The Grand Chamber of the European Court of Human Rights has held that a disciplinary sanction imposed on the applicant, a judge, by the Romanian national judicial authorities for messages posted on his Facebook account violated his right to freedom of expression under Article 10 of the Convention.
The applicant had posted two messages on his Facebook page, which had approximately 50,000 followers. The posts attracted significant public attention and were widely discussed in the media.
Disciplinary proceedings were subsequently brought against the judge on the ground that the posts had impaired the honour and image of the justice system. The first message, published on 9 January 2019, was found by the disciplinary body to have cast doubt on the credibility of State institutions, suggesting that they were controlled by political actors and proposing, as a possible solution, intervention by the army to preserve constitutional democracy. The second message, posted on 10 January 2019, contained a hyperlink to an interview with a prosecutor accompanied by a comment from the judge. The disciplinary body considered that the language used, in particular the expression “sânge în instalaţie” (“[to have] blood in one’s veins”), had exceeded the limits of propriety.
The applicant was found to have failed to comply with his duty of discretion and was sanctioned with a 5% reduction in salary. Those findings were upheld by the High Court of Cassation and Justice in May 2020.
In February 2024, a Chamber of the Court held, by four votes to three, that there had been a violation of the applicant’s right to freedom of expression. The case was subsequently referred to the Grand Chamber, which, by ten votes to seven, confirmed that conclusion. The Grand Chamber held that the applicant’s remarks had not been such as to upset the requisite fair balance between, on the one hand, the extent to which the applicant, as a judge, could participate in societal debate in order to defend the constitutional order and State institutions, and, on the other, the need for him to be, and to be seen as, independent and impartial in the exercise of his judicial functions.
Media Defence intervened as a third party, emphasising the essential role of the press in imparting information on matters of public interest and the importance of judges as sources of information for journalists, particularly in relation to complex or technical issues. While recognising that judges are subject to a duty of discretion, Media Defence submitted that they should not be prohibited from engaging in discussions with the press on matters of public interest with the aim of informing the public and raising awareness.
Media Defence further argued that restrictions on judges’ freedom of expression may adversely affect journalists’ ability to access information and should therefore be subject to strict scrutiny by the Court. Any limitation on judges’ freedom of expression, it submitted, must have a clear, precise and reasonably foreseeable legal basis. In particular, the applicable legal framework should define the scope of the discretion afforded to the relevant State authorities and the manner of its exercise, having regard to the legitimate aim pursued, so as to enable judges to regulate their conduct accordingly. Media Defence emphasised, in this regard, that the mere fact that certain issues may have political implications should not, in itself, preclude judges from exercising their right to freedom of expression.
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For more information, contact our Legal Dirctor, Pádraig Hughes at padraig.hughes@mediadefence.org
