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

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P16-2024-002 20.12.2024 (dec.) Legal summary A rticle   8 Respect for private life Questions concerning a judge’s dismissal from office did not require Court to elaborate further on its case-law:   request rejected Background and questions – This request was made by the High Court of Cassation and Justice of Romania (“the High Court”) in the context of an appeal lodged with it by a judge against a recommendation by the Disciplinary Board for Judges of the National Judicial and Legal Service Commission ( Consiliul Superior al Magistraturii   – “the CSM”) that the President of Romania dismiss her from office. Before the recommendation was made, the CSM had ordered the judge to undergo an expert medical evaluation to assess her mental health. Following her unexplained failure to appear before the medical board tasked with performing the evaluation, she had first been suspended for one year, in accordance with the applicable law. When this period had elapsed and still no evaluation had been performed, the CSM decided to recommend her dismissal. An appeal by the judge was dismissed. Examining the matter on further appeal, the High Court, in an interlocutory decision, then elected of its own motion to defer its decision and to request an advisory opinion from the Court. 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?” Decision – The Court observed that the request fulfilled the first, third and fourth admissibility conditions laid down in Article   1 of Protocol No.   16. With respect to the second admissibility condition (see Article   1 §   1), the Court was called upon to determine whether the request concerned “questions of principle” which, on account of their nature, degree of novelty and/or complexity or otherwise, concerned an issue on which the requesting court would need the Court’s guidance. At the outset, the Court noted that its case-law was well developed with regard to the questions asked, and several aspects of that case-law had been judiciously cited by the requesting court. Regarding whether Article   8 of the Convention was applicable to disputes arising from the dismissal from office of a judge or prosecutor, the Court provided various examples of cases concerning judges or prosecutors who had been dismissed or suspended from office, where Article   8 had or had not been found to apply. As to the level of precision of the domestic law which had served as the legal basis for the dismissal complained of, the Court pointed out that it was primarily for the national authorities, notably the courts, to interpret and apply domestic law. In the present case, that implied that the High Court had to determine whether or not the domestic law met the foreseeability requirement provided for in Article   8 §   2 of the Convention. An overview of the Court’s case-law showed that the requesting court already had guidance on Convention issues when determining the case before it. The Court saw no reason to elaborate further on the existing principles. In conclusion, the request for an advisory opinion did not concern a question of principle, within the meaning of Article   1 §   1 of Protocol No.   16, which warranted examination by the Court’s Grand Chamber. Accordingly, it was not accepted. (See also Rotaru v.   Romania [GC], 28341/95, 4   May 2000, Legal Summary ; Hasan and Chaush v.   Bulgaria [GC], 30985/96 , 26   October 2000; S.   and Marper v.   the United Kingdom [GC], 30562/04 and 30566/04, 4   December 2008, Legal Summary ; Gillberg v.   Sweden [GC], 41723/06, 3   April 2012, Legal Summary ; Kudrevičius and Others v.   Lithuania [GC], 37553/05, 15   October 2015, Legal Summary ; Paradiso and Campanelli v.   Italy [GC], 25358/12, 24   January 2017, Legal Summary ; Denisov v.   Ukraine [GC], 76639/11, 25   September 2018, Legal Summary ; Navalnyy v.   Russia [GC], 29580/12 et al., 15   November 2018, 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 .