prosecutors (“Law no.   303/2004” – see paragraph   72 below), the Judicial Inspection Board sought disciplinary sanctions against the applicants, accusing them of bad faith or gross negligence in the performance of their duties on account of a serious breach of the rules of criminal procedure. It was specified that the offending acts concerned neither the applicants’ interpretation of the applicable procedural rule nor the reasoning set out in the judgment but rather their failure to observe the statutory limits which the law imposed on them in examining the extraordinary appeal . 16 .     In a decision of 4   December 2012 the National Judicial and Legal Service Commission ( Consiliul Superior al Magistraturii – “the CSM”), by a majority, rejected the Judicial Inspection Board’s proposal, finding that the acts attributed to the applicants did not constitute a disciplinary offence. The CSM took the view that the judgment in question (see paragraph   9 above) reflected the applicants’ interpretation of the procedural rule on the admissibility of the extraordinary remedy and that the manner in which they had applied the law was not subject to disciplinary inquiry, since the interpretation given in the case at hand was rational, reasoned and reasonable. The CSM explained that any other approach would have been in breach of the constitutional principles that judges were independent and that only the courts could review judicial decisions through the use of legal remedies – principles which were enshrined in Article   124 §   3 and Article   129 of the Constitution respectively (see paragraph   68 below). 17 .     The CSM went on to find that the applicants had not acted in a grossly negligent manner. In this connection, it found that only obvious errors which were manifestly unlawful and thus wholly unjustified could give rise to disciplinary liability. On the contrary, in the CSM’s view, the judgment delivered by the applicants on 22   February 2012 reflected their interpretation of the material in the case file and the relevant legislation. 18 .     In a final judgment of 25   November 2013 following an appeal by the Judicial Inspection Board, the High Court, sitting as a bench of five judges, upheld the CSM’s decision. It found that, by challenging the logical legal reasoning that had been developed by judges in examining the admissibility requirements of an extraordinary appeal for annulment, the Judicial Inspection Board had called into question the very interpretation and application of a rule of law by those judges. However, these aspects of a judicial decision were not subject to review by means of disciplinary proceedings. In addition, the High Court found that the public prosecutor’s submissions in the decision of 7   August 2012 (see paragraph   21 below) were also relevant to the case in question. THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANTS FOR ABUSE OF OFFICE The criminal investigation The decision ordering the discontinuance of the criminal proceedings 19 .     On 28   February 2012 the National Anti-Corruption Prosecution Service (“the Anti-Corruption Service”), which was the public prosecutor’s office responsible for investigating corruption-related offences committed by the most senior public officials (“the public prosecutor’s office”), opened a criminal investigation against the applicants of its own motion in connection with the delivery of the judgment of 22   February 2012 (see paragraph 9 above). On 3   April 2012 the Anti-Corruption Service brought a criminal prosecution against the three applicants for aggravated abuse of office against personal interests (“abuse of office”) and for favourable treatment of an alleged offender. The applicants were accused of having, in the judgment of 22 February 2012, knowingly overstepped the authority vested in them by law for the purpose of hearing extraordinary appeals; of having thus failed in the proper performance of their duties; and of having thereby created a situation favourable to S.D., since his criminal conviction had been set aside. 20 .     The public prosecutor’s office noted the following errors in the judgment of 22   February 2012 (see paragraph   9 above): (a) The material acts of which S.D. had been accused in each of the two sets of criminal proceedings against him were not identical. (b) In the light of the Constitutional Court’s case-law, the Craiova Court of Appeal’s decision of 27   September 2010 confirming the discontinuance decision (see paragraph   9 above) did not constitute res judicata , as it did not address the merits of the criminal charges . (c) An extraordinary appeal for annulment could result in the setting aside of a judgment when the grounds adduced in support of the application to discontinue criminal proceedings had not been addressed though ordinary remedies. In the case at hand, however, in its judgment of 4   April 2011 (see paragraph   5 above), the Court of Appeal had delivered a final ruling addressing the objection raised on res judicata grounds. 21 .     In a decision of 7   August 2012 the Anti-Corruption Service discontinued the criminal proceedings against the three applicants. It found that the constituent elements of the offences were indeed established in the case before it, but considered nevertheless that under Article   2 of Law no.   303/2004 (see paragraph   72 below) – which provided that judges were independent and irremovable, and that every institution was bound to respect their independence – judges could not be held criminally liable for abuse of office or neglect of official duties on the basis of the decisions they delivered in that capacity . In this connection, the Anti-Corruption Service held that the concepts of independence and security of tenure could be interpreted as establishing a certain type of immunity for judges where the offending acts, be they intentional or negligent, concerned a ruling delivered in a given case. 22 .     The Anti-Corruption Service concluded that as a result of the joint applicability of two statutes – one criminal and the other relating to the status of judges – “there was doubt as to the legal framework governing the criminal liability of judges for offences connected to their official duties in relation to measures ordered in judicial decisions”, a doubt which had to count in the applicants’ favour. Lastly, noting that disciplinary proceedings had been brought in respect of the same facts (see paragraph 15 above), it ordered the discontinuance of the criminal proceedings on the grounds that the acts of which the applicants stood accused were not prohibited under criminal law. 23 .     The applicants lodged a complaint with the Court of Appeal against the decision of 7   August 2012 (see paragraph   21 above). They alleged that they had been prosecuted on account of the conclusion they had reached in the judgment of 22   February 2012 (see paragraph   9 above). 24 .     In a final judgment of 1   October 2012 the Court of Appeal dismissed the applicants’ complaint, pointing out that it did not have jurisdiction to order the public prosecutor’s office to revise the reasoning on which its decision was based. The re-opening of the criminal proceedings against the three applicants 25 .     In a decision of 29   January 2014 the Chief Prosecutor of the Anti-Corruption Service reversed the Anti-Corruption Service’s decision of 7   August 2012 (see paragraph   21 above) of his own motion and ordered the reopening of the criminal proceedings against the three applicants . He took the view that the third applicant’s committal for trial following the indictment of 15   November 2013 (see paragraph   10 above) constituted a new development in view of which the criminal proceedings against the three applicants for abuse of office and favourable treatment of an alleged offender could be reopened. 26 .     The reopened investigation made use of the evidence already contained in the prosecution file from the criminal proceedings against the third applicant on the charge of accepting a bribe (see paragraph   10 above). It was noted that the witness testimony showed as follows. The third applicant had agreed, in return for a sum of money, to deliver a decision in S.D.’s favour in the context of his extraordinary appeal for annulment. She had instructed S.D., through intermediaries, to lodge extraordinary appeals and then to withdraw them until the case file had been allocated to a bench of which she was a member. She had informed a witness that she had consulted with the other two applicants before delivering the decision and they had agreed to allow the extraordinary appeal, its being clear from the material available to them that their decision could be reasoned in a manner favourable to S.D. The three applicants’ committal to stand trial for abuse of office 27 .     In an indictment of 15   April 2014 the Anti-Corruption Service committed the three applicants to stand trial before the Court of Appeal for abuse of office, favourable treatment of an alleged offender and forgery. The public prosecutor’s office accused the applicants of having neglected their legal obligations and of having delivered an ill-founded decision on account of an external factor that had influenced their decision, namely the bribe received by the third applicant from S.D. 28 .     In addition, the Anti-Corruption Service severed the proceedings against the first and second applicants from the rest of the proceedings in order to pursue the prosecution on the charge of accepting a bribe. That case was subsequently discontinued by the public prosecutor’s office in a decision of 17   July 2017. The trial at first instance 29 .     In the proceedings before the Court of Appeal, the applicants argued, inter alia , that they could not be prosecuted for the judicial opinion they had expressed in a judgment and that judicial decisions could be reviewed only through the use of legal remedies. 30 .     The first applicant further argued that some courts had held that decisions confirming discontinuance decisions constituted res judicata and that she could not be convicted for having reached a given conclusion in a context of conflicting case-law between different courts. The second applicant alleged that, in the context of her and her co-defendants’ examination of the extraordinary appeal, no evidence had been adduced; neither S.D.’s criminal liability nor the civil aspect of the case had been addressed; and nothing other than the conditions for applying the ne bis in idem principle to the case at hand had been assessed. Lastly, the third applicant submitted that she had delivered the decision in good faith and in accordance with the applicable legal rules, emphasising that the judgment in question had been unanimous. The acquittal of the first and second applicant s 31 .     In a judgment of 19   May 2016 the Court of Appeal acquitted the first and second applicants of all charges . 32 .     The Court of Appeal noted, firstly, that there was a degree of inconsistency in the case-law at the relevant time as to both the res judicata effects of decisions upholding discontinuance decisions and the scope of the review to be conducted in the context of extraordinary appeals for annulment. Accordingly, the two applicants in question could not be considered to have disregarded the statutory rules they had been required to apply. 33 .     However, it found that the judgment of 22   February 2012 (see paragraph   9 above) was ill-founded with regard to the identity of the facts in the two sets of criminal proceedings brought against S.D. The Court of Appeal nonetheless held that, even though the third applicant had since been convicted at first instance on the charge of accepting a bribe (see paragraph   11 above), there was no evidence in the case before it to suggest that the first two applicants had received any money to find as they had in the judgment of 22   February 2012. 34 .     Secondly, the Court of Appeal found that liability for the offence of abuse of office was attributable to judges and that they did not enjoy immunity for actions performed in the course of their duties when they carried out flawed judicial acts in bad faith and in breach of the law. It added, however, that the principle of judicial independence, the principle of the separation of powers within the State and the principle that judicial decisions should be delivered in accordance with the law and the judge’s volition meant that not every flawed act amounted to abuse of office. 35 .     The Court of Appeal thus explained that interpreting the evidence and applying the law to a given case were part and parcel of legal reasoning, which could be overturned only through the use of legal remedies. In support of that analysis, the Court of Appeal referred to the wording of both Article   124 §   3 of the Constitution (see paragraph   68 below) and Article   16 §   2 of Law no.   304/2004 (see paragraph   73 below); Article   16 of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States on judges: independence, efficiency and responsibilities (see paragraph   86 below); a judgment of 9   December 1981 of the French Court of Cassation; and, lastly, Romanian legal opinion and case-law, according to which, firstly, potential errors in the interpretation and application of the law did not amount to abuse of office and, secondly, such errors could be cured through the use of legal remedies. 36 .     The Court of Appeal concluded, lastly, that the evidence adduced in the case before it did not show that in interpreting and applying the statutory provisions the first and second applicants had overstepped their authority in order to undermine the legal interests of one of the parties to the proceedings, or that they had acted in bad faith in the administration of justice. The separation of the case against the third applicant from the rest of the proceedings 37 .     In addition, in the same judgment of 19   May 2016 (see paragraph   31 above) the Court of Appeal severed the case against the third applicant from the rest of the proceedings on the grounds that the criminal proceedings against her for accepting a bribe in connection with the delivery of the judgment of 22   February 2012 were pending before the High Court (see paragraph   11 above). In this connection, the Court of Appeal found that in order to give a decision in respect of the third applicant the full extent of her criminal activity had to be known, since the offences with which she was charged in the case before it had been committed in conjunction with the offence of accepting a bribe (the further proceedings against the third applicant on the charge of abuse of office are described in paragraphs   61-67 below). The first and second applicants’ trial on appeal The parties’ submissions and the evidence adduced 38 .     The public prosecutor’s office and the second and third applicants all lodged appeals with the High Court. 39 .     The public prosecutor’s office challenged the two applicants’ acquittal, submitting that their guilt had been proved . In particular, it argued that the evidence showed that there had been an understanding between the third applicant and D.A. whereby the former would deliver a decision in S.D.’s favour. Although the first and second applicants had not been aware of that agreement, to the extent that the third applicant had told D.A. that the outcome of S.D.’s case depended on the influence she could exert over the other two applicants, and given that the judgment of 22   February 2012 had been delivered unanimously, the first two applicants had delivered that judgment in bad faith. The public prosecutor’s office submitted that the facts established in the final judgment convicting the third applicant (see paragraph   11 above) corroborated the evidence already in the file and proved that an external factor had influenced the first and second applicants’ decision in delivering the judgment of 22   February 2012. 40 .     In reply, the first and second applicants referred to Article   1 §   1 of the Universal Charter of the Judge (see paragraph   93 below), Article   16 of the Recommendation of the Committee of Ministers of the Council of Europe (see paragraph   86 below), the domestic case-law and a decision of the French Court of Cassation in support of their argument that the guarantee of independence was essential to the administration of justice and that judicial decisions, even flawed ones, could be challenged solely through the use of legal remedies, not through criminal prosecution. 41 .     The High Court heard several witnesses, including D.A. (see paragraph   39 above), R.A. (see paragraph   10 above) and S.D. The final judgment of 14   June 2017 convicting the first two applicants of abuse of office 42 .     In a final judgment of 14 June 2017 the High Court convicted the first and second applicants of abuse of office and sentenced them to four years’ imprisonment. In addition, it gave each of them a 12-month sentence for favourable treatment of an alleged offender. Having decided on a partial concurrence of these two sentences, the High Court sentenced each applicant to a total of four years and four months ’ imprisonment. The applicants were also ordered to make good the damage resulting from late-payment interest accrued on the civil damages that S.D. had been ordered to pay in the final judgment of 4   April 2011 (see paragraph   5 above). 43 .     The High Court first determined the criminal law that was most favourable to the applicants. Having examined each applicant’s situation and the successive statutes governing abuse of office (see paragraphs   69-70 below), the High Court found the applicants guilty as charged under Article   297 §   1 of the new Criminal Code (see paragraph   70 below). 44 .     In its judgment, which ran to 180   pages, the High Court first reiterated the principle of judicial independence and the principle that judges’ decisions could be reviewed only through the use of legal remedies. It then set out the applicable provisions of criminal law, detailing the constituent elements of the offence of abuse of office (which required proof of direct intent) and noting that, as a general rule, judges could be held liable for offences committed in the performance of their duties. 45 .     While finding that judges and prosecutors could not be prosecuted for decisions taken in the performance of their duties, the High Court observed that it was settled case-law that this was not the case where it was determined that the judge or prosecutor had acted in breach of the principle of lawfulness, either in bad faith – in other words, where it was shown that he or she had been aware of the manifestly unlawful nature of his or her acts and had sought or accepted to undermine a person’s legal interests – or as a result of gross negligence. It referred to a number of judgments in this connection, including the High Court’s judgments of 27   April 2011 (see paragraphs   74-75 below) and 24   April 2012, and a judgment of the Bucharest Court of Appeal of 14   March 2013. 46 .     Next, with extensive reference to a judgment delivered by the High Court on 5   December 2016 (see paragraph   77 in fine below), the appellate judges held that, regarding the offence of abuse of office by judges, it was clear from the aforementioned case-law of the High Court and the Bucharest Court of Appeal that errors in the interpretation and application of the law did not amount to abuse of office and could be cured through the use of legal remedies. It added that the purpose of a criminal investigation was not to examine the lawfulness or merits of a decision taken in the course of the adjudication process – a role which fell exclusively to the competent supervisory bodies provided for by law – but to identify, beyond the decision itself, conduct that was in breach of official duties and constituted the material element of the offence under investigation, together with the motive for the act in question, as such conduct could, in certain cases, have an influence on the ruling. The High Court further clarified that in cases where judges were accused of abuse of office, it was necessary to examine whether the principle of lawfulness – which governed all rules and standards, whether procedural or substantive, and was expressly enshrined in the Code of Criminal Procedure and the laws regulating the profession – had been observed in the performance of each procedural act. 47 .     The High Court further emphasised that the accusations levelled at the applicants in the case before it concerned neither “the manner in which they [had] interpreted and applied the law, [nor] the manner in which they [had] interpreted the evidence”. Nor did they concern “the endorsement of an isolated opinion, or even the development of a singular view on a legal issue [or] the re-examination of a matter that [had] already [been] settled in the appeal process”. Rather, the accusations against them concerned “an external factor preceding [the aforementioned acts, namely] the fact of having misrepresented the factual basis in order to ensure that the principle that dictated the conclusion was applied”, in other words, “the fact of having generated legal reasoning that had the appearance of soundness in order to justify a particular and otherwise unreachable conclusion”. 48 .     The High Court found that it was clear from the evidence before it that the first and second applicants had knowingly misrepresented the factual basis that had been finally established by the lower courts in order to develop a legal argument and apply the ne bis in idem principle to the case before them. In so doing, the applicants had benefitted S.D. and undermined the general interest. It was true that, as sitting judges, their unlawful conduct had formed part of the adjudication process. However, in the High Court’s view, such a course of action placed the judgment so delivered outside the sphere of the concept of lawfulness inherent in the delivery of a judicial decision. 49 .     The High Court added that it could not ignore the singularity of the judgment delivered by the two applicants with regard to the relevant case-law and that never before had there been such an “attempt to push the limits of judicial independence to the point of absurdity”. The independence of the judiciary operated within the framework of the law, which had to be applied to the facts of a given case in good faith, a responsibility of which each judge was informed upon entering the profession or, at the latest, when he or she was sworn in. 50 .     The High Court further found that the very fact of having acted with a view to achieving a predetermined result proved that the applicants had intentionally adopted the offending conduct. In this connection, it held that the applicants had misrepresented established, pre-existing or easily identifiable information pertaining to the facts, with no objective justification, and had knowingly disregarded the relevant and decisive arguments put forward by the public prosecutor’s office, as was shown by the questions they had put to the parties in open court and the manner in which the first applicant, as presiding judge, had directed the proceedings. 51 .     Lastly, the High Court specified which legal rules embodying basic principles the two applicants had thereby breached, namely Articles   124 and 129 of the Constitution (see paragraph   68 below); the principles of lawfulness, establishment of the truth and ne bis in idem , as defined in the Code of Criminal Procedure; Article   2 §   3 of Law no.   303/2004 (see paragraph   72 below); and Article   16 §   2 of Law no.   304/2004 (see paragraph   73 below). 52 .     The High Court’s final judgment delivered on 14   June 2017 was notified to the first applicant on 18   December 2017 and was made available to the second applicant on 23   November 2017. The first two applicants’ appeal on points of law The applicants’ submissions 53 .     On 19   January 2018 the first and second applicants lodged an appeal on points of law with the High Court against the final judgment of 14   June 2017 (see paragraphs   42-51 above), relying on point   7 of Article   438 §   1 of the Code of Criminal Procedure (see paragraph   71 below). Referring to Articles   124 §   3, 126 §   1 and 129 of the Constitution (see paragraph   68 below) and to the Venice Commission’s Report on the Independence of the Judicial System (see paragraph   87 below), the applicants argued, in particular, that developing legal reasoning following deliberations was the very essence of judicial decision-making and therefore could not constitute the material element of the offence of abuse of office. They further submitted that the legal provisions on which their conviction was based contained nothing beyond general principles of law which, in their view, were unclear and, accordingly, unforeseeable as to their application to the case at hand. Moreover, it had not been proved that they had procured a material benefit as a result of the alleged offences. The final judgment of 7   November 2019 54 .     In a final judgment of 7   November 2019 the High Court dismissed the appeal on points of law as ill-founded . It pointed out that the independence of judges was not absolute and went hand in hand with the principle of responsibility of members of the judiciary, the principle that all judicial acts had to comply with the law and the principle of equal rights for all citizens . It further held that judges who, in the discharge of their official duties, had performed an official act in breach of the law, either intentionally or in bad faith, and had thereby caused damage or infringed the legitimate rights of a natural or legal person, could be held criminally liable for the offence of abuse of office. 55 .     The High Court pursued its reasoning as follows: “Having regard to the provisions of the special laws governing the status of judges and prosecutors and the organisation of the judiciary, under which the essential and primary responsibility of judges is to administer justice, the High Court considers ... that the delivery of a judicial decision – which constitutes the final decision-making act and the most important part of the trial – by which the court puts an end to the dispute or criminal trial..., cannot be outright excluded from the scope of the judge’s criminal liability, [and that it may], in some (admittedly exceptional) situations, constitute the material element of the offence of abuse of office. ... Criminal liability for abuse of office does not arise where the judge is accused of mere errors consisting in an inaccurate assessment of the evidence and/or a flawed interpretation or application of the law on a purely random and unintentional basis – situations which can be remedied ... through review by the courts – but where the commission [of the acts in question], culminating in an unlawful ruling, is the product of a conscious and deliberate attitude falling within the definition of bad faith. ... The concept of bad faith has been defined in the specialised literature and in judicial practice as involving a conscious and obvious misinterpretation of the law, its deliberate misapplication, the delivery by a member of the judiciary – aware of his or her error – of a manifestly unlawful decision, for the purpose of undermining the interests of one of the parties involved in a legal relationship... However, it has been recognised that it is not sufficient for the ruling in question to be obviously wrong; there must also be other indications – external factors – which convincingly show that the member of the judiciary acted with direct intent and knowingly breached the law. As to proving bad faith, it has been shown that this consists in demonstrating the obvious nature of the misinterpretation of the law, in that the judge’s legal reasoning is in flagrant contradiction with the legal principles governing the relevant institution and no excusable justification can be found. From the same evidential standpoint, it has also been noted that the offending elements must be contained in the reasoning of the decision and that there must be indications to suggest that the arguments used have no basis in the case file...” 56 .     The High Court went on to cite a number of international documents (see paragraphs   86, 87, 90 and 91 below), concluding that European judicial institutions had accepted that where members of the judiciary had performed their duties in bad faith, they could incur criminal, disciplinary or civil liability based on the manner in which they had interpreted the law and assessed the evidence. 57 .     The High Court noted that, in the case before it, the acts for which the applicants had been convicted corresponded to the statutory definition of the offence (see paragraphs   54-55 above) and that the appellate court had examined and explained at length – setting out facts and evidence – the reasons for finding that the applicants had acted in bad faith. 58 .     As to the foreseeability of the legal basis for the abuse-of-office conviction, after reiterating the findings made by the Romanian Constitutional Court in its decisions of 15   June 2016 and 6   June 2017 (see paragraphs   78-82 below), the High Court clarified that, in the judgment convicting the first and second applicants, the conduct of which they were accused had been examined in the light of the applicable basic laws (see paragraph   51 above). 59 .     The High Court also observed that in the final judgment of 25   November 2013 its bench had held that the applicants could not be subjected to a disciplinary sanction for the acts in question (see paragraph   18 above). It emphasised, however, that the factual elements examined in the two sets of proceedings – disciplinary and criminal – were different: the disciplinary proceedings had concerned the manner in which the law had been interpreted and applied in the case in question, whereas, in the criminal proceedings, the applicants had been accused of having wrongly and deliberately misrepresented the facts of the case in order to deliver a predetermined decision. Moreover, the judgment in respect of the disciplinary proceedings had not constituted res judicata vis-à-vis the criminal court as to the question whether a criminal offence had been committed, especially since the factual aspects under consideration were different. 60 .     Lastly, the High Court explained that the applicants had been accused of acts which were liable to cause damage and that, in the case at hand, this damage had consisted in undermining the proper conduct of court proceedings, the good reputation of the judiciary and, lastly, the interests of the civil party. Furthermore, the delivery of the flawed judgment amounted to “aid” given by the applicants to S.D. The separate proceedings against the third applicant for abuse of office The first-instance judgment 61 .     In its judgment of 10   May 2018 in the separate proceedings against the third applicant (see paragraph   37 above), the Court of Appeal convicted her of abuse of office and of favourable treatment of an alleged offender. Comparing the successive statutes criminalising abuse of office (see paragraphs   69-70 below), it concluded that, in the applicant’s particular circumstances, the relevant provisions of the Criminal Code, as in force at the material time, namely, Article   248 of the Criminal Code (see paragraph   69 below), were more favourable to her. Taking into account – for the purpose of having it run concurrently – the penalty imposed in the final judgment of 2   June 2016 (see paragraph   11 above) the Court of Appeal handed down a single, seven-year prison sentence to the third applicant, whose release on licence (see paragraph 12 above) was upheld. 62 .     In convicting the applicant of abuse of office, the Court of Appeal pointed out, firstly, that a judge could be held criminally liable only in so far as he or she had discharged his or her duties in bad faith. Secondly, it emphasised that the applicant had not been prosecuted for having interpreted and applied the law and evidence in a particular manner, but for having “generated seemingly sound legal reasoning in order to deliver a decision which could not otherwise have been reached”. In the Court of Appeal’s view, in the case before it, the applicant’s bad faith was proved both by her criminal conviction for accepting a bribe (see paragraph   11 above) and by the absence of any justification whatsoever for the legal reasoning developed in the judgment of 22   February 2012 (see paragraph   9 above). It further held that in acting as she had, the applicant had impaired the proper administration of justice and undermined the interests of the civil party. The judgment on appeal 63 .     Both the public prosecutor’s office and the third applicant appealed against the judgment of 10   May 2018 (see paragraph   61 above). 64 .     The applicant sought an acquittal, arguing that no damage had been caused by the delivery of the final judgment of 22   January 2012 and, consequently, that the acts for which she had been convicted did not constitute an offence. Moreover, she relied on the res judicata effects of the final judgment of 25   November 2013 (see paragraph   18 above), which had established that the bringing of that case had amounted to challenging the very reasoning of a judicial decision. Since the criminal proceedings conce