Judgement 41047/19

Applicant name Thanza
Applicant type Natural person
Number of applicants 1
Application no. 41047/19
Date 04/07/2023
Judges Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir
Institution Court
Type Judgment
Outcome Art. 8 No violation
Reason Necesarry in a democratic society (national security, public safety and the protection of the rights and freedoms of others)
Type of privacy Private life
Keywords Dismissal from office
Facts of the caseThe applicant served as a judge at a District Court from 1992 to 2009, as a member of the Constitutional Court from 2009 to 2013 and a judge at the Supreme Court of Albania from 2013 until his dismissal from office in vetting proceedings. Various aspects factored in to his dismissal, such as an incorrect declaration as to previous criminal investigations and an incomplete declaration as to his assets. Applicant relied on Article 6, 8 and 13 ECHR.
AnalysisThis judgement is relevant for a number of reasons:
1. The inner workings of the ECtHR remain a mystery. Oftentimes, for example, the Court would assess matters as to fair procedural issues under substantive provisions of the ECHR, such as Article 8 containing the right to privacy, pointing to the procedural requirements implicit in those doctrines. Other times, such as in this case, however, the Court would issue a ruling both under Article 6 ECHR as to the procedural elements of the case and then also assess potential substantial violations under Article 8 ECHR. When and why it choses one route or the other is not always clear. This judgement consist for a majority of a very elaborate and detailed description of the facts of the case and the proceedings at domestic level, and the Court’s finding that Article 6 ECHR had been violated. Although the ECtHR refutes most of the applicant’s claim under this provision either on preliminary or substantive grounds, it does find that in so far as the background assessment relied on the applicant’s alleged failure to declare contacts with persons involved in organised crime, the applicant was not afforded an adequate opportunity to oppose the findings made by the vetting bodies and to plead his case in an effective manner. Also, the Court finds that the reasoning of the domestic authorities were excessively formalistic in a context that called for caution in applying the relevant requirements of national law.
2. As to Article 8 ECHR, the applicant complains about his dismissal from office and about the ban on his practising law as a private lawyer following his dismissal from office. In his observations submitted in 2020, the applicant also mentioned that he was banned from re-entering the justice system, from applying for employment in the civil service or from acting as an expert. However, because he had not submitted any complaints in that regard in his application form, and they are not an elaboration of his original complaints, the Court will not examine those matters in the present case separately. Also, as regards the alleged ban on practising as an advocate, the Court notes that at no point during the four years since the end of the vetting proceedings in April 2019 was the applicant been prevented from practising as an advocate. That is why his complaint on this point is incompatible ratione personae with the provisions of the Convention.
3. The Court accepts that there has been an interference with the applicant’s right to respect for his private life on account of his dismissal from office. As to the question whether the interference was prescribed for by law, the Court finds that the vetting bodies’ interpretation of the legal provisions on which the applicant’s dismissal was based was not arbitrary or manifestly unreasonable. The inference was in the interest of national security, public safety and the protection of the rights and freedoms of others. As to the necessity requirement, the Court emphasizes on the one hand its subsidiary role and on the other hand that dismissal from office is a grave disciplinary sanction that can be imposed on an individual. The Court on the one hand reiterates that certain failures by public officials to comply with obligations related to asset declarations can be generally considered serious and on the other hand that the broad nature of the investigations had a substantial impact the private life of the applicant. In conclusion, the Court identifies no serious shortcomings in the decision-making process at national level.  ‘Thus, irrespective of the procedural shortcomings identified under Article 6 of the Convention in relation to the background assessment, the Court considers that the applicant’s dismissal from office was justified as necessary in a democratic society under Article 8 of the Convention on account of the unfavourable assets and financial integrity assessment (§159).’ 
4. Judge Serghides dissents on this point, but does not present the reasons why.
Other Article violation? Violation 6 ECHR; No violation 13 ECHR
Damage awarded that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expensesto be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Documents Judgment