Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation or application of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention

PANEL OF THE GRAND CHAMBER

DECISION

on a request for an advisory opinion under Protocol No. 16 concerning the interpretation or application of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention

Request by
the High Court of Cassation and Justice of Romania

(Request no. P16-2024-001)

STRASBOURG

18 June 2024

This decision is final. It may be subject to editorial revision.

The European Court of Human Rights, sitting as a Panel of the Grand Chamber composed of:

Síofra O’Leary, President,
Gabriele Kucsko-Stadlmayer,
Mattias Guyomar,
Frédéric Krenc,
Sebastian Răduletu, judges,
and of Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 29 May and 18 June 2024,

Decides as follows:

PROCEDURE

1. In a letter of 6 February 2024, received at the European Court of Human Rights (“the Court”) on 27 February 2024, the High Court of Cassation and Justice of Romania (“the High Court”; “the requesting court”) requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the questions set out in paragraph 2 below.

THE QUESTIONS ASKED

2. 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?”

THE BACKGROUND AND DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST

1. The system implemented in Romania

3. In 2007 Romania introduced a system for assessing and auditing the assets of certain public-sector employees, as part of its accession to the European Union on 1 January 2007.

4. In substance, the system was intended to fulfil the requirements set by the European Commission in 2006 in Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification (“MCV”) of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56)[1].

5. In that decision, the European Commission set four benchmarks to be addressed by Romania. The second of those concerned the establishment of an integrity agency with responsibilities for verifying assets and for issuing mandatory decisions on the basis of which dissuasive sanctions could be taken. The fourth benchmark concerned the adoption of further measures to prevent and fight against corruption, in particular within the local government.

6. Law no. 144/2007 of 28 May 2007 established the National Integrity Agency (Agenția Națională de Integritate – “the ANI”), an autonomous administrative authority possessing legal personality, whose objective is to ensure integrity in public office and to prevent institutional corruption, by auditing the assessment of asset declarations, data and other related information as well as changes in assets, incompatibilities and potential conflicts of interest in the performance of public duties and the holding of public office (see, for further details, the presentation in the judgment of the Court of Justice of the European Union (CJEU) in Agenția Națională de Integritate, C-40/21, EU:C:2023:367[2]).

7. 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 (see Article 1 of Law no. 176/2010).

8. Those declarations are audited by the ANI. In the event of a significant discrepancy – that is, one of more than 10,000 euros (EUR) – 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 (see Articles 8 and 13-17 of Law no. 176/2010). 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, order the confiscation of the sums in question (see Articles 10, 101, 102, 103 and 104 of Law no. 115/2006). 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 (see Articles 16-18 of Law no. 115/1996).

9. The MCV introduced in 2006 (see paragraph 4 above) was formally closed by the European Commission on 15 September 2023 after Decision 2006/928/EC was repealed.

2. The facts giving rise to the request

10. In October 2016 the ANI received a report from a legal entity, whose identity was not revealed, concerning the content of an asset declaration submitted by E.N.P., an inspector at the Cluj-Napoca municipal authority. The report cast doubt on the truthfulness of the information that she had declared.

11. After auditing E.N.P.’s assets, the ANI prepared a report on 15 February 2021 indicating a significant discrepancy in income and referred the matter to the Investigation Committee of the Cluj Court of Appeal.

12. In a decision of 1 July 2021 the Investigation Committee found that E.N.P. had not been able to validly explain the source of the following sums: EUR 286,494 and 382,145.91 Romanian lei (ROL) (equivalent to around EUR 78,000). It thus referred the matter to the Cluj Court of Appeal to have those sums confiscated.

13. On 4 November 2021 the Court of Appeal ruled that the source of those sums had not been validly explained and ordered their confiscation.

14. E.N.P. lodged an appeal with the High Court on 18 June 2023.

15. On 20 June 2023 E.N.P. asked the High Court to request an advisory opinion from the Court.

16. In an interlocutory decision of 6 November 2023 the High Court granted the request for an advisory opinion by the applicant in the main proceedings and asked the Court the two questions cited above (see paragraph 2 above).

17. With regard to the first question, the High Court approached the issue of whether the proceedings were criminal in nature on the basis of the so‑called Engel criteria (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). Concerning the first Engel criterion, the classification of the measure, the High Court confirmed that, under domestic law, the dispute was classified as an administrative matter and observed that no criminal prosecution had been brought. It noted, however, that, according to the Court’s case-law, that aspect was of only relative importance and merely amounted to a starting-point. Concerning the second criterion, the very nature of the offence, the High Court considered that it would be difficult to affirm that the act of freezing the assets, then confiscating the sums of unexplained source and imposing a disciplinary penalty, temporarily prohibiting the individual concerned from holding elective office, was not punitive in nature. In that connection, it drew a parallel with the Court’s case-law cited in the CJEU judgment in Agenția Națională de Integritate, cited above (see paragraphs 21-24 below) in the context of a prohibition on holding elective public office following a conflict of interest (see Article 25 § 2 of Law no. 176/2010). The High Court pointed out that, while the asset-audit proceedings were intended for 39 categories of employees, they concerned a fairly broad range of individuals. Lastly, regarding the third criterion, the degree of severity of the penalty that the person concerned risked incurring, the High Court emphasised that in the present case the confiscation (which had not been linked to a criminal offence) concerned a very substantial sum. In that connection, it referred to the case of Bendenoun v. France (24 February 1994, §§ 46-47, Series A no. 284), where the very substantial amount of tax penalties had been considered a key factor in determining the criminal nature of the sanction. At the same time, the High Court acknowledged that E.N.P. did not risk imprisonment if she did not comply with the confiscation order for the sums in question.

18. According to the High Court, the issue of whether the measure could be classified as “criminal” within the meaning of Article 6 of the Convention was important because, if the dispute fell within the criminal sphere, then the guarantees specific to criminal proceedings would apply, particularly regarding the burden of proof in the asset audit.

19. With regard to the second question, the High Court expressed doubts as to whether the proceedings leading to the confiscation of E.N.P.’s assets, without any criminal offence having been committed, were compliant with Article 1 of Protocol No. 1 to the Convention. It referred to the Court’s case-law in matters where an interference had been linked to an offence that had been committed and where the source of the confiscated assets had been presumed to be unlawful (Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, 13 July 2021).

20. According to the High Court, the main difference between the present case and the case-law cited above was that, in Romanian law, asset-audit proceedings were independent of any offence that may have been committed, and assets were presumed to be lawfully acquired under Article 44 § 8 of the Constitution. It pointed out that the national courts had no opportunity to censure such a measure. In those circumstances, it questioned whether the penalty of confiscation met the proportionality requirement inherent in Article 1 of Protocol No. 1.

3. The CJEU judgment of 4 May 2023

21. On 4 May 2023 the CJEU delivered a judgment in the case of Agenția Națională de Integritate, cited above, in response to a request for a preliminary ruling from the Timişoara Court of Appeal on the prohibition from holding elective public office for a period of three years, as provided for in Article 25 § 2 of Law no. 176/2010.

22. As a preliminary point, the CJEU considered that Law no. 176/2010 constituted a measure implementing EU law within the meaning of Article 51 § 1 of the Charter of Fundamental Rights of the European Union (“the Charter”) (see paragraph 27 of the judgment).

23. Next, responding to the first question put to it and drawing on the Court’s case-law concerning the criminal nature of a penalty within the meaning of Article 6 of the Convention, the CJEU considered that the prohibition on the holding of elective public office for a period of three years did not appear to be criminal in nature in the light of Article 49 § 3 of the Charter, which was, however, a matter for the referring court to verify (see paragraphs 32‑46 of the judgment).

24. The CJEU also stated that, despite the fact that the measure was not criminal in the light of Article 49 § 3 of the Charter, the principle of proportionality was one of the general principles of EU law and, accordingly, any national legislation that implemented EU law had to observe that principle. Given the seriousness of the harm to the public interest resulting from acts of corruption and conflicts of interest, even the least significant, on the part of elected representatives in a national context involving a high risk of corruption, the CJEU considered that the prohibition on the holding of elective public office for a predetermined three-year period laid down by that national legislation did not appear, in principle, to be disproportionate to the offence which it sought to penalise. It advanced, however, that the fact that the duration of that prohibition was not coupled with any possibility of modulation did not rule out the possibility that, in certain exceptional cases, that penalty might prove disproportionate in relation to the offence which it penalised. According to the CJEU, that could be the case where, exceptionally, the unlawful conduct found to have taken place did not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of the person concerned proved particularly serious (see paragraphs 49-72 of the judgment).

The Court’s assessment

25. The Court is called upon to examine whether the request fulfils the conditions laid down in Article 1 of Protocol No. 16 (see Article 2 of Protocol No. 16 and Rule 93 of the Rules of Court).

26. There is no doubt that the first and third admissibility conditions laid down in Article 1 of Protocol No. 16 are fulfilled, since the request was made

(a) by a bench of the High Court, one of the high courts and tribunals that Romania has designated in accordance with Article 10 of Protocol No. 16 (see Article 1 § 1); and

(b) as part of a case pending before that court (see Article 1 § 2).

27. With respect to the second admissibility condition, the Court is called upon to determine whether this request concerns “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (see Article 1 § 1 of Protocol No. 16).

28. The Court has previously stated that those “questions of principle” must be considered by the requesting court or tribunal to be necessary for its adjudication of the case before it (see Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Articles 2, 3 and 6 of the Convention, request no. P16‑2020‑001, Supreme Court of the Slovak Republic, § 17, 14 December 2020, and paragraph 6.2 of the Guidelines on the Implementation of the Advisory-Opinion Procedure Introduced by Protocol No. 16 to the Convention (“the Guidelines”)).

29. In addition, “questions of principle” within the meaning of Article 1 § 1 of Protocol No. 16 are those which, on account of their nature, degree of novelty and/or complexity or otherwise, concern an issue on which the requesting court would need the Court’s guidance by way of an advisory opinion to be able to ensure respect for Convention rights when determining the case before it (see Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Article 4 of Protocol No. 7 to the Convention, request no. P16-2023-002, Supreme Court of Estonia, § 20, 19 February 2024, and paragraph 7 of the Guidelines).

30. Regarding the present request, it must be acknowledged that the Court’s case-law is well developed with regard to the questions asked, and several aspects of that case-law were judiciously cited by the requesting court in its decision to refer the matter to the Court (see paragraphs 17-20 above).

31. The first question asked by the High Court thus concerned whether the asset-audit proceedings established by Law no. 176/2010 could be classified as “criminal” proceedings within the meaning of Article 6 of the Convention. In this connection, the Court notes that the requesting court rightly referred to the Engel criteria (see Engel and Others, cited above, § 82) which, according to settled case-law, circumscribe the applicability of the “criminal” limb of that provision (see, more recently, Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, § 75, 22 December 2020, and Vegotex International S.A. v. Belgium [GC], no. 49812/09, § 67, 3 November 2022).

32. To reiterate, the first of these criteria 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 the most recent authority, Vegotex International, cited above, § 67).

33. The first of the criteria is of relative weight and serves only as a starting-point (see Gestur Jónsson and Ragnar Halldór Hall, cited above, § 85).

34. The second criterion represents a more important factor (see Engel and Others, cited above, § 82). What must be examined in this regard is, first, whether the measure in issue is aimed at a specific category of individuals (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 125, 6 November 2018) or covers all citizens (see Bendenoun, cited above, § 47) and, second, whether it has a restorative function (see C.Y. v. Belgium, no. 19961/17, § 40, 14 November 2023) or pursues a punitive and deterrent aim (see Öztürk v. Germany, 21 February 1984, § 53, Series A no. 73; Jussila v. Finland [GC], no. 73053/01, § 38, ECHR 2006-XIV; and A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, § 40, 27 September 2011).

35. The third criterion – the degree of severity of the penalty – is determined on the basis of the maximum penalty provided for in the applicable legal provision. The fact that an offence is not punishable by imprisonment is not by itself decisive (see Ramos Nunes de Carvalho e Sá, cited above, § 122, and Gestur Jónsson and Ragnar Halldór Hall, cited above, § 78).

36. In its case-law, under the “criminal” limb of Article 6 of the Convention, the Court has examined confiscation measures that were linked to, and the consequence of, a criminal offence that had been committed (see Phillips v. the United Kingdom, no. 41087/98, § 39, ECHR 2001-VII).

37. In addition, the Grand Chamber of the Court has previously been called upon to consider, under Article 7 of the Convention, a confiscation measure where the applicants had not received a criminal conviction but an offence had been committed. Confirming the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, the Court found that the absence of a criminal conviction did not suffice to rule out the applicability of that provision (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 215-19, 28 June 2018).

38. However, under the “civil” limb of Article 6 of the Convention, the Court has examined confiscation measures that were not linked to a criminal offence committed by the applicants (see Silickienė v. Lithuania, no. 20496/02, §§ 45-46, 10 April 2012; Veits v. Estonia, no. 12951/11, §§ 41‑46, 15 January 2015; and Telbis and Viziteu v. Romania, no. 47911/15, §§ 49-58, 26 June 2018).

39. At the same time, the Court notes that the CJEU, in a preliminary ruling, has adjudicated on another measure provided for by Law no. 176/2010, namely the prohibition on holding elective public office for a period of three years on account of a conflict of interest, in accordance with Article 25 § 2 of Law no. 176/2010. Although the measure concerned by the request for a preliminary ruling was different from the confiscation in issue in the present case and was ordered in a different context – namely a conflict-of-interest situation – it is worth noting that in those circumstances the CJEU relied on the Engel criteria and the Court’s case-law in finding that the prohibition did not appear to be criminal in nature in the light of Article 49 of the Charter (see paragraph 23 above).

40. In these circumstances, it is for the requesting court to determine, on the basis of that existing case-law and with reference to the relevant domestic law and the facts of the case pending before it, whether the proceedings in issue fall under the “civil” or “criminal” limb of Article 6 of the Convention (see Advisory opinion on the procedural status and rights of a biological parent in proceedings for the adoption of an adult [GC], request no. P16‑2022‑001, Supreme Court of Finland, § 44, 13 April 2023, and Decision, request no. P16‑2023-002, cited above, § 30).

41. With regard to the requesting court’s second question, the Court reiterates its settled case-law according to which Article 1 of Protocol No. 1 requires 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 (see Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, §§ 83-95, ECHR 2005-VI). Such fair balance is upset where the person concerned must bear an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Maggio and Others v. Italy, nos. 46286/09 and 4 others, § 57, 31 May 2011).

42. In this connection, the Court notes that the CJEU also stated that, even if a matter was not “criminal” in nature in the light of Article 49 of the Charter, the principle of proportionality was one of the general principles of EU law and did not preclude the application of a prohibition on holding any elective public office for a predetermined period of three years as provided for in Article 25 § 2 of Law no. 176/2010, except where, exceptionally, the unlawful conduct found to have taken place did not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of the person concerned proved particularly serious (see paragraph 24 above).

43. The Court further points out that the “fair balance” required by Article 1 of Protocol No. 1 implies procedural fairness. Notwithstanding the absence of an explicit procedural requirement under that provision, proceedings that interfere with the rights provided for by Article 1 of Protocol No. 1 must afford the aggrieved individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. Such interference could not therefore be accepted in the absence of adversarial proceedings that complied with the principle of equality of arms, allowing discussion of aspects that were important for the outcome of the case (see G.I.E.M. S.r.l. and Others, cited above, § 302, and Veits, cited above, § 72). Furthermore, decisions delivered by domestic courts must provide adequate reasoning with respect to the personal situation of the individual concerned (see Todorov and Others v. Bulgaria, cited above, § 256).

44. The Court once again considers it worthwhile to mention the case of Telbis and Viziteu (cited above), which concerned the confiscation of property as part of a criminal investigation into a family member of the applicants who had been accused and subsequently convicted of bribe-taking. The domestic courts had justified confiscating property from those third parties to the criminal proceedings in question by the fact that the applicants could not show that such property had been lawfully acquired. In that case, the Court found no violation of Article 1 of Protocol No. 1, emphasising the wide margin of appreciation afforded to States when combatting corruption in the public service, and the procedural guarantees enjoyed by the applicants (see §§ 72‑82).

45. In view of the foregoing, the Court notes that, for the two questions asked of it, there is sufficient relevant material in its case-law as it stands 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. This principle imposes a shared responsibility between the States Parties and the Court for protecting the rights and freedoms defined in the Convention and the protocols thereto, and national courts have the primary responsibility for giving them full effect in the light of the Court’s case-law (see Grzęda v. Poland [GC], no. 43572/18, § 324, 15 March 2022, and Correia de Matos v. Portugal [GC], no. 56402/12, § 116, 4 April 2018).

46. In this connection, the Court reiterates that the aim of the procedure provided for by Protocol No. 16 is not to transfer the dispute to the Court, which has no jurisdiction either to assess the facts of a case or to evaluate the merits of the parties’ views on the interpretation of domestic law in the light of Convention law, or to rule on the outcome of the proceedings (see Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement [GC], request no. P16-2023-001, Conseil d’État of Belgium, § 61, 14 December 2023, and Decision, request no. P16-2023-002, cited above, § 19). In the present case, such adjudication falls to the requesting court for the reasons outlined above.

47. Furthermore, the Court points out that the case of Păcurar v. Romania (no. 17985/18) is currently pending before it. That case, for which the Court has recently sent additional questions to the parties, raises similar issues to those submitted by the High Court in the present request for an advisory opinion. The Court will be shortly called upon to address those issues. In this connection, it reiterates that the judgments that it delivers in the scope of its judicial functions under Article 34 of the Convention serve not only to decide those specific cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted in the Convention in the sphere in question, above and beyond the matter at hand (see Jeronovičs v. Latvia [GC], no. 44898/10, § 109, 5 July 2016, and Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017).

48. In so far as the second admissibility condition is not fulfilled for this request for an advisory opinion, the Court does not need to rule on the fourth condition, namely whether the requesting court has given reasons for its request and has provided the relevant legal and factual background of the pending case (see Article 1 § 3).

49. In any event, the Court notes that the requesting court provided no explanation in the legal background as to why, whereas the Timişoara Court of Appeal had chosen to request a preliminary ruling from the CJEU essentially on the criminal nature of a penalty within the meaning of Article 6 of the Convention in a case concerning the prohibition on holding elective public office under Law no. 176/2010, it opted to request an advisory opinion from the Court in relation to the asset-audit procedure provided for by that same law.

CONCLUSION

50. In the light of the above, the Court concludes that the request for an advisory opinion does 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.

51. Accordingly, it decides not to accept the request.

For these reasons, the Court, by a majority,

Decides not to accept the request.

Done in French and translated into English, and notified in writing on 28 June 2024.

Johan Callewaert Síofra O’Leary
Deputy to the Registrar President

[1] Decision – 2006/928 – EN – EUR-Lex (europa.eu)

[2] CURIA – Documents (europa.eu)

PANEL OF THE GRAND CHAMBER

DECISION

on a request for an advisory opinion under Protocol No. 16 concerning the interpretation or application of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention

Request by
the High Court of Cassation and Justice of Romania

(Request no. P16-2024-001)

STRASBOURG

28 June 2024

This decision is final. It may be subject to editorial revision.

The European Court of Human Rights, sitting as a Panel of the Grand Chamber composed of:

Síofra O’Leary, President,
Gabriele Kucsko-Stadlmayer,
Mattias Guyomar,
Frédéric Krenc,
Sebastian Răduletu, judges,
and of Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 29 May and 18 June 2024,

Decides as follows:

PROCEDURE

1. In a letter of 6 February 2024, received at the European Court of Human Rights (“the Court”) on 27 February 2024, the High Court of Cassation and Justice of Romania (“the High Court”; “the requesting court”) requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the questions set out in paragraph 2 below.

THE QUESTIONS ASKED

2. 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?”

THE BACKGROUND AND DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST

1. The system implemented in Romania

3. In 2007 Romania introduced a system for assessing and auditing the assets of certain public-sector employees, as part of its accession to the European Union on 1 January 2007.

4. In substance, the system was intended to fulfil the requirements set by the European Commission in 2006 in Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification (“MCV”) of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56)[1].

5. In that decision, the European Commission set four benchmarks to be addressed by Romania. The second of those concerned the establishment of an integrity agency with responsibilities for verifying assets and for issuing mandatory decisions on the basis of which dissuasive sanctions could be taken. The fourth benchmark concerned the adoption of further measures to prevent and fight against corruption, in particular within the local government.

6. Law no. 144/2007 of 28 May 2007 established the National Integrity Agency (Agenția Națională de Integritate – “the ANI”), an autonomous administrative authority possessing legal personality, whose objective is to ensure integrity in public office and to prevent institutional corruption, by auditing the assessment of asset declarations, data and other related information as well as changes in assets, incompatibilities and potential conflicts of interest in the performance of public duties and the holding of public office (see, for further details, the presentation in the judgment of the Court of Justice of the European Union (CJEU) in Agenția Națională de Integritate, C-40/21, EU:C:2023:367[2]).

7. 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 (see Article 1 of Law no. 176/2010).

8. Those declarations are audited by the ANI. In the event of a significant discrepancy – that is, one of more than 10,000 euros (EUR) – 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 (see Articles 8 and 13-17 of Law no. 176/2010). 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, order the confiscation of the sums in question (see Articles 10, 101, 102, 103 and 104 of Law no. 115/2006). 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 (see Articles 16-18 of Law no. 115/1996).

9. The MCV introduced in 2006 (see paragraph 4 above) was formally closed by the European Commission on 15 September 2023 after Decision 2006/928/EC was repealed.

2. The facts giving rise to the request

10. In October 2016 the ANI received a report from a legal entity, whose identity was not revealed, concerning the content of an asset declaration submitted by E.N.P., an inspector at the Cluj-Napoca municipal authority. The report cast doubt on the truthfulness of the information that she had declared.

11. After auditing E.N.P.’s assets, the ANI prepared a report on 15 February 2021 indicating a significant discrepancy in income and referred the matter to the Investigation Committee of the Cluj Court of Appeal.

12. In a decision of 1 July 2021 the Investigation Committee found that E.N.P. had not been able to validly explain the source of the following sums: EUR 286,494 and 382,145.91 Romanian lei (ROL) (equivalent to around EUR 78,000). It thus referred the matter to the Cluj Court of Appeal to have those sums confiscated.

13. On 4 November 2021 the Court of Appeal ruled that the source of those sums had not been validly explained and ordered their confiscation.

14. E.N.P. lodged an appeal with the High Court on 18 June 2023.

15. On 20 June 2023 E.N.P. asked the High Court to request an advisory opinion from the Court.

16. In an interlocutory decision of 6 November 2023 the High Court granted the request for an advisory opinion by the applicant in the main proceedings and asked the Court the two questions cited above (see paragraph 2 above).

17. With regard to the first question, the High Court approached the issue of whether the proceedings were criminal in nature on the basis of the so‑called Engel criteria (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). Concerning the first Engel criterion, the classification of the measure, the High Court confirmed that, under domestic law, the dispute was classified as an administrative matter and observed that no criminal prosecution had been brought. It noted, however, that, according to the Court’s case-law, that aspect was of only relative importance and merely amounted to a starting-point. Concerning the second criterion, the very nature of the offence, the High Court considered that it would be difficult to affirm that the act of freezing the assets, then confiscating the sums of unexplained source and imposing a disciplinary penalty, temporarily prohibiting the individual concerned from holding elective office, was not punitive in nature. In that connection, it drew a parallel with the Court’s case-law cited in the CJEU judgment in Agenția Națională de Integritate, cited above (see paragraphs 21-24 below) in the context of a prohibition on holding elective public office following a conflict of interest (see Article 25 § 2 of Law no. 176/2010). The High Court pointed out that, while the asset-audit proceedings were intended for 39 categories of employees, they concerned a fairly broad range of individuals. Lastly, regarding the third criterion, the degree of severity of the penalty that the person concerned risked incurring, the High Court emphasised that in the present case the confiscation (which had not been linked to a criminal offence) concerned a very substantial sum. In that connection, it referred to the case of Bendenoun v. France (24 February 1994, §§ 46-47, Series A no. 284), where the very substantial amount of tax penalties had been considered a key factor in determining the criminal nature of the sanction. At the same time, the High Court acknowledged that E.N.P. did not risk imprisonment if she did not comply with the confiscation order for the sums in question.

18. According to the High Court, the issue of whether the measure could be classified as “criminal” within the meaning of Article 6 of the Convention was important because, if the dispute fell within the criminal sphere, then the guarantees specific to criminal proceedings would apply, particularly regarding the burden of proof in the asset audit.

19. With regard to the second question, the High Court expressed doubts as to whether the proceedings leading to the confiscation of E.N.P.’s assets, without any criminal offence having been committed, were compliant with Article 1 of Protocol No. 1 to the Convention. It referred to the Court’s case-law in matters where an interference had been linked to an offence that had been committed and where the source of the confiscated assets had been presumed to be unlawful (Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, 13 July 2021).

20. According to the High Court, the main difference between the present case and the case-law cited above was that, in Romanian law, asset-audit proceedings were independent of any offence that may have been committed, and assets were presumed to be lawfully acquired under Article 44 § 8 of the Constitution. It pointed out that the national courts had no opportunity to censure such a measure. In those circumstances, it questioned whether the penalty of confiscation met the proportionality requirement inherent in Article 1 of Protocol No. 1.

3. The CJEU judgment of 4 May 2023

21. On 4 May 2023 the CJEU delivered a judgment in the case of Agenția Națională de Integritate, cited above, in response to a request for a preliminary ruling from the Timişoara Court of Appeal on the prohibition from holding elective public office for a period of three years, as provided for in Article 25 § 2 of Law no. 176/2010.

22. As a preliminary point, the CJEU considered that Law no. 176/2010 constituted a measure implementing EU law within the meaning of Article 51 § 1 of the Charter of Fundamental Rights of the European Union (“the Charter”) (see paragraph 27 of the judgment).

23. Next, responding to the first question put to it and drawing on the Court’s case-law concerning the criminal nature of a penalty within the meaning of Article 6 of the Convention, the CJEU considered that the prohibition on the holding of elective public office for a period of three years did not appear to be criminal in nature in the light of Article 49 § 3 of the Charter, which was, however, a matter for the referring court to verify (see paragraphs 32‑46 of the judgment).

24. The CJEU also stated that, despite the fact that the measure was not criminal in the light of Article 49 § 3 of the Charter, the principle of proportionality was one of the general principles of EU law and, accordingly, any national legislation that implemented EU law had to observe that principle. Given the seriousness of the harm to the public interest resulting from acts of corruption and conflicts of interest, even the least significant, on the part of elected representatives in a national context involving a high risk of corruption, the CJEU considered that the prohibition on the holding of elective public office for a predetermined three-year period laid down by that national legislation did not appear, in principle, to be disproportionate to the offence which it sought to penalise. It advanced, however, that the fact that the duration of that prohibition was not coupled with any possibility of modulation did not rule out the possibility that, in certain exceptional cases, that penalty might prove disproportionate in relation to the offence which it penalised. According to the CJEU, that could be the case where, exceptionally, the unlawful conduct found to have taken place did not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of the person concerned proved particularly serious (see paragraphs 49-72 of the judgment).

The Court’s assessment

25. The Court is called upon to examine whether the request fulfils the conditions laid down in Article 1 of Protocol No. 16 (see Article 2 of Protocol No. 16 and Rule 93 of the Rules of Court).

26. There is no doubt that the first and third admissibility conditions laid down in Article 1 of Protocol No. 16 are fulfilled, since the request was made

(a) by a bench of the High Court, one of the high courts and tribunals that Romania has designated in accordance with Article 10 of Protocol No. 16 (see Article 1 § 1); and

(b) as part of a case pending before that court (see Article 1 § 2).

27. With respect to the second admissibility condition, the Court is called upon to determine whether this request concerns “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (see Article 1 § 1 of Protocol No. 16).

28. The Court has previously stated that those “questions of principle” must be considered by the requesting court or tribunal to be necessary for its adjudication of the case before it (see Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Articles 2, 3 and 6 of the Convention, request no. P16‑2020‑001, Supreme Court of the Slovak Republic, § 17, 14 December 2020, and paragraph 6.2 of the Guidelines on the Implementation of the Advisory-Opinion Procedure Introduced by Protocol No. 16 to the Convention (“the Guidelines”)).

29. In addition, “questions of principle” within the meaning of Article 1 § 1 of Protocol No. 16 are those which, on account of their nature, degree of novelty and/or complexity or otherwise, concern an issue on which the requesting court would need the Court’s guidance by way of an advisory opinion to be able to ensure respect for Convention rights when determining the case before it (see Decision on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Article 4 of Protocol No. 7 to the Convention, request no. P16-2023-002, Supreme Court of Estonia, § 20, 19 February 2024, and paragraph 7 of the Guidelines).

30. Regarding the present request, it must be acknowledged that the Court’s case-law is well developed with regard to the questions asked, and several aspects of that case-law were judiciously cited by the requesting court in its decision to refer the matter to the Court (see paragraphs 17-20 above).

31. The first question asked by the High Court thus concerned whether the asset-audit proceedings established by Law no. 176/2010 could be classified as “criminal” proceedings within the meaning of Article 6 of the Convention. In this connection, the Court notes that the requesting court rightly referred to the Engel criteria (see Engel and Others, cited above, § 82) which, according to settled case-law, circumscribe the applicability of the “criminal” limb of that provision (see, more recently, Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, § 75, 22 December 2020, and Vegotex International S.A. v. Belgium [GC], no. 49812/09, § 67, 3 November 2022).

32. To reiterate, the first of these criteria 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 the most recent authority, Vegotex International, cited above, § 67).

33. The first of the criteria is of relative weight and serves only as a starting-point (see Gestur Jónsson and Ragnar Halldór Hall, cited above, § 85).

34. The second criterion represents a more important factor (see Engel and Others, cited above, § 82). What must be examined in this regard is, first, whether the measure in issue is aimed at a specific category of individuals (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 125, 6 November 2018) or covers all citizens (see Bendenoun, cited above, § 47) and, second, whether it has a restorative function (see C.Y. v. Belgium, no. 19961/17, § 40, 14 November 2023) or pursues a punitive and deterrent aim (see Öztürk v. Germany, 21 February 1984, § 53, Series A no. 73; Jussila v. Finland [GC], no. 73053/01, § 38, ECHR 2006-XIV; and A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, § 40, 27 September 2011).

35. The third criterion – the degree of severity of the penalty – is determined on the basis of the maximum penalty provided for in the applicable legal provision. The fact that an offence is not punishable by imprisonment is not by itself decisive (see Ramos Nunes de Carvalho e Sá, cited above, § 122, and Gestur Jónsson and Ragnar Halldór Hall, cited above, § 78).

36. In its case-law, under the “criminal” limb of Article 6 of the Convention, the Court has examined confiscation measures that were linked to, and the consequence of, a criminal offence that had been committed (see Phillips v. the United Kingdom, no. 41087/98, § 39, ECHR 2001-VII).

37. In addition, the Grand Chamber of the Court has previously been called upon to consider, under Article 7 of the Convention, a confiscation measure where the applicants had not received a criminal conviction but an offence had been committed. Confirming the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, the Court found that the absence of a criminal conviction did not suffice to rule out the applicability of that provision (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 215-19, 28 June 2018).

38. However, under the “civil” limb of Article 6 of the Convention, the Court has examined confiscation measures that were not linked to a criminal offence committed by the applicants (see Silickienė v. Lithuania, no. 20496/02, §§ 45-46, 10 April 2012; Veits v. Estonia, no. 12951/11, §§ 41‑46, 15 January 2015; and Telbis and Viziteu v. Romania, no. 47911/15, §§ 49-58, 26 June 2018).

39. At the same time, the Court notes that the CJEU, in a preliminary ruling, has adjudicated on another measure provided for by Law no. 176/2010, namely the prohibition on holding elective public office for a period of three years on account of a conflict of interest, in accordance with Article 25 § 2 of Law no. 176/2010. Although the measure concerned by the request for a preliminary ruling was different from the confiscation in issue in the present case and was ordered in a different context – namely a conflict-of-interest situation – it is worth noting that in those circumstances the CJEU relied on the Engel criteria and the Court’s case-law in finding that the prohibition did not appear to be criminal in nature in the light of Article 49 of the Charter (see paragraph 23 above).

40. In these circumstances, it is for the requesting court to determine, on the basis of that existing case-law and with reference to the relevant domestic law and the facts of the case pending before it, whether the proceedings in issue fall under the “civil” or “criminal” limb of Article 6 of the Convention (see Advisory opinion on the procedural status and rights of a biological parent in proceedings for the adoption of an adult [GC], request no. P16‑2022‑001, Supreme Court of Finland, § 44, 13 April 2023, and Decision, request no. P16‑2023-002, cited above, § 30).

41. With regard to the requesting court’s second question, the Court reiterates its settled case-law according to which Article 1 of Protocol No. 1 requires 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 (see Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, §§ 83-95, ECHR 2005-VI). Such fair balance is upset where the person concerned must bear an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Maggio and Others v. Italy, nos. 46286/09 and 4 others, § 57, 31 May 2011).

42. In this connection, the Court notes that the CJEU also stated that, even if a matter was not “criminal” in nature in the light of Article 49 of the Charter, the principle of proportionality was one of the general principles of EU law and did not preclude the application of a prohibition on holding any elective public office for a predetermined period of three years as provided for in Article 25 § 2 of Law no. 176/2010, except where, exceptionally, the unlawful conduct found to have taken place did not have an element of seriousness, whereas the impact of that measure on the personal, professional and economic situation of the person concerned proved particularly serious (see paragraph 24 above).

43. The Court further points out that the “fair balance” required by Article 1 of Protocol No. 1 implies procedural fairness. Notwithstanding the absence of an explicit procedural requirement under that provision, proceedings that interfere with the rights provided for by Article 1 of Protocol No. 1 must afford the aggrieved individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. Such interference could not therefore be accepted in the absence of adversarial proceedings that complied with the principle of equality of arms, allowing discussion of aspects that were important for the outcome of the case (see G.I.E.M. S.r.l. and Others, cited above, § 302, and Veits, cited above, § 72). Furthermore, decisions delivered by domestic courts must provide adequate reasoning with respect to the personal situation of the individual concerned (see Todorov and Others v. Bulgaria, cited above, § 256).

44. The Court once again considers it worthwhile to mention the case of Telbis and Viziteu (cited above), which concerned the confiscation of property as part of a criminal investigation into a family member of the applicants who had been accused and subsequently convicted of bribe-taking. The domestic courts had justified confiscating property from those third parties to the criminal proceedings in question by the fact that the applicants could not show that such property had been lawfully acquired. In that case, the Court found no violation of Article 1 of Protocol No. 1, emphasising the wide margin of appreciation afforded to States when combatting corruption in the public service, and the procedural guarantees enjoyed by the applicants (see §§ 72‑82).

45. In view of the foregoing, the Court notes that, for the two questions asked of it, there is sufficient relevant material in its case-law as it stands 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. This principle imposes a shared responsibility between the States Parties and the Court for protecting the rights and freedoms defined in the Convention and the protocols thereto, and national courts have the primary responsibility for giving them full effect in the light of the Court’s case-law (see Grzęda v. Poland [GC], no. 43572/18, § 324, 15 March 2022, and Correia de Matos v. Portugal [GC], no. 56402/12, § 116, 4 April 2018).

46. In this connection, the Court reiterates that the aim of the procedure provided for by Protocol No. 16 is not to transfer the dispute to the Court, which has no jurisdiction either to assess the facts of a case or to evaluate the merits of the parties’ views on the interpretation of domestic law in the light of Convention law, or to rule on the outcome of the proceedings (see Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement [GC], request no. P16-2023-001, Conseil d’État of Belgium, § 61, 14 December 2023, and Decision, request no. P16-2023-002, cited above, § 19). In the present case, such adjudication falls to the requesting court for the reasons outlined above.

47. Furthermore, the Court points out that the case of Păcurar v. Romania (no. 17985/18) is currently pending before it. That case, for which the Court has recently sent additional questions to the parties, raises similar issues to those submitted by the High Court in the present request for an advisory opinion. The Court will be shortly called upon to address those issues. In this connection, it reiterates that the judgments that it delivers in the scope of its judicial functions under Article 34 of the Convention serve not only to decide those specific cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted in the Convention in the sphere in question, above and beyond the matter at hand (see Jeronovičs v. Latvia [GC], no. 44898/10, § 109, 5 July 2016, and Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017).

48. In so far as the second admissibility condition is not fulfilled for this request for an advisory opinion, the Court does not need to rule on the fourth condition, namely whether the requesting court has given reasons for its request and has provided the relevant legal and factual background of the pending case (see Article 1 § 3).

49. In any event, the Court notes that the requesting court provided no explanation in the legal background as to why, whereas the Timişoara Court of Appeal had chosen to request a preliminary ruling from the CJEU essentially on the criminal nature of a penalty within the meaning of Article 6 of the Convention in a case concerning the prohibition on holding elective public office under Law no. 176/2010, it opted to request an advisory opinion from the Court in relation to the asset-audit procedure provided for by that same law.

CONCLUSION

50. In the light of the above, the Court concludes that the request for an advisory opinion does 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.

51. Accordingly, it decides not to accept the request.

For these reasons, the Court, by a majority,

Decides not to accept the request.

Done in French and translated into English, and notified in writing on 28 June 2024.

Johan Callewaert Síofra O’Leary
Deputy to the Registrar President

[1] Decision – 2006/928 – EN – EUR-Lex (europa.eu)

[2] CURIA – Documents (europa.eu)