FOURTH SECTION
DECISION
Application no. 22717/17
Steluța Gustica CĂTĂNICIU
against Romania
The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Iulia Antoanella Motoc,
Carlo Ranzoni,
Georges Ravarani,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 20 March 2017,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mrs Steluța Gustica Cătăniciu, is a Romanian national, who was born in 1963 and lives in Cluj Napoca. Her application was lodged on 20 March 2017. She was represented before the Court by Mr G. Buta, a lawyer practising in Bucharest.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.The conflict-of-interests proceedings
3. In May 2009 a third party complained to the National Integrity Agency (Agenția Națională de Integritate, “the ANI”), alleging that the applicant, who at the date of the complaint held elected office as a municipal councillor in Cluj-Napoca, was involved in a conflict-of-interest situation. In particular, the applicant was criticised for having participated in April 2009 in a decision by the municipal council to extend the lease granted to a commercial company that she had represented as a lawyer in proceedings against the municipality.
4. On 27 March 2013 the ANI issued its evaluation report. It stated that the applicant’s participation as a municipal councillor in reaching a decision in April 2009 which benefited a company previously represented by her as a lawyer had effectively placed her in a position of conflict of interests. The applicant alleges that she was not informed of those proceedings and was unable to put forward evidence in her defence.
5. On the same date the ANI made its findings public in a press release.
6. The applicant applied to the Cluj Court of Appeal (“the appeal court”) to have the ANI’s report, which she considered unlawful, declared null and void. As a subsidiary point, she requested a finding that there had been no conflict of interests and an order that the ANI was to publish on its internet site the court of appeal’s forthcoming decision, as compensation for the harm to her image that, in her view, she had sustained.
7. By a decision of 30 December 2013 the court of appeal dismissed the applicant’s challenge, stating that the ANI had informed her that proceedings had been instituted against her, but that she had failed to take receipt of the letter in question. It also held that the ANI’s evaluation report had been well-founded and had been drawn up in compliance with the law. It thus confirmed the existence of a conflict of interest. In consequence, it dismissed the applicant’s subsidiary requests (see paragraph 6 above), in application of the principle accessorium sequit principale.
8. An appeal lodged by the applicant was dismissed by the High Court of Cassation and Justice (“the High Court”) in a judgment of 24 November 2015. This judgment was served on the applicant on 21 September 2016.The disciplinary proceedings
9. In the meantime, the applicant had been elected in December 2012 as a member of parliament.
10. On 4 December 2015 the ANI, referring to the High Court’s judgment of 24 November 2015 (see paragraph 8 above), asked the president of the Chamber of Deputies to launch disciplinary proceedings in respect of the applicant.
11. On 21 March 2016 the standing committee of the Chamber of Deputies (“the standing committee”) decided to reduce by 10%, for a period of three months, the allowance received by the applicant in her capacity as a member of parliament.
12. The applicant challenged the standing committee’s disciplinary decision.
13. On a proposal by the legal affairs committee of the Chamber of Deputies, the Chamber, meeting in plenary, decided on 1 November 2016 to set aside the disciplinary measure that had been imposed on the applicant.
14. Following the parliamentary elections of December 2016 the applicant was re-elected to the Chamber of Deputies. Media coverage of the case
15. The proceedings brought against the applicant by the ANI were widely covered in the media. The applicant submitted to the Court copies of several press articles, some of which referred to her “criminal conviction”.Relevant domestic lawLaw no. 176/2010
16. Law no. 176/2010 on Integrity in the exercise of public functions and office (demnităţi), amending and supplementing Law no. 144/2007 on the creation, organisation and functioning of the ANI, and also amending and supplementing other legislation (“Law no. 176/2010”) entered into force on 5 September 2010. Article 1 specifies the categories of persons exercising public functions and office, and included members of parliament and local elected representatives. Those persons are under an obligation to file a declaration of assets and a declaration of interests. Article 8 of Law no. 176/2010 sets out the ANI’s tasks (“to ensure integrity in the exercise of public responsibilities and functions and to prevent institutionalised corruption”) and responsibilities (“to assess the declarations of assets, the data and information concerning assets and changes to them, [as well as] potential incompatible activities and conflicts of interest in which the persons referred to in Article 1 may be involved during the period of exercising public responsibilities and functions”).
17. The ANI assesses, through its “integrity inspectors” conflicts of interest or incompatible activities in respect of persons who exercise public responsibilities and functions. For this purpose, the integrity inspectors draw up assessment reports (Article 10 (e), (f) and (g) of Law no. 176/2010) for the duration of the term of office and during the subsequent three years (Article 11). Article 20 of the Law specifies that, where the integrity inspector identifies elements making for a conflict of interest, he or she informs the person concerned so that they can present, in person or in writing, any information they consider necessary. The person concerned may be assisted or represented by a lawyer. Under Article 21 of the Law, the integrity inspector may, once this supplementary information has been gathered, or within fifteen days if the person concerned has not submitted any information, draw up an assessment report if he or she considers that the elements making for a conflict of interest still remain. The assessment report includes the factual situation, the point of view of the person concerned, an assessment of the elements making for the conflict of interest, and conclusions. This report is communicated to the individual concerned within five days, and, where appropriate, to the criminal and disciplinary authorities.
18. Under Article 22 of the Law, the person concerned may challenge the ANI’s assessment report before the administrative courts, following the procedure laid down by Law no. 554/2004 on administrative proceedings.
19. If the evaluation report is not disputed, the ANI applies, within six months, to the relevant authorities with a view to launching disciplinary proceedings (Article 22 of the Law). In accordance with Article 25, although the fact of an individual performing an administrative act, concluding a legal act, taking a decision or participating in decision-making in breach of the legal obligations on conflicts of interest does not amount to a criminal offence, it does constitute a disciplinary offence.Other relevant provisions
20. The former Criminal Code, as in force until 1 February 2014, punished a conflict of interest in the following terms:
Article 2531
“1. The fact of a public official, in the course of his or her functions, carrying out an act or participating in decision-making which gives, directly or indirectly, to a pecuniary advantage for him or her, for his or her spouse, for a [family member] or for any other person with whom he or she has had commercial or professional dealings in the course of the preceding five years or from whom he or she has received or receives services or benefits of any nature whatsoever, shall be punishable by a prison term of between six months and five years and a prohibition on [holding] public office for this latter maximum period.”
21. Article 301 of the new Criminal Code, which entered into force on 1 February 2014, punishes a conflict of interest in similar terms to Article 2531 of the previous Criminal Code.
22. The Local Public Administration Act (Law no. 215/2001) contains the following provision:
Article 46
“1. A municipal councillor who, either personally or [through his or her spouse or a family member], has a personal interest in an issue submitted for the municipal council’s discussions may not take part in the deliberations and in the adoption of decisions.”
23. The Exercise of Public Duties (Transparency Measures) Act (Law no. 161/2003), on ensuring transparency in the exercise of public duties and responsibilities and in business, and on preventing and punishing corruption, contains the following provision:
Article 70
“[The term] conflict of interest refers to a situation in which a person who exercises a public responsibility or function has a personal pecuniary interest which could influence the objective fulfilment of [his or her] functions under the Constitution and other standard-setting texts.”
24. The Members of Parliament (Status) Act (Law no. 96/2006) contains the following provision:
“1. The fact of a Deputy or a Senator breaching the legislation on conflicts of interest shall constitute a disciplinary offence and shall be punished by [the penalty of] a reduction of his or her indemnity by 10% for a maximum period of three months. The penalty shall be imposed by the standing committee of the Chamber or the Senate, as relevant.
...”
25. The new Civil Code, in force since 1 October 2011, contains the following provisions:
Article 71 – The right to [respect for] private life
“1. Everyone has the right to respect for his or her private life.
2. No one shall be subjected to interference with his or her intimate, personal or family life, or with his or her home, residence or correspondence, without having given his or her consent, or in breach of the limits set out in Article 75.
...”
Article 72 – The right to dignity
“1. Everyone has the right to respect for his or her dignity.
2. It is forbidden to disparage the honour or reputation of a person in any manner, without having given his or her consent or in breach of the limits set out in Article 75.”
Article 73 – The right to one’s image
“1. Everyone has the right to [control the use of] his or her own image.
...”
Article 75 – Limits
“1. Interference which is permitted by law or by the international human-rights conventions and covenants to which Romania is a party shall not constitute violations of the rights set out in this Chapter.
...”
COMPLAINTS
26. Relying on Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, the applicant alleged that there had been several shortcomings in the proceedings that had ended with the High Court’s judgment of 24 November 2015. She complained about the duration of those proceedings, considering that it was largely due to the national authorities’ inactivity. She also alleged that the courts which had examined her case had not been independent and impartial, in that they had endorsed the ANI’s conclusions without convincing arguments. She further submitted that the principles of equality of arms and of adversarial proceedings had been breached and that insufficient reasons had been given for the decisions taken. She also alleged that there had been a discrepancy in the domestic case-law, in that the courts had ignored the Constitutional Court’s case-law in this area. She further complained that she had not been informed by the ANI about the proceedings against her and, in consequence, had been unable to defend herself properly.
27. Relying further on Article 7 of the Convention, the applicant alleged that the ANI’s assessment report had been issued in breach of the principle that criminal laws should not have retrospective effect, in so far as the offences with which she was charged had taken place prior to the entry into force of Law no. 176/2010.
28. Lastly, relying on Article 8 of the Convention, she considered that the media coverage of her case had seriously damaged her image and her family life. She also complained about the content of the ANI’s press releases, and was persuaded that the ANI’s press campaigns and other actions were in reality intended to prevent her from pursuing her political career.
THE LAWThe complaint under Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention
29. The applicant alleged that there had been several shortcomings in the proceedings which had ended with the High Court’s judgment of 24 November 2015. She relied on Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, the relevant parts of which provide:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...”
30. The Court considers it necessary at the outset to determine whether the provisions relied on by the applicant are applicable in the present case. It reiterates that questions of incompatibility ratione materiae concern the Court’s jurisdiction and that it is obliged to examine whether it has jurisdiction at every stage of the proceedings (see Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010).
31. The Court further notes that the applicant framed her complaint in relation to the proceedings which were ended by the High Court’s judgment of 24 November 2015, at the close of which the national courts confirmed that the applicant was in a position of a conflict of interests (see paragraphs 8 and 26 above). In examining the applicability of Article 6 § 1 of the Convention in the context of those proceedings, the Court will also refer to the disciplinary proceedings subsequent to the finding of a conflict of interest, since, although these were not decided on by the domestic courts and their outcome was favourable to the applicant, those proceedings were the direct consequence of the proceedings which were ended by the High Court’s judgment of 24 November 2015 (see paragraphs 9-13 above).
32. The Court will examine in turn whether Article 6 of the Convention is applicable in the present case under its civil and its criminal head. The civil limb of Article 6 of the Convention
33. The Court recently reiterated in its judgment in Naït-Liman v. Switzerland ([GC], no. 51357/07, § 106, 15 March 2018) the general principles concerning the applicability of Article 6 of the Convention in civil matters, which firstly depends on the existence of a dispute. Secondly, the dispute must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law. Lastly these “rights and obligations” must be “civil” ones within the meaning of the Convention, although Article 6 does not itself assign any specific content to them in the Contracting States’ legal systems (see, for example, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 88, 29 November 2016, and James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98). This concept cannot be interpreted solely by reference to the respondent State’s domestic law; it is an “autonomous” concept deriving from the Convention. Article 6 § 1 of the Convention applies irrespective of the parties’ status, the character of the legislation which governs how the dispute is to be determined, and the character of the authority which has jurisdiction in the matter (see, for example, Georgiadis v. Greece, 29 May 1997, § 34, Reports of Judgments and Decisions 1997‑III). Whether or not a right is to be regarded as civil within the meaning of that term in the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned (see Perez v. France [GC], no. 47287/99, § 57, ECHR 2004‑I).
34. Turning to the circumstances of the present case, the Court notes that the proceedings which were concluded by the High Court’s judgment of 24 November 2015 examined whether, during the period that she held office as a municipal councillor, the applicant found herself in a situation involving a conflict of interests. It has no doubt that there exists a “genuine and serious” dispute, as required by its case-law. It also notes that this dispute concerns the applicant’s obligation not to place herself in a situation involving a conflict of interests in discharging the duties required by her political office (see the provisions of Law no. 176/2010 in paragraphs 16-19 above).
35. The Court must therefore determine whether the obligations in question can be regarded as “civil” within the meaning of Article 6 § 1 of the Convention. It notes that the subject matter of the contested proceedings in this case was whether the applicant found herself in a situation involving a conflict of interests at a time when she held local elected office (see paragraph 3 above). The national courts’ affirmative reply to this question had disciplinary consequences for the applicant, who had, in the meantime, been elected to the national parliament (see paragraphs 9-13 above). It follows that the proceedings at issue in the present case concerned the manner of exercise of a political office. However, the obligation on the applicant not to place herself in a situation involving a conflict of interests during a period that she held political office is, quite clearly, a political one and not a ‘civil’ one within the meaning of Article 6 § 1, so that disputes relating to the arrangements for the exercise of it lie outside the scope of that provision (see, mutatis mutandis, Pierre-Bloch v. France, 21 October 1997, § 50, Reports 1997‑VI, concerning proceedings which had affected the applicant’s right to stand for election to the national parliament and to keep his seat, and Savissar v. Estonia (dec.), no. 8365/16, § 26, 8 November 2016, concerning proceedings about the extension of the applicant’s term of office as mayor). In so far as the applicant, in her capacity as a member of parliament, ran the risk of having her parliamentary allowance reduced (see paragraph 24 above), the Court reiterates that the existence of an economic aspect to the proceedings in issue does not, however, make them “civil” ones within the meaning of Article 6 § 1 (Pierre‑Bloch, cited above, § 51, and Papon v. France (dec.), no. 344/04, 11 October 2005).
36. It follows that Article 6 is not applicable to the present case under its civil limb.The criminal limb of Article 6 of the Convention
37. In determining the applicability of Article 6 of the Convention in its criminal limb, the Court applies the criteria set out in the case of Engel and Others v. the Netherlands (8 June 1976, §§ 82-83, Series A no. 22) and confirmed in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003‑X), as follows:
“82. ... [I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import...
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring ...”
38. Applying those criteria to the present case, the Court notes, with regard to the first, that the alleged fault on the applicant’s part was not criminal in nature. Thus, Article 25 of Law no. 176/2010 described the actions for which the applicant was criticised as a “disciplinary fault” (see paragraph 19 above). Although the Criminal Code, as in force at the relevant time, made a “conflict of interests” punishable under criminal law (see paragraph 20 above), it must be noted that those provisions were not used against the applicant in the present case. The Court reiterates, however, that the classification given in domestic law is not decisive (see Jussila v. Finland [GC], no. 73053/01, § 37, ECHR 2006‑XIV).
39. With regard to the second criterion, which concerns the nature of the offence, the Court notes that, in application of domestic law, only persons performing public functions or duties are subject to the provisions prohibiting a conflict of interests (for the relevant provisions of Law no. 161/2003, see paragraph 23 above). It concludes from this that those provisions were applicable to only a given group possessing special status, which gives rise to serious doubts as to the criminal nature of the actions in question.
40. Lastly, the Court notes that the penalty potentially incurred by the applicant was a 10% reduction, for a maximum period of three months, of her allowance as a member of parliament (see paragraph 24 above). It considers that such a penalty, by its nature and degree of severity, is not sufficient to allow it to be classified as a criminal penalty for the purposes of Article 6 of the Convention.
41. It follows that Article 6 of the Convention is not applicable in the present case under its criminal limb.Conclusion
42. For the reasons set out above, the Court concludes that Article 6 is not applicable to the facts of the present case. It therefore considers that the complaint under Article 6 is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.The complaint under Article 7 of the Convention
43. The applicant alleged that the ANI’s evaluation report had been issued in breach of the prohibition of the retroactive application of criminal law. She relied in this connection on Article 7 of the Convention which, in so far as relevant, provides as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
...”
44. The Court refers to its conclusions on the inapplicability in the present case of Article 6 of the Convention under its criminal limb (see paragraphs 38-41 above). It follows that Article 7 of the Convention is also inapplicable, given that the applicant had not been “held guilty” of “a criminal offence” within the meaning of that article.
45. This complaint is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4. The complaint under Article 8 of the Convention
46. The applicant considered that the media coverage of her case had damaged her image and been detrimental to her family life. She relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
47. The Court considers it useful to reiterate that the scope of the notion of “private life” was recently clarified in the Bărbulescu v. Romani judgment ([GC], no. 61496/08, §§ 70 et seq., 5 September 2017 (extracts)). It had found, in particular, that Article 8 guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bigaeva v. Greece, no. 26713/05, § 22, 28 May 2009).
48. In the present case, in so far as the applicant complains that the media coverage of her case was detrimental to her image and her family life, and so far as the right to pursue a political career can be regarded as an element of “private life” within the meaning of Article 8 of the Convention, the Court notes that the only step taken at national level by the applicant was to ask the court of appeal to order the ANI to publish, on its internet site, the judicial decision in her favour. The applicant did not claim financial compensation for the alleged prejudice at that time (see paragraph 6 above). The Court also notes that the appeal court was unable to examine her request, in that it was closely linked to its findings on the legality of the procedure by which the ANI had issued its evaluation report (see paragraph 7 above).
49. The Court is therefore doubtful that the remedy chosen by the applicant was the most appropriate to ensure examination of her complaint by the national courts. It notes, however, that the new Civil Code enshrines the right to respect for private life and dignity and the right to one’s own image (see paragraph 25 above). In so far as the applicant considered that she had suffered damage on account of the ANI’s publication of press releases or through the publication of various press articles, it was open to her to bring civil proceedings for tort before the domestic courts, thus giving them an opportunity to weigh the various interests at stake and to decide, if appropriate, on the most suitable arrangements for redress. However, the applicant has not demonstrated before the Court that she made use of this possibility.
50. It follows that this complaint must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in French and notified in writing on 6 December 2018.
Marialena TsirliGanna Yudkivska
RegistrarPresident
Full & Egal Universal Law Academy