Camelia Bogdan v. Romania (Application No 32916/20). Update: Restoration to the Court’s list under Rule 43 ind. 1 of the Court and Referral to Grand Chamber under Article 43 of the European Convention of Human Rights

Camelia Bogdan
Camelia Bogdan
Camelia Bogdan

The European Court of Human Rights informed the Applicant that her request for Restoration to the Court’s list under Rule 43 ind.1 of the Court and Referral to the Grand Chamber under Article 43 of the European Convention of Human Rights is being processed.

On November 1, 2022, under Article 43 of the European Convention of Human Rights and Rule 43 ind. 1 para. 5 of the Court, the Applicant requested that the above case, in which she asked for material and moral compensations for the infringement of art. 6 and art. 8 of the Convention, be restored on the Court’s list and be referred to the Grand Chamber.

I. The Applicant argued that her case (1) raises serious issues of general importance affecting the independence of the judiciary, considering the systemic failure of the Romanian system to assure access to Justice to judges who are illegally suspended for pronouncing a verdict. Other issues of exceptional importance include the delays encountered in disciplinary proceedings, including those related to notifying the decisions to judges preventing them from having access to Justice[1] and the ongoing pressures against magistrates in Romania, which culminated with the dismissal of the EU’s first public prosecutor[2]. The Applicant underscored that Camelia Bogdan 2 vs. Romania, ECtHR Decision from October 20, 2022 (Application no. 32916/2020), represents a case involving an outright denial of Justice (denegatio justitiae).

II. The case (2) raises serious questions regarding the interpretation and application of the Convention concerning an outright denial of Justice (denegatio justitiae), the prevention of which is a pillar of customary international law.[3]

The case also poses serious questions affecting the interpretation and application of the Convention due to the importance of the Court’s tasks to Uphold the Rule of Law

1. In 2016, the Applicant was charged with the infringement of Article 99 letter o) of the Law no.303/2004 for being, illo tempore, in “a serious or repeated non-compliance with the provisions regarding the random distribution of cases; ‘o) nerespectarea în mod grav sau repetat a dispozițiilor privind distribuirea aleatorie a cauzelor.

2. The Romanian Council of the Magistrature removed the Applicant from the Judiciary by Decision no.9/April 2, 2018, and suspended her on May 31, 2018, after the Applicant appealed the Decision. As a result, the second suspension of the Applicant from the judicial bench intervened ope legis. The application was lodged with the European Court of Human Rights on July 13, 2020. The Applicant relied on Articles 6 (right to a fair hearing) and 8 (right to respect for private life) of the European Convention on Human Rights.[4]

3. Despite evidence that the Applicant did not have any attributions to monitor the random attribution of cases at the Bucharest Court of Appeal, the Applicant was excluded from the judiciary following a decision of the High Court of Cassation and Justice on April 12, 2022. Its reasons were not made available to the Applicant until October 31, 2022. The deadline of notifying the decision expired on May 12, 2022.[5]

4. In Camelia Bogdan v. Romania (Application no. 32916/2020), the Applicant submitted to the European Court of Human Rights evidence that the authorities’ Decision to suspend her from the Judiciary from May 31, 2018, which intervened ope legis following her appeal against the second expulsion from the Judiciary (Decision no.9/April 2, 2018 of the Romanian Council of the Magistrature) represents a denial of Justice.

5. Before the ECtHR, Applicant also testified that, during the proceedings, her personal belongings were seized following a search order from March 2018 of the president of the Bucharest Court of Appeals, second criminal section, Alina Petronela Mosneagu, which did not inform the Applicant that her office is being searched. To date, the Applicant could not recover her personal belongings from the Bucharest Court of Appeals.

6. She also complained that the Decision through which she was suspended did not disclose the composition of the panel.

7. Additionally, she brought evidence that the signature of the Presiding judge Mariana Ghena, who signed the suspension order, was forged and asked the Romanian authorities to open an investigation.

8. She also argued that the disciplinary proceedings carried out against her lacked the due process guarantees, as they were conducted under the Protocol with the SRI and that her reputation was severely damaged as a result of the mediatic campaign carried out against her by ANTENA 3, GRUPUL and other publications owned and controlled by Dan Voiculescu. (See Annex no. 8, application submitted in front of the European Court of Human Rights, the Decision no.698/31 May 2018 by which the Applicant was suspended from the judiciary, evidence that the Bucharest Court of Appeals illegally seized the Applicant’s personal belongings, evidence that the signature of the Presiding Judge Mariana Ghena applied on the Decision no. no.698/31 May 2018 by which the Applicant was suspended from the judiciary, is forged).

9. The Applicant had no attributions in distributing the cases at the Bucharest Court of Appeal. Therefore, the measures taken against her were not provided for by the law. (See Annex no. 9: The No. 399/BIRP/10.05.2018 from the Bucharest Court of Appeals, the Applicant was informed that, in 2016, the persons responsible for verifying the random allocation of cases at the Bucharest Court of Appeal, second Criminal section were the President of the Section — Judge L. N.-C. — and Judge A. E. B. See, also, jurisprudence from the Bucharest Court of Appeals in accordance with which the sitting judges are not the active subject of the disciplinary offense provided by art.99 para. o) of the law. No. 303/2004 of the statute of judges and prosecutors. See also, also relevant caselaw from the Bucharest Court of Appeals, Administrative Section, Judgement no.69 from March 14, 2022, where the Court stated that only judges who have attribution in the randomly assignment of cases can be subject to the disciplinary offense prescribed by art.99 para.o) of the Law no.303/2004, where the Court found that: / “Regarding the claims on the violation of the rules of the procedure of random allocation of files, the Court notes that according to the Regulation on the organization and functioning of courts (CSM Decision no. 387/2005 in force on the date of the notification to the Judicial Inspection) the random allocation of registered cases on the role of the courts of appeal is the responsibility of the President of the Court and the management board (art. 10 and art. 22 of the Regulation). Therefore, the panel of judges does not have any kind of attributions regarding the procedure for distributing the files with the solution of which it is vested. Or, under these conditions, the possible deficiencies found in the random allocation procedure of a case, are not relevant from the perspective of the disciplinary responsibility of the members of the trial panel. Applying the aforementioned to the case, the Court notes that, although in the notification addressed to the Judicial Inspector’s Office, the plaintiff made references to the random allocation of file no. 25497/3/2012**, they are not relevant from the perspective of the request to carry out checks regarding the bad faith or gross negligence of the members of the appeal panel, considering that the magistrates entrusted with the resolution of the file have no attributions regarding the procedure of random distribution of the file” (emphasis added).

10. In her observations submitted to the Court on April 19, 2022 (See, Annex no. 10, observations submitted to the Court by the Applicant in the case no. 32916/2020), the Applicant argued that she could not have committed the offense because she had no legal attributions to distribute cases at the Bucharest Court of Appeal.

11. She only pronounced a verdict in a money-laundering case assigned to her by the Bucharest Court of Appeals managing board. The Applicant conducted the judicial investigation as follows: during the hearings from January 21 2020, the Applicant started analysing the evidence and conducting the hearing the witnesses attending in the courtroom – CCL, NC, and MD in file 2185/2/2015 which was listed as assigned to panel C7F. As she started analysing the evidence according to the principles of continuity and immediacy, which are fundamental components of the right to a fair trial, the Applicant ordered two further proceedings to hear the other witnesses and the defendants to issue a judgment at the hearing of 29.01.2016. Additional evidence was needed, and the legal qualifications were not considered legally established. Therefore, the Applicant had to reopen the case to conduct other hearings. On May 11, 2016, the Applicant delivered verdict no. 90/11 May 2016 in the Ultrapro case (Case no. 2185/2/2015, registered at the Bucharest Court of Appeals). Under the ECHR’s principles developed in Antohi v. Romania, Cutean v.Romania, or Beraru v. Romania, the judge who starts the judicial investigation has to be the one who pronounces the verdict. Article 354 (2) and (3) of the new Code of Criminal Procedure, in force since February 1, 2014, provides that a judicial panel must remain the same throughout the trial of the case. In the absence of a procedure for the recognition of the guilt by all the defendants, the judge is obliged to exhaust the evidence because a conviction can only be handed down if the judge assesses beyond any reasonable doubt the accused person has committed the act with the fault required by the legal text. Thus, according to para. 396 alin. 2. C.pr.pen., ‘sentencing if the court finds, beyond a reasonable doubt, that the action exists, constitutes a criminal offense and has been committed by the defendant.’ The condition sine qua non for the resolution of a criminal case consists of respect for the parties’ procedural rights, including the right to a fair trial, but also with the basic principles of the trial stage, including orality, direct and adversarial proceedings. Thus, under Article 351 (1) of the Criminal Proceedings Code, the case is heard before the Court established by the law and takes place in oral, direct, and inter partes Or, the Applicant conducted the entire investigation procedure (which included hearing all witnesses and defendants), ensuring the parties’ procedural rights. If before the pronouncement of the verdict, the principles enshrined in Cutean and Beraru against Romania were relevant, after 11.05.2016, the European Court of Human Rights also convicted Romania in the Antohi case (Decision of September 24, 2019) (application no. 48093/15).

II.1. Summary of the Decision regarding the second suspension from the Judiciary of the Applicant (no. 2) – (Application no. 32916/2020 (Camelia Bogdan vs. Romania, ECtHR Decision from October 20, 2022)).

1. In its Decision in the case of Camelia Bogdan v. Romania (application no. 32916/20) the European Court of Human Rights, in a panel of three judges declared the application inadmissible. The Court noted that the Applicant had disclosed the particulars of the friendly-settlement negotiations before the Court in the course of the proceedings that she had instituted in a national court, whereas the use of such information in other contentious proceedings was prohibited. According to the Court, the Applicant had been aware of the confidentiality requirement. The Court also noted that the particulars of the friendly-settlement negotiations, including copies of the letters and accompanying friendly-settlement declarations sent by it, had subsequently appeared in several media reports. Unpersuaded by the Applicant’s arguments, the Court concluded that ‘her disclosure of the particulars of the friendly-settlement negotiations in her case to a national court and other third parties had violated the principle of confidentiality laid down by Article 39 § 2 (friendly settlements) of the European Convention on Human Rights and Rule 62 § 2 (friendly settlement) of the Rules of Court and that, in the circumstances, her conduct had amounted to an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. (See, Annex no.11, Camelia Bogdan vs. Romania, Decision pronounced by the European Court of Human Rights on October 20, 2022/Application no. 32916/2020; ECHR 330 (2022) 20.10.2022, Application ruled inadmissible on account of Applicant’s breach of confidentiality of friendly-settlement negotiations, the offer from the Court to settle for the infringement of art. 6 and art 8 of the European Convention of Human Rights).

II.2. Camelia Bogdan 2 vs. Romania, ECtHR Decision from October 20, 2022 (Application no. 32916/2020): a case involving an outright denial of Justice (denegatio justitiae). The Lack of Prohibition of Disclosing the “Friendly Settlement- Negotiations” after November 29, 2021, in other contentious procedures except those carried out between Parties before the European Court of Human Rights (Rule 62 § 2 (friendly settlement) of the Rules of Court)

1. This Decision, which became final on October 20, 2022, lacks essential facts relevant to establish that there is no limitation or prohibition of disclosing the offers made by the Court after the deadline provided by the Court to conclude any ‘friendly-settlement negotiations’ expired. In the case mentioned above, the deadline set by the Court for the so-called settlement procedure passed on November 29, 2021 (See, Annex no. 11, the offer from the Court to settle for the infringement of art. 6 and art. 8 of the European Convention of Human Rights).

2. In its recent Guidelines, the Council of Bars and Law Societies of Europe acknowledges that since January 2019, the Court has introduced on a trial basis a new practice involving a dedicated, noncontentious phase for applications that have been communicated to the respondent Government to encourage early friendly settlements[6]. When a case is transmitted to the Government, there are now two distinct phases in the procedure. First, there is a 12-week noncontentious phase. The Registry will often propose the basis for a friendly settlement to be adopted immediately, especially where the Application concerns issues about which there is already well-established Court case law. The parties will then be invited to inform the Court if they wish to accept the Registry’s proposal of a friendly settlement. In cases where the Registry has not made such a proposal, the parties are requested to indicate whether they have their own proposals for a friendly settlement of the claim and to submit them on a confidential basis. The Committee of Ministers will supervise its implementation if a settlement is reached. Even if the Applicant does not accept the friendly settlement proposal made by the Registry, the respondent Government may still seek to conclude the proceedings based on a Unilateral Declaration, frequently on terms similar to those initially proposed by the Registry.

3. If the parties do not settle the case within the initial 12-week period, which can be extended if a settlement looks likely and no Unilateral Declaration is proposed either, the Contentious Phase begins, which involves the exchange of observations between the parties. During the Contentious Phase, the respondent Government is requested to submit within 12 weeks their observations on admissibility and merits by reference to the Court’s questions prepared by the Registry.

4. Mutatis mutandis, in the Applicant’s situation, in which the European Court of Human Rights established that the end of the so called-friendly settlement expires on November 29, 2021, is also the expiration of the noncontentious phase because neither the Applicant nor the Government agreed to settle friendly the above-mentioned case, and, second, the Government made no Unilateral Declarations.

5. Failure to notice the deadline for the noncontentious phase resulted in a manifestation of the arbitrariness of the Decision to sanction an anti-corruption judge aiming to promote the Rule of Law and defend the prestige of the judiciary for submitting evidence before a national Court and informing the opposing parties (GRUPUL, ANTENA 3, FACIAS, MR. VOICULESCU, and their lawyers) about the Application on December 7, 2021, after the noncontentious phase had ended.

6. There is no prohibition to ensure the confidentiality of the settlement negotiations in front of national courts because the European Court of Human Rights judges should obey le vieux principe ‘Exceptio est strictissimae interpretations. In other words, une exception est d’une très étroite interprétation/an exception is narrowly construed. Under Article 39 § 2 (friendly settlements) of the European Convention on Human Rights and Rule 62 § 2 (friendly settlement) of the Rules of Court prohibits the parties from refraining from disclosing the proposal of the settlement in the contentious phase, the one that takes place in front of the European Court of Human Rights opposing the PARTIES INVOLVED IN THE PROCEEDINGS BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS and not in any contentious proceedings. The argument is to be found in the wording of Rule 62 § 2 para. 2: ‘In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.‘

7. According to the ECtHR’s guidelines, the negotiation phase finishes 12 weeks after the Registrar makes the offer.

8. In Camelia Bogdan vs. Romania, the negotiation phase expired on November 29, 2021, because neither the Government nor the Applicant agreed to any negotiations, nor did the Government issue a Unilateral Decision. 

9. The Applicant, Camelia Bogdan, made no reference before the European Court of Human Rights in the contentious phase of the friendly-settlement proposal.

II.3. Sanctioning an international anti-corruption expert fell outside the scope of protecting the confidentiality of the friendly settlements under Article 39 para.2 of the European Convention of Human Rights

1. By hampering the Applicant’s access to an international remedy to which she would have been entitled, considering the severe consequences the four years suspension had on her health and her reputation, the Decision pronounced in Camelia Bogdan vs. Romania on October 20, 2022, represents a typical example of manifest arbitrariness, that, in the circumstances of the case, amounted to a DENIAL OF JUSTICE.

2. The lack of any prohibition to disclose that the Court made the Applicant an offer is to be found in the European Convention on Human Rights jurisprudence and guidelines, highlighting the goal of confidentiality of the friendly-settlement agreements, which is to reach a friendly settlement and to protect the parties from any undue pressure during the negotiation procedure. The goal of the confidentiality of the friendly-settlement agreements is highlighted by the Court in paragraph no. 9 of the Decision rendered in Camelia Bogdan v. Romania on October 20, 2022 in the following terms: ‘La Cour rappelle qu’aux termes de l’article 39 § 2 de la Convention et de l’article 62 § 2 du règlement de la Cour (« le règlement ») les négociations menées en vue de parvenir à un règlement amiable sont confidentielles. Cette règle, telle qu’elle est comprise par la Convention et le règlement de la Cour, doit être interprétée à la lumière de l’objectif général qui consiste à faciliter le règlement amiable en protégeant les parties et la Cour contre d’éventuelles pressions (Miroļubovs et autres c. Lettonie, no 798/05, § 68, 15 septembre 2009). Lorsque les requérants ou leurs avocats révèlent sciemment les détails de la négociation menée en vue d’un éventuel règlement amiable, la Cour peut, dans certaines circonstances, rejeter la requête pour abus du droit de recours individuel (Eskerkhanov et autres c. Russie, nos 18496/16 et 2 autres,§ 24, 25 juillet 2017, avec les références qui y sont citées).’

3. First, according to the letter of the European Court of Human Rights sent to the Applicant on September 6 and not on September 1 (as mentioned in the Decision pronounced in Camelia Bogdan 2 v. Romania), the Applicant and the Romanian Government were asked to contemplate entering a settlement and to notify the Court if they agree with the offer made by the Court to the Applicant, who lives in Washington DC, and not in Bucharest (as mentioned in the Decision pronounced in Camelia Bogdan 2 v. Romania), that should have to be satisfied by the Romanian taxpayers’ money. There is no prohibition neither in Article 39 § 2 (friendly settlements) of the European Convention on Human Rights, nor in Rule 62 § 2 (friendly settlement) of the Rules of Court to disclose the information after the no-contentious phase ended in front of other contentious procedures than those opposing the two parties, the Government and the Applicant. The Court fixed a deadline for reaching a settlement-agreement on November 29, 2021. After the deadline expired, the goal of confidentiality (protecting the Court and the Parties from outside pressures (see, Miroļubovs et autres c. Lettonie, no 798/05, § 68, 15 septembre 2009, cited in Camelia Bogdan 2 v. Romania, para. 2 ) could not have been fulfilled.

4. Second, in the last paragraph of the Decision pronounced in Camelia Bogdan vs. Romania on October 20, 2022, the three European Court of Human Rights judges failed to justify why the Applicant did not convince them. The Applicant submitted evidence that she defended her reputation in front of the National Court against GRUPUL.ro and ANTENA 3 SA, the publications controlled and financed by DAN VOICULESCU to hamper the anti-corruption fight in Romania and which published the documents in their papers, after the expiration date of the noncontentious phase (See ANNEX no. 5 of the OBSERVATIONS included in Annex no.10) submitted in the Application no. 32916/20, p.55-66, including the evidence that the Applicant brought a civil claim to protect her reputation against ALEXA LIVIU; ANTENA 3 S.A.,; GÎDEA EMANUEL-MIHAI; BADEA MIRCEA,; CIUVICĂ MUGUR CRISTIAN; GRUPUL DE INVESTIGAȚII POLITICE); DAN VOICULESCU; AUREL JEAN ANDREI; FUNDATIA FACIAS; FUNDATIA DAN VOICULESCU PENTRU DEZVOLTAREA ROMANIEI). Art. 6 para. 1 of the European Convention of Human Rights (the principle of a fair trial) requires respect for the opposing parties’ fair and equitable treatment. The Applicant assured that all the parties and their lawyer from the domestic procedure brought in case no. 2761/117/2019 before the Court of Appeal had access to the documents presented by the Applicant to avoid any procedural delays.)

5. Third, if the Applicant’s evidence did not convince the three judges who delivered the Decision in Camelia Bogdan vs. Romania, they were obliged to ask her to submit other evidence or clarifications under Rule 44C2 of the Court. Each Decision should contain the legal reasoning of the judges on the panel and under Rule 44C2 of the Court, “Failure to participate effectively” only “where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate. 2. Failure or refusal by a respondent Contracting Party to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of the application”. In Camelia Bogdan vs. Romania, the panel sanctioned an anti-corruption judge for not convincing the Court, despite the fact that the Court did not request any document or any evidence from the Applicant.

6. Another example of arbitrariness is that the three judges failed to describe the facts for which the Applicant was excluded from bench. Had they done so, the three judges should have been obliged to verify the proportionality of the sanction they inflicted upon the Applicant because, following the ECtHR’s jurisprudence, the sanction for the violation of the so-called friendly agreement should intervene in the cases in which reaching a deal was possible to protect the Court and the parties from outside pressures. Or in this case, the European Court of Human Rights did not bring any evidence Applicant had intended to put any pressure on the Government. On the contrary, the Court noticed that the Applicant tried to defend her reputation and the prestige of the Romanian judiciary against the pressions carried out by Antena 3 SA, owned and controlled by Dan Voiculescu, a person who hampers the fight against corruption in Romania through his media empire.

7. Fourth, neither the Convention nor the Rules of Court prescribed any limits to using the attempts to settle in other procedures than those opposing the two parties, the Applicant and the Respondent Government. The friendly-settlement agreements regarding retaliation and disbarment procedures are not confidential but for fulfilling the scope of the Convention. The European Court of Human Rights is compelled to contemplate the obligation of ensuring transparency of these settlements, which taxpayers’ money should pay. If a friendly settlement dispute cannot be reached, but a violation of Human RIGHTS occurs, the European Court of Human Rights must allow access to the friendly settlement to protect the individual whose rights have been infringed. In other words, the confidential settlement discussions should be allowed, after the expiration of their confidential phase, to be used as a shield.

8. In the United States, for instance, in connection with a House Oversight hearing, Representative Carolyn Maloney (D-N.Y.) introduced legislation to restrict confidentiality provisions from covering claims of discrimination, harassment, and retaliation. The “Accountability for Workplace Misconduct Act,” H.R. 8146, appears to be a federal effort to expedite the state-level trend to exempt discrimination, harassment, and retaliation information from confidentiality restrictions.[7] Over the last decade, lawmakers at the state and federal level have introduced and passed legislation designed to limit the reach of confidentiality provisions in certain circumstances, including retaliation at the workplace. Those modifications include:

– The Defend Trade Secrets Act of 2016 (“DTSA”) (Federal) created a federal cause of action for trade secret misappropriation and protects individuals from civil liability for disclosing a trade secret if the disclosure is made in confidence to a governmental official or attorney and for the purpose of reporting a violation of law.

– The Stand Together Against Non-Disclosures Act of 2018 (“STAND Act”) (California) prohibits in settlement agreements only a confidentiality provision that restricts the disclosure of factual information related sexual assault, sexual harassment, discrimination, or retaliation for reporting harassment or discrimination based on sex.

– The Silenced No More Act (California (2021) and Washington (2022)), through which California and Washington passed legislation that prohibits non-disclosure and non-disparagement provisions that cover any conduct that an employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage-and-hour-violation, sexual assault, or conduct that is recognized as against a clear mandate of public policy. Both states also authorize a cause of action against any employer who enters into a prohibited agreement.[8]

– Like the STAND Act, the bill limits its coverage to non-disclosure provisions in settlement agreements, so it would not impact confidentiality agreements outside the settlement context. Unlike the STAND Act, as presently drafted, the bill would invalidate a confidentiality provision for the following reasons: No carve-out for government disclosures – the confidentiality provision cannot prohibit a party from disclosing information to the government or law enforcement relating to conduct that is unlawful or that the employee believes to be unlawful; No communication about government carve-out – the employer must communicate that the agreement does not restrict disclosures to the government or law enforcement for unlawful conduct or conduct the employee believes to be unlawful; Confidentiality agreement requires pre-disclosure notification – the confidentiality provision cannot require that the employee notify the employer before disclosing specified information to the government or law enforcement; No notification – the employer must include the following disclaimer: “Nothing in this agreement prevents you from disclosing information to Congress, a Federal, State, or Local government entity, or law enforcement about behavior you reasonably believe constitutes harassment, discrimination, or retaliation”; Consideration period – the agreement must provide a 21-day consideration period and 7-day revocation period, which mirror the non-reduction in force consideration periods in agreements containing Age Discrimination in Employment Act releases; No interference – in the most concerning provision, the bill would invalidate confidentiality restriction if the employer “engages in behavior to intimidate, hinder, obstruct, impede, retaliate against, or otherwise discourage an employee subject to a non-disclosure agreement” from communicating with the government or law enforcement.[9]

In addition to these potential avenues to invalidate a non-disclosure provision, the bill also includes requirements for employers to establish specified processes for receiving and investigating alleged discrimination, harassment, and retaliation, as well as empower the Equal Employment Opportunity Commission to investigate alleged violations of reporting procedure requirements[10]. The bill is also notable for what it does not address.[11]

III. This case also poses serious questions affecting the interpretation and application of the Convention due to the importance of the Court’s tasks to Uphold the Rule of Law

1. The Applicant proved by the documents submitted to the Court as a result of the non-implementation of Camelia Bogdan vs. Romania (Application no. 36889/18, Judgment of October 20, 2020)

2. In a pandemic of corruption, the conduct threatens to undermine the Strasbourg system and simultaneously erode the credibility of the Court.

3. The Applicant, therefore, asked the Court to review its Protocols and award her 500000 as punitive damages. To do so, the Court has to acknowledge that Applicant, a specialized judge in AML cases and asset forfeiture (Annex 1), undertook her functions in a pandemic of corruption. She was expelled twice from the Romanian judiciary and has been suspended for six years without access to justice. Moreover, considering the alignment of the interests of Voiculescu, et al. with the same governmental institutions that illegally punished the Applicant, including his intervention, through one of his alter egos, as a party in a lawsuit concerning the Government and the Applicant, it is difficult to consider Voiculescu and his companies as anything other than a party with a vested interest in the case before the EHtCR. Therefore, Applicant’s disclosure of the offer of the Court to Voiculescu et al. after the expiration of the settlement deadline and to protect herself from the relentless attacks by Voiculescu does not jeopardize either the integrity of the EHtCR’s friendly resolution process nor did it bring any unfavorable information about the Government into the public domain. Looking at the confidentiality restriction narrowly and not seeing the bigger picture is akin to respecting the law’s letter while simultaneously completely violating the law’s spirit. Here, it would operate to solidify the malodorous grasp further that the corrupt and the criminal have over the Romanian legal system. Additionally, suppose the European Court of Human Rights intends to conceal the general information about retaliation and other work-related misconducts existing in friendly-settlement outside the scope of the Convention. In that case, a so-called prohibition violates, in the circumstances of this case, the global prohibition regime of confidentiality attached to violations of corporate social responsibility. The European Court of Human Rights should include in its written statutes (its Rules) that any confidentiality restriction relating to a behavior to intimidate, hinder, obstruct, impede, retaliate against, or otherwise discourage an employee subject to a non-disclosure agreement” from communicating with the government or law enforcement is invalid.

4. In a cost-benefit analysis, the rationale of Camelia Bogdan 2 vs. Romania aims to satisfy the interests of the most notorious Romanian kleptocrat, Dan Voiculescu, whose media outlets published the friendly-settlement proposal and not to uphold the Rule of Law, by ensuring that Corruption does not pay and by ensuring the independence of the Romanian judiciary.

5. In conclusion, the sanction for the so-called failure to observe a rule should have been scrutinized in the light of the existing facts and the scope of Article 39 § 2 (friendly settlements) of the European Convention on Human Rights and Rule 62 § 2 (friendly settlement) of the Rules of Court, which could have been reached only until the end of the noncontentious procedures, which in this case expired on November 29, 2021.

6. The Decision lacks, therefore, legitimacy because the sanction for non-complying with the principle of confidentiality laid down by Article 39 § 2 (friendly settlements) of the European Convention on Human Rights and Rule 62 § 2 (friendly settlement) of the Rules of Court amounted to a denial of Justice within the meaning of the customary international law.

7. The European Court of Human Rights, in a manifest exercise of arbitrariness, refrained from safeguarding the human rights and fundamental freedoms of a persecuted judge, including [t]he right to apply to the courts of Justice or the competent organs of the State” and [t]he right to a public hearing, with proper safeguards, by the competent organs of the State.

8. The Applicant Camelia Bogdan brought a solid case against Romania following her dismissal from the judiciary after she pronounced a decision in an Anti-Money Laundering case. Had she not done so, the Applicant would have infringed the right to a fair trial of the parties or would have contributed to the unjustified delay of the case, as explained by the International Bar Association in its letter on the independence of the judiciary submitted to the President of Romania quoting: ‘Judge Bogdan had refused to unjustifiably delay the cases, in line with Article 6 of the European Convention on Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union and Article 14 of the International Covenant on Civil and Political Rights. The independence of the judiciary is a cornerstone of the Rule of Law. The United Nations Basic Principles on the Independence of the Judiciary requires States to guarantee protection against arbitrary disciplinary measures and interference in judicial proceedings. The IBAHRI is alarmed by the measures being taken against Judge Bogdan and urges the President to ensure international standards are being upheld in Romania.’ (See, Annex no. 12, the IBAHRI letter quoting: ‘Judge Bogdan had refused to unjustifiably delay the cases, in line with Article 6 of the European Convention on Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union and Article 14 of the International Covenant on Civil and Political Rights. The independence of the judiciary is a cornerstone of the Rule of Law. The United Nations Basic Principles on the Independence of the Judiciary requires States to guarantee protection against arbitrary disciplinary measures and interference in judicial proceedings. The IBAHRI is alarmed by the measures being taken against Judge Bogdan and urges the President to ensure international standards are being upheld in Romania.’).[12]

9. The European Court of Human Rights made an offer to the Applicant, considering the solid arguments from the application, suggesting a sum of money as compensation for the infringement of Article 6 and Article 8 of the Convention. The Applicant was suspended on May 31, 2018, and has not been entitled to any salaries or social security. Not only was her right to private life not protected, but her right to address the lack of any remedies at the national level was infringed. She was denied access to Justice[13]. In accordance with customary international law, she should have been entitled to fair and equitable treatment and full protection and security. The European Court of Human Rights refused her right to benefit from a minimum standard of protection.

10. Article 8 of the UNCAC Convention addresses the mechanism for enforcing the standards of conduct at an administrative or civil level to reach the full potential of the disciplinary system. Two considerations are important: the system needs to respect procedural fairness and should be designed and implemented to ensure its effectiveness. Administrative proceedings should also abide by due process guarantees in a state ruled by law.

Brief conclusion

The Superior Council of the Judiciary suspended a Romanian judge because she conducted investigations and pronounced a money-laundering verdict. The Applicant lacked any legal remedy for challenging her illegal suspension for pronouncing a money laundering verdict since May 2018. She was denied the right to exercise her profession because she did not have access to a competent court to assess the lack of proportionality of her illegal suspension. (Annex no. 13 for links and reports from international or national sources which address or discuss the targeting of Camelia Bogdan – to show that Applicant has international support and that the persons who are targeting the Applicant are identified in the person of Mr. Dan Voiculescu, the person who remained with a power of attorney over the accounts of the Romanian ex-Securitate as well as in the person of some potentas of the Romanian Secret Services, the beneficiary of the legacy of the ex-Securitate, including the assets which remained in the CRESCENT’s account at the time of Ceausescu’s passing and which, under Protocols with the Romanian Judicial Inspection and the Superior Council of the Judiciary, punished the Applicant for seizing the proceeds of crime from CRESCENT laundered by DAN VOICULESCU through the fraudulent privatization of the Institute of Food and Research. Annex.no. 13 also includes press releases regarding the new legislation drafted by the Romanian specialists controlled by ex-Securitate granting immunity to Secret services.) Targeting the only Romanian judge specialized in AML and Asset forfeiture severely undermines the Rule of Law in the context in which SRI tries to escape criminal charges by promoting new legislation that would guarantee immunity so that those who carried out the autonomous money laundering derived from the embezzlement of the Securitate’s funds should not be brought before Courts[14]. (See Annex. no. 13 press releases regarding the new legislation drafted by the Romanian specialists controlled by ex-Securitate granting immunity to Secret services. According to Professor Alina Mungiu-Pippidi, no one can succeed in politics if they are not accepted by Secret Services.[15])

In seeking to address the problem, the emphasis should be on thinking creatively about the choice of remedies that the ECtHR could impose on states that would motivate states to manage their human rights violations at home. The Applicant also required individual measures under Rule 9 (1) of the “Rules of the Committee of Ministers for the supervision of the execution of judgments and the terms of friendly settlements” regarding the execution of the judgment of the European Court of Human Rights (“ECtHR”), in the Camelia Bogdan v. Romania case (Application no. 36889/18, Judgment of October 20, 2020). In her submission, the Applicant emphasized she is entitled to these compensations automatically, as the European Court of Human Rights recognized, by offering the Applicant a certain sum of money considering the infringement of her right to a fair trial and her right to private life, that violations of art. 6 and art.8 of the European Convention of the Human Rights occurred. These violations are attributable to the Romanian authorities.

General Conclusion

Failure to uphold the Rule of law at the European Court of Human Rights level represents an exceptional circumstance. Under Article 43 of the Convention and Rule 43 ind. 1 para. 5 of the Court, the Applicant requests that the above case, in which she asked for material and moral compensations for the infringement of art. 6 and art.8 of the Convention, be restored to the Court’s list and be referred to the Grand Chamber.

[1] See,  on the lack of an effective remedy against the disciplinary sanctions, as a result of the non-implementation of judgment of the European Court of Human Rights of 20 October 2020, Camelia Bogdan v. Romania, 36889/18, the European Commission, Luxembourg, 13.7.2022, SWD (2022) 523, Final Rule of Law Report Country Chapter on the rule of law situation in Romania Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2022 Rule of Law Report The rule of law situation in the European Union, last accessed October 20, 2022, https://ec.europa.eu/info/sites/default/files/52_1_194026_coun_chap_romania_en.pdf., p. 7, footnote 29, for the systemic failure of the Romanian system to ensure access to justice after the judgment of the European Court of Human Rights of 20 October 2020, Camelia Bogdan v. Romania, 36889/18: ‘Whereas the sanction became effective from the moment of the notification of the disciplinary decision, the reasons were not communicated to the magistrate for several months within the legal deadline. Such a delay raises concerns as to the compliance with the right to an effective remedy, more particularly in view of Art. 6 of the European Convention on Human Rights (judgment of the European Court of Human Rights of 20 October 2020, Camelia Bogdan v. Romania, 36889/18, on the right to an effective remedy against disciplinary sanctions);
[2] See for a brief description of the fight against corruption in Romania, Rahim Kanani, “The EU’s first anti-fraud prosecutor reflects on the challenges of tackling transnational crime”, https://www.imf.org/en/Publications/fandd/issues/2020/12/interview-with-laura-codruta-kovesi-on-tackling-EU-corruption, last accessed on October 26, 2022, In Romania, the Judicial Inspection conducted a series of controls at the office of the General Prosecutor and the National Anticorruption Directorate and a series of disciplinary investigations were started against the heads of key judicial institutions (the President of the High Court of Cassation and Justice, the General Prosecutor, the former Chief Prosecutor of the National Anticorruption Directorate, the Deputy Chief Prosecutor of the National Anticorruption Directorate). The pressure continues with the expulsion of the first magistrate to issue strong dissuasive penalties against Romanian kleptocrats, ensuring that CRIME DOES NOT PAY. See, for acknowledging the leadership of the Applicant in the fight against high-level corruption, Financial Times (2018), FT Innovative Lawyers Awards 2018, https://www.allenovery.com/en-gb/global/news-and-insights/news/the-courage-to-intervene; https://www.britishchamber.cz/allen-overy-breaks-record-at-financial-times-innovative-lawyers-awards/, last accessed: October 29, 2021; Florida University (2019), The Independent Florida Alligator, 2019, Countering Corruption and Asset Recovery, https://ufdc.ufl.edu/UF00028290/06980; last accessed: October 29, 2021; Newsweek (2020), Cel mai citit interviu in 2019: „Dan Voiculescu a dirijat banii Securități fără să fie deranjat de stat”; https://newsweek.ro/interviuri/camelia-bogdan-dan-voiculescu-a-dirijat-din-1990-banii-securitatii-fara-sa-fie-deranjat-de-stat; last accessed: October 29, 2021; The American Interest (2020), Five Questions to Seven Women Who Inspire Us. The Judge. Camelia Bogdan, https://www.the-american-interest.com/2020/03/08/five-questions-to-seven-women-who-inspire-us/; last accessed: October 29, 2021; Visegrad Insight (2021), The Broken Justice System in Central Europehttps://visegradinsight.eu/the-broken-justice-system-in-central-europe/(guest speaker); last accessed: October 29, 2021; Democracy Digest (2021), Romania’s kleptocratic ‘Long Shadow’ targets anti-corruption advocate, https://www.demdigest.org/romanias-kleptocratic-long-shadow-targets-anti-corruption-advocate/?fbclid=IwAR0V9Jqxia2bWWiL5J635CuCKhaKOOSOG0q4NdyjAvW_G71c2ay4VY4WWn4; last accessed: October 29, 2021; Indiana University (2021), The Hamilton Lugar School Welcomes Acclaimed Judge Camelia Bogdan for International Law & Institutions Week; https://blogs.iu.edu/hamiltonlugar/2021/04/06/the-hamilton-lugar-school-welcomes-acclaimed-judge-camelia-bogdan-for-international-law-institutions-week, last accessed: October 29, 2021; Stanford University (2021), #DHSF21: Camelia Bogdan, https://www.youtube.com/watch?v=bxqnBbGeSZA; https://cddrl.fsi.stanford.edu/summerfellows/content/draper-hills-class-2021, last accessed: October 29, 2021.
[3] See generally Jan Paulsson, Denial of Justice in International Law (hereinafter “Paulsson”) at 1 (Cambridge 2005); Charles de Visscher, Le déni de justice en droit international, Académie de Droit International, Recueil des cours, Vol. 52 at 369 (1935) (Denial of justice is “the State act that is by excellence attributable to the State, contrary to its international obligations and for which it most undeniably incurs liability.”); Hans W. Spiegel, Origin and Development of Denial of Justice, 32 AM. J. INT’l L. 63, 65 (1938) (hereinafter “Spiegel”); Alwyn V. Freeman. International Responsibility of States for Denial of Justice (hereinafter “Freeman”) at 96-115 (Kraus Reprint Co. 1970), references quoted by César Rivière,  (Columbia Law School, JD; Université Paris 1 Panthéon-Sorbonne, Master II; Université Paris 1 Panthéon-Sorbonne, LL.B. / BSc.) in the Working Draft ‘Customary International Law as the Source of Denial of Justice Treaty Claims’, for the Jurisconference “Sixteenth Annual Investment Treaty Arbitration: A Debate & Discussion” organized by The World Arbitration Update (WAU) and the Washington Arbitration Week (WAW), hosted on October 14, 2022 at Crowell & Moring LLP, Washington D.C.; Other scholars, meanwhile, point to international legal and political principles that arose as long ago as the Early Middle Ages: see, e.g., A. A. Cançado Trindade, “Denial of Justice and Its Relationship to Exhaustion of Local Remedies in International Law” (1978) 53:1 Philippine Law Journal 404 at 404, references quoted by Myriam Seers, MCIArb, LL.B. from the University of Ottawa, paper prepared for the Sixteenth Annual JURIS Investment Treaty Arbitration Conference, held in Washington, DC, on 14 October 2022: the author stresses that ‘It is possible that common law systems, wherein courts may read-in laws that are not strictly present in texts, may see additional limitations placed on a state’s liability beyond those evidenced in treaties and written laws.’ However, given that (1) these decisions would generally be restricted to the jurisdictions in which they are made, and (2) a thorough review of judgments in all common law jurisdictions would be beyond the scope of this submission, the Applicant has focused on denial of justice as defined by publicly available international instruments.
[4] See, Application no. 32916/20, in which the ECHR pronounced a decision on October 20, 2022, https://www.juridice.ro/wp-content/uploads/2022/10/Decision-Camelia-Bogdan-v.-Romania-Breach-of-confidentiality-of-friendly-settlement-negotiations-before-the-European-Court-by-an-applicant-a-former-judge-in-Romania.pdf;
[5]  See, Virgil Burla (September 21, 2022) ‘Dispreț față de lege la instanța supremă. ÎCCJ nu motivează în termen și nu răspunde la solicitările privind accesul la informațiile publice’, https://presshub.ro/dispret-fata-de-lege-la-instanta-suprema-iccj-nu-motiveaza-in-termen-si-nu-raspunde-la-solicitarile-privind-liberul-acces-la-informatiile-publice-239609/?fbclid=IwAR1XNUKkcEv1_B2nO-gqxp1pibuZXFhyjDphQyIBy7qor1fvBkFI-AJoS7M, last accessed on October 3, 2022;
[6] See, the Council of Bars and Law Societies of Europe, ‘THE EUROPEAN COURT OF HUMAN RIGHTS Questions & Answers for Lawyers 2020’, available on line at https://www.echr.coe.int/Documents/Q_A_Lawyers_Guide_ECHR_ENG.pdf, last accessed on October 23, 2022, p. 12;
[7] See, Alex Maier (June 30, 2022), House Introduces Legislation Restricting Confidentiality Provisions in Settlement Agreements, https://www.jdsupra.com/legalnews/house-introduces-legislation-3742045/, last accessed on October 30, 2022;
[8] See, Alex Maier (June 30, 2022), House Introduces Legislation Restricting Confidentiality Provisions in Settlement Agreements, https://www.jdsupra.com/legalnews/house-introduces-legislation-3742045/, last accessed on October 30, 2022;
[9] See, Alex Maier (June 30, 2022), House Introduces Legislation Restricting Confidentiality Provisions in Settlement Agreements, https://www.jdsupra.com/legalnews/house-introduces-legislation-3742045/, last accessed on October 30, 2022;
[10] See, Alex Maier (June 30, 2022), House Introduces Legislation Restricting Confidentiality Provisions in Settlement Agreements, https://www.jdsupra.com/legalnews/house-introduces-legislation-3742045/, last accessed on October 30, 2022;
[11] See, Alex Maier (June 30, 2022), House Introduces Legislation Restricting Confidentiality Provisions in Settlement Agreements, https://www.jdsupra.com/legalnews/house-introduces-legislation-3742045/, last accessed on October 30, 2022;
[12] See, The IBAHRI submits letter to the President of Romania regarding the independence of judiciary, https://www.ibanet.org/article/6C79F7FC-7F9C-455F-8512-B5A5F7DF6BD3, last visited on April 22, 2022;
[13] See, for efforts to codify the ‘Denial of justice’, United Nations International Law Commission, First report on State responsibility by Mr. Roberto Ago, Special Rapporteur (“Review of previous work on codification of the topic of the international responsibility of States”), No. A/CN.4/217 and Corr.1 and Add.1, in Yearbook of the International Law Commission Vol. II (1969), at Annex VII (Draft convention on the international responsibility of States for injuries to aliens, prepared by the Harvard Law School, 1961), at Article 6(b) (“Denial of access to a tribunal or an administrative authority”), Article 8(b) (“Adverse decisions and judgments”). United Nations International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) (“2001 Draft Articles”), Articles 2, 4. For a broader discussion of the 2001 Draft Articles, see Crawford at 39-44;
40. This draft convention scaled back any reference to the principles of denial of justice, only confirming that the “judicia[ry]” could commit “an internationally wrongful act” “under international law. ”See also Paulsson at 98 (noting that “viewed on the whole, the old attempts at codification are of limited value. Worse, when taken in isolation they can lead to great error. Fortunately, drafts remain drafts, and we can today benefit from the cross-fertilisation of the customary international law of denial of justice and the important jurisprudence that has arisen pursuant to the positive international legislation to be found in modern treaties, notably in the realm of human rights.”) references quoted by César Rivière,   (Columbia Law School, JD; Université Paris 1 Panthéon-Sorbonne, Master II; Université Paris 1 Panthéon-Sorbonne, LL.B. / BSc.) in the Working Draft ‘Customary International Law as the Source of Denial of Justice Treaty Claims’, for the Jurisconference “Sixteenth Annual Investment Treaty Arbitration: A Debate & Discussion” organized by The World Arbitration Update (WAU) and the Washington Arbitration Week (WAW), hosted on October 14, 2022 at Crowell & Moring LLP, Washington D.C.;
[14] See https://www.g4media.ro/cotidianul-spaniol-el-pais-romania-elaboreaza-un-proiect-de-lege-pentru-a-reinvia-practicile-de-denuntare-din-perioada-comunista.html, last accessed on October 25, 2022;
https://www.b1tv.ro/eveniment/alina-mungiu-pippidi-despre-proiectele-de-legi-ale-securitatii-nationale-isi-propun-sa-legalizeze-o-situatie-care-exista-informal-de-mai-multa-vreme-serviciile-extrem-de-dominante-nu-numai-in-poli-1164837.html, last accessed on October 25, 2022;
[15] See, https://www.b1tv.ro/eveniment/alina-mungiu-pippidi-despre-proiectele-de-legi-ale-securitatii-nationale-isi-propun-sa-legalizeze-o-situatie-care-exista-informal-de-mai-multa-vreme-serviciile-extrem-de-dominante-nu-numai-in-poli-1164837.html, last accessed on October 25, 2022;

Dr. Camelia Bogdan
Former judge on the Bucharest Court of Appeals, Active Volunteer for Integrity Initiatives International, CEREFREA researcher