Legal summary
June 2024
Advisory opinion requested by the High Court of Cassation and Justice of Romania
Request no. P16-2024-001
28.06.2024 (dec.)
Legal summary
Article 6
Article 6 § 1 (criminal)
Criminal charge
Relevant material in Court’s case-law to allow requesting court to settle dispute appropriately, in line with subsidiarity principle: request rejected
Article 1 of Protocol No. 1
Peaceful enjoyment of possessions
Relevant material in Court’s case-law to allow requesting court to settle dispute appropriately, in line with subsidiarity principle: 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 an inspector at a municipal authority. She appealed against the confiscation of around 364,500 euros (EUR), a measure imposed because she had been unable to validly explain the source of the sum during an audit of her assets.
As part of Romania’s accession to the European Union on 1 January 2007, the country introduced a system for assessing and auditing the assets of certain public-sector employees in order to comply with EU law. Law no. 176/2010 of 5 September 2010 on integrity in the performance of public duties and the holding of public office introduced the obligation for 39 categories of public-sector employees to declare their assets and interests upon appointment, each year subsequently and at the end of their term.
These declarations are audited by the National Integrity Agency (Agenția Națională de Integritate – “the ANI”). In the event of a significant discrepancy – that is, one of more than EUR 10,000 – between income earned and the value of assets held, the ANI refers the matter to the Asset Investigation Committee (“the Investigation Committee”) attached to the Court of Appeal. Where the Investigation Committee confirms the significant discrepancy, it may instruct the Court of Appeal to seek an explanation for the assets and, where appropriate, to order the confiscation of the sums in question. The Court of Appeal may order confiscation where it finds that there is no valid explanation of their source. Its decision may be appealed against before the High Court, which reviews the lawfulness of the measure.
The questions asked in the request for an advisory opinion were worded as follows:
“1. Can the asset-audit proceedings provided for by Law no. 176/2010 – civil proceedings under national law – be classified as criminal proceedings to which the guarantees under Article 6 of the Convention apply, in the light of the criteria established in the case-law of the European Court of Human Rights, in particular that of the severity of the penalty?
2. Can proceedings such as those in the present case amount to a violation of Article 1 of Protocol No. 1 to the Convention – that is, proceedings with no link to a criminal offence in which a court, if the source of certain assets or parts of assets remains unexplained, orders their confiscation without being required to examine the proportionality of the measure?”
Opinion –
Decision – The Court observed that the request fulfilled the first and third 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 this 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.
The Court’s case-law was well developed with regard to the questions asked in the present case, and several aspects of that case-law had been judiciously cited by the requesting court in its decision to refer the matter to the Court.
Concerning the first question, the requesting court had rightly referred to the Engel criteria which, according to settled case-law, circumscribed the applicability of the “criminal” limb of Article 6 of the Convention.
With regard to the requesting court’s second question, the Court reiterated its settled case-law according to which Article 1 of Protocol No. 1 required any interference with the right to peaceful enjoyment of possessions to display a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Such fair balance was upset where the person concerned had to bear an individual and excessive burden. The fair balance required by Article 1 of Protocol No. 1 also implied procedural fairness.
The Court noted that, for the two questions asked of it, there was sufficient relevant material in its case-law as it stood to allow the requesting court to settle the dispute appropriately in the light of Article 6 of the Convention and Article 1 of Protocol No. 1, in line with the principle of subsidiarity. Furthermore, the Court pointed out that the case of Păcurar v. Romania was currently pending before it and raised similar issues to those submitted by the High Court in the present request for an advisory opinion. The Court would shortly be called upon to address those issues.
Given that the second admissibility condition was not fulfilled for this request for an advisory opinion, the Court did not need to rule on the fourth condition, namely whether the requesting court had given reasons for its request and had provided the relevant legal and factual background to the pending case.
The Court concluded that this request for an advisory opinion did not concern a question of principle, within the meaning of Article 1 § 1 of Protocol No. 16, warranting examination by the Court’s Grand Chamber.
(See also concerning Article 6: Engel and Others v. the Netherlands, 5100/71 et al., 8 June 1976, Series A no. 22; Phillips v. the United Kingdom, 41087/98, ECHR 2001-VII; Silickienė v. Lithuania, 20496/02, 10 April 2012, Legal Summary; Veits v. Estonia, 12951/11, 15 January 2015; Telbis and Viziteu v. Romania, 47911/15, 26 June 2018; Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], 68273/14 and 68271/14, 22 December 2020, Legal Summary; Vegotex International S.A. v. Belgium [GC], 49812/09, 3 November 2022, Legal Summary; Concerning Article 1 of Protocol No. 1: Jahn and Others v. Germany [GC], 46720/99 et al., ECHR 2005-VI, Legal Summary; G.I.E.M. S.r.l. and Others v. Italy [GC], 1828/06 et al., 28 June 2018, Legal Summary; Todorov and Others v. Bulgaria, 50705/11 et al., 13 July 2021, Legal Summary; and Păcurar v. Romania, 17985/18, communicated case; Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Articles 2, 3 and 6 of the Convention, P16-2020-001, 14 December 2020, Legal Summary; T.A.C. against Agenția Națională de Integritate (ANI), judgment of 4 May 2023, C-40/21)
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This summary by the Registry does not bind the Court.
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