THIRD SECTION
DECISION
Application no. 32754/16
Jorge Manuel LÁZARO LAPORTA
against Spain
The European Court of Human Rights (Third Section), sitting on 3 July 2018 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 27 May 2016,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jorge Manuel Lázaro Laporta, is a Spanish national who was born in 1973 and lives in Alcoy (Alicante). He was represented before the Court by Mr José Luis Fuertes Suárez, a lawyer practising in Madrid.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant worked as an associate professor at the Polytechnic University of Valencia. By a decision of 3 November 2005, the university instituted disciplinary proceedings against the applicant for unauthorised access to some of his colleagues’ university email accounts. The university authorities conducted a number of investigative actions, as did the police.
2. By a decision of 2 June 2006, the disciplinary proceedings were suspended on the basis that criminal judicial proceedings for the same acts had been initiated against the applicant, and their outcome could have an impact on the disciplinary proceedings. A criminal investigation had been opened against the applicant for the offences of unauthorised access to and disclosure of confidential information and an intellectual property crime. He was alleged to have accessed colleagues’ e-mail accounts without their consent and to have appropriated research and teaching materials.
3. By a judgment (no. 191/2010) of the regional court (Audiencia Provincial) of Alicante of 3 March 2010, the applicant was acquitted of all charges. The Polytechnic University of Valencia and some of the applicant’s colleagues were parties to the proceedings. The court found that the acts in question did not constitute criminal offences, on the grounds that the unauthorised access by the applicant had been carried out in relation to email accounts provided by an institution which were not used for private purposes. Consequently, the unauthorised access had not affected the account holders’ personal privacy. The court acknowledged that confidential data may have been affected, but since there had been no breach of personal privacy – the legal interest protected by the offence with which the applicant had been charged – the applicant’s acts were outside the scope of criminal law. The court however noted that such acts could give rise to civil or disciplinary liability.
Nonetheless, the statement of facts set out in the judgment declared it proven that the applicant (a civil servant) had unduly, unlawfully and systematically accessed the email accounts of some colleagues (also university lecturers) from 2003 to June 2005, without their consent and using university equipment and facilities.
4. By a judgment (no. 534/2011) of 10 June 2011, the Supreme Court upheld the earlier judgment, dismissing appeals lodged by the parties.
5. By a decision of 12 September 2011, the above-mentioned judgments were incorporated into the administrative file relating to the applicant, and the disciplinary proceedings against him previously suspended by a decision of 2 June 2006 were resumed.
6. By a decision of the Chancellor of the Polytechnic University of Valencia of 1 December 2011, the applicant was suspended from his duties for a period of four years, as provided for in section 16 of Royal Decree 33/1986 (see paragraph 12 below). Based on the facts declared established by the judgment of the Audiencia Provincial of 3 March 2010 (see paragraph 3 above), the university authorities considered that the applicant was guilty of very serious misconduct – hindering the exercise of public freedoms under section 6(i) of Royal Decree 33/1986 and section 31(1)(i) of Law 30/1984 – as the result of systematically accessing the email accounts of other colleagues without authorisation, in breach of the right to the secrecy of communications, a fundamental right contained in Article 18 § 3 of the Constitution.
7. The applicant then instituted judicial proceedings (recurso contencioso-administrativo) against the decision of 1 December 2011. By a judgment (no. 437/2012) of 17 December, the competent court (Juzgado de lo Contencioso-Administrativo) ruled in favour of the applicant. The court considered that the time for concluding the disciplinary action had expired (caducado), as the proceedings should not have been suspended once the criminal proceedings had been initiated. The applicant has not provided the Court with a copy of the judgment.
8. The Polytechnic University of Valencia lodged an appeal against the first-instance judgment. By a judgment (no. 473/2015) of 9 July 2015, the High Court of Justice of Valencia (Administrative Chamber) overturned the earlier judgment. The court found that the time for concluding the action had not expired, and confirmed the disciplinary sanction imposed on the applicant for very serious misconduct – hindering the exercise of public freedoms (secrecy of communications) under section 6(i) of Royal Decree 33/1986. The court further held that the legal interests protected by the disciplinary and criminal proceedings were different in the instant case, and therefore the fact that the acts contained in the indictment did not constitute criminal offences should not preclude the applicant’s being found liable in disciplinary proceedings in his capacity as a civil servant. Making reference to case-law of the Constitutional Court, the court noted that the legal interest protected by the right to the secrecy of communications set out in Article 18 § 3 of the Constitution was the freedom of communication. Lastly, the court highlighted that facts declared proven in criminal proceedings were binding on disciplinary proceedings, pursuant to the law.
9. The applicant then lodged an “appeal for annulment” (incidente de nulidad) that was dismissed by the High Court of Justice on 23 October 2015.
10. The applicant lastly lodged an amparo appeal with the Constitutional Court. The Constitutional Court declared the appeal inadmissible by a decision of 1 March 2016, given the “manifest absence of a violation of fundamental rights”.
B. Relevant domestic law
11. The relevant provisions of the Constitution read as follows:
Article 18
“1. The right to respect for honour, for private and family life and for one’s own image shall be guaranteed.
...
3. Except by judicial decision, the secrecy of communications and, in particular, of postal, telegraphic and telephone [communications] shall be guaranteed.
...”
12. The relevant provisions of Royal Decree 33/1986 of 10 January approving the Regulation on the disciplinary regime applicable to officials of the State administration (Reglamento de Régimen Disciplinario de los Funcionarios de la Administración del Estado), as in force at the relevant time, read as follows:
Section 5
“Misconduct committed by officials in the exercise of their duties may be very serious, serious or minor.”
Section 6
“[The following] constitutes very serious misconduct:
...
(i) Hindering the exercise of public freedoms and trade union rights.
...”
Section 14
“The following penalties may be imposed on account of the misconduct referred to in this Regulation:
(a) Removal from [one’s] post.
(b) Suspension from [one’s] duties.
(c) Transfer with a change of residence.
(d) (Repealed)
(e) A warning.
Section 16
“The penalties set out in paragraphs (b) or (c) of section 14 may be imposed for very serious or serious misconduct.
The penalty of suspension from one’s duties, imposed for very serious misconduct, shall not exceed six years or be less than three [years]. If [the penalty] is imposed for serious misconduct, [it] shall not exceed three years.
...”
13. The relevant provisions of Law 30/1984, of 2 August, on measures for the reform of civil service (Ley de medidas para la reforma de la Función Pública) read as follows:
Section 31. Disciplinary regime
“1. [The following] shall be considered very serious misconduct:
...
(i) Hindering the exercise of public freedoms and trade union rights.
...”
COMPLAINTS
14. The applicant complained under Article 7 § 1 of the Convention and Article 4 § 1 of Protocol No. 7 that he had been sanctioned in administrative proceedings after previously being acquitted of the same acts in criminal proceedings, in breach of the non bis in idem principle.
THE LAW
15. The Court reiterates that the legal characterisation of a procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see, among others, Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009; Šimkus v. Lithuania, no. 41788/11, § 41, 13 June 2017; and Igor Tarasov v. Ukraine, no. 44396/05, § 24, 16 June 2016).
16. In order to decide whether Article 7 and Article 4 of Protocol No. 7 are applicable, the Court thus has to determine whether the sanction imposed on the applicant was “criminal” within the meaning of the Convention.
17. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Sergey Zolotukhin v. Russia [GC], cited above, § 53; Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑XIV; and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003‑X). Such criteria, initially outlined for assessing whether a charge is “criminal” within the meaning of Article 6 of the Convention, must also be applied to Article 7 and Article 4 § 1 of Protocol No. 7 (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 105-107, ECHR 2016, and Sergey Zolotukhin v. Russia [GC], cited above, § 53; see also Žaja v. Croatia, no. 37462/09, § 86, 4 October 2016).
18. The Court reiterates that proceedings relating to disciplinary sanctions do not, in principle, involve “the determination of a criminal charge”. The fact that an act which can lead to a disciplinary sanction under administrative law also constitutes a criminal offence is not sufficient reason to consider that a person presented as responsible is “charged with a crime” (see Moullet v. France (dec.), no. 27521/04, 13 September 2007).
19. In Kremzow v. Austria (no. 16417/90, Commission decision of 7 November 1990) the applicant complained of disciplinary proceedings initiated against him, as a retired judge, in relation to the same facts which had led to his criminal conviction. The facts had also been found to constitute a disciplinary offence, and the applicant had lost all rights connected with his former position as a retired judge, including his pension rights. The European Commission of Human Rights noted that the criminal and the disciplinary consequences of the applicant’s acts could be clearly distinguished. The Disciplinary Court had based its decision on the conviction pronounced by the competent criminal court, which it had considered binding. In the Commission’s opinion, disciplinary sanctions were typical sanctions which many Contracting States’ disciplinary statutes for civil servants provided for in such cases: the withdrawal of rights connected with the professional status of a civil servant, including the loss of pension rights. Accordingly, finding that the disciplinary proceedings against the applicant could not be qualified as further “criminal proceedings”, the Commission held that Article 4 of Protocol No. 7 was not applicable, rejecting the complaint as being incompatible ratione materiae with the provisions of the Convention.
20. The Court has followed the same approach. In Kurdov and Ivanov v. Bulgaria (no. 16137/04, 31 May 2011), administrative proceedings had been brought against one of the applicants (an employee of the national railway company) for non-compliance with safety regulations, and he had had to pay a fine. Criminal proceedings had then been brought against him (and the other applicant in the case) for deliberately setting fire to items of value. The Court noted that the features of the offence at issue were typically disciplinary (ibid., § 42), finding that the administrative proceedings imposing a fine on the applicant did not satisfy the criteria to be classified as “criminal” for the purposes of Article 4 of Protocol No. 7 (ibid., § 45). In Moullet v. France (cited above) the Court found that the administrative disciplinary proceedings did not give rise to a “criminal charge” against the applicant, a civil servant (a local government employee). Although the disciplinary proceedings had resulted in the applicant’s compulsory retirement, the Court held that they were not “criminal” within the meaning of Article 6, and therefore that provision did not apply to the case. A similar conclusion as regards disciplinary sanctions was reached in Luksch v. Austria ((dec.), no. 37075/97, 21 November 2000 – a case concerning the temporary suspension of an accountant after he had been convicted of fraud), and in Monaco v. Italy ((dec.), no. 34376/13, §§ 40 and 68-69, 8 December 2015 – a case concerning a disciplinary offence committed by a student on university premises).
21. Consequently, the Court’s task is firstly to establish whether the administrative disciplinary proceedings in the instant case concerned a “criminal offence” or “criminal proceedings” within the meaning of the Convention.
22. Turning to the facts of the instant case, concerning the first of the above-mentioned criteria, that is, the legal classification of the offence and proceedings under the domestic law, the Court observes that the rules applied in the impugned administrative proceedings are all part of the disciplinary system governing officials of the State administration. The disciplinary proceedings themselves were based on the fact that the applicant, in the performance of his duties and by using university equipment and facilities, had hindered “the exercise of public freedoms”.
23. As to the second criterion, the nature of the offence in question, the Court considers first of all that the applicant’s suspension from his duties for a period of time was a sanction characteristic of a disciplinary offence, and cannot be considered equivalent to a criminal penalty. The Court observes that such sanctions were applicable in relation to public officials’ misconduct in the exercise of their duties, and that the domestic courts drew a distinction between the legal interests protected by criminal proceedings and those protected by disciplinary proceedings. The lawfulness of the disciplinary sanctions was subject to judicial review.
24. The Court further observes that, in the present case, the applicant’s suspension from his duties for four years was imposed in respect of very serious misconduct, and the university authorities had the power to sanction a civil servant’s misconduct in disciplinary proceedings where such misconduct was duly established. In this connection, the Court notes that the judgment of the competent criminal court (see paragraph 3 above) acquitted the applicant on the grounds that his unauthorised access to email accounts had concerned email accounts provided by an institution which were not used for private purposes. However, the judgment also declared it proven that the applicant had systematically accessed the email accounts of some colleagues without their consent, using university equipment and facilities. Facts declared proven by final judicial decisions in criminal matters were binding on disciplinary proceedings, pursuant to national law.
25. As to the third criterion, namely the severity of the “sanction”, the Court observes that the applicant’s suspension from his duties for a period of four years was not the harshest measure on the scale of disciplinary sanctions which he risked incurring. In those disciplinary proceedings, an offence could not render the person subject to the proceedings liable to a penalty which, by its nature and degree of severity, belonged in the general criminal sphere. The most serious penalty under that regime would have been a public official’s dismissal; it would have never entailed, for instance, deprivation of liberty or the imposition of a fine.
26. In conclusion, the Court finds that the provisions relied on by the applicant do not apply to the instant case. It follows that the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 August 2018.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
Full & Egal Universal Law Academy