Introduction
In the case no.16915/21, Danileţ v. Romania, the European Court of Human Rights held on February 20, 2024, by a majority (four votes to three), that there had been a violation of Article 10 of the European Convention on Human Rights and the sanction imposed on the judge for Facebook posts concerning matters of public interest infringed his freedom of expression.
The case concerns the limits of freedom of expression in the situation of a judge who, at the time of the facts, held neither the position of president of any supreme court nor a member of a judicial council, nor the position of representative of a professional association. From this point of view, the ECtHR decision seems to bring some jurisprudential clarifications. We will present below the main lines of the Court's reasoning, aspects related to the situation of Romanian judges regarding the freedom of expression and the inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice, as well as the need to avoid the direct intimidation or silencing of judges.
Facts
At the relevant time, Cristi Danileţ was a judge at Cluj County Court and he was well known for actively taking part in debates and enjoyed a certain nationwide renown in Romania. In January 2019, he posted two messages on his publicly accessible Facebook page, which had roughly 50,000 followers, and for which, in May of that year, the Superior Council of Magistracy (SCM) imposed a disciplinary penalty on him, consisting in a 5% pay cut for two months and based its decision on Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors.
As to the first message, which was republished and commented on by numerous media followers, the SCM found that Cristi Danileţ had – unequivocally and before thousands of readers – cast doubt on the credibility of public institutions, insinuating that they were controlled by the political class and proposing as a solution that the army intervene to ensure constitutional democracy. It considered that Cristi Danileţ had impaired the honour and good reputation of the judiciary, and that he had breached his duty of restraint in a manner that had been able to tarnish the good reputation of the judiciary.
In his second message, Danileţ had posted on his Facebook page a hyperlink to an article in the press entitled “A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the judiciary” and had published a comment praising the courage of the prosecutor in question taking into account that he dared to speak openly about the release of dangerous inmates, about the catastrophic initiatives to amend the Justice laws on the way the judicial system was organised, and about the verbal attacks against judges. The SCM considered that the language used in Judge Danileţ’s published comment had overstepped the limits of decency and had been unworthy of a judge.
In May 2020, the High Court of Cassation and Justice dismissed Judge Danileţ’s appeal and upheld the SCM’s decision.
The Court’s Judgment
The European Court of Human Rights found that the domestic courts had failed to give due consideration to several important factors, in particular concerning the broader context in which the applicant’s statements had been made, his participation in a debate on matters of public interest, the question whether the value judgments expressed had been sufficiently based on facts and, lastly, the potentially chilling effect of the sanction. In addition, the existence of an attack on the dignity and honour of the profession of judge had not been sufficiently demonstrated.
According to the European Court, the domestic courts had not granted the applicant’s freedom of expression the weight and importance such a freedom was due in the light of the Court’s case-law, even though a means of communication had been used (namely a publicly accessible Facebook account) that might have raised legitimate questions with regard to judges’ compliance with their duty of restraint (para.82). Consequently, the Romanian courts had not given relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression (para.83).
Regarding the first message, the Court found that it contained criticism of the political influences to which certain institutions were allegedly subject, namely the police, the judiciary and the army. The applicant had referred to the constitutional provisions under which the army was subject to the will of the people and contemplated the risk of any form of political control over that institution. Through the use of rhetorical questions, he invited his readers to imagine the army acting against the will of the people, someday, under the pretext of protecting democracy. In his view, this was a mere detail behind which lay a more serious problem. Resituated in their proper context, the applicant’s statements amounted to value judgments to the effect that there would be a danger to constitutional democracy in the event that public institutions fell once more under political control. Those statements therefore concerned matters of public interest relating to the separation of powers and the need to preserve the independence of the institutions of a democratic State (para.68-71).
Regarding the second message, the Court considered that the applicant’s position clearly fell within the context of a debate on matters of public interest, as it concerned legislative reforms affecting the judicial system (para.72).
The Court took the view, concerning both the second and first messages, that any interference with the freedom to impart or receive information ought to have been subject to strict scrutiny, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State in such cases.
That being stated, the Court reasserted the principle that it could be expected from judges that they should show restraint in exercising their freedom of expression, as the authority and impartiality of the judiciary were likely to be called in question. However, the statements at issue were not clearly unlawful, defamatory, and hateful or calls to violence (para.79).
The Court attached significant weight to the fact that the national courts had chosen not to impose the least severe sanction on the applicant (which, at the relevant time, was a warning), which had undoubtedly a “chilling effect”, discouraging not only the applicant himself, but other judges as well, from taking part, in the future, in the public debate on matters concerning the separation of powers or the legislative reforms affecting the courts and, more generally, on matters pertaining to the independence of the judiciary (para.80).
The Court concluded that, in weighting up the competing interests at stake, the domestic courts had failed to give due consideration to several important factors, and had not provided relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression.
Judge Rădulețu expressed a concurring opinion, considering that, in the absence of case law establishing clear and predictable rules as to the extent of judges’ duty of discretion in this type of situation, in the presence of a subject of general interest and especially in the absence of a balancing of competing interests by the national courts (the first called upon to carry out this exercise), the protection of the applicant’s freedom of expression must prevail.
Judges Kucsko-Stadlmayer, Eicke and Bormann expressed a joint dissenting opinion. They emphasized that national authorities are in principle best placed to assess the impact of the language used in the particular context of their country and society and the decision to sanction the applicant fell within the general margin of appreciation by which the proportionality of an interference is measured.
The situation of Romanian judges regarding the freedom of expression
Romania has a legal and professional tradition of judicial silence, and judges were expected to absolutely refrain from manifesting any form of political beliefs. Judges are prohibited from any negative comments on the professional and moral integrity of their colleagues. Ideas or orientations that might suggest a connection to a party or to partisan structures must not be expressed on social media. Judges are also prohibited from supporting, promoting or evaluating in any manner campaigns, pages or posts by activists or groups, if this were to bring the judiciary into disrepute. The law is not sufficiently precise.
The successive amendments to the laws of judiciary in Romania have attracted the attention of the Venice Commission (see Opinion No. 924/2018, and Opinion No. 950/2019), and of the Group of States against corruption Group of States against corruption.
Since 2018, the Judicial Inspectorate (an autonomous entity that is part of the SCM), launched dozens of disciplinary proceedings against activist judges and prosecutors. All these disciplinary investigations were based on the provisions of Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors: „There are disciplinary offenses: the conduct that has a negative impact on the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of the official competences”. It is possible to start the investigation on this ground if mass-media write something against a judge or if the spokesperson from Judicial Inspectorate finds an improper post on social media even if no one is making a complaint on this. There have even been some instances when Pthe resident of the SCM demanded the Judicial Inspectorate to start an investigation and that ame President was a member in the subsequent disciplinary Panel of the SCM in the case.
In its judgment of 11 May 2023 in Case C-817/21, Inspecția Judiciară, the Court of Justice of the European Union that the powers of the Judicial Inspectorate were used on several occasions for the purpose of political scrutiny of judicial activity. Examples included preventive suspension from office until the completion of disciplinary investigations against judges from the associations of judges and prosecutors who criticised regressive judicial reforms of the 2017-2019 period and/or who submitted requests for preliminary rulings to the Court of Justice of the European Union. Even after this European confirmed the political control of judicial activity in Romania, carried out through the Judicial Inspectorate, the SCM did not react.
In 2021, more than 500 judges and prosecutors signed an open letter addressed to the SCM and Minister of Justice, requesting to repeal Article 99(a) of the Law no.303/2004. The letter raised concerns about arbitrary interpretations of the law, because there are no minimum criteria, details or clarifications, in order to establish, in a transparent and justified manner, the conduct of magistrates which violate honor and professional probity. In spite of some minor reforms in the years since, there is no provision in the new laws on the judiciary to stop the harassment of ‘inconvenient’ judges and prosecutors.
Inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice
The Bangalore Principles of Judicial Conduct emphasize the right of every judge to free expression and opinion, to freedom of association, as well as to freedom of belief, while respecting the dignity of the judicial office, so that neither its independence nor impartiality is prejudiced. At the same time, judicial independence is a value that must be defended both from within, by legal professionals, and from without, by civil society, and when democracy and fundamental freedoms are at risk, the judge's duty of reserve becomes subsidiary to the duty of indignation.
The opinions expressed by judges in relation to the proper functioning of justice, a matter of public interest, are conventionally protected, even if they have political implications, as judges cannot be prevented from getting involved in the debate on these subjects. The fear of sanctions can have a dissuasive effect on judges to express their views on other public institutions or public policies. This chilling effect manifests itself to the detriment of society as a whole. As the Court has held, “even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter. Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate” (ECtHR, Baka v. Hungary, para.165).
The existence and activities of professional associations related to the field of justice were and are necessary to increase the efficiency, transparency and quality of the judiciary. Consequently, the presidents of professional associations of magistrates have not only the right, but also the obligation to formulate points of view on matters related to the functioning of justice. The Court’s case-law indeed protects the freedom of opinion related to the functioning of the judicial system, especially in the case of magistrates with high positions (for example, members of councils of the judiciary, presidents of supreme courts, general prosecutors, etc.) or those who represent associations as legally established professionals.
In Cristi Danilet’s case, domestic authorities should have taken account of his past capacity as a member of the Romanian SCM (in the period 2011-2016) and his subsequent permanent activity as an integrity whistleblower and expert commentator on the functioning of the judiciary. Disregarding these calls into question a legitimate and extremely necessary aspect: protecting the expressed opinions of judges when democracy and fundamental freedoms are at risk.
Conclusion
Of course, the judiciary should not be imagined as a silent body, in which only the heads of courts or prosecutors' offices or the representatives of judges and prosecutors constituted in professional associations can open their mouths, the others being condemned ab initio to a perpetual silence. A judge is a member of society and from this position, cannot be forced to live in a bubble, disconnected from social realities. In a former communist society, in which civic attitude is not yet developed, and the public opinion does not immediately react to slippages of the executive against democracy or the independence of the judiciary, judges and prosecutors should be allowed to express their opinion on these subjects as long as impartiality in the performance of their duties is not affected.
As Opinion No.3 of the Consultative Council of European Judges states, “judges should be allowed to take part in certain debates regarding the national legal policy. They must be able to be consulted and play an active role in the preparation of legislation regarding their status and, more generally, the functioning of the judicial system” (para. 34). Indeed, it is crucial that each magistrate, taken individually, can express opinions regarding the functioning of justice, at least in situations where democracy and fundamental freedoms are endangered.
The direct intimidation or silencing of judges could turn the judiciary into a giant with feet of clay, passive, and without words, represent the greatest danger related to the independent functioning of the judiciary. Countering these trends across Europe is crucial for democracy. The Court’s recent judgment in Danileţ v. Romania seems to be a good start in this regard.
