In the case of MANOLE v. Republic of Moldova (no. 26360/19), the ECHR recognized as incompatible with the Convention the dismissal of a judge for disclosing information about her dissenting opinion before the full text of the decision was published

The penalty of dismissal of a judge for having disclosed to the media the reasons for her dissenting opinion before the full text of the decision was published is excessively severe and disproportionate to the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In this case, the applicant, being a judge of the court of appeal, considered a high-profile case in a panel of three judges.

In its decision, the panel rejected the request of the newspaper Jurnal de Chişinău to extend the deadline for filing an appeal in the defamation case involving the newspaper and the Speaker of the Moldovan Parliament. The newspaper was forced to publish a retraction on Jurnal TV channel, which belongs to the same media trust. The applicant added her dissenting opinion to the judgment.

The operative part of the decision, indicating the existence of the applicant's dissenting opinion, was read in a public session and information on the matter was published on the website of the Ministry of Justice.

Before the full text of the court of appeal's judgment was published, the applicant was contacted by a journalist from Jurnal TV, to whom the judge briefly explained the reasons for her dissenting opinion, about which Jurnal TV published an article on the same day.

Subsequently, a judge-inspector subordinated to the National Commission of the Judicial Legal Service (the Commission) sent to that body a "report note on the information disseminated by the media" by the applicant. Having found that the applicant's conduct violated the Law on the Status of Judges, the Commission addressed a request to the President of the Republic of Moldova to dismiss the applicant from her position as a judge, which the President granted in July 2017.

The national courts dismissed the applicant's further complaints against her dismissal.

In examining the proportionality of the challenged interference, the European Court of Human Rights found that it was provided for by law and pursued at least one of the purposes recognized as legitimate by the Convention, namely the maintenance of the authority and impartiality of the judiciary. As to whether the interference was necessary in a democratic society, the ECHR noted that, at the time, the applicant, by virtue of her position as a judge, was in principle bound by a duty of discretion (in particular with regard to her statements) and that the judiciary must exercise the utmost caution in relation to the cases it hears in order to preserve its image as an impartial judge, even if it is provoked. Although the ECHR considered that the case concerned a matter of public interest in respect of which the media's interest in disseminating information had significantly diminished over time, and that the applicant had spoken rather briefly, it nevertheless recognized as relevant the reasons given by the national courts for imposing a sanction for such conduct.

With regard to the penalty imposed, the ECHR noted that the applicant's dismissal was the only penalty that could be applied to her under the legislation in force at the time of the events. It was a very harsh punishment that cut short her career after 18 years of successful work.

The ECHR recognized as significant in this case the fact that by the time the Supreme Court was considering the applicant's complaint, the legislation on which the sanctions against her had been based had been amended so that violations of the ban on disclosure of information by judges were no longer punishable on that legal basis. The above legislative changes make it clear that the legislator even then believed that violation of the ban on disclosure of information by judges should be considered in the light of the entire range of sanctions available in the field of disciplinary liability of judges.

Thus, the ECHR concluded that it could not be assumed that the national authorities had applied the relevant standards arising from the ECHR case law on Article 10 of the Convention, and that in any case the sanction imposed on the applicant was not necessary in a democratic society.  

A more detailed description of this judgment will be available in the next ECHR case law review, while the previous review is available at https://is.gd/zBq7LX.

The official text of the judgment MANOLE v. the Republic of Moldova is available on the ECHR website at https://hudoc.echr.coe.int/eng?i=001-225882.