CEDH · CASELAW;CLIN;ENG — 24 octobre 2023

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary October 2023 Stoianoglo v. the Republic of Moldova - 19371/22 Judgment 24.10.2023 [Section II] Article 6 Civil proceedings Article 6-1 Access to court No judicial review of automatic suspension of Prosecutor General, for over two years, triggered by operation of law on opening of criminal proceedings against him: Article 6 applicable; violation Facts – In November 2019 the applicant took up his office as Prosecutor General for a seven-year term. The national legislation in force at the time of his appointment clearly specified his term of office and enumerated exhaustively the specific grounds on which it could be terminated. In August   2021 the rule concerning the suspension of the Prosecutor General from office by operation of law was introduced by legislative amendment. In September 2021 a Member of Parliament lodged a complaint with the Supreme Council of Prosecutors (“the SCP”) over acts he accused the applicant of having committed. On 5   October 2021 the SCP appointed a prosecutor from the Anti-Corruption Prosecutor’s Office to investigate those allegations. The same day, criminal proceedings were brought against the applicant (abuse of power, bribe-taking, forgery and exceeding his authority) and he was automatically suspended from office by the SCP pursuant to the amended law. The applicant applied to the administrative courts to challenge the SCP’s decision to appoint a prosecutor to investigate the allegations against him. However, the courts rejected his application as inadmissible, holding that the decision did not constitute an individual administrative act and that the reference it contained to the applicant’s right to appeal to the administrative courts had been the result of a clerical error. The applicant’s suspension from his office as Prosecutor General was still in effect. Law – Article   6 §   1: (1) Applicability – The Court referred to the relevant principles with regard to the applicability of the civil limb of Article   6 §   1 as summarised in the Grzęda v.   Poland [GC] and Eminağaoğlu v.   Turkey cases. It pointed out that it had previously found that Article   6 §   1 was applicable under its civil limb in cases concerning the temporary suspension of judges in the context of disciplinary proceedings against them. Since it was the new legislation enacted in August 2021 that had repealed the former rules for removing Prosecutors General from office, it constituted the object of that very dispute in regard to which the Article   6 §   1 fair-hearing guarantees were arguably to apply. In the circumstances of the present case, the question whether a right existed under domestic law could not therefore be answered on the basis of the new legislation. It followed from the foregoing considerations that there was a genuine and serious dispute over a “right” which the applicant could claim on arguable grounds under domestic law. Next, as to the question whether the right claimed by the applicant was “civil” within the autonomous meaning of Article   6 §   1, the Court was prepared to accept that the first condition of the Eskelinen test in the Vilho Eskelinen and Others v.   Finland [GC] case could be regarded as fulfilled where, even without an express provision to this effect, it had been clearly shown that domestic law excluded access to a court for the type of dispute concerned. This condition was satisfied where domestic law contained an explicit exclusion from access to a court. It might also be satisfied where the exclusion in question was of an implicit nature, in particular where it stemmed from a systemic interpretation of the applicable legal framework or the whole body of legal regulation. The Court observed that the applicant had duly, if unsuccessfully, availed himself of the remedy specified by the SCP, without having been given the opportunity to be heard by that body. The Court found that it could be seen from the reasoning of the domestic courts that had interpreted the relevant domestic administrative law that the appeal lodged by the applicant did not constitute an effective remedy by which the lawfulness of the SCP’s decision and that of his suspension might be reviewed. It noted that, in accordance with the domestic law in force at the relevant time, the applicant had been suspended as Prosecutor General automatically, by operation of law, from the moment the criminal prosecution had been brought against him, and that domestic law had made no provision for him to challenge such a measure. The complaint under Article   313 of the Code of Criminal Procedure – on which the Government had relied – against unlawful actions and decisions on the part of the prosecuting authority and of the special investigation authority did not constitute an effective remedy for the purposes of Article   35 §   1 of the Convention. Moreover, neither the SCP as a body nor the purpose of the applicant’s complaint were mentioned in that Article of the Code of Criminal Procedure. That being stated, the Court noted that domestic law had subsequently been amended such that it was now possible for the SCP to seek verification of the appropriateness of maintaining or discontinuing such a measure, which confirmed the authorities’ willingness to provide for review of the automatic suspension of the Prosecutor General and corresponded to the Venice Commission’s proposals to that effect in its opinion . The Court therefore considered that the first condition of the Eskelinen test was satisfied. It reiterated that the two conditions in question were cumulative. Therefore, the Court had now to determine whether, in the present case, the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The Court pointed out that, having regard to the special role of the judiciary in society, the prominent place it occupied in a democratic society and the growing importance attached to the separation of powers and to safeguarding the independence of the judiciary, it was particularly attentive to measures taken against serving judges. It would be a fallacy to assume that judges could uphold the rule of law and give effect to the Convention if domestic law deprived them of the guarantees of the Articles of the Convention on matters directly touching upon their individual independence and impartiality. Thus, in the context of the second condition of the Eskelinen test, when referring to the “special trust and loyalty” that judges were to observe, what was meant was loyalty to the rule of law and democracy and not to holders of State power. Admittedly, the above observations were, in principle, only valid for judges, whose status was not comparable to that of prosecutors in every respect. In that connection, the Court noted that the requirement of independence under Article   6 §   1 applied to judges and courts, but not to prosecutors. Nevertheless, the Court had previously observed that, concerning protection against arbitrary interference with their duties on the part of the public authorities, in particular whether lack of access to independent review was justified on objective grounds in the State’s interest, no clear line could be drawn between judges and prosecutors. Thus, all members of the judiciary, whether judges or prosecutors, should enjoy – as did other citizens – protection from arbitrariness on the part of the legislative and executive powers, and only oversight by an independent judicial body of the legality of a measure such as removal from office was able to render such protection effective. Moreover, and crucially for the present case, it could be seen from the Court’s case-law that it was especially difficult to accept that restrictions on a prosecutor’s access to an independent court were justified on objective grounds in the State’s interest when that member State’s laws expressly placed prosecutors in the same situation as judges with regard to their independence. The Court took the view, failing any form of judicial review, that the automatic suspension of a Prosecutor General facing criminal charges could not be justified on objective grounds in the State’s interest. Thus, the mere fear – which was in itself wholly justified in principle – that the suspended Prosecutor General might influence the criminal proceedings against him or her did not suffice to justify the lack of any form whatsoever of review of the impugned measure for upwards of two years. While it was true that, under Moldovan law, prosecutors were autonomous in the performance of their duties and judges performed theirs independently, the national court system nevertheless did not fundamentally distinguish between their respective statuses. In the light of the foregoing, the Court considered that the second condition of the Eskelinen test was not satisfied in the present case. Conclusion : Article   6 §   1 applicable under its civil limb. (2) Merits – The Court noted that the suspension itself could in principle be justified by the applicant’s status as Prosecutor General, which gave him broad powers to oversee criminal investigations, and that the application of such a measure to a Prosecutor General did not, in itself, pose a problem under the Convention. However, the Court called attention to the fact that – as indicated by the Venice Commission in its opinion (see above) – procedural safeguards should be implemented to ensure that the suspension mechanism was not used arbitrarily. In that connection, the Court also noted the growing importance attached to procedural fairness in cases involving the removal of prosecutors, including intervention by an authority which was independent of the executive and legislative powers in decisions affecting the appointment and dismissal of prosecutors. In the present case, the applicant had not been afforded any form of judicial protection in relation to his suspension, which had prevented him from performing his duties as Prosecutor General and deprived him of the corresponding salary, for more than two years. Accordingly, the applicant’s right of access to a court had been impaired in its very essence by the respondent State. Conclusion : violation (unanimously). Article   41: EUR   3,600 in respect of non-pecuniary damage. (See also Vilho Eskelinen and Others v.   Finland , [GC], 63235/00, 19   April 2007, Legal summary ; Paluda v.   Slovakia , 33392/12, 23   May 2017, Legal summary ; Kövesi v.   Romania , 3594/19, 5   May 2020, Legal summary ; Camelia Bogdan v.   Romania , 36889/18, 20   October 2020, Legal summary ; Eminağaoğlu v.   Turkey , 76521/12 , 9   March 2021; Grzęda v.   Poland [GC], 43572/18, 15   March 2022, Legal summary ; Juszczyszyn v.   Poland , 35599/20, 6   October 2022, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .