CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;PANELREFUSALS;ENG — 20 décembre 2024

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It may be subject to editorial revision.   The European Court of Human Rights, sitting as a Panel of the Grand Chamber composed of:   Marko Bošnjak, President ,   Ivana Jelić,   Ioannis Ktistakis,   Anne Louise Bormann,   Sebastian Răduleţu , judges , and of Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 16   December 2024, Decides as follows: PROCEDURE 1.     In a letter of 31   October 2024, received at the European Court of Human Rights (“the Court”) on 13   November 2024, the High Court of Cassation and Justice of Romania (“the High Court”; “the requesting court”) requested the Court, under Article   1 of Protocol No.   16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No.   16”), to give an advisory opinion on the questions set out in paragraph   2 below. THE QUESTIONS ASKED 2 .     The questions asked in the request for an advisory opinion were worded as follows: “1.     Does Article   8 of the Convention for the Protection of Human Rights and Fundamental Freedoms apply in respect of an alleged violation of a person’s right to respect for private life where that person was dismissed from judicial office for failure to attend an expert evaluation intended to determine the extent to which he or she was suffering from a mental illness which was such as to prevent the proper performance of his or her duties? 2.     If the answer to the first question is in the affirmative, are the quality-of-law requirements   – namely, accessibility, precision and foreseeability   – met if the applicable legal rule does not expressly provide that, during the period of suspension from judicial office, it is for the competent authority to take the first steps by sending the judge concerned fresh notice to attend the specialised expert evaluation, even though such notice was sent at the outset and the refusal by the person concerned to comply resulted in the above-mentioned suspension from judicial office; furthermore, can it be deduced from the spirit of the law that the suspended judge has an obligation to show a minimum of diligence by indicating his or her willingness to participate in the expert evaluation, and to that end specifying a date or dates or a timeframe for such participation, as a first step in completing the expert evaluation procedure, if such a consideration may be useful in formulating a response?” THE BACKGROUND AND DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST The system implemented in Romania 3.     Under Romanian law, Law no.   303/2004 on the rules governing judges and public prosecutors (“Law no.   303/2004”) lays down the circumstances in which a member of the judiciary may be suspended or dismissed from office. 4.     Article   62 §   1   (b) of Law no.   303/2004 provides that judges and prosecutors are to be suspended from office if they suffer from a mental illness which prevents them from performing their duties properly, until such time as they recover. 5.     To determine whether a judge or prosecutor suffers from a mental illness, he or she is required, on the initiative of the president of the court to which he or she is attached, to undergo a specialised expert evaluation by a medical board, by order of the National Judicial and Legal Service Commission ( Consiliul Superior al Magistraturii   – “the CSM”) (Article   64 §   1 of Law no.   303/2004). If the judge or prosecutor unjustifiably refuses to comply with the notice to attend the specialised expert evaluation, the CSM’s Disciplinary Board first orders his or her suspension from office for a period of one year (Article   64 §   4 of Law no.   303/2004). If the specialised expert evaluation is not carried out during the suspension of the judge or prosecutor, he or she is dismissed from office by decree of the President of Romania, on the recommendation of the CSM (Article   65 §§   1   (h) and 2 of Law no.   303/2004). The facts giving rise to the request 6.     In a decision of 10   April 2019 the CSM’s Disciplinary Board for Judges ordered a judge to undergo an expert medical evaluation to assess her mental health, in accordance with Article   64 §   1 of Law no.   303/2004. 7.     In a decision of 7   May 2020, relying on Article   64 §   4 of Law no.   303/2004, the CSM’s Disciplinary Board for Judges took note of that judge’s unjustifiable failure to appear before the medical board tasked with performing the specialised expert medical evaluation, and ordered her suspension from office for a period of one year. 8.     In a decision of 13   May 2021 the CSM’s Disciplinary Board for Judges, noting that the one-year suspension period had elapsed but that no expert evaluation had been carried out, recommended to the President of Romania that the judge be dismissed from office, in accordance with Article   65 §§   1   (h) and 2 of Law no.   303/2004. 9 .     The judge appealed to the Timişoara Court of Appeal (“the Court of Appeal”), seeking to have the CSM’s decision of 13   May 2021 set aside. She argued that that decision had no precise and foreseeable legal basis, since the law did not stipulate whether it was for her to take steps to have the specialised expert medical evaluation completed during her suspension from office, or whether it was for the authorities to take such steps first, by sending her fresh notice to appear before the medical board for the evaluation. In a judgment of 8   November 2022 the Court of Appeal dismissed her appeal as unfounded. 10.     In an interlocutory decision of 3   October 2024 the High Court, examining an appeal against the Court of Appeal’s judgment of 8   November 2022, elected of its own motion to defer its decision and to request an advisory opinion from the Court, asking the two questions reproduced in paragraph   2 above. 11 .     With regard to the first question, the High Court noted that the case before it concerned the dismissal of a judge, unlike the cases of Camelia Bogdan v.   Romania (no.   36889/18, §§   83-84, 20   October 2020) and Denisov v.   Ukraine ([GC], no.   76639/11, 25   September 2018), both of which also raised the issue of whether Article   8 of the Convention was applicable to employment-related disputes, but in which the applicants, professional judges, had not been dismissed from office. 12 .     As to the second question, the High Court, referring to the judgments in Păduraru v.   Romania (no.   63252/00, §   77, ECHR   2005-XII (extracts)), Hentrich v.   France (22   September 1994, §   42, Series   A no.   296-A) and Lithgow and Others v.   the United Kingdom (8   July 1986, §   110, Series   A no.   102), noted that, to meet the “in accordance with the law” requirement in Article   8 §   2 of the Convention, the applicable legal provisions had to be formulated with sufficient precision to enable the persons concerned to foresee, to a degree that was reasonable in the circumstances, the consequences which a given action might entail and to regulate their conduct accordingly. The High Court explained that it had been called upon to decide, in response to the judge’s argument on appeal that her dismissal had been unlawful (see paragraph   9 above), whether the legal framework applicable to the facts of the case was sufficiently accessible, precise and foreseeable. The Court’s assessment 13.     The Court is called upon to examine whether the present request for an advisory opinion fulfils the conditions laid down in Article   1 of Protocol No.   16 and to decide whether or not the request is to be accepted for examination by the Grand Chamber (see Article   2 of the Protocol and Rule   93 of the Rules of Court). 14.     There is no doubt that the first, third and fourth admissibility conditions laid down in Article   1 of Protocol No.   16 are fulfilled in the present case, since the request: (a)     was made by a bench of the High Court of Cassation and Justice, one of the highest courts and tribunals that Romania has designated in accordance with Article   10 of Protocol No.   16 (see Article   1 §   1); (b)     was sought in the context of a case pending before that court (see Article   1 §   2); and (c)     is reasoned and provides the relevant legal and factual background of the pending case (see Article   1 §   3). 15.     All that remains, therefore, is to settle the essential question whether the request fulfils the second admissibility condition. In this connection, the Court is called upon to determine whether the request concerns “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (see Article   1 §   1 of Protocol No.   16). 16.     The Court has previously stated that “questions of principle” within the meaning of Article   1 §   1 of Protocol No.   16 are those which, on account of their nature, degree of novelty and/or complexity or otherwise, concern an issue on which the requesting court would need the Court’s guidance by way of an advisory opinion to be able to ensure respect for Convention rights when determining the case before it (see Decision on a request for an advisory opinion under Protocol No.   16 concerning the interpretation of Article   4 of Protocol No.   7 to the Convention , request no.   P16 ‑ 2023 ‑ 002, Supreme Court of Estonia, §   20, 19   February 2024, referring to Decision on a request for an advisory opinion under Protocol No.   16 concerning the interpretation of Articles   2, 3 and 6 of the Convention , request no.   P16 ‑ 2020 ‑ 001, Supreme Court of the Slovak Republic, §   23, 14   December 2020, and to paragraph   7 of the Guidelines on the Implementation of the Advisory-Opinion Procedure Introduced by Protocol No.   16 to the Convention (“the Guidelines”); see also Decision on a request for an advisory opinion under Protocol No.   16 concerning the interpretation or application of Article   6 of the Convention and of Article   1 of Protocol No.   1 to the Convention , request no.   P16 ‑ 2024 ‑ 001, High Court of Cassation and Justice of Romania, §   29, 28   June 2024). 17.     In considering the present request, it must be acknowledged that the Court’s case-law is well developed with regard to the questions asked, and several aspects of that case-law were judiciously cited by the requesting court in its decision to refer the matter to the Court (see paragraphs   11 and 12 above). 18 .     The first question asked by the High Court thus concerned whether Article   8 of the Convention was applicable to disputes arising from the dismissal from office of a judge or prosecutor (see paragraph   2 above). The Court reiterates that, generally speaking, the concept of “private life” is a broad term not susceptible to exhaustive definition, and can therefore embrace multiple aspects of a person’s physical and social identity (see Fernández Martínez v.   Spain [GC], no.   56030/07, §   110, ECHR   2014 (extracts), and Bărbulescu v.   Romania [GC], no.   61496/08, §   71, 5   September 2017). Whereas no general right to employment can be derived from Article   8, the notion of “private life”, as a broad term, does not exclude in principle activities of a professional nature (see Niemietz v.   Germany , 16   December 1992, §   29, Series   A no.   251-B, and Oleksandr Volkov v.   Ukraine , no.   21722/11, §   165, ECHR   2013). 19.     Employment-related disputes are not per se excluded from the scope of “private life” within the meaning of Article   8 of the Convention. There are some typical aspects of the private life of an individual which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. In the cases falling into this category, the Court applies the concept of “private life” on the basis of two different approaches: (α)   identifying the “private life” issue as the reason for the dispute (reason-based approach) and (β)   deriving the “private life” issue from the consequences of the impugned measure (consequence-based approach). 20.     Under the first approach, complaints concerning the exercise of professional functions have been found to fall within the ambit of “private life” when factors relating to private life were regarded as qualifying criteria for the function in question and when the impugned measure was based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life. In other words, where the underlying reasons for the impugned measure affecting professional life are linked to the individual’s private life, these reasons themselves may render Article   8 applicable. Under the second approach, where the reasons for imposing a measure affecting an individual’s professional life are not linked to the individual’s private life, an issue under Article   8 may still arise in so far as the impugned measure has or may have serious negative effects on the individual’s private life. In this connection the Court has taken into account negative consequences as regards (i)   the impact on the individual’s “inner circle”, in particular where there are serious material consequences, (ii)   the individual’s opportunities “to establish and develop relationships with others”, and (iii)   the impact on the individual’s reputation (see Denisov v.   Ukraine [GC], no.   76639/11, §§   102-15, 25   September 2018, and the cases cited therein). 21.     If the consequence-based approach is followed, it is crucial that the consequences of the impugned measure on an aspect of the “private life” of the individual concerned attain a certain level of severity for Article   8 of the Convention to apply (see Denisov, cited above, §   116; see also Erményi v.   Hungary , no.   22254/14, §   31, 22   November 2016, and Gražulevičiūtė v.   Lithuania , no.   53176/17, §§   101 ‑ 11, 14   December 2021). The Court has held, moreover, that Article   8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see Gillberg v.   Sweden [GC], no.   41723/06, §   68, 3   April 2012, and Denisov , cited above, §§   98 and 121; see also Gražulevičiūtė , cited above, §   102; Ballıktaş Bingöllü v.   Turkey , no.   76730/12, §   54, 22   June 2021; and Amar v.   France (dec.), no.   4028/23, §   33, 16   April 2024). In the Court’s view, this exclusionary principle in respect of Article   8 should cover not only criminal offences but also other misconduct entailing a measure of legal responsibility with foreseeable negative effects on “private life” (see Denisov , cited above, §   98). 22 .     The Court has also established a set of principles and criteria for assessing the severity or seriousness of the consequences of a measure underlying a dispute and thus whether Article   8 of the Convention applies. This analysis has to cover both the material and the non-material impact of the impugned measure (see Denisov, cited above, §   117); an applicant’s suffering is to be assessed by comparing his or her life before and after the measure in question, and the applicant’s subjective perceptions may also be relevant (ibid.). It is for the applicant to show convincingly that the severity threshold was attained in his or her case, by presenting evidence which substantiates the consequences of the impugned measure (ibid., §   116; see also J.B. and Others v.   Hungary (dec.), no.   45434/12 and 2   others, §§   128 ‑ 29, 27   November 2018). Article   8 only applies where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov, cited above, §   116). 23.     For example, the Court found in one case that a judge’s dismissal for failure to comply with his professional duties, namely by breaching the judicial oath, had affected a wide range of his professional and other relationships. It had also had an impact on his “inner circle”, owing to a loss of income, and on his reputation. Accordingly, Article   8 of the Convention was applicable (see Oleksandr Volkov , cited above, §   166). 24.     In other cases in which judges and prosecutors were dismissed or suspended from office, the Court has found that the financial consequences for the applicants attained the level of severity required for Article   8 of the Convention to apply (see Ovcharenko and Kolos v.   Ukraine , nos.   27276/15 and 33692/15, §   86, 12   January 2023, on the dismissal from office of two judges, and Juszczyszyn v.   Poland , no.   35599/20, §§   228-37, 6   October 2022, on the suspension of a judge from office for around two years and three months). The Court found in another case that Article   8 of the Convention was also applicable in an employment-related dispute concerning a prosecutor who had been dismissed from office, basing its conclusion on an analysis of both the reasons for and the consequences of the impugned measure (see Guliyev v.   Azerbaijan , no.   54588/13, §   43, 6   July 2023). 25.     Conversely, in other cases the Court found, having regard to the particular circumstances of the case, that the minimum level of severity required for Article   8 of the Convention to apply had not been attained (see, for example, Camelia Bogdan v.   Romania , no.   36889/18, §§   83-92, 20   October 2020, concerning the suspension of a judge from office for a certain period, and Miroslava Todorova v.   Bulgaria , no.   40072/13, §§   136 ‑ 45, 19   October 2021, concerning the dismissal of a judge which was subsequently set aside). 26.     Lastly, the Court would note that in the event of doubt as to whether Article   8 of the Convention applies to a given situation, that question may be left open where, in any event, the conditions laid down in Article   8 §   2 of the Convention   – including the requirement that an interference be “in accordance with the law”   – are deemed to have been fulfilled (see, for example, Paterson v.   the United Kingdom (dec.), no.   23570/22, §§   61, 62 and 70, 3   September 2024, and Sandrén v.   Sweden , no.   29033/95, Commission decision of 16   October 1996). Accordingly, the Court will also examine whether the High Court’s second question, on the level of precision of the domestic law which served as the legal basis for the dismissal complained of in the pending domestic proceedings, concerns a “question of principle”. 27.     The Court reiterates its case-law to the effect that the expressions “prescribed by law” and “in accordance with the law” in Articles   8 to 11 of the Convention not only require that the impugned measure should have a legal basis in domestic law, but also refer to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, for example, Rotaru v.   Romania [GC], no.   28341/95, §   55, ECHR   2000-V, and S. and Marper v.   the United Kingdom [GC], nos.   30562/04 and 30566/04, §   95, ECHR   2008). A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen   – if need be, with appropriate advice   – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate his or her conduct accordingly (see, among other authorities, Kudrevičius and Others v.   Lithuania [GC], no.   37553/05, §   109, ECHR   2015, and the cases cited therein). 28.     Experience has shown, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society. In particular, the consequences of a given action need not be foreseeable with absolute certainty: experience shows this to be unattainable. While certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kudrevičius and Others , cited above, §   109, and Navalnyy v.   Russia [GC], nos.   29580/12 and 4   others, §   114, 15   November 2018, and the cases cited therein; see also Michaud v.   France , no.   12323/11, §   96, ECHR   2012, and Klaus Müller v.   Germany , no.   24173/18, §   50, 19   November 2020). 29.     The foreseeability requirement must take account of the fact that any given legal norm will one day be applied for the first time (see Kudrevičius and Others , cited above, §   115). The role of adjudication vested in the national courts serves precisely to dissipate such interpretational doubts as may remain. Moreover, the level of precision required of domestic legislation   – which cannot in any case provide for every eventuality   – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (ibid., §   110). 30 .     The Court also reiterates that for domestic law to meet the qualitative requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for the law not to indicate with sufficient clarity the scope of the power granted to the competent authorities and the manner of its exercise (see S. and Marper , cited above, §   95; Hasan and Chaush v.   Bulgaria [GC], no.   30985/96, §   84, ECHR   2000-XI; and Navalnyy , cited above, §   115, and the cases cited therein). 31.     It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Kruslin v.   France , 24   April 1990, §   29, Series   A no.   176-A; Kudrevičius and Others , cited above, §   109; and Paradiso and Campanelli v.   Italy [GC], no.   25358/12, §   169, 24   January 2017). In the present case, this implies that the High Court must determine whether or not the domestic law meets the foreseeability requirement provided for in Article   8 §   2 of the Convention, basing its decision on the case-law as it stands and referring to relevant domestic legislation and to the facts of the case pending before it. The aim of the procedure under Protocol No.   16 is not to transfer the dispute to the Court, but rather to give the requesting court guidance on Convention issues when determining the case before it (see Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement [GC], request no.   P16-2023-001, Conseil d’État of Belgium, §   61, 14   December 2023, and Decision , request no.   P16-2023-002, cited above, §   19). 32.     The overview of the Court’s case-law set out in paragraphs   18 to 30 above shows that the requesting court already has guidance on Convention issues when determining the case before it. The Court sees no reason to elaborate further on the existing principles. CONCLUSION 33.     In the light of the above, the Court concludes that the request for an advisory opinion does not concern a question of principle, within the meaning of Article   1 §   1 of Protocol No.   16, which warrants examination by the Court’s Grand Chamber. 34.     Accordingly, it decides not to accept the request. For these reasons, the Court, unanimously, Decides not to accept the request. Done in French and translated into English, and notified in writing on 20   December 2024.   Søren Prebensen   Marko Bošnjak   Deputy to the Registrar   President