Sanction imposed on judge for Facebook posts concerning matters of public interest infringed his freedom of expression (ECtHR)
In Chamber’s judgment in the case of Danileţ v. Romania (application no. 16915/21) the European Court of Human Rights held, by a majority (four votes to three), that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The Court 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 in fact 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. In their decisions, the national 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. 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.
In addition, the Court held that Article 8 of
the Convention was not applicable in the present case and declared, unanimously,
the complaint under that head inadmissible.
Facts
The applicant, Vasilică-Cristi Danileţ, is a
Romanian national who was born in 1975 and lives in Cluj Napoca (Romania). At
the relevant time, Mr Danileţ was a judge at Cluj County Court. He was well known for actively
taking part in debates and enjoyed a certain nationwide renown.
In January 2019 Mr Danileţ posted two messages on his Facebook page, which had roughly 50,000 followers, and for which, in May of that year, the National Judicial and Legal Service Commission (Consiliul Superior al Magistraturii – CSM) imposed a disciplinary penalty on him, consisting in a twomonth, 5% pay cut. The CSM based its decision on Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors.
As to the first message (see paragraph 5 of the
judgment), which was republished and commented on by numerous media outlets,
the CSM found that Mr Danileţ had – unequivocally and before readers in the
thousands – 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
Mr 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 apt to
tarnish the good reputation of the judiciary.
In his second message (see paragraph 6 of the
judgment), Mr 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 in that he dared to speak openly about the release of dangerous
inmates, about what he took to be bad initiatives to amend the laws on the way
the judicial system was organised, and about the lynching of judges. The CSM considered
that the language used in Mr Danileţ’s published comment had overstepped the
limits of decency and had been unworthy of a judge.
In May 2020 the High Court dismissed Mr
Danileţ’s appeal and upheld the CSM’s decision.
Before the Court, Mr Danileţ complained of a violation of his right to freedom of expression (Article 10 of the Convention). He further submitted that the disciplinary sanction had damaged his social and professional reputation and had had a negative impact on his career (Article 8 of the Convention).
Decision of the Court
Freedom of expression
The Court took the view that the national
courts had neither weighed up the various interests at stake in accordance with
the criteria laid down in its case-law, nor duly analysed whether the interference
with the applicant’s right to freedom of expression had been necessary. Thus,
while citing the Court’s case-law, the national courts had confined themselves
to assessing the manner in which the applicant had chosen to express himself,
without examining the expressions he had used in their broader context, namely
a debate on matters of public interest.
As to 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 relative to the separation of powers and the need to preserve the independence of the institutions of a democratic State.
Concerning 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.
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 subjected to strict scrutiny, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State in such cases. In the Court’s view, the Romanian courts had failed to take these considerations duly into account.
That being stated, the Court reasserted the
principle that it could be expected of 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, in the present
case, the statements at issue were not clearly unlawful, defamatory, hateful or
calls to violence.
Moreover, 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 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
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.
Furthermore, the decision of the disciplinary board, as upheld by the High Court, did not give relevant and sufficient reasons to justify its finding that, in his messages, the applicant had impaired the dignity and honour of the profession of judge.
The Court concluded that, in weighing up the
competing interests at stake, 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 in the present case had been sufficiently based
in fact and, lastly, the potentially chilling effect of the sanction imposed.
In addition, the existence of an attack on the dignity and honour of the
profession of judge had not been sufficiently demonstrated. In their decisions,
the national 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.
Consequently, the Romanian courts had not provided relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression. It followed that there had been a violation of Article 10 of the Convention.
Right to respect for private life / right to reputation
The Court found that the grounds for the
sanction were unrelated to the applicant’s “private life” and that it had not
had severe negative consequences for his “inner circle”, for his ability to
form and develop relationships with others or for his reputation. Consequently,
it held that Article 8 of the Convention was not applicable in the present case
and declared, unanimously, the complaint under that head inadmissible.
Just satisfaction (Article 41)
The Court took due note of the applicant’s
position that, in his view, the finding of a violation would constitute
sufficient just satisfaction. It therefore did not award him any compensation
in respect of pecuniary and non-pecuniary damage in connection with the finding
of a violation. It nevertheless held that Romania was to pay him 5,232 euros in
respect of costs and expenses. (source: echr.coe.int/ photo freepik.com)
Judgement is available (in French) here
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