I. Introduction

On October 31, 3022, The Applicant respectfully submitted her observations and 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 advance of the 1451st (Human Rights) Meeting of the Ministers’ Deputies on the execution of judgments. In doing so, she responded briefly to the update and action plan presented by the Romanian Government in December 2021.[1] (available here)

The Applicant respectfully required that her submission for individual measures be analysed in the enhanced supervision procedure[2] considering the systemic failure of the Romanian system to assure access to Justice to judges who are illegally suspended for pronouncing a verdict, the delays encountered in disciplinary proceedings, including those related to notifying the decisions to judges preventing them from having access to Justice[3] and for the ongoing pressures against magistrates in Romania, which culminated with the dismissal of the EU’s first public prosecutor.[4]

In its Judgment in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, AFJR and others, the Court of Justice of the European Union (hereinafter the CJEU or the ECJ) clarified the judicial independence standards beyond the disciplinary regime to other forms of accountability, emphasizing that the competent authorities initiating and conducting investigation over the activity of magistrates capable of engaging the disciplinary, civil or criminal liability of judges and prosecutors must ‘act objectively and impartially in the performance of their duties, and that the substantive conditions and procedural arrangements leading to the exercise of those powers are such as not to give rise to legitimate doubts as to the impartiality of those authorities.’[5]

In Asociația Forumul Judecătorilor din România și alții, the Court recognized the direct effect of Article 2 TEU, noting that the requirement of the independence of the courts, which is inherent in the activity of the courts, relates to the essential content of the right to effective judicial protection and the fundamental right to a fair trial, which is essential as a guarantor of the protection of all rights arising from EU law and the preservation of the common values of the Member States set out in Article 2 TEU, in particular the value of the rule of law.

The Court ruled that CVM Decision 2006/928/CE is binding in its entirety on Romania as from its accession to the European Union and obliges it to address the benchmarks, which are also binding, set out in the annex to the decision. Those benchmarks, defined on the basis of the deficiencies established by the Commission before Romania’s accession to the European Union, seek in particular to ensure that that Member State complies with the value of the rule of law. In accordance with the principle of sincere cooperation, set out in Article 4(3) TEU, Romania is required to take appropriate measures to meet the benchmarks and to refrain from implementing any measure which could jeopardize the European values.[6]

As highlighted by the ECJ in other cases in which the Applicant was a party, in order to preserve the courts’ independence, it is necessary to prevent the disciplinary process from being diverted from its legitimate purposes and being used to exert political control over judicial decisions or to put pressure on judges[7]. As Martin Luther King, Jr. put it in his “Letter from Birmingham Jail,” “justice delayed is justice denied.” Here, the Rule of Law itself is in danger if the injustice caused by the powerful kleptocrats and their tentacles is not promptly sanctioned and if independent judges committed to fighting high-level Corruption are not adequately compensated when they have been denied access to fair and equal treatment before the courts.

In Applicant’s view, the enhanced procedure supervision should apply to cases involving an outright denial of justice (denegatio justitiae), the prevention of which is a pillar of customary international law.[8]

The Applicant underscored that the notion of Denial of Justice, which relates to the administration of Justice, is at the heart of the theory of international liability of sovereign states. Some understandings of the concept include judicial failure and legislative failures relating to the administration of Justice (for example, denying access to the courts).[9]

Over the past three decades, international tribunals have provided helpful guidance on interpreting investment treaties and multilateral agreements regarding denial of justice claims. Analyzing ‘Amto’s claims under Article 10(1) Energy Charter Treaty, the arbitral tribunal underscored that a claim of denial of Justice: ”…is a manifestation of a breach of the obligation of a State to provide fair and equitable treatment and the minimum standard of treatment required by International Law.[10]

Over the following decades, the European Court of Human Rights will be called upon to continue the development of the denial of justice doctrine in light of the evolution of customary international law, including the growing jurisprudence of international courts[11]. In Scordino v. Italy (No. 1), No. 36813/97, ECtHR, Judgment ¶ 195 (March 29, 2006), the European Court of Human Rights held that (“[I]t cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate. . . . In that connection the Court reiterates its case-law to the effect that the right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.”(citing, inter alia, to Paulino Tomás v. Portugal, No. 58698/00, ECtHR (March 27, 2003)).[12]

Change takes a long time, but it does happen. ‘Sometimes change occurs through individual advocacy, sometimes through policy reform, sometimes through a lawsuit.’[13]. The Applicant was, therefore, encouraged to express her commitment to social change by exercising her rights under Rule 9.1 of the Rules of the Committee of Ministers for the Supervision of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020. The Applicant is humbled and honoured to contribute to the evolution of Customary International Law. As Martin Luther King, Jr. put it: “The Arc of the Moral Universe is Long, but it Bends Toward Justice.”[14]

II. Relevant context

1. The professional background of the Applicant

The Applicant is a strategic and tactical former judge with nineteen years of broad experience in high-level Corruption and economic crime litigation and investigations. She also has extensive academic credentials. From her first Ph.D., awarded by Bucharest University in 2009 (with a dissertation focused on tackling money laundering derived from organized crime), she had the opportunity to develop her practical skills in the Anti-Money Laundering (AML) field. (See Annex no.1, the Resume of the Applicant). Since 2009, she has developed robust jurisprudence in countering transnational Corruption by adjudicating and imposing efficient and dissuasive sentences as a judge on the Bucharest Tribunal. She also consolidated the existing scholarship to enhance the powers of Romanian law enforcement agencies in relation to money-laundering activities. As an expert for the European Commission and the Council of the European Union, she participated in more than 40 international conferences or training sessions for law enforcement agencies. She has been invited or recommended by international institutions such as the World Bank, the European Commission, the Organization for Security and Cooperation in Europe, and the European Union Intellectual Property Office.

After being promoted to the Bucharest Court of Appeals in 2014, the Applicant issued several anti-money laundering final decisions. She ordered more than €500,000,000.00 forfeiture for the benefit of the Romanian government budget. In her landmark anti-money laundering cases, she firmly denounced the Romanian “laundromats,” the ongoing laundering of the Romanian ex-communist Secret Service (Securitate)’s funds through the back-to-back money laundering typology[15], the fraudulent privatization of the RAFO refinery[16], and the fraudulent privatization of the Institute of Food and Research[17]. She implemented relevant international provisions in asset recovery[18]. Through the support of the UNODC/World Bank Stolen Asset Recovery Initiative, she established a robust practice of carrying out parallel and proactive financial investigations to ensure that CRIME DOES NOT PAY.

From a chronological point of view, through the final Decision no.888/August 8, 2014, the Applicant sentenced Dan Voiculescu, a former Securitate officer[19], who had remained as the agent-in-fact, with a power of attorney over the ex-Securitate’s financial accounts, to a ten- year sentence, for fraudulent privatization, in the Food and Research Institute case[20]. The Applicant also ordered the total confiscation of his assets to recover a prejudice of $100,000,000.00 as proceeds of high-level Corruption. The Applicant ordered the forfeiture of the accounts of the companies Dan Voiculescu had controlled as beneficial owner, including Crescent Commercial and Maritime Ltd, founded by the State Security Department (“Crescent”) in 1982, to provide Ceausescu’ regime with revenues for the development of the economy[21]. Between 1982-1989, Crescent served as the depository for millions of dollars of foreign currency (conservatively estimated at $4,000,000,000.00) earned through the sale of steel products and building materials, pipes, and cement, carried out through I.C.E. Dunarea, the Securitate’s strategic trading company registered in Romania. The company was critical to Romania’s exports; Crescent in Cyprus accounted for 40% of Romania’s cement exports in 1988[22]. Transfers between Romania and Cyprus were hidden through currency arbitrage and complex networks of offshore bank accounts. The criminal Defendant Voiculescu had handled external operations for the Securitate using umbrella companies, including Crescent. I.C.E. Dunarea had opened numerous bank accounts to facilitate “arbitrage” for foreign currency transactions.

The Applicant’s judicial seizing of Crescent reopened the debate on the Romanian law enforcement’s authority to recover the sums remaining in the ex-Securitate’s account in 1989. When the Ceausescu regime fell, some of Crescent‘s contracts continued, and their profits went to its alter ego, Mr. Voiculescu, who did not return it [to the government treasury] because there was no one in power[23]. The amount of profit from the contract is unknown, considering that the operations by the Securitate during communism were entirely covert. The subsequent search for Ceausescu’s fortune has been circuitous and largely unsuccessful. Peat Marwick Thorne, the Canadian branch of UK accountants Peat Marwick Mitchell, was hired by the Government of Romania in 1990 to examine Crescent. They searched through numerous bank accounts in Switzerland and Cyprus for what was assumed to be some USD 4.4 billion of Securitate’s money.[24]

According to the investigations carried out by journalist Răzvan Savaliuc in Ziua in early 2000 (http://www.ziua.ro/display.php?id=44881&data=2000-06-05), 400 Million Dollars existing in the Crescent’s accounts, the offshore accounts established by Romania’s ex-Securitate in 1982, remained at the disposal of Mr. Dan Voiculescu, which he used to acquire his media empire and other assets[25]. The funds accumulated by I.C.E. Dunarea passed through The Romanian Bank for Foreign Trade (“RBFT”) before reaching Crescent‘s offshore Cypriot hidden bank account. For the two years following 1989, Voiculescu moved the beneficial ownership of Crescent to a series of companies under the Grivco, Bioprod, and Intact labels, further attempting to hide it.[26]

In 2014, the Applicant also convicted Marian Iancu to 12 years in prison and ordered the forfeiture of 200 mil USD as proceeds of tax evasion and money laundering. Through another final decision, no. 1217/ October 14, 2014, she proved that the so-called privatization of RAFO Onesti, Romania’s most crucial oil refinery, was, in fact, a transfer between two offshore companies controlled by the same Defendant.

In these two cases, which the Applicant heard as an appellate judge, she carried out parallel cross-border financial investigations to seize the proceeds of crime.[27]

In 2015, the Applicant ordered the seizure of 40 MIL EUR and traced the proceeds of another serious tax evasion offense in Senegal in RAFO no.2 case. To do so, she used her network contacts from StarInitiative. As a result, the Senegalese prosecutors opened an investigation into the fraudulent exploitation of the Senegalese oil resources.[28]

In 2016, the Applicant described the vulnerabilities of the Romanian anti-money laundering system through insolvency proceedings in the ULTRA PRO COMPUTER CASE (the proceedings related in the Application Camelia Bogdan against Romania (Application no. 32916/20).

Last but not least, in 2016, the Applicant uncovered the typology of back-to-back loan money laundering, through which the funds remaining in the offshore accounts controlled by the ex-Securitate were being laundered. She ordered the Romanian law enforcement authorities to open a Money Laundering investigation against the RBFT[29] for its failure to prevent money laundering and for turning a blind eye to the continuous money-laundering operations through back-to-back loan typology. She also published her Decision issued in case no.2428/2/2016 to raise better awareness about the vulnerabilities of the Romanian AML banking system: https://www.juridice.ro/470338/deturnarea-sistemului-bancar-in-scopul-spalarii-banilor-aspecte-de-practica-judiciara.html).

The European Court of Human Rights highlighted the Applicant’s skills in identifying and seizing the proceeds of crime from third parties in multiple jurisdictions “after examining all the evidence, including various documents and expert reports, and testimony given before it by all the defendants, witnesses, experts, and injured parties, in an extensively reasoned judgment of 275 pages” in Alexandru-Marian IANCU against Romania (Application no.17934/15). Recently, the European Court of Human Rights applauded her efforts to uphold the Rule of Law in money laundering cases in Voiculescu v. Romania (application no. 493/15) and Camelia Rodica Voiculescu and Others v. Romania (nos. 502/15, 1559/15, 2836/15 and 2839/15). The Court appreciated that judgment no. 888/8.08.2014, pronounced by a panel presided by the Applicant in the fraudulent privatization of the Food and Research case, was “extensively and thoroughly reasoned, based on copious evidence, and included replies to all arguments raised by the parties.” In this case, the applicants, including GRIVCO and Mr. Dan Voiculescu’s daughters, complained to the European Court of Human Rights after the Bucharest Court of Appeals, in a panel presided over by the Applicant, on August 8, 2014, had convicted Mr. Dan Voiculescu to 10 years imprisonment and ordered asset forfeiture of more than 100 Mil. EUR. towards the Romanian government budget. The Court held that the freeze order over all the assets controlled by Mr. Dan Voiculescu issued by the Bucharest Court of Appeal respected the guarantees of due process.

Despite his developments, the Romanian authorities returned him the direct proceeds of crime where the Institute of Food and Research operated.

First, on September 2019, the fiscal authorities and the Romanian asset recovery unit (ARO, ANABI)returned to ANTENA GROUP, a company owned and controlled by the immovable located in Garlei 1 D.[30]

Second, on June 8, 2021, the District Court no. 1 from Bucharest-Civil Section admitted the civil claim of GRIVCO (See Annex no.2, including the ruling in the application 27473/299/2018*) and refused to register in the favour of the Romanian state the immovable located in Garlei 1 B, representing the direct proceeds of crime of the Institute of Food and Research. 

Therefore, in Romania CRIME DOES PAY and the Applicant fully paid the price for being too effective in fighting high-level corruption and money laundering associated with.

To begin with, in December 2015, the Applicant was wrongfully removed from the Criminal Section to the Administrative Section by a Decision of a Boarding Members of the Bucharest Court of Appeal.[31]

Between 2015 and 2022, six frivolous disciplinary actions were brought against the Applicant by the Judicial Inspector’s Office, an institution controlled by Lucian Netejoru, which concluded on February 25, 2016, a Protocol with the Romanian Secret Service (hereinafter SRI), the legal beneficiary of the Securitate’s inheritance[32]. The SRI offered the Judicial Inspector privileged information collected by it to indict magistrates and reported to the SRI about how the inspectors used the data (See art. 3 and 4 of the Protocol). According to GRECO[33] and EU[34] reports, the Judicial Inspector is an institution lacking democratic legitimacy.

The Applicant was sent three times in front of the Superior Council of the Magistrature, another institution lacking legitimacy, according to EU reports (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021SC0724). In 2012, the Superior Council of the Magistrature concluded a Protocol with the SRI, to use information about the magistrates, without due process. As a result, The Applicant was twice wrongfully excluded from the Romanian judiciary on February 8, 2017, (the proceedings described in Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020) and on April 2, 2018 (the proceedings described in Camelia Bogdan against Romania (Application no.32916/20, in which the Court pronounced a Decision on October 20, 2022).

Mr. Dan Voiculescu is the beneficial owner of FACIAS, a foundation that he founded with the FOUNDATION DAN VOICULESCU, owned and controlled 100% by him (see Annex no.2, which includes: evidence that Mr. Dan Voiculescu is the beneficial owner of and has a power of attorney over CRESCENT COMMERCIAL & MARITIME (CYPRUS) LIMITED(Crescent), a company founded by the Romanian ex-Securitate to launder Securitate’s money; evidence that Dan Voiculescu controls Crescent through FUNDATIA DAN VOICULESCU PENTRU DEZVOLTAREA ROMANIEI, a company that he controls as the sole beneficial owner; evidence that Dan Voiculescu and DAN VOICULESCU PENTRU DEZVOLTAREA ROMANIEI, a foundation owned and controlled 100% by him founded FACIAS, which was an intervenor in the disciplinary proceedings described in Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020) In 2017, FACIAS, a company owned and controlled by Dan Voiculescu as beneficial owner, intervened ex parte in the disciplinary proceedings brought against the Applicant in the case that led to her first exclusion from the judiciary for providing lectures on anti-corruption to state public officials, on February 8, 2017 (the proceedings described in the Application 36889/18).

On May 31, 2018, the Applicant was again suspended ope legis from the judiciary after she appealed to the Supreme Court of Cassation and Justice her second disciplinary expulsion from the bench. Since April 12, 2022, the Applicant has been no longer a judge because she lost the appeal perfected before the Romanian Supreme Court of Cassation and Justice. In this case, she was accused of disrespecting the random distribution of cases and deliberately pronouncing a verdict in a money-laundering case (the Ultrapro Computers case) (case. no.2185/2/2015). The Supreme Court judges refused to argue their reasoning until October 31, 2022 and the file of the Applicant is deleted from the High Court of Romania so-called GDPR fears.[35]

After the Protocols concluded by the SRI, on the one hand, and Judicial Inspector’s office and the Superior Council of Magistrature of Romania (hereinafter, CSM), on the other hand, were declassified in 2018, the Applicant initiated many appeals against her first disciplinary sanction pronounced by the Supreme Court on December 13, 2022 (the proceedings described in Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020). The High Court of Cassation and Justice from Romania refused hearing the appeals on the merits. As a result, the Applicant’s financial accounts were frozen in 2019 and 2020, because she had been ordered to pay for Mr. Voiculescu’s and FACIAS’s attorneys’ fees, as the private foundation controlled by Dan Voiculescu had intervened in the disciplinary sanction. The Applicant had to pay the company owned by the convicted criminal more than 10,000 EUR because the Romanian authorities had failed to ultimately reinstate her (see Annex no.3, which includes evidence that the High Court of Cassation and Justice from Romania obligated the Presiding judge CAMELIA BOGDAN to pay the expenses incurred by the convicted criminal DAN VOICULESCU by intervening in disciplinary proceedings carried out against the Applicant).  

Furthermore, in 2020, the Applicant exposed how Dan Voiculescu, who has the Power of Attorney over the Romanian ex-Securitate’s funds transferred the remaining funds from Cyprus to London[36]; as a result, Crescent pressed charges against the Applicant.[37] The case, won by the Applicant at the Bucharest District Court no.1, is now pending at the Bucharest Tribunal.[38] The same year, the Grivco Group – Grupul Industrial Voiculescu & Co (GRIVCO), a company whose beneficial owner is Dan Voiculescu, sued the Applicant after she held a keynote address on “The Current State of Corruption in the European Union” (https://www.facebook.com/watch/live/?v=1090609314792632&ref=watch_permalink) at the Hamilton Lugar School for International and Global Studies, Indiana University, and after being interviewed by Ambassador Lee Feinstein (https://www.youtube.com/watch?v=fNYCJBEDPk0), sponsored by the National Endowment for Democracy’s International Forum for Democratic Studies. The same GRIVCO, a company owned and controlled by Mr. Dan Voiculescu, sued the Applicant requesting moral damages, after the Applicant exposed how he had transferred the funds remaining in Cyprus to London through shadow banking mechanisms in the case no.34387/3/2019 (See, for details about the case no. 34387/3/2019, https://portal.just.ro/3/SitePages/Dosar.aspx?id_dosar=300000000900380&id_inst=3)[40]. The case no. 14306**/3/2021, won by the Applicant at the Bucharest Tribunal, is now pending at the Bucharest Court of Appeals ((See, for details: https://portal.just.ro/2/SitePages/Dosar.aspx?id_dosar=300000000979329&id_inst=2, last accessed on October 12, 2022).

In retaliation, in 2021, the Judicial Inspector’s Office carried out another disciplinary proceeding against the Applicant, under the pretext of her no longer fulfilling the condition of having a good reputation. Instead, it was for having exposed the money laundering through the insolvency proceedings carried out in the files 34385/3/2019 and 34387/3/2019, for not apologizing that she had taught anti-corruption courses, and for having issued a money laundering verdict in the file 2185/2/2015.

These most recent disciplinary proceedings generated a new submission with the European Court of Human Rights in Camelia Bogdan against Romania (Application no. 32916/2020, in which the Court issued a decision on October 20, 2022) (See Annex no. 4 the Judicial Inspection Report from 2021 proposing a third expulsion from the bench of the Applicant, at the demand of GRUPUL DE INVESTIGATII POLITICE, owned and controlled by Mugur CIUVICA. GRUPUL and Antena3, whose beneficial owner is DAN VOICULESCU, are mentioned in the ECRH Decision of October 20, 2022, as the entities who published the proposal to settle offered by the ECtHR to the Applicant to close the case no. 32916/2020) (See Annex no.5, media papers from GRUPUL, ANTENA 3 SA, JURNALUL, falsely depicting the Applicant as a highly corrupt, abusive judge, after the Applicant convicted Mr. DAN VOICULESCU, and revealing that the Applicant had asked for moral damages in the case no. 2761/117/2019, mentioned in the ECtRH Decision from October 20, 2022).

In its latest assessment of the Romanian Government’s failure to uphold the Rule of Law, Oxford Analytica acknowledges that: ‘Iohannis has shown nonchalance in the face of such developments. He refused to spring to the aid of Bogdan, who presided over the panel that convicted Dan Voiculescu, a media mogul found guilty of Corruption. Mr. Voiculescu is the beneficial owner of Antena 3 SA., a TV station that has carried an outrageous mediatic campaign against me since 2014. Voiculescu recovered his influence; his media empire is intact. He regularly offers the President advice on economic matters‘[41] (See Annex no. 6, Oxford Analytica Report, Annex no. 6, Oxford Analytica (2022), “President is eroding Romania’s pluralist democracy,” attached, https://www.emerald.com/insight/content/doi/10.1108/OXAN-DB271597/full/html, last accessed on September 23, 2022).

2. The first suspension from the Judiciary of the Applicant (proceedings described in the case Camelia Bogdan v. Romania (no. 1) –Application no. 36889/18, in the judgment of October 20, 2020)

On February 8, 2017, CSM disbarred Camelia Bogdan from the Romanian Judiciary on disciplinary grounds. She was suspended for ten months. According to Romanian Legislation, she was not entitled to any financial remedy or social assurance services until the Supreme Court heard her case. The pretext for the exclusion raised rightful anxiety among the judicial community: she had presented as a lecturer in the anti-corruption program “The application of the Future Common Agricultural Policy. Prevention of Fraud and Corruption to Protect the Financial interests of the European Union” implemented by the World Bank. She taught anti-fraud courses for the APIA staff (an agency subordinated to the Ministry of Agriculture, which was the partie civile in the lawsuit against Voiculescu she was adjudicating)[42]. In common parlance, she was disbarred from Magistrature for training the State Public officials from Romania, one of the most corrupt countries in the European Union, to protect the European Union’s financial interests. The Supreme Court upheld the Decision, and she was removed to another Court of Appeals for six months, 600 km from Bucharest.

On March 21, 2017, the CSM suspended Camelia Bogdan from the bench until CSM resolved the appeal regarding her exclusion from the Magistrature. The suspension intervened ope legis.

By judgment of October 20, 2020, in the case Camelia Bogdan v. Romania (no. 1) –application no. 36889/18, the European Court of Human Rights found that Applicant’s Article 6 § 1 of the European Convention on Human Rights (right to a fair trial) had been violated.

The Court concluded that the right of access to a tribunal had been infringed because the Romanian statutory law or case law did not provide an adequate remedy to challenge the Decision of March 21, 2017, through which the Applicant was suspended from the duty of a judge. The ECtHR noted that the suspension from duty was automatic and produced effects between the date the appeal against the Decision of exclusion from the Magistrature was submitted and the end of the legal proceedings. Therefore, the suspension was illegal.

On January 20, 2021, the Applicant requested that the above case, in which the Court gave judgment on October 20, 2020, be referred to the Grand Chamber for the following additional arguments other than those developed by Att. Nicoleta Popescu on 14 January 2021. The Applicant argued that in her case, the Court failed to find a violation concerning the lack of legal certainty deriving from the infringement of the mandatory legal effects of the evaluation report issued by the National Integrity Agency, which is the competent Romanian authority to verify the conflict of interests and the incompatibilities of public servants.

This case raised serious issues regarding the disciplinary procedures against judges[43]. Its findings affect the independence of the judiciary and the Rule of Law due to the infringement of the global prohibition against Corruption, more precisely of the obligations established under art.7, 8, and 11 of the United Nations Convention against Corruption (UNCAC). More specifically, the Courts failed to analyse if specialized judges should be encouraged to intervene as experts in anti-corruption programs and if the regime of their incompatibilities is subject to the guarantees of the right of a fair trial.

In Romania, the duty to verify the incompatibilities of public service is incumbent on the National Agency of Integrity which assessed that the Applicant was not incompatible because she taught anti-corruption in a program sponsored by the World Bank[44]. Considering the role of specialized judges in preventing the Corruption of public officials, they should benefit from the guarantees of article 8 and article 11 of UNCAC, which encompass the right to a fair trial. In Applicant’s view, the issue of promoting the integrity of public officials in the fight against Corruption should have been scrutinized by the Grand Chamber.

Until March 3, 2021, Applicant’s Attorney Nicoleta Popescu did not notify the Applicant that the Court rejected the initial referral to the Grand Chamber submitted on January 15, 2021 by the Attorney.

On January 20, 2021, Attorney Nicoleta Popescu refused to send Applicant’s additional referral, and, as a result, the Court rejected the Applicant’s referral sent by post on January 20, 2021.

The European Court of Human Rights failed, therefore, to analyse if conducting disciplinary proceedings against a Romanian judge by a private foundation controlled 100% by the convicted oligarch DAN VOICULESCU was in accordance with the Rule of Law.

Additionally, The European Court of Human Rights failed to analyse if conducting disciplinary proceedings against Romanian judges under the Protocol concluded with the SRI, the successor of the Romanian Securitate, included the interest over CRESCENT, over which DAN VOICULESCU has a power of attorney, is in accordance with the Rule of Law.

Despite these inadequacies, the European Court of Human Rights established in Camelia Bogdan vs. Romania (Application no. 36889/18, Judgment of October 20, 2020) that the Applicant was denied Justice following her suspension from the judiciary, which intervened ope legis[45]. (Annex no. 7, Camelia Bogdan v. Romania: a case of the arbitrary suspension of a judge, Author(s): Stanislav Splavnic and Hartmut Rank Konrad Adenauer Stiftung (2020)).

3. The lack of remedies in the Romanian legislation/jurisprudence against the suspension of the judges as a result of the non-implementation of Camelia Bogdan vs. Romania (Application no. 36889/18, Judgment of October 20, 2020)

The Supreme Council of the Judiciary suspended a Romanian judge because she taught anti-corruption to State public officials. 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. In a state ruled by law, administrative proceedings should also abide by due process guarantees.

The Applicant lacked any legal remedy for challenging her illegal suspension for teaching anti-corruption between March 2017 and December 2017. 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.

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

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.

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.[46]

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.[47]

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.

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.

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

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.

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).

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 letter. 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).

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.

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 lin. 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 hearings. 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).

5. 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)).

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).

5.1. 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)

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).

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[48]. 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.

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.

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.

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.

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.‘

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

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. 

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

5.2 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

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.

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).’

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.

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 ensuring respect for the fair and equitable treatment of the opposing parties. 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.)

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.

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.

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.

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.[49]

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.[50]

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.[51]

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[52]. The bill is also notable for what it does not address.[53]

Moreover, considering the alignment of the interests of Voiculescu, et al. with the same governmental institutions who 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 in an effort 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 letter of the law, while at the same time completely violating the spirit of the law. Here, it would operate to further solidify the malodorous grasp that the corrupt and the criminal have over the Romanian legal system. Additionally, if 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, then 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 to include in its written statues (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.

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.

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. 

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.

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 to the competent organs of the State” and [t]he right to a public hearing, with proper safeguards, by the competent organs of the State.

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.’).[54]

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[55]. 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.

6. The nexus between the non-implementation of Camelia Bogdan against Romania (Application no. 36889/18, Judgment of October 20, 2020) and the Quest for Analysing the Individual Measures Requested by the Defendant in an Enhanced Supervision Procedure

The non-implementation of Camelia Bogdan (Application no. 36889/18, Judgment of October 20, 2020) has facilitated several other abusive acts of targeting the Applicant for her high-level work as an anti-corruption judge (See, 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 global 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).

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[56]. (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.[57])

According to OECD, 88% of the companies doing business in Romania assess rampant Corruption as the main threat to their assets[58]. Romania is planning to join the Organization for Cooperation and Security in Europe, and the retaliation of a judge for tackling high-level Corruption and efficiently combating money laundering undermines the success of the process. According the IMF, the absence of essential preconditions (e.g., the Rule of Law, transparency, and good governance) hampers the effective implementation of AML/CFT measures[59]. Judicial independence is the backbone of a society, and if it is broken, citizens are denied Justice.

The second suspension from the judiciary of the Applicant was a result of hearing an AML case, and lasted from May 31, 2018, until April 12, 2022, when the Supreme Court rejected the Applicant’s appeal against the expulsion from the judiciary. Until October 31, 2022, the High Court of Cassation and Justice failed to give its reasoning to Decision no. 83/April 12, 2022, (Annex no. 14, including evidence about the proceedings against the Applicant at the Romanian Supreme Court and evidence that the Decision no.83/April 12, 2022 was not drafted until October 31, 2022, although its deadline expired on May 12, 2022; evidence that the Decision no. 83/April 12, 2022 which was provided to the Applicant on October 31, 2022 does not contain any mention regarding the so-called lack of relevance of the discovery process in front of the Superior Council of the Judiciary and the High Court of Cassation and Justice, during which the Applicant asked supplementary evidence, including the cross-examination of Georgiana Tudor, the judge who left on vacation after summoning seven witnesses and the president of the Bucharest Court of Appeals and all the persons who have the legal attributions to verify the random allocation of cases at the Bucharest Court of Appeals/Second Criminal section; the transcript of the debate of the public session presided by Judge Camelia Bogdan on January 21, 2016 to verify the rationale of continuing the investigation phase after hearing the witnesses, which was communicated to the parties of the case no. 2185/2/2015 of the Bucharest Court of Appeals and also the transcripts of the public sessions presided by Judge Georgiana Tudor in the case no. 2185/2/2015 of the Bucharest Court of Appeals, to prove that Judge Georgiana Tudor only conducted an abbreviated procedure, during which she established that some of the defendants asked for guilty pleas, under art. 375 of the Romanian Criminal Procedure Code and and one did not agree and therefore the entire investigation phase, under Article 378 Criminal Procedure Code, was conducted by Judge Camelia Bogdan; other related procedures at the Supreme Court, including the refusal of the High Court of Cassation and Justice to pass on the priority question of the constitutionality of art. 99 para. o) of Law no.303/2004 which provides only one sanction for the disciplinary offense: the expulsion from the judiciary to the Constitutional Court).

The High Court of Cassation and Justice also refused to pass on the priority question of the constitutionality of art. 99 para. o) of Law no. 303/2004 to the Constitutional Court, which provides only one sanction for the disciplinary offense: the expulsion from the judiciary, which violates the principle of proportionality, which should govern each sanctioning regimen. ((Annex no. 14, including evidence about the proceedings against the Applicant at the Romanian Supreme Court and evidence that the Decision no. 83/April 12, 2022 was not drafted until October 31, 2022, although its deadline expired on May 12, 2022; evidence that the Decision no.83/April 12, 2022 which was provided to the Applicant on October 31, 2022 does not contain any mention regarding the so-called lack of relevance of the discovery process in front of the Superior Council of the Judiciary and the High Court of Cassation and Justice, during which the Applicant asked supplementary evidence, including the cross-examination of Georgiana Tudor, the judge who left on vacation after summoning seven witnesses and the president of the Bucharest Court of Appeals and all the persons who have the legal attributions to verify the random allocation of cases at the Bucharest Court of Appeals/Second Criminal section; the transcript of the debate of the public session presided by Judge Camelia Bogdan on January 21, 2016 to verify the rationale of continuing the investigation phase after hearing the witnesses, which was communicated to the parties of the case no. 2185/2/2015 of the Bucharest Court of Appeals and also the transcripts of the public sessions presided by Judge Georgiana Tudor in the case no. 2185/2/2015 of the Bucharest Court of Appeals, to prove that Judge Georgiana Tudor only conducted an abbreviated procedure, during which she established that some of the defendants asked for guilty pleas, under art. 375 of the Romanian Criminal Procedure Code and and one did not agree and therefore the entire investigation phase, under Article 378 Criminal Procedure Code, was conducted by Judge Camelia Bogdan; other related procedures at the Supreme Court, including the refusal of the High Court of Cassation and Justice to pass on the priority question of the constitutionality of art. 99 para. o) of Law no. 303/2004 which provides only one sanction for the disciplinary offense: the expulsion from the judiciary to the Constitutional Court).

Art. 99 para. o) Law no.303/2004 provides only one penalty for this offense: expulsion from the judiciary. The text does not prescribe any legal criteria for the Court to assess the proportionality of the penalty enforced against a judge. The refusal to pass on the priority question of the constitutionality of art. 99 o) of the Law no. 303/2004 to the Constitutional Court has consequences on the overall fairness of the trial (see Annex no. 14, including evidence about the proceedings against the Applicant at the Romanian Supreme Court and evidence that the Decision no.83/April 12, 2022 was not drafted until October 31, 2022, although its deadline expired on May 12, 2022; evidence that the Decision no. 83/April 12, 2022 which was provided to the Applicant on October 31, 2022 does not contain any mention regarding the so-called lack of relevance of the discovery process in front of the Superior Council of the Judiciary and the High Court of Cassation and Justice, during which the Applicant asked supplementary evidence, including the cross-examination of Georgiana Tudor, the judge who left on vacation after summoning seven witnesses and the president of the Bucharest Court of Appeals and all the persons who have the legal attributions to verify the random allocation of cases at the Bucharest Court of Appeals/Second Criminal section; the transcript of the debate of the public session presided by Judge Camelia Bogdan on January 21, 2016 to verify the rationale of continuing the investigation phase after hearing the witnesses, which was communicated to the parties of the case no. 2185/2/2015 of the Bucharest Court of Appeals and also the transcripts of the public sessions presided by Judge Georgiana Tudor in the case no.2185/2/2015 of the Bucharest Court of Appeals, to prove that Judge Georgiana Tudor only conducted an abbreviated procedure, during which she established that some of the defendants asked for guilty pleas, under art. 375 of the Romanian Criminal Procedure Code and and one did not agree and therefore the entire investigation phase, under Article 378 Criminal Procedure Code, was conducted by Judge Camelia Bogdan; other related procedures at the Supreme Court, including the refusal of the High Court of Cassation and Justice to pass on the priority question of the constitutionality of art. 99 para. o) of Law no. 303/2004 which provides only one sanction for the disciplinary offense: the expulsion from the judiciary to the Constitutional Court).

Additionally, on June 30, 2022, the Applicant was notified by the Romanian Prosecutor General that the Office of the Prosecutor attached to the High Court of Cassation and Justice opened a criminal investigation against the judges who carried out the illegal disciplinary proceedings against the Applicant (See Annex no. 15, evidence that the Romanian Prosecutor General notified the Applicant that the Office of the Prosecutor attached to the High Court of Cassation and Justice opened a criminal investigation against the judges who carried out the illegal disciplinary proceedings against the Applicant).

Despite these illegalities, the Applicant could not challenge the lack of proportionality of her suspension because the Romanian authorities failed to provide any legal remedies that would have allowed the Applicant to challenge the illegal suspension as a result of the non-enforcement of the lack of implementation of Camelia Bogdan v. Romania (Application no. 36889/18, Judgment of October 20, 2020).

No Court could have reasoned that the suspension was legal because the Applicant was sanctioned for conducting hearings and pronouncing a verdict in a money laundering case. To conclude, the Applicant was denied access to Justice because she ensured access to Justice for the Romanian citizens. Or, Justice is a Public Service, and Justice Delayed is Justice Denied.

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).

As a result, The Applicant suffered a disproportionate limitation of her right to enforce a European Court of Human Rights decision effectively. Her suspension was illegal, and she is entitled to individual remedies.

III. Conclusion and recommendations

Having in mind the circumstances above and the ongoing link between the violations identified in this judgment, the non-implementation of general measures, and the ongoing targeting of the Applicant to be removed from her position as a magistrate, the Applicant requested the Committee of Ministers to call on the Romanian authorities to:

– Include the period of her illegal suspension between May 31, 2018, and April 12, 2022, in her length of service in the Romanian judiciary;

– Provide her with the access to the entire evidence and reasoning behind Decision no. 83/April 12, 2022, of the Romanian High Court of Cassation and Justice, through which she was disbarred from the judiciary in order to bring another case in front of the European Court of Human Rights to allow reinstatement in the judiciary: 1. provide the Applicant with access to the entire file no. 927/1/2018 of the Romanian High Court of Cassation and Justice, including the files instrumented in front of the SCM and the Judicial Inspection; 2. provide the Applicant with access to no.2185/2/2015 (the Ultrapro case) of the Bucharest Court of Appeals, in order to be able to draft the application to the European Court of Human Rights, including the transcript of the first public session conducted by the Applicant on January 21, 2016, to verify the rationale of continuing the investigation phase after hearing the witnesses, which was communicated to the parties of the case no.2185/2/2015 of the Bucharest Court of Appeals and also the transcripts of the public sessions presided by Judge Georgiana Tudor in the case no. 2185/2/2015 of the Bucharest Court of Appeals, to prove that Judge Georgiana Tudor only conducted an abbreviated procedure, during which she established that some of the defendants asked for guilty pleas, under art.375 of the Romanian Criminal Procedure Code and and one did not agree and therefore the entire investigation phase, under Article 378 Criminal Procedure Code, was conducted by Judge Camelia Bogdan;

– Ensure the payment of her unpaid salaries, leasing costs from July 2018-November 2020, other compensations related to her salaries, and social security rights including the default interest attached to the correspondent benefits between May 31, 2018, and April 12, 2022, based on the margin of the length of service, at an estimated amount of 400000 EUR (see Annex no.16 for estimation).

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.

She attached the following documents to her submission:

1. Annex no.1 (the Resume of the Applicant);

2. Annex no. 2 (evidence that Mr. Dan Voiculescu is the beneficial owner of and has a power of attorney over CRESCENT COMMERCIAL & MARITIME (CYPRUS) LIMITED (hereinafter CRESCENT), a company founded by Romania ex-Securitate to launder Securitate’s money; evidence that Dan Voiculescu controls CRESCENT through FUNDATIA DAN VOICULESCU PENTRU DEZVOLTAREA ROMANIEI, a company that DAN VOICULESCU controls as the sole beneficial owner evidence that DAN VOICULESCU and evidence that Dan Voiculescu and DAN VOICULESCU PENTRU DEZVOLTAREA ROMANIEI, a foundation owned and controlled 100% by DAN VOICULESCU founded FACIAS, which intervened in the disciplinary proceedings described in Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020));

3. Annex no. 3 (evidence that the High Court of Cassation and Justice from Romania obliged the Presiding judge CAMELIA BOGDAN to pay the expenses incurred by the convicted person DAN VOICULESCU with the disciplinary proceedings carried out against the magistrate);

4. Annex no. 4 (the Judicial Inspection Report from 2021, proposes a third expulsion of the Applicant at the demand of GRUPUL DE INVESTIGATII POLITICE, owned and controlled by Mugur CIUVICA. GRUPUL and Antena 3 SA, whose beneficial owner is DAN VOICULESCU, are mentioned in the ECRH Decision from October 20, 2022, as the entities who published the proposal to settle offered by the ECHR to the Applicant during the Application no. 32916/2020);

5. Annex no. 5, media papers from GRUPUL, ANTENA 3 SA, JURNALUL, picturing the Applicant as a highly corrupted, abusive judge after the Applicant convicted Mr. DAN VOICULESCU, the person who remained with the power of attorney of the Securitate’s funds, to 10 years imprisonment and the evidence that the Applicant asked for moral damages in the case no.2761/117/2019, mentioned in the ECRH Decision from October 20, 2022);

6. Annex no. 6, Oxford Analytica (2022), “President is eroding Romania’s pluralist democracy,” attached,https://www.emerald.com/insight/content/doi/10.1108/OXAN-DB271597/full/html, last accessed on September 23, 2022;

7. Annex no. 7, Camelia Bogdan v. Romania: a case of the arbitrary suspension of a judge Author(s): Stanislav Splavnic and Hartmut Rank Konrad Adenauer Stiftung (2020)) last accessed on September 23, 2022;

8. 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 seizes the Applicant’s personal belongings, evidence that the signature of the Presiding Judge Mariana Ghena applied on the decision no.698/31 May 2018 by which the Applicant was suspended from the judiciary, is forged;

9. Annex no. 9: The No. 399/BIRP/10.05.2018 from the Bucharest Court of Appeals, informing the Applicant 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 and jurisprudence from the Bucharest Court of Appeals in accordance to 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 and 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 out 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 Inspection, 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’).

10. Annex no. 10, Observations submitted to the Court by the Applicant/Application no. 32916/2020;

11. 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;

12. 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.’

13. 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. no. 13 also includes press releases regarding the new legislation drafted by the Romanian specialists controlled by ex-Securitate granting immunity to Secret services;

14. Annex no. 14, including evidence about the proceedings against the Applicant at the Romanian Supreme Court and evidence that the Decision no.83/April 12, 2022 was not drafted until October 31, 2022, although its deadline expired on May 12, 2022; evidence that the Decision no.83/April 12, 2022 which was provided to the Applicant on October 31, 2022 does not contain any mention regarding the so-called lack of relevance of the discovery process in front of the Superior Council of the Judiciary and the High Court of Cassation and Justice, during which the Applicant asked supplementary evidence, including the cross-examination of Georgiana Tudor, the judge who left on vacation after summoning seven witnesses and the president of the Bucharest Court of Appeals and all the persons who have the legal attributions to verify the random allocation of cases at the Bucharest Court of Appeals/Second Criminal section; the transcript of the debate of the public session presided by Judge Camelia Bogdan on January 21, 2016 to verify the rationale of continuing the investigation phase after hearing the witnesses, which was communicated to the parties of the case no.2185/2/2015 of the Bucharest Court of Appeals and also the transcripts of the public sessions presided by Judge Georgiana Tudor in the case no.2185/2/2015 of the Bucharest Court of Appeals, to prove that Judge Georgiana Tudor only conducted an abbreviated procedure, during which she established that some of the defendants asked for guilty pleas, under art.375 of the Romanian Criminal Procedure Code and and one did not agree and therefore the entire investigation phase, under Article 378 Criminal Procedure Code, was conducted by Judge Camelia Bogdan;  other related procedures at the Supreme Court, including the refusal of the High Court of Cassation and Justice to pass on the priority question of the constitutionality of art. 99 para. o) of Law no.303/2004 which provides only one sanction for the disciplinary offense: the expulsion from the judiciary to the Constitutional Court;

15. Annex no. 15, evidence that the Romanian Prosecutor General notified the Applicant that the Office of the Prosecutor attached to the High Court of Cassation and Justice opened a criminal investigation against the judges who carried out the illegal disciplinary proceedings against the Applicant;

16. Annex no. 16, estimation of compensations related to salaries and unpaid social security rights.

IV. Barriers preventing Enforcing Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020

1. The Applicant was not awarded any financial remedies for being suspended for four years without Access to Justice for pronouncing a verdict in an AML case.

2. The Applicant’s submission in which she required the execution of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020 was not even published on the Council of Europe’s website.

3. On November 28, 2022, the Applicant addressed a new request for applying the Enhanced Supervision Procedure of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020, reiterating the pressures senior Romanian judges are facing for upholding the Rule of law in Romania. She also inquired H.E. Thórdís Kolbrún Reykfjörd Gylfadóttir, Committee of Ministers Chair,

about the reasons for not publishing the Submission by the Applicant under Rule 9.1 of the Rules of the Committee of Ministers for the Enhanced Supervision of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020 on https://hudoc.exec.coe.int/. (available here)

4. On December 12, 2022, one month and a half prior to her submission, the Applicant was informed by H.E. Dimitrina Lilloskova, The Head of the Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR to publish the Applicant’s submission on the European Court of Human Rights website because, in her view, the request concerns ”other aspects” that cannot be addressed by the Council of Ministers. (available here)

5. After carefully scrutinizing the following sources of authority: “Procedure and working methods for the Committee of Ministers’ Human Rights meetings, Rapporteur Group on Human Rights, 30 March 2016” and ‘Rules of the Committee of Ministers for the supervision of the execution of judgments and the terms of friendly settlements 
Adopted by the Committee of Ministers on 10 May 2006 at the 964th meeting of the Ministers’ Deputies and amended on 18 January 2017 at the 1275th meeting of the Ministers’ Deputiesand on 6 July 2022 at the 1439th meeting of the Ministers’ Deputies

iGuide Committee of Ministers – procedures and working methods’, on December 12, 2022, the Applicant exposed why H.E. Dimitrina Lilloskova’s decision to exercise the powers of the Committee of Ministers in a discretionary manner is not following the Law. In contrast, the Rules of the Committee of Ministers for the supervision of the execution of judgments and the terms of friendly settlements provide that the Committee of Ministers and not H.E. Dimitrina Lilloskova should decide on the merits of a submission. Until now, the Rule 9.1. Submission is not published on the Council of Europe’s website.

6. On December 12, 2022, the Applicant reached out to every representative of the 46 countries at the Council of Europe to ask for support in publishing her Rule 9.1.submission on the Committee of Ministers’ website because it relates to severe repercussions of Denial of justice/lack of effective remedies for judges suspended for pronouncing verdicts and the lack of safeguards for upholding the Rule of law at the European Court of Human Rights level.

6.1. The Applicant asked them to oversee the lack of transparency in enforcing Camelia Bogdan 1 v. Romania because the independence of the judiciary should not be sacrificed for an accessible entrance to Schengen by Romanian and Bulgarian representatives at the Departement for Execution of Judgments of the European Court of Human Rights. The European Court of Human Rights system should function in the interest of its major participants, the victims of the infringement of the rights protected by the European legal order under the Convention.

6.2. The Applicant underscored that the decision on whether the Committee of Ministers of the Council of Europe will award or not the compensations, in this case, does not fall within the sole attributions of the Head of the Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR: This task falls under the attributions of the Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR.

6.3. On the contrary, the Submission by the Applicant under Rule 9.1 of the Rules of the Committee of Ministers for the Enhanced Supervision of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020, should be published on your website. The DGI-Execution has already received and published the submission sent by Forumul Judecatorilor at:
https://hudoc.exec.coe.int/eng?i=DH-DD(2022)445E Rule 9.2 – Communication from an NGO (Romanian Judges Forum
Association) (11/04/2022) in the case of Camelia Bogdan v. Romania
(Application No. 36889/18) and the Action Report (16/11/2021) – Communication from Romania concerning the case of Camelia Bogdan v. Romania (Application No. 36889/18) https://hudoc.exec.coe.int/eng?i=DH-DD(2021)1225E, last accessed June 16, 2022. Under Rule 9.2, Forumul judecatorilor also mentioned the Applicant was deprived of access to justice. The Applicant’s submission does not contain only a request for compensation. Still, it provides feedback on the systemic failures of the Romanian authorities to provide access to justice and undermine the independence of the Judiciary.

6.3. The Applicant emphasized that she insists on publishing her submission on the Council of Europe’s website and discussed it with the Government Action Plan. She asked for the 46 Member states’ representatives’ support in this endeavor since H.E. Dimitrina Lilovska, Head DGI. – The Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR refused to publish her submission.

6.4. The Applicant asked for the permission of the Icelandic Government to forward this submission to the attention of H.E. Thórdís Kolbrún Reykfjörd Gylfadóttir Committee of Ministers Chair, Icelandic Minister for Foreign Affairs.

6.5. The Applicant also for the permission of the Romanian Government to consider the merits of Rule 9.1. Submissions, due to the severe consequences faced by the Romanian judges suspended from the Romanian judiciary for pronouncing a verdict.

7. On December 15, 2022, H.E. Oana Ezer, the Romanian Agent mentioned against all evidence that the Applicant asked for the execution of the decision pronounced by the Court on October 20, 2022 and not the one pronounced by the Court on October 20, 2020. (available here)

8. On December 15, 2022, the Applicant informed the Romanian authorities that she insists in enforcing Camelia Bogdan, because the Romanian Agent’s letter lacks legal reasoning:

8.1. First, H.E. Oana Ezer applauded the Applicant’s efforts in upholding the Rule of Law by establishing a global prohibition regime against harassment at the workplace

(See, for instance, Marius Ezer, Oana Ezer, “Workplace Harassment. Mobbing Phenomenon’’, http://www.businesslawconference.ro/revista/articole/an1nr1/33%20Marius%20Ezer%20si%20Oana%20Ezer%20Eng.pdf, last accessed on November 1, 2022;). Indeed, the Applicant has immense experience in tackling conflict of interests and creating a solid corporate culture to tackle any form of discrimination, harassment, or wrongdoing at the workplace, acquired as a judge and as a victim of mobbing and corruption. The Applicant wrote several academic papers on mobbing (moral harassment at the workplace) and attended conferences organized by the European Judicial Training Networks, exercising her leadership in this field. The Applicant is often quoted in the existent European initiatives because she identified the victims of harassment at the workplace directly or indirectly. exposed to moral harassment: “intimidation and harassment can have a detrimental impact on employees not directly subject to inappropriate behavior but also on who witness or become aware of it.”Her academic papers also include participating between 7-9.05.2007, in Rome, as a speaker at the conference ”Violence and Molestation in the Workplace: Working towards a European Strategy for Preventing and Fighting Mobbing”, presenting the research ˝Romania’s Experience in Preventing and Countering the Workplace Violence”, organized by the European Judicial Training Network (EJTN); participating on 19.06.2007, in Constanţa, at the conference ”How to Say NO to Sexual Harassment” and other two academic papers including ˝Considerations regarding the Opportunity of Implementing a Common European Strategy in Preventing and Countering Mobbing”, in the Labor Law Review no.6/2007, p.35-46, ISSN:1582-7534; ˝Criminalizing the Mobbing in the Romanian Penal Legislation” in the Criminal Law Review no.1/2008, p. 112-118, ISSN:1223-0790. She is also the Romanian contributor for the International Bar Association Report “Sextortion A crime of Corruption and Sexual Exploitation,” launched at the 2019 IBA Annual Conference in Seoul, South Korea, on September 25, 2019, https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=c0e2c3ec-fde8-45f3-b3af-731fb9d4d34f. H.E. Oana Ezer is committed, at least in her academic papers, to ensure the safeguards for victims of disciplinary harassment. There is no place for exercising the ”double-hatting” in front of the Committee of Ministers.

8.2. Second, on October 31, 2022, the Applicant respectfully submitted her observations and 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).

She justified why she respectfully required that her submission for individual measures be analyzed in the enhanced supervision procedure, considering the systemic failure of the Romanian system to assure access to Justice to judges who are illegally suspended for pronouncing a verdict, the delays encountered in disciplinary proceedings, including those related to notifying the decisions to judges preventing them from having access to Justice, and for the ongoing pressures against magistrates in Romania, which culminated with the dismissal of the EU’s first public prosecutor.

In her submission for remedies, the Applicant justified the nexus between her two suspensions.

In her Submission, the Applicant:

– set out developments regarding the second suspension, removal;

– explained what is the “connecting thread” behind the two suspension decisions and the removal decision: it is a rule of law issue/ the purpose is removal of uncomfortable judges ;

– explained how and why the first suspension is connected to second suspension – and indicate evidence for the causal link;

– although there was a second application ruled as inadmissible by the Court, the severe consequences the Applicant endured for pronouncing a verdict in an AML case for having been DENIED access to justice is a critical RoL issue, and the CM should still look at these developments;

– Still no access to an effective remedy, long period deprived of income / and possibility to practice profession => even the Government in its’ observations acknowledge the period is too long to be deprived of salaries.

Given her current situation as an applicant + the practice of disciplinary measures against uncomfortable judges continues, the Applicant emphasized how this case is seen and implemented is essential for the rule of Law in Romania. Otherwise, there is a risk that the practices against uncomfortable judges are successful.

The Applicant expressed her intention to make a Rule 9.1 submission + asked the DEJ to comment on this on June 15, 2022. She received positive comments and she was encouraged by the Romanian Division from the Directorate General of Human Rights and Rule of Law Department for the Execution of Judgments of the ECHR.

8.3 Third, in Rule 9.1. submission from October 31, 2022, the Applicant argued why the decision pronounced in Camelia Bogdan v. Romania (Application no. 32916/2020) represents a denial of
Justice, with strong arguments from the customary international Law:
See attached her submission, p.3-5 and Section 5 (available here)

V. Repercussions for Failure to uphold the Rule of Law under the Council of Europe’s legal order: the triple disbarment followed by the triple suspension of the Hon. Judge Daniela Panioglu and the Hon. Judge Alina Gulutanu, from the Bucharest Court of Appeals, without access to Justice.

1. On December 15, 2022, the Romanian Superior Council of the Magistracy disbarred thrice Hon. Judge Daniela Panioglu and Hon. Judge Alina Gulutanu, two senior judges on the Bucharest Court of Appeals, for tacking procedural measures and pronouncing verdicts.

2. Their triple disbarment was followed by a suspension ope legis. They remained without salaries and medical insurance, and until now, the CSM failed to provide them with the legal reasoning for their triple suspension and disbarment. (available here)

3. In their open letter, the two senior Bucharest Court of Appeals judges firmly denounced the corruption within the Romanian judiciary.[60]

4. Their Romanian colleagues and the Romanian associations fighting for an independent judiciary remained silent, primarily for fear of facing reprisals.

VI. The Quest of Remedies for Hedging the Risk of Denial of Justice in International Administrative Law

1. Change takes a long time, but it does happen. ‘Sometimes change occurs through individual advocacy, sometimes through policy reform, sometimes through a lawsuit.’[61]. The Applicant is, therefore, encouraged to express her commitment to social change by exercising her rights under a new Rule 9.1 of the Rules of the Committee of Ministers for the Supervision of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020.

2. The Applicant is humbled and honoured to contribute to the evolution of Customary International Law. As Martin Luther King, Jr. put it: “The Arc of the Moral Universe is Long, but it Bends Toward Justice.”[62]

3. As highlighted by the ECJ in other cases in which the Applicant was a party, in order to preserve the courts’ independence, it is necessary to prevent the disciplinary process from being diverted from its legitimate purposes and being used to exert political control over judicial decisions or to put pressure on judges[63]. As Martin Luther King, Jr. put it in his “Letter from Birmingham Jail,” “justice delayed is justice denied.” Here, the Rule of Law itself is in danger if the injustice caused by the powerful kleptocrats and their tentacles is not promptly sanctioned and if independent judges committed to fighting high-level Corruption are not adequately compensated when they have been denied accessto fair and equal treatment before the courts.

4. The enhanced procedure supervision should apply to cases involving an outright denial of justice (denegatio justitiae), the prevention of which is a pillar of customary international law[64].

5. The Applicant underscores that the notion of Denial of Justice, which relates to the administration of Justice, is at the heart of the theory of international liability of sovereign states. Some understandings of the concept include judicial failure and legislative failures relating to the administration of Justice (for example, denying access to the courts).[65]

6. Over the past three decades, international tribunals have provided helpful guidance on interpreting investment treaties and multilateral agreements regarding denial of justice claims. Analyzing ‘Amto’s claims under Article 10(1) Energy Charter Treaty, the arbitral tribunal underscored that a claim of denial of Justice: ”…is a manifestation of a breach of the obligation of a State to provide fair and equitable treatment and the minimum standard of treatment required by International Law.[66]

7. Over the following decades, the European Court of Human Rights will be called upon to continue the development of the denial of justice doctrine in light of the evolution of customary international law, including the growing jurisprudence of international courts[67]. In Scordino v. Italy (No. 1), No. 36813/97, ECtHR, Judgment ¶ 195 (March 29, 2006), the European Court of Human Rights held that (“[I]t cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate. . . . In that connection the Court reiterates its case-law to the effect that the right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.”(citing, inter alia, to Paulino Tomás v. Portugal, No. 58698/00, ECtHR (March 27, 2003)).[68]

8. Drawing from her experience in upholding the Rule of law, the Applicant acknowledges that the current process of providing safeguards for an independent judiciary lacks efficiency and has little prospect of success without appropriate diplomatic support and political will.

9. How can the Romanian government reduce the prevalence of Failure to uphold the Rule of Law? The Applicant is keen to contemplate more efficient remedies in supporting the Rule of Law in Romania, to be found in the interplay of different transnational legal orders providing safeguards for anti-corruption judges. Additionally, Romania has a significant legal obligation to its international borrowers to take positive measures to promote the independence of the judiciary. Last but not least, the allegations of corruption and the consequences derived from the lack of independent Courts could be raised sua sponte by international adjudicators in the upcoming international disputes brought against Romania before the International Centre for Settlement of Investment Disputes (ICSID).

10. Meanwhile, two senior Romanian judges from the Bucharest Court of Appeals bear a high price for exercising their functions according to the Law without access to Justice, for failure to enforce Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020, in an enhanced supervision procedure at the 1451st (Human Rights) Meeting of the Ministers’ Deputies on the execution of judgments, under Rule 9.1 of the Rules of the Committee of Ministers for the Enhanced Supervision of the Execution of Judgments on implementation of the individual measures in the case of Camelia Bogdan v. Romania (no. 1) – Application no. 36889/18, Judgment of October 20, 2020.

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[1] Action Report (16/11/2021) – Communication from Romania concerning the case of Camelia Bogdan v. Romania (Application No. 36889/18) https://hudoc.exec.coe.int/eng?i=DH-DD(2021)1225E, last accessed June 16, 2022;
[2] For the purpose of this submission, ‘Supervision procedure for cases requiring urgent individual measures, pilot judgments, and judgments revealing important structural and / or complex problems as identified by the Court and / or by the Committee of Ministers, and interstate cases. This procedure is intended to allow the Committee of Ministers to closely follow progress of the execution of a case, and to facilitate exchanges with the national authorities supporting execution.’ (https://www.coe.int/en/web/execution/glossary#{%2215005454%22:[27]},)last accessed June 16, 2022;
[3] 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);
[4] 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.
[5] See Dragos Calin (June 1, 2021), ‘The Court of Justice of the European Union, ultima ratio for saving the independence of the judges in Romania – a commentary of the CJEU preliminary ruling in C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 and C‑397/19, AFJR and others’, https://blogs.eui.eu/constitutionalism-politics-working-group/the-court-of-justice-of-the-european-union-ultima-ratio-for-saving-the-independence-of-the-judges-in-romania-a-commentary-of-the-cjeu-preliminary-ruling-in-c%E2%80%9183-19-c%E2%80%91127-19/, last accessed on October 30, 2022;
[6] See Dragos Calin (June 1, 2021), ‘The Court of Justice of the European Union, ultima ratio for saving the independence of the judges in Romania – a commentary of the CJEU preliminary ruling in C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19 and C‑397/19, AFJR and others’, https://blogs.eui.eu/constitutionalism-politics-working-group/the-court-of-justice-of-the-european-union-ultima-ratio-for-saving-the-independence-of-the-judges-in-romania-a-commentary-of-the-cjeu-preliminary-ruling-in-c%E2%80%9183-19-c%E2%80%91127-19/, last accessed on October 30, 2022;
[7] See Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034, para. 239;
[8] 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.
[9] For the purposes of this submission, “judicial action” includes “inaction” except where specifically noted otherwise.
[10] See, e.g.,  Limited Liability Company Amto v. Ukraine, No. 080/2005, Final Award (SCC 2008) (“Amto Final Award”);
[11] See, e.g., BTS Holding, A.S. v. Slovakia, No. 55617/17, European Court of Human Rights (“ECtHR”), Judgment ¶¶ 71-72 (30 June 2022) (finding that a domestic court refusal to enforce an arbitration award is a violation of Article 1 of Protocol No. 1 to the European Convention on Human Right, under which “[n]o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”); Scordino v. Italy (No. 1), No. 36813/97, ECtHR, Judgment ¶ 195 (29 March 2006) (“[I]t cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate. . . . In that connection the Court reiterates its case-law to the effect that the right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.” (citing, inter alia, Paulino Tomás v. Portugal, No. 58698/00, ECtHR (27 March 2003)), reference 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.;
[12] reference 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.;
[13] Deborah Ellis (October 21, 2011), “The Arc of the Moral Universe is Long, But it Bends Toward Justice.”, https://obamawhitehouse.archives.gov/blog/2011/10/21/arc-moral-universe-long-it-bends-toward-justice, last accessed on October 26, 2022;
[14] From October 7, 2022, the Applicant is an active volunteer for Integrity Initiatives International (III), whose mission is to strengthen the enforcement of criminal laws to punish and deter leaders who are corrupt and regularly violate human rights. Camelia Bogdan’s volunteering tasks include but are not limited to: researching and writing memoranda on topics related to grand corruption, global anti-corruption efforts and international law; conducting research on political developments such as elections and protests in a range of priority countries for the campaign for the International Anti-Corruption Court; performing case studies to analyze the nature of grand corruption in countries around the world and opportunities to strengthen anti-corruption enforcement; contributing to country specific strategies for government outreach and civil society engagement related to the campaign for the International Anti-Corruption Court; tracking national-level anti-corruption policy developments in a range of countries; participating in meetings with partners, board members, and government representatives;
[15] See, the Romanian Commercial Bank case, Bucharest Court of Appeals; file no. 2428/2/2016, Judgment from June 10, 2016; References about the case are deleted from the Bucharest Court of Appeals website;
[16] See, the RAFO case, file no.36794/3/2005 the final decision no.1207/October 12, 2014 of the Bucharest Court of Appeals; References about the case are deleted from the Bucharest Court of Appeals website;
[17] See, the ICA case, file no. 25497/3/2012** the final decision no.888/August 8, 2014 of the Bucharest Court of Appeals; References about the case are deleted from the Bucharest Court of Appeals website;
[18] See, for a recent acknowledgement, 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 12, 2022;
[19] According to Tom Gallagher, “Dan Voiculescu was a general in Ceausescu’s intelligence service, a fact which is well documented” (see for further details Tom Gallagher, Emerging from the Shadows
Ceauşescu’s Court Poet Makes a Comeback Tom Gallagher, Central Europe Review, Vol 2, No 35, 16 October 2000, http://www.ce-review.org/00/35/gallagher35.htm).The National Council for the Study of Securitate Archives (CNSAS) – the institution set up to examine the Securitate (in Romanian, the Departamentul Securității Statului) in post-Communist Romania — records that Voiculescu was recruited by the Securitate in 1970.
[20] See, for details, http://hn.ro/ancheta-7475495-dosarul-dan-voiculescu.htm, last accessed October 12, 2022;
[21] See, for more details about the inheritance of Securitate, Deletant, D. (2001). The Securitate Legacy in Romania. In: Security Intelligence Services in New Democracies. Studies in Russia and East Europe. Palgrave Macmillan, London. https://doi.org/10.1057/9781403905369_6; Paul Hockenos (February 3, 2021) Long Shadow: How Romania’s Securitate Turned the Revolution into Riches, https://balkaninsight.com/2021/02/03/long-shadow-how-romanias-securitate-turned-the-revolution-into-riches/, last accessed on October 1, 2022; (See, Visegrad Insight (2021), The Broken Justice System in Central Europehttps://visegradinsight.eu/the-broken-justice-system-in-central-europe/(guest speaker); last accessed: : September 23, 2022 and 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: September 23, 2022; See, Razvan Savaliuc, Caracatița Crescent (Crescent, La piovra), Ziua Newspaper, http://www.ziua.ro/display.php?id=44881&data=2000-06-05, last accessed October 12, 2022;
[22] See for instance, Razvan Savaliuc, Adina Anghelescu, Voiculescu is the Devil, published in ZIUA (Romanian Newspaper), February 2005, http://www.ziua.ro/display.php?data=2005-02-14&id=169507; last accessed October 12, 2022;
[23] See, Sorin ROSCA STANESCU, Dan Voiculescu, a pirate in Romania’s accounts, Ziua, February 2005, http://www.ziua.ro/display.php?data=2005-02-14&id=169506; english.hotnews.ro/stiri-top_news-2107450-18-years-romanian-late-dictator-ceausescu-bank-accounts-are-still-blurred.htm; last accessed October 12, 2022;
[24] See, Razvan Savaliuc, Caracatița Crescent (Crecent, La piovra), Ziua Newspaper, http://www.ziua.ro/display.php?id=44881&data=2000-06-05, last accessed October 12, 2022;
[25] See, Razvan Savaliuc, Caracatița Crescent (Crecent, La piovra), Ziua Newspaper, http://www.ziua.ro/display.php?id=44881&data=2000-06-05, last accessed October 12, 2022;
[26] See, Razvan Savaliuc, Caracatița Crescent (Crecent, La piovra), Ziua Newspaper, http://www.ziua.ro/display.php?id=44881&data=2000-06-05, last accessed October 12, 2022;
[27] See, for the financial investigations carried out in RAFO, Camelia Bogdan, Le recouvrement des avoirs criminels en droit français’, Éditions Universitaires Européennes, OmniScriptum GmbH & Co. KG, Dusseldorf, Germany, 2016;
[28] See, https://www.seneplus.com/opinions/comment-vole-le-petrole-senegalais; last accessed October 12, 2022;
[29] See, http://business-review.eu/news/bcr-hit-by-money-laundering-accusations-diicot-notified-108881, last accessed October 12, 2022;
[30] See, https://www.g4media.ro/exclusiv-antena-group-a-cumparat-cu-10-milioane-de-euro-fostul-sediu-ica-confiscat-de-la-voiculescu-judecatoarea-camelia-bogdan-beneficiarul-real-al-antenei-group-este-dan-voiculescu-stat.html; last accessed October 12, 2022;
[31] See, EXCLUSIV Antena Group a cumpărat cu 10 milioane de euro fostul sediu ICA confiscat de la Voiculescu / Judecătoarea Camelia Bogdan: ”Beneficiarul real al Antenei Group este Dan Voiculescu. Statul ar trebui să confiște imobilul din nou” https://www.hotnews.ro/stiri-esential-20553424-judecatoarea-camelia-bogdan-mutata-sectia-penala-curtii-apel-bucuresti.htm, last accessed October 12, 2022; (See Annex no.2, which also includes the decision no.85/25 January, 2016 of the Bucharest Court of Appeals, (final)referencing the direct and the direct proceeds of crime of Mr. Dan Voiculescu);
[32] See, https://www.juridice.ro/607718/protocolul-inspectia-judiciara-sri-2006.html., last accessed on October 25, 2022;
[33]See, https://rm.coe.int/ad-hoc-report-on-romania-rule-34-adopted-by-greco-at-its-79th-plenary-/16807b7717., last accessed on September 23, 2022;
[34] See, (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021SC0724), last accessed on September 23, 2022;
[35] See, Virgil Burlă (21.09.2022), 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=IwAR2kXqHiJGwkFwHVGS14dAXtpX3YWNR4R94JzAGkmf5g6uHJk1zXP_F1ZhE, last accessed on September 23, 2022;
[36] See, http://economica.org.uk/ancillary-request-for-action-in-support-of-the-respondent-obligor-grupul-industrial-voiculescu-and-compania-grivco-sa/?fbclid=IwAR3VNdwCNT04C5Ngd5-OyWi-djkr6Uvm8miIQstjS2FBc1t71KHJE-vxwvs.), last accessed: September 23, 2022;
[37] See, Visegrad Insight (2021), The Broken Justice System in Central Europe, https://visegradinsight.eu/the-broken-justice-system-in-central-europe/(guest speaker); last accessed: September 23, 2022; 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: September 23, 2022;
[38] See, for details: https://portal.just.ro/3/SitePages/Dosar.aspx?id_dosar=29900000000834213&id_inst=3, last accessed on October 12, 2022.
[39] See, Petre M.Iancu (1.12.2021), România cu inima curată: nu e totul pierdut cât mai luptă Camelia Bogdan
https://www.dw.com/ro/rom%C3%A2nia-cu-inima-curat%C4%83-nu-e-totul-pierdut-c%C3%A2t-mai-lupt%C4%83-camelia-bogdan/a-59988633, last accessed on September 23, 2022;
[40] See, Petre M.Iancu (1.12.2021), România cu inima curată: nu e totul pierdut cât mai luptă Camelia Bogdan
https://www.dw.com/ro/rom%C3%A2nia-cu-inima-curat%C4%83-nu-e-totul-pierdut-c%C3%A2t-mai-lupt%C4%83-camelia-bogdan/a-59988633, last accessed on September 23, 2022;
[41] Oxford Analytica (2022), “President is eroding Romania’s pluralist democracy“, attached, https://www.emerald.com/insight/content/doi/10.1108/OXAN-DB271597/full/html, last accessed on September 23, 2022;
[42] See, for more details, 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; 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: September 23, 2022;
[43] See, Ambassador Lee Feinstein addressing the inadequacies of the ECHR Judgement of October 20, 2020: https://www.youtube.com/watch?v=fNYCJBEDPk0, last accessed on October 14, 2022;
[44] See, for the legal competence of National Agency of Integrity(ANI) to investigate the potential incompatibilities of judges: http://www.networkforintegrity.org/continents/europe/national-integrity-agency-ani/, last accessed Jan. 20, 2021: “In its nine years of activity, the ANI has finalized over 12,000 investigations, identifying 1,461 cases of incompatibilities, 484 cases of administrative conflicts of interests, 139 cases of significant differences between incomes and assets, 304 criminal conflicts of interests and 333 cases of strong suspicion of criminal offence or corruption. These cases involved 122 deputies, 33 senators, 23 presidents and vice-presidents of county councils, 6 ministers, 5 general secretaries, 21 magistrates, 1,358 local elected officials’ and276 persons with management and/or control positions within public institutions”.
[45] See, Camelia Bogdan v. Romania: a case of arbitrary suspension of a judge Author(s): Stanislav Splavnic and Hartmut Rank Konrad Adenauer Stiftung (2020) Stable URL: https://www.jstor.org/stable/resrep28916 Accessed: 25-10-2022 13:36 UTC;
[46] 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;
[47] 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;
[48] 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;
[49] 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;
[50] 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;
[51] 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;
[52] 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;
[53] 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;
[54] 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;
[55] 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.;
[56] 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;
[57] 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;
[58] OECD (2022), OECD Economic Surveys: Romania 2022, OECD Publishing, Paris, https://doi.org/10.1787/e2174606-en., last accessed: March 8, 2022, quoting European Commission (2019b), Eurobarometer 482: Businesses’ Attitudes towards Corruption in the EU);
[59] IMF, Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT)—
Report on the Review of the Effectiveness of the Program, last accessed on October 3, 2022; p.93;
[60] See https://www.g4media.ro/judecatoarea-daniela-panioglu-exclusa-de-3-ori-din-magistratura-in-aceeasi-zi-razbunare-care-face-dovada-unui-fenomen-de-coruptie-in-interiorul-sistemului-judiciar-judecatoarele.html, last accessed on January 4, 2023.
[61] Deborah Ellis (October 21, 2011), “The Arc of the Moral Universe is Long, But it Bends Toward Justice.”, https://obamawhitehouse.archives.gov/blog/2011/10/21/arc-moral-universe-long-it-bends-toward-justice, last accessed on October 26, 2022;
[62] From October 7, 2022, the Applicant is an active volunteer for Integrity Initiatives International (III), whose mission is to strengthen the enforcement of criminal laws to punish and deter leaders who are corrupt and regularly violate human rights. Camelia Bogdan’s volunteering tasks include but are not limited to: researching and writing memoranda on topics related to grand corruption, global anti-corruption efforts and international law; conducting research on political developments such as elections and protests in a range of priority countries for the campaign for the International Anti-Corruption Court; performing case studies to analyze the nature of grand corruption in countries around the world and opportunities to strengthen anti-corruption enforcement; contributing to country specific strategies for government outreach and civil society engagement related to the campaign for the International Anti-Corruption Court; tracking national-level anti-corruption policy developments in a range of countries; participating in meetings with partners, board members, and government representatives;
[63] See Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, ECLI:EU:C:2021:1034, para. 239;
[64] 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.
[65] For the purposes of this submission, “judicial action” includes “inaction” except where specifically noted otherwise.
[66] See, e.g.,  Limited Liability Company Amto v. Ukraine, No. 080/2005, Final Award (SCC 2008) (“Amto Final Award”);
[67] See, e.g., BTS Holding, A.S. v. Slovakia, No. 55617/17, European Court of Human Rights (“ECtHR”), Judgment ¶¶ 71-72 (30 June 2022) (finding that a domestic court refusal to enforce an arbitration award is a violation of Article 1 of Protocol No. 1 to the European Convention on Human Right, under which “[n]o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”); Scordino v. Italy (No. 1), No. 36813/97, ECtHR, Judgment ¶ 195 (29 March 2006) (“[I]t cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate. . . . In that connection the Court reiterates its case-law to the effect that the right of access to a tribunal guaranteed by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.” (citing, inter alia, Paulino Tomás v. Portugal, No. 58698/00, ECtHR (27 March 2003)), reference 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.;
[68] reference 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.;

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