Violation of a judge’s right to freedom of expression through punishment for Facebook posts of public interest: ECtHR finds violation of Article 10 of the Convention

The case of DANILEŢ v. ROMANIA (No. 16915/21) concerned the freedom of expression of a judge who was subjected to disciplinary punishment in the form of a 5% salary reduction for two months due to two posts published on his public Facebook page, which had 50,000 followers.

The first post was published in the context of the extension of the term of office of the Chief of the General Staff of the Armed Forces by presidential decree. The second post contained a hyperlink to a press article that published an interview with a prosecutor regarding the handling of criminal cases and the difficulties faced by the prosecution, accompanied by a short comment from the applicant.

The Grand Chamber of the ECtHR recalled that in situations where democracy or the rule of law faces a serious threat, judges have the right to speak publicly on matters of public interest. Statements made under such circumstances generally enjoy a high level of protection.

The Grand Chamber emphasized that, since in the first post the applicant expressed his opinion on a matter of public interest that was not related to the functioning of the justice system, this case should be distinguished from other cases previously examined by the ECtHR concerning public statements made by judges and prosecutors within professional discussions (acting as court presidents, heads of prosecution offices, representatives of professional associations, or members of judicial councils).

In this case, the Grand Chamber of the ECtHR confirmed and consolidated the principles established in its case law regarding the freedom of expression of judges and prosecutors on the internet, and defined the criteria to be taken into account when imposing restrictions on this freedom related to the duty of restraint inherent to their office.

Criteria applied when balancing competing rights and interests:

• the content and form of the statements or other expressions of freedom of expression by judges and prosecutors on social networks;
• the context of the disputed statements and the position held by the person at the time;
• the consequences of the disputed statements;
• the severity of the penalty;
• the existence of procedural guarantees and their observance.

Having examined the posts in the light of the above criteria, the Grand Chamber of the ECtHR concluded that the interference with the applicant’s freedom of expression was not justified by relevant and sufficient reasons and did not correspond to a pressing social need. Accordingly, the Court found a violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms in this case.

A more detailed description of this judgment can be found in future reviews of ECtHR case law.

The official text of the judgment in the case of DANILEŢ v. ROMANIA is available on the website of the European Court of Human Rights: https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-247839%22]}.