The deprivation of salary for a defendant who went on holiday during the criminal proceedings violated the right to property. Conviction for payment of salaries and non-pecuniary damage

JUDGMENT

Anželika Šimaitienė v. Romania 21.04.2020  (no.  36093/13)

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SUMMARY

Deprivation of a judge’s salary during the criminal proceedings. Lack of predictability of a law as the legislation did not provide for the suspension of judicial duties. The position of judge on leave was provided for in a later law.

The applicant is a Judge. She was prosecuted for abuse of power and forgery. A disciplinary procedure was initiated for her previous misconduct in order to terminate her position permanently. She was given a temporary leave of absence and was deprived of her salary for the entire duration of the criminal proceedings. The criminal prosecution against her was suspended due to statute of limitations. By decision of the President of the Republic, she was permanently dismissed by the Judicial Council following a recommendation by the Disciplinary Board due to previous misdemeanors. She sued the political courts, demanding unpaid wages and her reinstatement in the judiciary. Her lawsuit was dismissed irrevocably. She appealed before the ECtHR against the violation of her right to property, for lack of impartiality of judges and for breach of the presumption of innocence, since despite the cessation of the criminal proceedings for statute of limitations there were formalities in the appeal decision that she committed the statute of limitations.

Regarding the unpaid salaries during the holiday period and the release of the applicant from her duties, the ECtHR found that deprivation of salary could not be imposed because at the time of her holiday in 2006 due to criminal prosecution but even during at the time of her final dismissal there was no legal basis for suspending the duties of a judge. Such a measure was made possible at a later time with a newer legislation. As for the criminal prosecution, the deprivation of her salary would be imposed only if she was found guilty by the Criminal Court. It therefore ruled, by a majority, that the applicant was deprived of the peaceful enjoyment of her property and found a violation of Article 1 of the First Additional Protocol.

Accepting this violation, the ECtHR ruled that the examination of the complaint concerning the presumption of innocence was expedient.

Finally, regarding the complaint for lack of impartiality, the ECtHR found that the Judges of the Civil Court had not been subjected to any form of influence, nor did the applicant provide any evidence to prove otherwise. He unanimously ruled that there had been no violation of Article 6§1.

The ECtHR sentenced Lithuania to pay unpaid wages, compensation for non-pecuniary damage and costs.

PROVISIONS

Article 1 of the First Additional Protocol

Article 6§1

Article 6§2

PRINCIPAL FACTS

The applicant Anželika Šimaitienė was born in 1970 and lives in the village of Pašilaičiai, in the Vilnius region. 

 By a decree of 21 February 2006, and on the basis of Article 114 § 2 of the Constitution and Articles 47 § 3 and 89 § 1 of the Law on Courts (see paragraphs 5758 and 60 below), and on the basis of a proposal by the Prosecutor General, the President of the Republic, President V.A., suspended the applicant from her judicial duties and allowed a prosecution against her in connection with criminal charges of abuse of office (Article 228 § 1 of the Criminal Code) and forgery of documents (Article 300 § 2 of the Criminal Code) to proceed. It was suspected that the applicant had committed those crimes whilst performing her judicial duties in a civil case she had examined in June 2002 and which concerned the privatisation of an apartment.

 By a judgment of 15 March 2010 the Kaunas Regional Court acquitted the applicant of both criminal charges.

The applicant lodged an appeal on points of law, arguing a breach of the principle of the presumption of innocence.

By a ruling of 8 May 2012, the Supreme Court, sitting in a plenary session of sixteen judges (plenarinė sesija), concurred with the appellate courts finding that the applicants prosecution was time-barred due to the statute of limitations. The Supreme Court nevertheless stressed that certain phrases in the Court of Appeals ruling had been in breach of the applicants right to the presumption of innocence, for they could be understood as establishing that the applicant was guilty of a crime. This had been an essential breach of criminal procedure. For that reason, the Supreme Court quashed the Court of Appeal ruling in its entirety.

As to the question of the presumption of innocence, the Supreme Court also pointed out that when criminal proceedings were discontinued because of the statute of limitations, the question of a persons guilt was not decided. The Criminal Code prohibited passing a judgment of conviction after the statute of limitations rendered a prosecution time-barred. Should the court, when discontinuing the criminal proceedings, also declare the person guilty of a certain crime, this would be in breach of the principle of the presumption of innocence, established in Article 31 of the Constitution. It was also paramount that the principle of the presumption of innocence be upheld by State institutions and officials. The fact that a person may not be declared guilty of a crime in the absence of a final court decision had also been underlined by the European Court of Human Rights. For the Supreme Court, it followed that when a judgment of acquittal was quashed whilst at the same time criminal proceedings were discontinued because of the statute of limitations, an appellate courts decision could not be based on statements which essentially meant that a person was guilty of a crime. That being so, the Supreme Court nevertheless considered that discontinuing a criminal case because of the statute of limitations did not in itself mean that a person had been rehabilitated, and could not be equated to an acquittal.

On 15 July 2010, whilst the criminal case against the applicant was still ongoing, the Prosecutor General wrote to the President of the Republic, President D.G., stating that it would be appropriate to consider whether the applicant had in fact discredited the title of judge through the negligent performance of her duties.

On 18 July 2011 the President of the Republic passed decree no. 1K-764, removing the applicant from office for having discredited the title of judge, on the basis of Article 112 § 1 (4) and (5) and Article 115 § 1 (5) of the Constitution, and Article 90 §§ 1 (5) and (6) of the Law on Courts, having obtained the proposal of the Judicial Council 

By decision of 08.05.2012, the Supreme Court, which met in plenary, agreed with the judgment of the appellate court that the offense had been statute-barred. However, the Supreme Court emphasized that certain phrases in the Court of Appeal’s decision violated the applicant’s right to presumption of innocence because they could be considered to indicate that the applicant had committed the offense. This was a substantial violation of the criminal procedure. For this reason, the Supreme Court overturned the Court of Appeal’s decision. However, the Supreme Court ruled that the cessation of criminal proceedings by statute of limitations, as provided for in Article 3 § 1 (2) of the Home Code of Criminal Procedure, did not in itself constitute a restoration of an individual and could not be equated with his acquittal.

The plaintiff then sued the political courts, challenging her dismissal, claiming her unpaid wages and reinstatement. Her lawsuit was dismissed irrevocably.

The applicant complained that she had not been heard fairly by an independent and impartial tribunal, as provided for in Article 6 § 1 of the Convention, when the action for damages was dismissed by the Court of Appeal.

Under Article 6 § 2 of the Convention, the applicant complained that although her criminal prosecution had ceased irrevocably, the civil courts had rejected her claim for non-payment of wages, on the grounds that the cessation of the criminal prosecution had not ceased. with acquittal. As a result, she had to suffer the same consequences as if she had been convicted, which violated her right to a presumption of innocence. Finally, the applicant further complained under Article 1 of the First Additional Protocol that she had not received pay for the period during which criminal proceedings were under way.

THE DECISION OF THE COURT…

Article 6§1

The Court held that, in the case of a complaint of lack of impartiality, the national court should be subjectively free from personal prejudices and perceptions and should also be impartial from an objective point of view, as it must provide sufficient guarantees to exclude any reasonable doubt.

The Court initially notes that the applicant’s complaint that two judges of the Court of Appeal were not impartial in the proceedings of the civil case was initially rejected by the President of the Court of Appeal, who reasoned that certain procedural requests had not been answered immediately. In any case, the Court did not find any evidence of alleged bias due to the Court of Appeal’s choice to proceed with the applicant’s case in this way. The applicant did not provide any evidence to substantiate the allegation that the two judges had been subjected to any form of influence or pressure from the President of the Republic during the handling of her civil case. Consequently, the Court did not find that these judges had no independence or impartiality, in the sense of Article 6 § 1, in the applicant’s case and dismissed the complaint as manifestly unfounded.

Article 1 of the First Additional Protocol

The applicant further complained of the fact that the State had refused to compensate her for her unpaid salary for the period of her suspension from judicial office. She relied on Article 1 of Protocol No. 1 to the Convention.

The Court notes that the applicant lodged a complaint concerning the loss of her salary, also based on Article 1 of the First Additional Protocol and throughout the administrative proceedings for the annulment of the Decree of the President of the Republic on her holiday. as well as during the proceedings in the criminal courts.

The Court considers that the refusal of the authorities to compensate the applicant for her unpaid wages was a deprivation of use of the property within the meaning of Article 1 (2) of Protocol No. 1 and therefore equivalent to her interference with her right to peaceful use.

In the instant case, the Court notes that in the judgment of 20 April 2016 the Court of Appeal, also referring to the previous domestic courts decisions in the applicants civil case, relied on Article 47 § 3 of the Law on Courts, as amended in 2008, and as it was in force at the time of the applicants dismissal from her duties (see paragraph 55 above). However, instead of focussing on the fact that the applicant had never been found guilty in the criminal proceedings, the latter proceeding having been the basis for her suspension, the Court of Appeal took the view that Article 47 § 3 of the Law on Courts meant that a judge should be compensated if his or her suspension was unreasonable.

Hence, when referring to the amended version of Article 47 § 3 of the Law on Courts, the courts added an additional statutory element that had never been a part of the assessment under the domestic law, notably, that payment of compensation was conditional upon a suspension from judicial duties being unreasonable. In this context, the Court notes the applicants view that the question of whether a judges powers had initially been suspended reasonably had no bearing on his or her right to receive a salary, unless he or she was found guilty by a final court judgment. It observes that in 2016 the Constitutional Court had apparently declared the practice of the criminal courts by which criminal proceedings were terminated by doubts as to the accuseds guilt being left to be in breach of the presumption of innocence, an issue also complained of by the applicant during the domestic court proceedings as well as to the Court. Accordingly, and although the Courts power to review compliance with domestic law is limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, the Court cannot but find that the Lithuanian courts arguments in the applicants case lacked precision and consistency. Moreover, those arguments were not in conformity with the letter of the law as found applicable by the Court of Appeal in its judgment of 20 April 2016 . Thus, the relevant decisions should be considered as arbitrary.

Further, the Court cannot find that the applicant could not be paid her salary because of her dismissal due to disciplinary proceedings. As noted by the applicant and acknowledged by the Government, at the time of her suspension in 2006, and even at the time of her dismissal in 2011, there was no legal basis to suspend a judges powers during disciplinary proceedings. Such a measure was made possible only afterwards.

That being so, the Court cannot but conclude that, for the applicant, it was not foreseeable that, in the absence of a conviction, she was to be denied the payment of her salary for the period of her suspension during the criminal proceedings. In the absence of foreseeability, the Court finds that the interference with the applicants rights under Article 1 of Protocol No. 1 to the Convention had no legal basis. Accordingly, it is not necessary to examine whether the interference had a legitimate aim and whether it was proportionate.

The Court ruled by a majority (5 versus 2) that there had been a violation of Article 1 of the First Additional Protocol.

The applicant also complained to the domestic court that the cessation of the criminal proceedings due to statute of limitations was not tantamount to acquittal, which she considered a violation of the presumption of innocence.

The Court notes that the substance of the applicant’s complaint has already been examined and dealt with in accordance with Article 1 of the First Additional Protocol.

Just satisfaction (Article 41):

The court ruled that Lithuania had to pay the applicant 94,370 euros in damages, 6,500 euros in non-pecuniary damage and 5,000 euros for costs and expenses.


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