Când sancțiunile disciplinare nu au caracter penal în accepțiunea Convenției (cauza Lazaro Laporta împotriva Spaniei)

8 octombrie 2018
459 citiri

18. The Court reiterates that proceedings relating to disciplinary sanctions do not, in principle, involve “the determination of a criminal charge”. The fact that an act which can lead to a disciplinary sanction under administrative law also constitutes a criminal offence is not sufficient reason to consider that a person presented as responsible is “charged with a crime” (see Moullet v. France (dec.), no. 27521/04, 13 September 2007).
19. In Kremzow v. Austria (no. 16417/90, Commission decision of 7 November 1990) the applicant complained of disciplinary proceedings initiated against him, as a retired judge, in relation to the same facts which had led to his criminal conviction. The facts had also been found to constitute a disciplinary offence, and the applicant had lost all rights connected with his former position as a retired judge, including his pension rights. The European Commission of Human Rights noted that the criminal and the disciplinary consequences of the applicant’s acts could be clearly distinguished. The Disciplinary Court had based its decision on the conviction pronounced by the competent criminal court, which it had considered binding. In the Commission’s opinion, disciplinary sanctions were typical sanctions which many Contracting States’ disciplinary statutes for civil servants provided for in such cases: the withdrawal of rights connected with the professional status of a civil servant, including the loss of pension rights. Accordingly, finding that the disciplinary proceedings against the applicant could not be qualified as further “criminal proceedings”, the Commission held that Article 4 of Protocol No. 7 was not applicable, rejecting the complaint as being incompatible ratione materiae with the provisions of the Convention.
20. The Court has followed the same approach. In Kurdov and Ivanov v. Bulgaria (no. 16137/04, 31 May 2011), administrative proceedings had been brought against one of the applicants (an employee of the national railway company) for non-compliance with safety regulations, and he had had to pay a fine. Criminal proceedings had then been brought against him (and the other applicant in the case) for deliberately setting fire to items of value. The Court noted that the features of the offence at issue were typically disciplinary (ibid., § 42), finding that the administrative proceedings imposing a fine on the applicant did not satisfy the criteria to be classified as “criminal” for the purposes of Article 4 of Protocol No. 7 (ibid., § 45). In Moullet v. France (cited above) the Court found that the administrative disciplinary proceedings did not give rise to a “criminal charge” against the applicant, a civil servant (a local government employee). Although the disciplinary proceedings had resulted in the applicant’s compulsory retirement, the Court held that they were not “criminal” within the meaning of Article 6, and therefore that provision did not apply to the case. A similar conclusion as regards disciplinary sanctions was reached in Luksch v. Austria ((dec.), no. 37075/97, 21 November 2000 – a case concerning the temporary suspension of an accountant after he had been convicted of fraud), and in Monaco v. Italy ((dec.), no. 34376/13, §§ 40 and 68-69, 8 December 2015 – a case concerning a disciplinary offence committed by a student on university premises).
21. Consequently, the Court’s task is firstly to establish whether the administrative disciplinary proceedings in the instant case concerned a “criminal offence” or “criminal proceedings” within the meaning of the Convention.
22. Turning to the facts of the instant case, concerning the first of the above-mentioned criteria, that is, the legal classification of the offence and proceedings under the domestic law, the Court observes that the rules applied in the impugned administrative proceedings are all part of the disciplinary system governing officials of the State administration. The disciplinary proceedings themselves were based on the fact that the applicant, in the performance of his duties and by using university equipment and facilities, had hindered “the exercise of public freedoms”.
23. As to the second criterion, the nature of the offence in question, the Court considers first of all that the applicant’s suspension from his duties for a period of time was a sanction characteristic of a disciplinary offence, and cannot be considered equivalent to a criminal penalty. The Court observes that such sanctions were applicable in relation to public officials’ misconduct in the exercise of their duties, and that the domestic courts drew a distinction between the legal interests protected by criminal proceedings and those protected by disciplinary proceedings. The lawfulness of the disciplinary sanctions was subject to judicial review.
24. The Court further observes that, in the present case, the applicant’s suspension from his duties for four years was imposed in respect of very serious misconduct, and the university authorities had the power to sanction a civil servant’s misconduct in disciplinary proceedings where such misconduct was duly established. In this connection, the Court notes that the judgment of the competent criminal court (see paragraph 3 above) acquitted the applicant on the grounds that his unauthorised access to email accounts had concerned email accounts provided by an institution which were not used for private purposes. However, the judgment also declared it proven that the applicant had systematically accessed the email accounts of some colleagues without their consent, using university equipment and facilities. Facts declared proven by final judicial decisions in criminal matters were binding on disciplinary proceedings, pursuant to national law.
25. As to the third criterion, namely the severity of the “sanction”, the Court observes that the applicant’s suspension from his duties for a period of four years was not the harshest measure on the scale of disciplinary sanctions which he risked incurring. In those disciplinary proceedings, an offence could not render the person subject to the proceedings liable to a penalty which, by its nature and degree of severity, belonged in the general criminal sphere. The most serious penalty under that regime would have been a public official’s dismissal; it would have never entailed, for instance, deprivation of liberty or the imposition of a fine.
26. In conclusion, the Court finds that the provisions relied on by the applicant do not apply to the instant case. It follows that the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 § 3 of the Convention.

Curtea Europeană a Drepturilor Omului
(Hotărârea din data de 3 iulie 2018, cererea nr. 32754/16, Lazaro Laporta v Spania, CE:ECHR:2018:0703DEC003275416)

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