Recourse action against those liable for ECtHR judgments condemning the Republic of Moldova – constitutional, provided he/she is found guilty by a judicial sentence

On 25 July 2016, the Constitutional Court delivered its judgment on the exception of unconstitutionality of Article 27 of the Law no.151 of 30 July 2015 on the Governmental Agent (Complaints no.25g/2016 and no.57g/2016).

Circumstances of the case

The case originated in the exception of unconstitutionality of Article 27 of the Law on the Governmental Agent, raised by Mrs. Galina Stratulat, Mrs. Tatiana Vieru and Mr. Valeriu Doagă, parties in the case no. 2-1858/16 pending before the Buiucani District Court of the Chișinău municipality, and by Mr. Constantin Gurschi, Mr. Mihail Macar, Mr. Nicolae Gordilă and Mr. Tudor Popovici, parties in the case no. 2-426/16 pending before the Botanica District Court of the Chișinău municipality.

Under Article 27 of the Law on the Governmental Agent, the State shall enjoy the right of recourse against individuals whose actions or inactions determined or significantly contributed to the violation of the Convention found by a judgment or imposed a friendly settlement of the case pending before the European Court or the submission of a unilateral declaration. The amounts awarded by the European Court in a judgment or decision, by friendly settlement agreement in a case pending before the European Court or by unilateral declaration, shall be returned by judicial decision, proportionally to the degree of guilt.

According to the contested provision, the Ministry of Justice is obliged to initiate the recourse action, if the conditions established by law are met, within 3 years from the day of payment of the amounts awarded by the European Court in its judgment or decision, or by a friendly settlement agreement.

The authors of the exception of unconstitutionality claimed that Article 27 of the Law on Governmental Agent is contrary to Articles 6, 116.1 and 116.6 of the Constitution.

Considering the case, the Court requested an amicus curiae brief from the Venice Commission, which was communicated on 13 June 2016.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that according to Article 116 of the Constitution, judges are independent, impartial and irremovable under the law.

The Court reiterated that judicial independence is a prerequisite for the rule of law and a fundamental guarantee of a fair trial. Therefore, judicial independence is not a privilege or a prerogative of the judge, but a guarantee against external pressures in the decision-making process. This independence shall be guaranteed by the state.

The Court underscored that, in the exercise of their duties, judges shall enjoy unrestrained freedom in deciding cases impartially, in accordance with the legal provisions in force and their own assessments. Therefore, there should be a possibility to challenge the delivered decisions through appeals, and not through individual accountability of judges. As exceptions can serve only cases in which, in the decision-making process, judges had acted in bad faith or admitted a serious omission.

The Court held that according to European standards, it is possible to establish a disciplinary, civil or even criminal liability of judges. Personal liability of judges is provided in certain European countries (Bulgaria, Germany, Italy, Norway, Spain, Serbia etc.), however it requires that the judge’s guilt be proven.

Therefore, the state has the right to establish its own national mechanisms in order to return the paid amounts in the proceedings before the European Court. In turn, these mechanisms must operate in full compliance with international and national rules.

Thus, the institution of regress itself is not contrary to the Constitution, as long as by the mechanism of holding liable, the guarantees inherent to the independence of judges are observed.

Under Article 27 of the Law on Governmental Agent, the right to recourse action of the State against persons whose actions or omissions have led or significantly contributed to a violation of the European Convention. Paragraph (2) of Article 27 refers to the amount of damages suffered by the State to be recovered and not to the criteria for individual liability.

The Court ascertained that, under the contested provision, it is possible to initiate the recourse action of the State exclusively on the basis of a judgment or a decision of the European Court. This provision does not require the existence of a judicial sentence, adopted in a separate trial that proves the guilt of the person.

On the other hand, the Court noted that the initiation of the recourse action in the event of repairing damages caused by certain actions of the courts of law, in the succession provided for by Articles 1405 and 1415 of the Civil Code, unlike the challenged provision, requires that the guilt of the person is proven by a judicial sentence.

Likewise, in accordance with Article 19.3 of the Law on the status of judges, a judge may be held accountable for the judgment only if he/she has been found guilty of criminal abuse by a final sentence.

Thus, the Court observed that the provision on recourse action from Article 27 of the Law on the Governmental Agent exceeds the general frame of judges’ liability in relation to Article 19.3 of the Law on the status of judges and Articles 1405 and 1415 of the Civil Code, by the fact that it allows for a person to be held accountable in the absence of a judicial sentence that proves his/her guilt, but only on the basis of a judgment delivered by the European Court.

In this context, in respect of the liability for condemning the state by ECtHR judgments, the Court held that in the proceedings before the European Court, is not relevant which public authority - legislative, executive or judicial generated on a national level the challenged violation. Or, under Article 41, it is the state that is held liable for repairing damages sustained by the applicants due to violation of rights and freedoms guaranteed by the Convention.

The ECtHR has consistently viewed the ECHR as a living instrument that must be interpreted in the light of present-day conditions. According to living instrument doctrine, it may be hard for national courts to predict how the ECtHR will rule if the case is brought before that Court. The contested legal question may also be novel or particular to a specific jurisdiction, so that the existing case law of the ECtHR does not provide a reliable guideline of interpretation for the national judge. The case law of the ECtHR may also be more or less settled or in development, depending on the issue and the rights concerned.

The fact that a judge, on his/her own initiative, has chosen not to follow the established standards should not become, in itself, a ground for his personal liability. The same view was shared by the Venice Commission in its Amicus curiae brief.

Likewise, in its case law, the Constitutional Court stated that holding accountable to disciplinary liability of the judge only on the basis of a judgment of the European Court condemning the state, without proving that the law has been intentionally infringed by the judge, constitutes an inadmissible interference in the judge’s independence (JCC no. 12 of 7 June 2011).

In line with the aforementioned, the Court noted that recourse action may be exercised, but only when based upon a sentence within a separate judicial procedure on national level that would find guilty the persons, including the judges, for violating the provisions of the European Convention.

The Court will also issue an Address to the Parliament, so that there would be established a regulating mechanism on applying the institution of recourse against the persons whose actions or inactions determined the infringement of the European Convention’s provisions.

Judgment of the Court

Stemming from the above-mentioned reasoning, the Constitutional Court declared partially admissible the exception of unconstitutionality and it declared constitutional Article 27 of the Law on Government Agent of Moldova No. 151 of 30 July 2015, insofar the recourse action is based on a sentence delivered within a separate judicial proceeding at national level thereby finding that a judge or another person committed or admitted, intentionally or out of gross negligence, actions or inactions which determined or which greatly contributed to the infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms, found by a judgment of the European Court or by a friendly settlement imposed for a case pending before the European Court or by an unilateral declaration.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.