AGHENIȚEI v. ROMANIA

 
 
FOURTH SECTION
DECISION
Application no. 64850/13
Mihaela AGHENIȚEI
against Romania
 
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Georges Ravarani,
Jolien Schukking, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 8 October 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Ms Mihaela Agheniței, is a Romanian national, who was born in 1958 and lives in Brăila. She was granted leave to present her own case in the written proceedings before the Court (Rule 36 § 2 in fine of the Rules of Court).
2.  The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
A.  The circumstances of the case
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
4.  The applicant is a former prosecutor of the Galați branch of the National Anticorruption Directorate (Direcția Națională Anticorupție – “the DNA”).
1.  Criminal proceedings against the applicant
5.  On 22 and 26 March 2013 the Galați branch of the Directorate for Investigating Organised Crime and Terrorism (Direcția de Investigare a Infracțiunilor de Criminalitate Organizată și Terorism – “the DIICOT”), respectively, instituted criminal proceedings against the applicant for aiding and abetting, libellous accusation and unlawful crackdown, and informed her of that decision.
6.  On 2 April 2013, the DIICOT issued a press release stating that criminal proceedings had been instituted against the applicant for the above-mentioned offences because she had aided a witness who had been under investigation by opening criminal proceedings against other individuals. The press release did not provide further details about the proceedings.
7.  On an unspecified date in April 2013 the press department of the Superior Council of Magistrates (Consiliul Superior al Magistraturii – “the CSM”) issued a press release concerning a decision by the CSM authorising the search of the applicant’s home. Referring to the investigation and the facts established by the DIICOT, as well as to the evidence in the applicant’s criminal file, the press release stated that she had developed an intimate relationship with a witness in a criminal file she had been investigating and that she had acted unlawfully by helping the witness to receive a favourable sentence in criminal proceedings opened against him. From April to November 2012 she had summoned the witness to her office seventy-one times under the pretext of investigation work and had spent an average of five to six hours per day alone with him. The press release further stated that, according to transcripts of telephone conversations, the applicant had opened criminal investigations at the witness’ request against individuals indicated by him. Also, she had advised the witness on how to prepare his defence.
8.  On 22 September and 17 November 2014 the DIICOT, respectively, changed the classification of the offences the applicant was being investigated for to abuse of office, declared itself without jurisdiction and referred the proceedings to the High Court of Cassation and Justice’s prosecutor’s office (“the Court of Cassation prosecutor’s office”). The latter prosecutor’s office declared itself without jurisdiction and referred the proceedings to the DNA.
9.  On 28 May 2015 the DNA closed the criminal investigation against the applicant in the absence of sufficient evidence of an offence. On 25 June 2015 the applicant challenged this decision to the superior prosecutor attached to the DNA. At the date of the latest information available to the Court, namely 21 September 2018, the proceedings were still pending.
2.  Disciplinary proceedings against the applicant
10.  On 4 April 2013, following a preliminary internal investigation, the CSM ordered that disciplinary proceedings be opened against the applicant. The investigation had disclosed similar information to that included in the CSM’s press release (see paragraph 7 above) and in the media reports (see paragraphs 21-22 below).
11.  By an order of 18 June 2013 the CSM confirmed the decision to open disciplinary proceedings against the applicant. Relying on evidence which was also part of the applicant’s criminal file, including transcripts of her telephone conversations, the order disclosed the same information to that included in the CSM’s press release (see paragraph 7 above) and in the media reports (see paragraphs 21-22 below).
12.  On 3 September 2013 the CSM decided to exclude the applicant from the magistrate profession and issues a press release about its decision. The press release stated that she had been punished because she had tarnished her professional integrity by omitting to abstain in a case where she should have been aware that she had lacked impartiality. Moreover, she had abused her position to obtain favours from the authorities for an individual with whom she had had close ties. The press release did not include other information with regard to the facts at the origin of the penalty.
13.  In a final judgment of 24 March 2014 the Court of Cassation dismissed the applicant’s appeal against the decision of 3 September 2013 as being ill-founded.
3.  Criminal proceedings brought by the applicant
14.  On 5 April 2013 the applicant asked the Prosecutor General attached to the Court of Cassation prosecutor’s office to open criminal proceedings against the DIICOT prosecutors who had instituted criminal proceedings against her.
15.  On 15 April 2013 employees of the Galați branch of the DNA asked the Prosecutor General attached to the Court of Cassation prosecutor’s office, the DNA and the DIICOT central offices, and the CSM to open an investigation into the circumstances which had led to confidential information concerning a person’s private life being made public. They argued that immediately after the DIICOT had issued a press release in March 2013 several media outlets had published information about the applicant’s love relationship with the witness which had started at the DNA’s office, even though the press release had not included information on this point. The media had referred to judicial sources, including the CSM, as the source of the information. Also, the DIICOT report concerning the applicant’s case had been published without any of the information concerning private life being removed as required by the best practice guidelines for the cooperation of prosecutors’ offices with the media. The matter was serious because judicial sources seemed responsible for the leak and the Galați branch of the DNA’s reputation had been affected.
16.  The above-mentioned request was joined to the file concerning the criminal proceedings brought by the applicant.
17.  On 19 May 2013 the Court of Cassation prosecutor’s office declared itself without jurisdiction and referred the criminal proceedings brought by the applicant (see paragraph 14 above) to the DNA central office. In addition, it sent a copy of the request made by the employees of the Galați branch of the DNA (see paragraph 15 above) to the DIICOT for them to consider the possibility of taking over the investigation.
18.  On 19 August 2013 the applicant asked the DNA central office to open a criminal investigation for abuse of office against the CSM employees who had issued the press release of April 2013 (see paragraph 7 above). She argued that the press release had contained unsubstantiated allegations, had referred to her expressly, and had been widely reproduced by the media. Moreover, they had provided the media unlawfully with copies of the investigators’ order to institute criminal proceedings against her and of her statement given at that stage of the proceedings. She further stated that she reserved the right to join the criminal proceedings as a civil party.
19.  On 3 August 2017 the DNA closed the criminal proceedings brought by the applicant on 5 April 2013 (see paragraph 14 above) on the grounds that no unlawful act had been committed. There is no evidence in the file that the authorities had expressly examined her complaint of 19 August 2013 (see paragraph 18 above).
20.  In a final judgment of 13 December 2017 the Court of Cassation dismissed the applicant’s appeal against the DNA’s decision as being ill‑founded.
4.  Media reports on the criminal and disciplinary proceedings against the applicant
21.  Several articles published from April to September 2013 on the Internet sites of various national media outlets, including the journal Evenimentul Zilei, the television station România TV or the press agency Mediafax, as well as on other Internet sites, provided information about the stages of the criminal investigation against the applicant, the measures taken by the investigators, and her exclusion from the profession of magistrate. Some of the articles cited expressly or implicitly excerpts from a DIICOT report (referat) and from other documents available in the case file or referred to “judicial sources” as the source of the information. The articles largely reiterated the information which had also been included in the CSM’s press release (see paragraph 7 above). Some of the articles cited statements made by the investigators in the documents available in the applicant’s criminal file to the effect that the applicant had fallen in love with the witness and/or stated that the applicant’s phones had been placed under surveillance.
22.  An article published on the Internet page of the newspaper Impact Est on 6 October 2013 stated in its headline that the applicant’s mobile phone had been called eighty times by the witness even though he had been in pre-trial detention at that time. The article cited excerpts from the report on which the CSM had relied for its disciplinary decision against the applicant (see paragraph 12 above) and which had stated that she had called the warden of the detention center where the witness was detained to enquire as to why he had been moved to another cell and about the length of this measure. Moreover, according to the summary transcripts of the applicant’s phone conversations, she and the witness had corresponded via text messages between February and March 2013 during the witness’ pre‑trial detention. In addition, she had contacted two university professors and asked them to help the witness obtain his doctorate in law.
5.  Other information
23.  On 21 May and 3 November 2015 the CSM informed the Government that since 2012 they had examined five disciplinary cases against magistrates. Four of the cases had concerned the magistrates’ failure to observe the confidentiality of deliberations or of documents and information. In two of the four cases the disciplinary action had been allowed. In the other two cases, the action had been either dismissed, or suspended pending the outcome of criminal proceedings.
24.  Also, before 3 September 2013 journalists had not asked for information about the disciplinary proceedings concerning the applicant. Afterwards, two journalists had asked for copies of relevant documents concerning the proceedings. On 11 September 2013 one of the journalists had been given a copy of the order of 18 June 2013 (see paragraph 11 above) after all sensitive information concerning personal data or private life had been redacted. After that, the decision of 3 September 2013 (see paragraph 12 above), which included the facts relied on by the order of 18 June 2013, had been published on the CSM’s website under the same conditions. The CSM had not released the order of 18 June 2013 to journalists under circumstances other than the aforementioned procedure. Also, the applicant had not complained to the CSM in respect of an alleged leak of information from her criminal and disciplinary files.
25.  On 28 October 2015 the DIICOT informed the Government that the applicant had not lodged complaints with the DIICOT in respect of an alleged leak of information and there was no evidence that excerpts from the DIICOT report had been leaked.
26.  On 27 November 2015 the Court of Cassation prosecutor’s office informed the Government that they had examined five criminal cases concerning leaks of documents from criminal files. In one case the proceedings were closed and in the remaining four they were pending. As far as the applicant was concerned, an investigation was pending with regard to two DIICOT prosecutors and two CSM inspectors, respectively, for abuse of office and for leaks of confidential information.
27.  There is no evidence in the file that the applicant brought any civil and/or disciplinary proceedings against the magistrates she had considered responsible for the impugned leak or against their employers.
B.  Relevant domestic law and practice
1.  Law
28.  Article 12 §§ 1 (d), (e), (f) and 2 and Article 13 of Law no. 544/2001 on access to public information provides that information concerning (i) personal data and (ii) the procedure of a criminal or disciplinary investigation, if a person’s well-being is affected, is exempted from the citizens’ right of access to information. The authorities holding such information are responsible for protecting it. Information favouring or hiding unlawful acts perpetrated by an authority is of public interest.
29.  The best practice guidelines for cooperation of courts and prosecutor’s offices with the media were adopted by the CSM on 1 June 2012 and were amended on 6 May 2014 and 17 December 2015. The document is published on the CSM’s website and has been communicated to all prosecutor offices. Articles 22-27 and 48 §§ 1-3, concerning rules applicable pending indictment and to disciplinary proceedings, provide that case files pending before a prosecutor cannot be perused by journalists. Information of public interest is released by way of press releases or upon request. Copies or excerpts of documents or writs referring to the evidence in pending cases or of the audio records made during a criminal investigation cannot be released. Excerpts of documents concerning institution of criminal proceedings and copies of non-prosecution decisions may be released upon request. The former must contain a summary of facts, the suspect’s name and the legal classification of the offences, and must ensure protection of personal data by redacting information referring to evidence and its assessment or whose disclosure would be a breach of privacy. The latter may be released, provided that personal data, information whose disclosure would be a breach of privacy or referring to the contents of evidence and measures adopted, if its presence prejudices other criminal proceedings, has been redacted. The request must be approved by the press officer after agreement with the prosecutor in charge of the case and/or the head of the prosecutor’s office. Information on disciplinary proceedings may be released automatically only after the disciplinary action has been referred to be examined by the relevant authority. It may concern only the fact that a disciplinary action has been brought, the legal classification and a summary of the facts.
2.  Practice
30.  The Government submitted four final judgments delivered by the courts concerning civil proceedings for damages brought by applicants against the State and/or various prosecutor offices for a breach of their rights to be presumed innocent and/or to honour and reputation, following press releases issues by the authorities with regard to the criminal proceedings opened against them and/or leaks of information to the press from the investigation files. Two of the judgments granted, at least in part, the damages claimed (those of the Bucharest County Court of 19 April 2013 and the Oradea Court of Appeal of 21 October 2015) and two of the judgments dismissed them (those of the Galați District Court of 30 September 2014 and the Bucharest County Court of 17 April 2015).
 
COMPLAINT
31.  The applicant complained under Article 8 of the Convention of a breach of her right to respect for private life because the authorities had leaked to the press information gathered during the prosecution stage of the proceedings – in particular, monitored telephone conversations involving her and confidential documents included in the case files opened by the prosecutor’s office and the CSM.
THE LAW
32.  The applicant complained of a breach of her right to private life. She relied on Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
33.  The Government argued that the applicant had not exhausted the domestic remedies. She had lodged her application with the Court before the criminal proceedings brought by her had ended and she had not brought disciplinary or civil proceedings against those responsible for the leak (see paragraph 27 above) even though she had known their identity.
34.  The applicant argued that the remedies indicated by the Government would have been ineffective because they could not have repaired her damaged reputation immediately, the civil proceedings had been merely illusory given the insufficient case-law on the subject, and the Government had failed to submit examples of judgments concerning the tarnishing of a magistrate’s image by the organisation mandated to protect it.
35.  The Court reiterates the principles set out in its case-law concerning the assessment of available domestic remedies (see, amongst many other authorities, Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014, and Apostu v. Romania, no. 22765/12, § 107, 3 February 2015).
36.  In the present case, the Court notes that the Government referred to several avenues that the applicant could have used to complain about a breach of her right to respect for private life.
37.  As regards a criminal complaint, the Court notes that both the applicant and the employees of the Galați branch of the DNA used this avenue, but the proceedings either ended without an express examination of the matter or remain pending (see paragraphs 14-20 above). The Court further notes, however, that it has already held that a criminal complaint was not an effective remedy in circumstances concerning leaks of information to the press from a prosecution file because the Government did not adduce any examples of domestic case-law that would suggest that these leaks constituted a criminal offence (see Cășuneanu v. Romania, no. 22018/10, §§ 69-70, 16 April 2013). These considerations are also valid in the applicant’s case.
38.  In this context, the Court takes the view that the applicant could not be asked to have exhausted the remedy mentioned above or to have waited for the outcome of criminal proceedings before lodging an application with the Court.
39.  As regards the civil proceedings, the Court notes that the CSM released most of the damaging information to the press willingly in a press release (see paragraph 7 above) or by publishing relevant documents from the applicant’s disciplinary file on the Internet after 3 September 2013 (see paragraph 24 above). It is true that the available evidence also suggests that after April 2013 the press referred to other documents and information from the applicant’s files which seem to have been made public by other sources (see paragraph 21 above). However, given the available evidence, it cannot be excluded that even those additional sources could have been identified by the applicant (see paragraphs 15, 18 and 26 above).
40.  In these circumstances, the Court takes the view that the applicant’s case may be distinguished from other cases where it has considered the civil proceedings to be an ineffective remedy for complaints similar to the one raised by the applicant mainly because the persons or authorities responsible for the leak to the press could not be identified (see Cășuneanu, cited above, § 71; Voicu v. Romania, no. 22015/10, §§ 81-82, 10 June 2014; and Apostu, cited above, § 110).
41.  The Court notes that the Government adduced examples of domestic case-law whereby plaintiffs had had the merits of their cases examined or had been awarded damages for breaches of their Convention rights in circumstances resembling the applicant’s situation (see paragraph 30 above). Moreover, it notes that such examples of domestic case-law may also be found in other cases raising similar issues which have already been examined by the Court (see, for example, Cășuneanu, cited above, § 41).
42.  In the light of the above, the Court sees no reason, in the particular circumstances of the applicant’s case, to hold that the civil proceedings would not have been an effective remedy capable of redressing the alleged breach of the applicant’s Convention rights.
43.  It follows that the application is inadmissible for non-exhaustion of domestic remedies and must accordingly be rejected in accordance with Article 35 §§ 1 and 4 in fine of the Convention.
44.  Taking this finding into account, the Court does not consider it necessary to examine further the Government’s argument concerning the disciplinary proceedings (see paragraph 33 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 June 2019.
Andrea TamiettiStéphanie Mourou-Vikström
Deputy RegistrarPresident

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