CEDH · CASELAW;CLIN;ENG — 9 janvier 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Legal summary January 2025 Cavca v. the Republic of Moldova - 21766/22 Judgment 9.1.2025 [Section V] Article 6 Article 6-1 Fair hearing Disciplinary proceedings against a public official resulting in his dismissal after being allegedly incited by an undercover State agent to accept a bribe as part of a professional integrity test: violation Facts – The applicant was dismissed from his job as a public official in the Environmental Protection Inspectorate (EPI) for committing a disciplinary offence, namely accepting a bribe, to which he had been incited by an undercover State agent, as part of a random professional integrity test of EPI employees, previously authorised by a judge. The same judge reviewed the test results and concluded that the applicant had failed the test on account of accepting a bribe offered by an undercover State agent and that he would have acted in the same manner even in the absence of any involvement of the State authorities. The applicant was then dismissed by the EPI. He unsuccessfully challenged that decision before the domestic courts, arguing that he had been entrapped by State agents and that the sanction of dismissal had been disproportionate. Law – Article   6 §   1: (1) Applicability – (a) Criminal limb – The applicant had not been convicted of any offence characterised under domestic law as “criminal” but had been sanctioned for behaviour that belonged to the sphere of disciplinary law. While some aspects of the applicant’s wrongdoing had probably resembled constitutive elements of the criminal offence of corruption, what was sanctioned under the relevant legal regime was the attitude shown by the person concerned during an artificially created test situation and not the commission of a specific act prohibited by law. Accordingly, the breach of the relevant rules had not been criminal but disciplinary in nature. Furthermore, the sanctions applicable for a disciplinary offence had ranged from warnings and reprimands to suspension of the right to be promoted and dismissal – typical disciplinary sanctions. The applicant had not risked detention or a large fine, but had instead been dismissed, which had meant that for five years he had had no right to be re-employed as a public official. In view of the above elements the Court concluded that the disciplinary proceedings against the applicant had not concerned the determination of a criminal charge within the meaning of Article   6. Conclusion : Article   6 not applicable under its criminal limb. (b) Civil limb – The proceedings in respect of the decision imposing a disciplinary sanction on the applicant had been decisive for his rights in so far as they could have led to the setting aside of that sanction had his appeal been allowed. As to the “civil” nature of such a right, the domestic law allowed a public official to challenge a disciplinary sanction in court, a right the applicant had availed himself of. Conclusion : Article   6 applicable under its civil limb. (2) Merits – (a) Relevance of criminal fair trial guarantees to civil proceedings and the Court’s approach – The proceedings against the applicant had involved an assessment of his attitude and behaviour during an artificially created situation, albeit designed to reproduce events that might typically occur in his professional activities. In order to ensure the fairness of the proceedings, such an assessment had to include the question whether the observed behaviour betrayed an attitude incompatible with professional requirements or was unduly induced and therefore was an unreliable basis for finding a disciplinary fault. In such circumstances, while it appeared clear that the elements to be proved and the standard of proof required had not been the same as in criminal proceedings, there were sufficient elements in favour of drawing inspiration, with appropriate adjustments, from the fair trial guarantees developed in the Court’s case-law under Article 6   §   1 in respect of entrapment in the context of criminal proceedings. However, the Court had to take into account the specificity of professional integrity testing which involved the authorities artificially creating situations which were similar to those that might occur in the context of the professional activity of the persons being tested to see how they react. Therefore, and also in view of the lack of criminal liability for acts committed as a result, the Court considered that subjecting a person to such a test, by which the person’s resolve to uphold rules of professional conduct was verified, did not in itself amount to entrapment and was not incompatible with the requirements of Article   6 §   1. Nevertheless, since evidence of misconduct resulting from professional integrity testing could often be decisive for the outcome of disciplinary proceedings against the person tested, strong procedural guarantees applied to the planning, execution and evaluation of such testing. That must include the right of the person concerned to challenge the test results in court and the domestic courts’ obligation to properly deal with the arguments raised, including any plea of entrapment. (b) Application of the Court’s approach – (i) Initial planning and execution of the test – The domestic law provided for a detailed procedure whereby a judge was to authorise professional integrity testing within a specific public agency after reviewing both the need for such testing and the specific manner in which it would be carried out. Those constituted sufficient guarantees at that initial stage, including judicial authorisation and subsequent supervision. Prior to the integrity test being carried out, the authorities had had no objective suspicions that the applicant had been involved in any prohibited activities or had been predisposed to take part in such activities – an important element in determining whether a person had been subject to entrapment in criminal proceedings. However, the purpose of such testing was not necessarily to verify already existing suspicions concerning an identified individual. As regards the planning stage of random testing of an entire group of persons, the Court held that it was important that the authorities clearly identified and proved the existence of a risk of corrupt behaviour within that group; the absence of prior knowledge of reprehensible conduct by an identified individual was of lesser importance than in criminal proceedings. In the applicant’s case, the authorities had clearly identified a risk of corruption within the EPI, as also confirmed by a judge. Regarding the execution stage of the testing procedure, the applicant had raised an arguable claim about entrapment, which the domestic courts had had to respond to and to draw the relevant conclusions from such a finding. However, there was no need to decide on whether the applicant had been indeed subjected to entrapment, because there had been flagrant procedural deficiencies. (ii) Evaluation of the testing and procedural guarantees in general – The applicant had expressly raised the argument he had been entrapped but only the judge who had authorised the testing had examined that question. That judge had found, that the applicant would have breached the rules of professional conduct even without the involvement of the agent, without explaining how he had arrived at that conclusion. Moreover, that decision had been made on the basis of the file and without hearing the applicant or considering his evidence or submissions on the entrapment. The Court was not convinced that such issues could be decided properly without hearing the applicant and the tester in adversarial proceedings. In addition, the applicant could not appeal that decision, while the EPI could appeal and ask for any additional matter to be examined. By the time the applicant could submit any arguments and evidence to the disciplinary commission and the courts when challenging his dismissal, the crucial decision – whether or not he had failed the professional integrity test – had already been taken and the courts in the dismissal proceedings had been prevented by law from reopening or disregarding it. In such circumstances, the judge’s finding that there had been no entrapment had not included a proper reasoning, with reference to facts and thus had failed to properly deal with the applicant’s argument. In addition, the proceedings had been tainted by procedural flaws, notably the failure to observe the principle of equality of arms by not hearing the applicant or allowing him to appeal. The impossibility for the other domestic courts, which had had the benefit of hearing the parties and examining their arguments, to deal with the issue of entrapment in any way, did not improve the situation. In conclusion, the domestic courts had failed to comply with their obligation to examine the applicant’s plea of entrapment effectively and had not ensured that the proceedings had been adversarial. Therefore, the fair trial guarantees had not been observed. Conclusion : violation (unanimously). Article   41: finding of a violation sufficient in respect of non-pecuniary damage; claim for pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .