Legal summary
December 2022
Nikëhasani v. Albania - 58997/18
Judgment 13.12.2022 [Section III]
Article 8
Article 8-1
Respect for private life
Justified dismissal of prosecutor and lifetime ban from re-entering justice system due to serious doubts as to her financial propriety based on findings of vetting process: no violation
[This summary also covers the judgment Sevdari v. Albabia, no. 40662/19, 13 December 2022]
Facts – The applicants in both cases were dismissed from their post of prosecutor following a vetting process (re-evaluation proceedings) and were also banned for life from re-entering the justice system. The vetting process was part of the reform of the national judicial system introduced in response to widespread corruption (the domestic background is set out in the Court’s judgment in Xhoxhaj v. Albania). Under the 2016 Vetting Act, all serving judges and prosecutors were subject to vetting by an Independent Qualification Commission (“IQC”) and a Special Appeal Chamber (“SAC”) on appeal. Vetting consisted of the re-evaluation of three criteria: an evaluation of assets, an integrity background check to discover links to organised crime, and an evaluation of professional competence.
In Sevdari the applicant’s dismissal was based both on an evaluation of her assets - she was found to have insufficient lawful financial resources to justify the acquisition of part of her and her husband’s real estate – as well as on an evaluation of her professional competence - she had a missed a deadline for lodging an appeal in one case relating to the declaration of assets of a former local government official.
In Nikëhasani the applicant’s dismissal was based on an evaluation of her assets; it was found that she had declared total assets greater than twice the value of lawfully obtained assets and had made an insufficient disclosure of assets.
Law – Article 8:
The applicants’ dismissal from office had constituted an interference with their private life, had been in accordance with the law and, as found in Xhoxhaj, had pursued the legitimate aims of protecting national security, public safety and the rights and freedoms of others. As to whether their dismissal was necessary in a democratic society the Court found as follows.
As held in Xhoxhaj, the reform of the justice system entailing the extraordinary vetting of all serving judges and prosecutors had responded to a “pressing social need”. Further, certain failures by public officials to comply with obligations related to asset declarations could be generally considered serious. Those might include, among other things, failures to declare major assets or sources of income or deliberate attempts to conceal them from the authorities; an inability to justify major purchases through legitimate and sufficient savings or resources held at the time of acquisition; or an inability to justify an excessive lifestyle or extravagant spending that was clearly beyond the declared lawful means of the relevant official and his family. The Court had also recognised in this regard that it might be legitimate to take account of the income and declarations of the official’s spouse, partner or other member of the immediate family in assessing the official’s compliance with anti-corruption laws. At the same time, not every minor instance of non-compliance with asset declaration regimes, or insignificant discrepancy between spending and lawful resources, should trigger the most serious disciplinary sanctions, such as dismissal from office.
The Vetting Act provided for only two types of disciplinary sanction: dismissal from office or suspension with the obligation to attend a compulsory training. As held in Xhoxhaj, in light of the sui generis nature of the vetting proceedings and the exceptional circumstances which had preceded the Vetting Act, it was consistent with the spirit of the vetting process to have a more limited scale of sanctions in the event a person failed to satisfy one of the three evaluation criteria laid down in that Act.
The Court then proceeded to examine whether, in the particular circumstances of the applicants’ cases, the application of those provisions leading to the imposition of the most serious sanction had been proportionate to the aims pursued.
Sevdari
Firstly, as regards the evaluation of the applicant’s assets, all the findings concerning insufficient disclosure of or failure to justify assets for the purposes of the Vetting Act had related exclusively to income earned by her spouse from employment abroad and not to her personal income. Thus, particular caution was necessary in the assessing the proportionality of her dismissal. The SAC had considered that the applicant had made an insufficient disclosure of assets as she had failed to prove the lawfulness of the financial resources used to acquire part of the couple’s real estate assets. The assessment of the resources – exclusively her spouse’s income – included income earned by him at a time when the applicant had been neither married to him nor yet a prosecutor. The remaining resources had not been considered lawful essentially as the applicant had been unable to prove that her husband had paid tax on his income from lawful employment abroad. While potential tax evasion was a serious matter, for the purposes of the applicant’s vetting proceedings it was of relevance that the amounts of spousal income on which tax had not been proven to have been paid represented a relatively small percentage of the total amount of spousal income in the period under consideration, and that no irregularities had been found in relation to the spousal income from domestic sources over several years.
Secondly, as regards the evaluation of the applicant’s professional competence, the SAC had considered the failure to lodge the appeal in the case in question given its nature had contributed to undermining public trust in the justice system, for the purposes of the Vetting Act. However, in the SAC’s view, the applicant’s failure to lodge one appeal had been an isolated incident in her career as a prosecutor notably dealing with economic crimes. It had not been argued that that case had been of a particularly high profile, and, in any event, the appeal in question had not had any reasonable prospects of success.
Both under domestic law and according to European standards, prosecutors were required to meet high standards of integrity in the conduct of their private matters out of office in order to maintain public confidence in the integrity of the justice system. It had therefore been of importance for the applicant, as a prosecutor responsible for the prosecution of, inter alia, tax offences, to prove that members of her immediate family had complied with the applicable tax legislation. The Court could not overlook that a less severe form of disciplinary liability, outside the vetting process, could have been properly considered in such a case. Furthermore, any indications of tax evasion could have been investigated by the relevant authorities. Nevertheless, the concrete circumstances of the case had to be taken into account in order to assess the proportionality of the most serious sanction, dismissal from office which in the applicant’s case had entailed a lifetime ban on re-entering the justice system.
Consequently, on the basis of an overall assessment of the particular circumstances of the case, the applicant’s dismissal, based essentially on the fact that she had been unable to prove that her husband had paid tax on some of his income from lawful activities in the previous two decades and in the absence of any indications of bad faith or deliberate violations by the applicant herself, had been disproportionate to the legitimate aims pursued by the vetting process.
Conclusion: violation (unanimously).
Nikëhasani
The IQC, after assessing all the explanations and evidence presented to the applicant, and all the data collected during the investigation and disclosed to her, had found that her declared assets had been more than twice the amount of the lawful assets. That would have warranted her dismissal from office under Article D § 4 of the Annex to the Constitution. In accordance with the Vetting Act, the person being vetted had to convincingly explain the lawful source of assets and income and could not conceal, or inaccurately present assets owned, possessed or used. In the instant case, however, the vetting bodies, on the basis of a careful examination of the evidence in the case file had found that the applicant had not done so. Those domestic decisions were not arbitrary or manifestly unreasonable. Furthermore, on multiple occasions the applicant had sought to prove the legality of certain income or transactions through documentary evidence produced years later, which had raised legitimate questions about the integrity of her conduct and her sound judgment as a prosecutor.
Under the Vetting Act, the decision could be made based on one or more criteria or an overall evaluation of all three criteria. The constitutional and other relevant provisions provided for disciplinary measures, even based on one criterion.
Although some of the SAC’s findings appeared to have been rather harsh or formalistic, in the light of the prevailing interpersonal relations and the degree of transactional informality that existed in Albania early on in the democratic transition, the assets or transactions in question involved rather small sums, in both absolute and relative terms. As such, they were not capable of casting doubt on the SAC’s primary findings regarding the serious irregularities or lack of substantiation surrounding some of the applicant and her family’s largest assets. A situation of general informality in the country, while understandable in certain respects, could not exempt an experienced public prosecutor or other judicial officer from conducting his or her private affairs with the greatest respect for legality and in a way that was beyond public reproach; they were to be held to a higher ethical standard. Furthermore, the so-called “200% rule” had provided the applicant with substantial leeway in relation to any objective difficulties in proving the legality of the assets, some of which had been acquired at some time in the past. Despite this, she had not convincingly proved the lawfulness of even 50% of the declared assets.
The SAC’s findings in respect of the evaluation of assets, taken cumulatively, had been sufficiently serious to raise substantial doubts about the applicant’s financial propriety and justified her dismissal.
Having regard thus to the vetting bodies’ individualised findings the applicant’s dismissal had been proportionate.
As to certain repercussions relating to those findings and the applicant’s dismissal, the Court had previously considered that Article 8 could not be relied on to complain of a loss of reputation which was the foreseeable consequence of one’s own actions, such as the commission of a criminal offence or other misconduct entailing a measure of legal responsibility with foreseeable negative effects on “private life”. In the present case, the vetting bodies’ findings and the applicant’s dismissal had resulted from proceedings which had complied with the requirements of Article 6 and 8.
Finally, while the applicant had not lodged a separate complaint with the Court as to the lifetime ban on re-entering the justice system – presumably, direct and inevitable – consequence of her dismissal from office in the vetting proceedings, the Court had held in Xhoxhaj, that such a ban imposed on the applicant in that case, a Constitutional Court judge, and other individuals removed from office on grounds of serious ethical violations had not been inconsistent with or disproportionate to the legitimate objective pursued by the State – within the national context of the then ongoing consolidation of the rule of law – to ensure the integrity of judicial office and public trust in the justice system. Noting the prosecutors’ status within the justice system in Albania, the Court found that similar compelling considerations applied in relation to the dismissal from the post of prosecutor and the ensuing ban on re-entering the justice system.
Conclusion: no violation (six votes to one).
In both cases the applicants’ complaints under Article 6 concerning the fairness of the vetting proceedings were declared inadmissible.
Article 46: To the extent that the applicant in Sevdari had sought general measures the Court did not find it necessary to indicate any such measures, as it did not consider that the functioning of the current vetting process in Albania in general, based on the Constitution and the Vetting Act, disclosed as such any systemic problems of compliance with the requirements of the Convention. As to individual measures, an appropriate form of redress for the violation of the applicant’s right would be to reopen the proceedings, should the applicant request such reopening, and to re‑examine the case in a manner that was in keeping with the requirements of Article 8.
Article 41: EUR 13,600 in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage in Sevdari.
(See also Xhoxhaj v. Albania, 15227/19, 9 February 2021, Legal Summary; Samoylova v. Russia, 49108/11, 14 December 2021, Legal Summary; Besnik Cani v. Albania, 37474/20, 4 October 2022, Legal Summary)
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This summary by the Registry does not bind the Court.
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