DOBRILĂ proti Rumunsku

FOURTH SECTION

DECISION

Application no. 8115/15
Daniela DOBRILĂ
against Romania

The European Court of Human Rights (Fourth Section), sitting on 6 December 2022 as a Committee composed of:

Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 8115/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 February 2015 by a Romanian national, Ms Daniela Dobrilă (“the applicant”), who was born in 1979 and who was represented by Ms Sonia Almaș, a lawyer practising in Cluj;

the decision to give notice to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, of the complaint under Article 7 of the Convention concerning the applicant’s conviction and sentencing to three years’ imprisonment by a final judgment of 19 May 2017 of the Cluj Court of Appeal for corruption (on account of granting unauthorised persons access to “information not intended to be made public” in exchange for undue benefits), and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. By an indictment approved on 5 May 2014, the Prosecutor’s Office attached to the High Court of Cassation and Justice, National Anti-Corruption Directorate - Cluj Territorial Office, sent the applicant for trial on account of acts carried out in her capacity as head of the Directorate for Licences and Authorisations (Direcţia Licenţe și Autorizări) within the Romanian Road Authority (Autoritatea Rutieră Română – “ARR”), in breach of her professional duties. She was accused of having – on five occasions – claimed and accepted money and goods, including a car, from C.E.S. and C.O. in order to help their company to succeed in a public call for tenders for the allocation of routes (licitaţie pentru atribuirea traseelor) for public transport by offering them confidential information acquired through her position at ARR. In particular, the applicant was accused of having disclosed confidential information to unauthorised persons, in breach of both her professional duties as listed in the job description and the Internal Regulations of ARR. This offence fell under Article 12 (b) of the Anti-Corruption Act (Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption).

2. Article 12 (b) of Law no. 78/2000, as in force at the material time, provided:

“The following acts shall be punishable by imprisonment for one to five years if they are committed for the purpose of obtaining money, goods or other undue benefits for oneself or for someone else:

...

(b) the use, in any way, directly or indirectly, of information not intended to be made public (informaţii ce nu sunt destinate publicităţii) or the granting access to such information to unauthorised persons.”

3. On 22 January 2016 the Cluj County Court convicted the applicant of several offences, including the offence under Article 12 (b) of Law no. 78/2000, and sentenced her to a combined prison sentence of three years, of which one year was for the above-mentioned offence only. The County Court stated that the applicant had

“... revealed to [C.E.S.] confidential data, not intended to be made public, taken from the databases of the institution where she held her position: data concerning the documents submitted by the other transport operators competing with the [F.] company, and in particular data regarding their vehicle fleet, namely how old their cars were and what their level of comfort was and so on, which were essential categories in the scoring system used in the call for tenders”.

4. The applicant appealed against this decision. In her appeal, she argued that there was no proof that she had committed the offence under Article 12 (b) of Law no. 78/2000, mainly because she could not herself have accessed the relevant ARR databases. Moreover, she maintained that the National Anti-Corruption Directorate and the County Court had not listed the exact content of the data she was accused of unduly disclosing in order to assess if the data were intended to be made public or not. In her appeal, the applicant did not raise any arguments with respect to the clarity of the concept of “information not intended to be made public” included in the legal definition of the offence of which she had been convicted.

5. On 19 May 2017 the Cluj Court of Appeal upheld the judgment of the County Court. It held, on the basis of section 6.2 of her job description and section 48(c) of the AAR Internal Regulations, that the applicant had an obligation to maintain the confidentiality of information and documents relating to the activity of the public institution where she was employed. The information disclosed to C.E.S. was linked to the activity of the institution and the applicant was found guilty of granting unauthorised persons, namely C.E.S., access to such information for the purpose of obtaining undue benefits for C.E.S.’s company, by helping it to succeed in the public call for tenders and be granted the licence for various public transport routes. According to the Court of Appeal, the information disclosed concerned at least three transport operators competing with C.E.S.’s company of in the same call for tenders, namely the companies S., L. and F., and included various legal and financial data regarding those companies submitted by the companies themselves as part of their bids in reply to the call for tenders.

6. In her application to the Court, the applicant alleged that, by convicting her of the offence under Article 12 (b) of Law no. 78/2000, the domestic courts had breached Article 7 of the Convention because, in her opinion, the offence in question was not clearly defined by the domestic law, as the concept of “information not intended to be made public” was not defined by the domestic law and the courts had interpreted it extensively to her detriment.

THE COURT’S ASSESSMENT

7. The general principles emerging from the Court’s case-law under Article 7 of the Convention are summarised in Del Río Prada v. Spain ([GC], no. 42750/09, §§ 91-93, ECHR 2013), and, more recently, in Norman v. the United Kingdom (no. 41387/17, §§ 59-61, 6 July 2021).

8. In particular, Article 7 should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Among its guarantees, it lays down the principle that offences must be clearly defined by law. When speaking of “law”, Article 7 implies qualitative requirements, notably those of accessibility and foreseeability. The latter requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him or her criminally liable (see Del Río Prada, cited above, §§ 77-80 and 91, and Dallas v. the United Kingdom, no. 38395/12, § 69, 11 February 2016, with further references).

9. The Government submitted that, owing to the general nature of statutes, their wording could not be absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances meant that many laws were inevitably couched in terms which, to a greater or lesser extent, were general, and the interpretation and application of such enactments depended on practice (the Government cited Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260‑A). When referring to the criminalisation of the actions in question by Article 12 (b) of Law no. 78/2000, the High Court of Cassation and Justice had held, in judgment no. 1465 of 28 April 2014, that the nature of the information held by the perpetrator of the offence, as well as the obligation not to disclose it, must be clarified, individualised, specified and indicated in an express manner and must result from the law, regulations, conventions or agreements involving the perpetrator. The Government further submitted that the case-law of the High Court of Cassation and Justice had later been confirmed by the Constitutional Court’s decisions nos. 50 of 2 February 2017, 520 of 6 July 2017 and 549 of 13 July 2017, in which it had held that the provisions of Article 12 (b) of Law no. 78/2000 criminalising the actions in question were constitutional, and thus rejected the criticism regarding the lack of clarity and predictability of the concept of “information not intended to be made public”.

10. The Court notes that the applicant conceded, in her observations in reply, that “according to the opinions of legal commentators”, the range of information not intended to be made public included classified information, defined by the provisions of Law no. 182/2002, as well as other information which, without being classified, was subject to restricted circulation, to legal limitations or to other restrictions dictated by prevailing community interests.

11. Against this background, the Court considers that the Court of Appeal, in reaching its conclusion in the present case, conducted a detailed analysis of the meaning and relevance of the concept of “information not intended to be made public”, provided for by Article 12 (b) of Law no. 78/2000, in the specific factual context of the case (see paragraph 5 above). None of the conclusions reached by the domestic courts can be said to have been unforeseeable or arbitrary and they were entirely consistent with the case-law of the Constitutional Court and the High Court of Cassation and Justice referred to by the Government (see paragraph 9 above).

12. The Court also reiterates that Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Del Río Prada, cited above, §§ 92-93, and Dallas, cited above, § 70, with further references). Moreover, it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. It is not the task of the Court to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that, as in the present case, these are based on a reasonable assessment of the evidence (see Dallas, cited above, § 71).

13. In conclusion, the Court is satisfied that the applicant ought to have been aware, if necessary after having sought legal advice, that by disclosing to C.E.S., in exchange of money and goods, information relating to his company’s competitors in the call for tenders supervised by ARR, where she held the position of head of the Directorate for Licences and Authorisations, in order to help C.E.S.’s company to succeed in the call for tenders, she risked being found guilty of the offence provided for in Article 12 (b) of Law no. 78/2000 (see Norman, cited above, § 70).

14. Moreover, the Court considers that the concept of “information not intended to be made public”, provided for by Article 12 (b) of Law no. 78/2000, is sufficiently clear that any person, and particularly a senior civil servant such as the applicant, should understand, in the context of working in a public institution managing calls for tenders, which acts may engage his or her criminal responsibility (see, mutatis mutandis, Stoica v. France (dec.), no. 46535/08, 20 April 2010).

15. Consequently, the applicant’s complaint is manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 January 2023.

Crina Kaufman Faris Vehabović
Acting Deputy Registrar President