Communicated on 20 October 2015
THIRD SECTION
Application no. 26238/10
Ioan Vasile BRISC
against Romania
lodged on 26 April 2010
STATEMENT OF FACTS
The applicant, Mr Ioan Vasile Brisc, is a Romanian national, who was born in 1963 and lives in Baia Mare.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background to the case
At the relevant time, the applicant was chief prosecutor of the prosecutor’s office attached to the Maramureș County Court. He was also the staff member of the prosecutor’s office designated to provide information to the media in relation to criminal proceedings.
On 21 October 2008 the prosecutor’s office attached to the Maramureș County Court had caught red-handed V.F., while taking money from O.A.A., a relative of V.T.V., who was detained in Baia Mare Prison.
According to the statements given by O.A.A., V.F. had promised to intervene and give the money to the prosecutors and judges involved in making a decision concerning V.T.V’s conditional release from prison.
On 22 October 2008 the file was transferred to the National Anticorruption Department, which according to the law was competent to continue the investigation.
The applicant issued a press release, which received considerable public attention. A few newspapers wrote articles about the incident.
At the request of a local television channel, AXA TV, the applicant gave a short statement providing mainly the same information as that contained in the press release.
The newscaster added to the information provided by the applicant the following comments: “the commission for conditional release, made up of nine members, is chaired by a delegated judge. We don’t know whether there is a pure coincidence that yesterday, on the same day in which the flagrante delicto was organised and the detainee was conditionally released, the assignment of the judge to the Baia Mare Prison ended...”
2. The disciplinary investigation against the applicant
On 3 November 2008 judge, G.E., lodged a complaint with the Superior Council of the Magistracy (“the SCM”) seeking the commencement of a disciplinary investigation against the applicant in connection with the manner in which he had informed the media about the incident of 21 October 2008. She contended that at the time of the incident she had been the judge delegated to Baia Mare Prison and because of the applicant’s press release and interview with AXA TV channel it was suggested by the media that she might be the alleged recipient of the money.
The disciplinary commission for the prosecutors of the SCM started an investigation against the applicant in connection with two disciplinary offences, namely for failure to comply with the secrecy of the deliberations or the confidentiality of the acts or other documents that have a secret nature and for disrespectful attitude toward colleagues in the exercise of his duties under Article 99 letters d) and k) of Law no. 303/2004 on the Statute of judges and prosecutors.
At the hearing held before the SCM’s section for the prosecutors on 31 March 2009 the applicant was assisted by a lawyer of his choice. The section heard evidence from judge G.E. and the prosecutors in charge with the case file concerning the influence peddling.
The applicant’s lawyer proposed as evidence the video containing the recording of the news programme presented by AXA TV concerning the incident of 21 October 2008 so that the recording be compared to the press release drafted by the applicant. He also proposed the hearing of the news editor of AXA TV. As documentary evidence he requested copies of the extracts from local newspapers concerning the incident and the letter addressed by the National Audio-Visual Council to judge G.E. in reply to a complaint lodged by her in connection with the comments made by AXA TV channel about her alleged involvement in the traffic peddling.
The SCM’s section partly dismissed the applicant’s requests for evidence noting among other reasons, that the video and the Council’s reply were already in the file.
In his oral submissions before the section, the applicant’s lawyer claimed that the applicant had acted in good faith when he had informed the press about the incident; he had made no reference to any specific person, his references had been general and impersonal. The lawyer submitted that the applicant had only observed his obligation to inform the press and to protect the image of his institution and of the legal system by informing the public about a pending criminal investigation. The public had knowledge about the incident as two journalists who had been present at the “flagrante delicto” had already published articles in this respect. The lawyer also pointed out that the applicant had observed the confidentiality of the investigation and referred only to the activity carried out by his office without making statements which could lead to the identification of the magistrate, judge or prosecutor, who was the alleged recipient of the money from V.F. The applicant’s reference to “magistrates, judges and prosecutors, having duties in connection with the conditional release of detainees” was too general and therefore could not result in the identification of the magistrate involved.
The lawyer concluded by submitting that the information presented by AXA TV about the incident had exceeded the information provided by the applicant in the press release and in his interview with the TV channel.
On 5 May 2009 the SCM’s section for prosecutors found the applicant guilty of two disciplinary offences under Article 99 letters d) and k) of Law no. 303/2004 and imposed a disciplinary sanction under Article 100 of Law no. 303/2004 consisting of a reprimand. The SCM’s section noted that the applicant issued a press release and gave an interview to AXA TV channel revealing information about the investigation into the offence of influence peddling instituted on 21 October 2008. It further noted that the applicant had provided information about the alleged recipient of the money from V.F., without checking the accuracy of the denouncer’s statements and one day after the case file had been transferred to the NAP. Such information led to the identification of judge G.E. as one of the alleged recipients of the money. The section concluded therefore that the applicant had breached the provisions of Article 12 § 1 let e) of Law no. 544/2001 concerning the restriction of the citizens’ access to information in relation to criminal proceedings at the investigation stage when there was a risk that the result of the investigation would be undermined or confidential sources revealed. From the way in which the press release was drafted “the sphere of the magistrates who could have been the recipients of the money was restrained and limited and made possible the identification of the judge delegated to Baia Mare Prison in the person of judge G.E.” As the six‑month term of her delegation had expired at the time of events, the mass media made speculations suggesting that the end of her delegation had a connection with the influence peddling case.
Two of the five prosecutors composing the section were against the applicant’s sanctioning for the offence of disrespectful attitude toward colleagues in the exercise of his duties. They expressed their position in a dissenting opinion.
They noted, among other things, that:
“The names of the persons who were supposed to receive money from the influence peddler were not mentioned in the press release and in the television interview; there was only a general, impersonal reference to the judges and the prosecutors who had connection with the conditional release of detainees.
In this sphere could be included not only the judge delegated to prison but also the judges who examine the requests of conditional release in first instance and in appeal, as well as the prosecutors who attend the hearings concerning these requests. Television channel AXA TV referred to the judge whose delegation to the prison had ended in an additional comment, which was not included in the press release.
The reference to the delegated judge made possible the identification of the magistrate but, this statement belonged exclusively to the television channel that should bear the responsibility for all subsequent comments and speculations.
...
Moreover, only the added information concerning the end of the delegated judge’s mandate allowed the identification of judge G.E.; therefore, a possible harm of her reputation could not be imputed to the press release of the prosecutor’s office.
Furthermore, the press release of the prosecutor’s office attached to the Maramureș County Court and the defendant’s interview referred to the offence of influence peddling and not to the offence of active bribery. The defendant stated that the allegations concerning the alleged recipients of the money had been made by the denouncer ...”
3. The appeal on points of law lodged with the High Court of Cassation and Justice
The applicant lodged an appeal on points of law against the decision of the SCM’s section.
The High Court allowed a request lodged by the Association of the Romanian Magistrates to intervene in the proceedings in order to support the applicant’s appeal.
In his appeal the applicant complained about the unfairness of the proceedings before the SCM’s section. He mainly claimed that his right to be defended had been infringed as the lawyer of his choice had not been allowed to consult the file. Moreover, his request for evidence had been only partially granted and the section had not provided reasons for its rejection. Several documents that he submitted after the deliberations had not been taken into account by the SCM’s section when making its decision. The applicant complained that the decision rendered in the disciplinary investigation had not contained enough reasons for his sanctioning. In this respect he contended that the section had not examined all his arguments and the only reason for his sanctioning was to remove him from the position of chief prosecutor of the prosecutor’s office attached to the Maramureș County Court.
Relying on Article 10 of the Convention the applicant also complained that his disciplinary sanctioning infringed his right to impart information to the press. He claimed that the hearing of the two journalists who had been present at the “flagrante delicto” would have proved that he had not provided confidential information. He also pointed out that the identification by the press of judge G.E. as alleged recipient of the money was not a consequence of his press release but of G.E.’s tensed relationship with the local press.
On 23 November 2009 a panel of nine judges of the High Court of Cassation and Justice dismissed the applicant’s appeal on points of law. It noted that there had been three hearings before the SCM’s section. The evidence adduced by the parties had been examined. The rejection of part of the evidence proposed by the applicant had been duly justified by the section. It also noted that there was no mention about the applicant’s request to have the hearing adjourned so that his lawyer could consult the file. It further concluded that the decision contained sufficient and relevant reasons.
The High Court further noted that the applicant had the obligation to select and provide information to the public in his capacity as staff member designated by the prosecutor’s office to provide information to the press in relation to ongoing investigations. It held however that the applicant should have limited his press release to a minimum of information which could not have allowed the identification of any magistrate as alleged recipient of the money requested by the influence peddler from the detainee’s family. In the Court’s opinion the applicant should not have added to his press release the reference to “magistrates, judges and prosecutors, having duties in connection with the conditional release”.
One of the judges drafted a dissenting opinion noting that the press release drafted by the applicant contained general and impersonal information about the “flagrante delicto” and the pending criminal investigation.
The judge noted that in a letter sent to the applicant, existent present in the case file, the NAP stated that the applicant’s press release had not prejudiced the pending investigation and that between the NAP and the prosecutor’s office in which the applicant was chief prosecutor there was “a very good relationship of cooperation”. The judge further noted that the applicant had not mentioned any magistrates or prison employees involved in the conditional release of detainees in Baia Mare Prison. The applicant could not be held liable for the fact that after presenting his press release, AXA TV channel made express referrals to the judge delegated to the prison. The evidence in the file proved that there was a tensed relationship between judge G.E. and local media.
4. Removal of the applicant as chief prosecutor
On 5 May 2009, on the same day on which the disciplinary action against the applicant was allowed, the SCM’s section for prosecutors decided the removal of the applicant as chief prosecutor of the prosecutor’s office attached to the Maramureș County Court.
The applicant challenged this decision before the plenary of the SCM’s members.
On 21 May 2009 the SCM in a plenary meeting dismissed the applicant’s challenge.
The applicant appealed against this decision before the High Court of Cassation and Justice. He complained about the alleged lack of impartiality of the SCM acting in plenary meeting. In this respect he claimed that part of the SCM’s members, namely the five prosecutors who had decided his removal as chief prosecutor, had examined his challenge against their own decision. The applicant also claimed that he had not been informed about the SCM’s meeting having as object his removal. Therefore, he could not defend himself. Moreover, the principles of adversarial proceedings and publicity were infringed.
By a decision of 8 December 2009 the High Court dismissed the applicant’s appeal. It noted that the applicant’s removal as chief prosecutor was the direct consequence of imposing on the applicant a disciplinary sanction according to mandatory provisions of Article 51 § 2 let c) of Law no. 303/2004.
As regards the applicant’s complaint about the alleged lack of impartiality of the SCM, the court noted that the decision delivered by SCM in plenary meeting in connection with disciplinary proceedings against magistrates were administrative decisions and could not be considered as judicial decisions. Therefore, the legal provisions of the Code of Civil Procedure concerning impartiality were not applicable. Moreover, the removal of a magistrate from a leading position following his disciplinary sanctioning is mandatory according to the law. Therefore, the SCM’s section and SCM in plenary meeting examined only the legality of the decision and not the appropriateness of taking such a measure against the magistrate.
B. Relevant domestic law
1. Law no. 303/2004 on the status of judges and prosecutors
According to Article 51 (2) (c) the SCM has to remove a magistrate from a leading position in case that a disciplinary sanction is imposed on him/her.
Article 97 (1) provides that every person can bring to the attention of the SCM cases concerning the improper conduct, wrongful behaviour, failure to meet professional duties or any other disciplinary misconduct on the part of judges and prosecutors.
The disciplinary sanctions that can be imposed on a judge or prosecutor found guilty of misconduct are listed in Article 100 as follows: reprimand, withholding of increment, discharge and transfer to a different court, and removal of the magistrate from office.
Non-observance of the secrecy of deliberations or of the acts or documents that have a secret nature as well as an undignified attitude towards colleagues when exercising their duties are considered disciplinary offences under Article 99 § 1 letters d) and k) respectively.
2. Law no. 317/2004 regarding the Superior Council of Magistracy
The SCM is organized according to Law no. 317/2004 and is a collegial body, independent from the public authorities. The SCM is formed of 19 members: 9 judges and 5 public prosecutors appointed in the general meetings of the magistrates forming the two sections of the SCM, the one for judges and the one for prosecutors, 2 representatives of civil society, appointed by the Senate, the minister of justice, the president of the High Court of Cassation and Justice and the general prosecutor of the Prosecution Office working with the High Court of Cassation and Justice.
Part Three of the law deals with disciplinary proceedings against judges and prosecutors.
Pursuant to Article 44 (1), the disciplinary proceedings against judges and prosecutors are carried out by SCM through its sections.
An appeal on points of law is available against the decision of the SCM’s section and is to be examined by a five-judge panel of the High Court of Cassation and Justice (Article 51 (3)).
3. The best practice guidelines for the cooperation of courts and prosecutor’s office with the media
The SCM adopted best practice guidelines for the cooperation of courts and prosecutor’s offices with the media. The document was published on the SCM’s website and was communicated to all courts and prosecutor’s offices. Recommendation no. 5 § 4 of those guidelines reads as follows:
“Information released to journalists may not jeopardise the judicial proceedings, the principle of confidentiality or any other right recognised by domestic laws or by international treaties on fundamental rights to which Romania is a party.”
COMPLAINT
The applicant complains under Article 10 of the Convention that he was disciplinarily sanctioned and removed as chief prosecutor for imparting information to the press in relation to pending criminal investigations in his capacity as staff designed to keep contact with the press.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant’s freedom of expression, in particular his right to impart information, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference necessary in terms of Article 10 § 2?
Full & Egal Universal Law Academy