Judges' Participation in Public Debates and Freedom of Expression: Danileţ v. Romania by the European Court of Human Rights

21-02-2024

Burak Tahsin Bahce

International Justice and Human Rights Intern

Global Human Rights Defence

On February 20th 2024, the European Court of Human Rights delivered its judgement on a complaint against Romania concerning a disciplinary sanction imposed on a judge for two messages he posted on his Facebook account. [1] The judgement was held by a majority (four votes to three) of the Court Chamber and presents a distinctive contribution to the Court's case law on the balance of freedom of expression and the protection of the authority and impartiality of the judicial system.  

The applicant, Mr. Danilet, was a judge at a County Court in Romania and enjoyed a certain nationwide renown for actively taking part in debates. In January 2019, he posted two messages on his Facebook page, which had roughly 50,000 followers. The first post, extensively covered and commented on by various media outlets, has been considered by the sanctioning authority as a message where the applicant unequivocally undermined the credibility of public institutions in front of thousands of readers. The post implied that public institutions were under the control of the political classes, and suggested military intervention as a means to uphold constitutional democracy. It was therefore considered that Mr. Danilet had breached his duty of restraint in a manner that had been apt to tarnish the good reputation of the judiciary. [2] 

In the second post, he shared a hyperlink to an article which he commented on, praising the courage of the prosecutor subject to the article for daring to speak openly about the release of dangerous inmates, about what Mr. Danilet regarded as bad initiatives to amend the laws on the organization of the judicial system, and about the lynching of judges. [3] As to this comment, the sanctioning authority considered that his language had overstepped the limits of decency and had rendered him unworthy of being a judge. Consequently, a disciplinary penalty was imposed on him, consisting of a two-month 5% pay cut, based on a respective provision. After an unsuccessful appeal proceeding, the case was brought before the European Court of Human Rights with complaints under Article 10 (freedom of expression) and Article 8 (right to respect for private life) of the Convention.

As introduced in the concurring opinion of Judge Raduletu, the Court's previous case law has developed different approaches to the strictness of the scrutiny in such cases. First, there are general principles that apply to individuals participating in debates concerning the public interest. These rules ensure that the Court conducts a strict proportionality review and that there is a limited margin of appreciation for the national authorities. Secondly, a certain margin of appreciation has been recognised for the national authorities when it comes to the freedom of expression of public officials in general and that of judges; therefore, judges' freedom of expression is more limited due to the broader need to safeguard the authority and impartiality of the judiciary. Thirdly, although judges have duties and responsibilities connected with the authority and impartiality of the judiciary, their freedom of expression is broader when they occupy an important position in the judicial hierarchy and speak about the administration of justice in the public interest. [4]

The Court appears to have preferred to approach the concrete case within the framework of the first approach. Although it acknowledged the need to safeguard the authority and impartiality of the judiciary in the concrete case, it found that the domestic authorities neither conducted a careful examination to balance the conflicting interests at stake in accordance with the Court's case law, nor duly analysed the necessity of the interference with the applicant's freedom of expression. Thus it found that the reasonings were insufficient and did not take into account all relevant criteria. It noted that this is ipso facto problematic under Article 10 of the Convention. [5]

The Court then evaluated a number of criteria set out in its case law, relevantly in Baka v. Hungary, which similarly tackled the freedom of expression complaint of a well-known judge. Among other general ones, these criteria included the factors 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 in fact and, lastly, the potentially chilling effect of the sanction. According to the Court's examination, while the applicant`s position concerning the second post clearly fell within the context of a debate on matters of public interest as it referred to the legislative reforms in the judicial system, the first post, when resituated in its proper context, “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” and, therefore, “concerned matters of public interest relative to the separation of powers and the need to preserve the independence of the institutions of a democratic State”. [6]

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 time, would have been a warning), and considered that this undoubtedly had a “chilling effect” in that it must have discouraged, not only the applicant himself, but other judges as well, from taking part in the public debate on matters concerning the separation of powers or the legislative reforms and, more generally, on matters pertaining to the independence of the judiciary. [7]

Relying on these reasons, the Court held that there has been a violation of Article 10 of the Convention. In their joint dissenting opinion, Judges Kucsko-Stadlmayer, Eike, and Bormann, besides detailing their views on the substance of the Court's examination, argued that the proportionality test should have left a wider margin of appreciation to the national authorities, given that the case closely concerned the effects of a judge's statement in their language and domestic context. [8]

This judgement is undoubtedly important as it presents a remarkable development in its relevant case law on the judges` freedom of expression and participation in public debates. The case remains possible to be brought before the Grand Chamber of the Court on appeal.

Sources and further readings:

[1] Danileţ v Romania, Application no 16915/21 (ECHR, 20 February 2024)

[2] ibid, para 5: “Someone may have noticed the succession of attacks, the disorganization and loss of credibility suffered by institutions such as the General Directorate for Information and Internal Protection, the Romanian Intelligence Service, the police, the National Anti-Corruption Directorate, the gendarmerie, the prosecutor's office of the High Court of Cassation and Justice, the High Court of Cassation and Justice, and the army. [The attacks in question] did not appear by chance after "the abuses committed by the ruling institutions". Do we know what the lack of effectiveness means, or worse still, the return to political control of the institutions [in question]: the services, the police, the judiciary, the army? And on the subject of the army, has anyone had a chance to reflect on Article 118 § 1 of the Constitution, which states that "the army is exclusively subordinate to the will of the people in order to guarantee (...) constitutional democracy"? What would happen if one beautiful day we saw the army in the street to defend... democracy, because today we see that the number of supporters is falling? Would it surprise you to realize that this solution would be (...) in line with the Constitution!? In my opinion, it's the tree that hides the forest (...)” (own translation)

[3] ibid, para 6: “Here's a prosecutor with blood in his veins: he talks openly about the release of dangerous prisoners, the bad ideas of our governments when it comes to legislative reform and the lynching of magistrates!” (own translation)

[4] Danileţ v Romania (cited above), Concurring Opinion of Judge Raduletu; Baka v Hungary [GC], Application no 20261/12 (ECHR, 23 June 2016), para 158-166 (with further references); ECHR, Guide on Article 10 (Right to Freedom of Expression), Council of Europe/European Court of Human Rights (2022), p 80-92. 

[5] Danileţ v Romania (cited above), para 64-66.

[6] Sanction imposed on judge for Facebook posts concerning matters of public interest infringed his freedom of expression, ECHR 042 (2024), the Registrar of the European Court of Human Rights, 20 February 2024).

[7] ibid; Danileţ v Romania (cited above), para 79-81.

[8] Danileţ v Romania (cited above), Dissenting Opinion by Judges Kucsko-Stadlmayer, Eike, and Bormann.