Filenews 28 April 2025 - by Michalis Paraskevas
A few days ago, a ruling by the European Court of Human Rights (ECtHR) brought to the fore the delicate issue of the criminal liability of judges when they abuse their power.
On 15 April 2025, the ECtHR delivered its judgment in the case of Bădescu and Others v. Romania, where three Romanian judges had been convicted of abuse of power in the exercise of their duties.
These judges were accused of adopting fraudulent behaviour before and during the drafting of a court decision, deliberately distorting facts and legal reasoning, in order to issue a predetermined outcome – the acquittal of a convicted person – in violation of the law.
In other words, they were prosecuted not simply because they issued a court order that may have been wrong, but because they acted in bad faith, deliberately undermining the legitimacy of justice to favour a particular defendant.
The ECtHR, in its judgment, unanimously held that Article 7 of the European Convention (principle of "no penalty without law") had not been violated.
Bad faith diversion and judicial error
A central issue in the judges' appeal was the predictability of the criminal law: they argued that the application of the offence of abuse of power to judicial acts was unclear and could not foresee that a court decision within the framework of their duties could be considered a criminal offence.
However, the ECtHR was convinced by the reasoning of the Romanian supreme courts, which had clearly separated the concepts of malevolent diversion from simple judicial error.
As the Supreme Court of Cassation of Romania has pointed out, the independence of judges is not absolute; it goes hand in hand with their responsibility to serve the law and does not shield them when they act fraudulently or with the intention of breaking the law.
If a judge simply errs in the assessment of evidence or in legal reasoning, this error is corrected on appeal and has no criminal consequences. However, if a judge intentionally misinterprets the law or the facts, consciously directing the proceedings towards an unlawful result, then it ceases to be an error of judgment and a criminal offence is established.
The ECtHR ruling confirmed that the Romanian legal framework was sufficiently clear for even experienced judges to know that a "harmful judicial decision rendered knowingly contrary to the law" could constitute a criminal offence, without undermining the principle of judicial independence.
In other words, these judges should have understood that their actions (the methodical circumvention of the law to benefit a defendant) could lead them to the dock. The dividing line that has been drawn – between bona fide judicial judgment and fraudulent abuse of judicial capacity – is at the core of the decision: the former is protected, the latter is punished.
Prison sentences for judges
The Bădescu case is not only of judicial interest but also characteristic of the role played by the Romanian National Anti-Corruption Agency, DNA (Direcția Națională Anticorupție).
The DNA functioned as an independent and self-acting prosecutorial institution, which undertook to bring sworn judges to justice. In particular, this Service opened a criminal investigation against the three judges of its own motion, immediately after the suspected acquittal they issued, prosecuting the offence of abuse of power and favouring a criminal
It is noteworthy that the DNA did not hesitate to reopen the case when it was initially dismissed due to legal doubts: In January 2014, DNA's chief prosecutor overturned an earlier decision to dismiss and ordered the resumption of criminal proceedings against the judges
. He then indicted and referred the judges to trial in April 2014. The independence and persistence of DNA proved decisive. When the court of first instance (Bucharest Court of Appeal) acquitted two of the accused judges in 2016, the DNA appealed against the acquittal verdict, considering that there was evidence of guilt.
The case went all the way to the Supreme Court (Supreme Court of Cassation), which in 2017 finally sentenced the two judges to prison sentences and in 2019 definitively upheld their guilt by rejecting the appeal.
At the same time, the third judge – who had allegedly been bribed – was found guilty in a separate case
. All this development bears the stamp of DNA: an institution with the power to investigate in depth, indict and exhaust legal remedies for serious corruption cases. The case highlighted that even judicial officials can be criminally held accountable when there are indications that they have operated in a corrupt manner, as long as there is a mechanism capable of carrying this out.
Cyprus' backwardness and the Anti-Corruption Authority
In contrast to the Romanian example, Cyprus to date does not have a similar independent anti-corruption prosecutorial body with operational responsibilities.
The newly established Independent Anti-Corruption Authority has limited powers. In particular, it does not have investigative or investigative powers of a criminal nature and cannot pursue criminal prosecutions itself, as the Constitution assigns them exclusively to the Attorney General.
The Anti-Corruption Authority essentially operates as a body that receives complaints, sets up investigation teams and can recommend investigations or prosecutions, but not carry them out independently. As has been pointed out, under the current regime, the Authority cannot conduct criminal investigations or initiate criminal proceedings
itself. Any findings must be forwarded to the Legal Service (the Attorney General), who will decide whether to open a criminal investigation or prosecution. In other words, the effectiveness of the Authority depends functionally and legally on the will of the Attorney General.
This structure has been heavily criticised, with a typical example being the case of a senior police officer, where the Anti-Corruption Authority recommended a criminal investigation, but the Attorney General disagreed and did not approve the prosecution
. When the Authority considered registering a private criminal case, it found that its legal status did not allow it to do so today. The persons who are called upon to initiate criminal proceedings, following the Nicolatos report on illegal naturalizations, are the Attorney General and the Assistant Attorney General, both of whom were members of the Council of Ministers itself that issued the illegal naturalizations.
In a few days, too, the Anti-Corruption Authority, which examines the accusations made against Nicos Anastasiades by Makarios Drousiotis, including accusations in relation to illegal naturalizations, will receive a testimony from the former President who appointed his former ministers to the Legal Service, which has the final say, regardless of any decision of the Authority.
*Advocates-Legal Consultants
