Danileţ v. Romania: A Plea for Judges’ Freedom of Expression

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.

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