Monday, 5 December 2011

Immunity of Judges in Practice

The question of the immunity of judges arose in Strasbourg in the past two months in the context of a search of the Romanian house of judge Corneliu Bîrsan, one of the Court's longest-serving judges (since 1998). The direct reason was that the wife of judge Bîrsan, a judge serving in Romania's highest appeal court, is being investigated for corruption, on the suspicion of accepting bribes (jewellery and travels). When the couple's home was searched in Romania, this raised problems with regard to immunity of judges of the European Court of Human Rights. On 10 October the President of the European Court issued a statement in which he indicated that immunities of Strasbourg judges in principle also cover their spouses (under the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe and Article 51 of the European Convention on Human Rights) and showed his concern that Romania had not requested a waiver of immunity. As the press release states:

"in carrying out a search in the home of the Romanian judge as part of an inquiry concerning allegations about his wife the rules on immunity may not have been respected. The Court has requested the Romanian Government to indicate whether they have grounds for asking the Court to waive the judge’s immunity. Under the terms of Article 4 of the Sixth Protocol only the plenary Court is empowered to waive a judge’s immunity."
This wake-up call led to a Romanian reaction only after a few weeks. On 16 November Romania asked for such a waiver. Within a week, the plenary Court decided to allow a waiver of imunity for judge Bîrsan's wife but not for himself and only to the extent "strictly necessary for the investigation". It added that this waiver has no retroactive effect. The earlier search is thus in principle still contrary to the Protocol on privileges and immunities. As to the political side of the matter, Romania is currently being monitored by the European Commission as part of post-accession mechanisms of the European Union. One of the main points of concern is the extent to which the country is serious about its fight against corruption. Even this battle itself, however, will have to comply with the rule of law.

See also coverage by the EU Observer here and here.

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