Judges on social media: freedom of expression versus duty of judicial restraint – lessons from Danilet v. Romania

By Koen Lemmens

Freedom of expression raises difficult legal questions for people occupying special positions in society.  As a matter of principle they enjoy freedom of expression, but the specific position in which they find themselves may have an impact on the scope of that freedom. Judges are an example of a category of speakers in such a special position. Obviously, they can express themselves freely like any other citizen, but because the trust of citizens in the independence of the judiciary must be maintained, there are certain limits to what judges can say. Over time, the Strasbourg Court has developed an interesting case law on the issue. The case of Danilet v. Romania, concerning a judge that was disciplined for sharing a pair of incendiary Facebook posts, is the most recent elaboration on it. In it, the majority opinion ended up finding a violation of article 10 ECHR. That unresolved questions persist on the topic of freedom of expressions of judges is underscored by the forceful arguments made in the concurring and dissenting opinions to the judgement. In this post, I will highlight the arguments made on both sides of the issue and share some personal reflections on the topic.

Factual background

The applicant was a judge in a local tribunal and was apparently known in the country as an intellectual who participated in societal debates on issues involving democracy, the rule of law and the functioning of the judiciary. Previously, he had been member of the High Council of the Judiciary and counsellor to the Minister of Justice. He published two messages on his Facebook account in which he expressed in rather harsh words dissatisfaction with the way Romanian politicians controlled the institutions (amongst which also the judiciary) and he even asked his readers (rhetorically?) whether they would be surprised to see the army intervening. As a result, disciplinary sanctions were issued by the High Council of the Judiciary, for reasons of the applicant’s language overstepping the limits of decency and being unworthy of a judge.  The sanction consisted of a 5% pay cut imposed on the applicant for two months. On appeal the High Court confirmed the sanction. The judge then applied to the Strasbourg Court, arguing that his freedom of expression (article 10 ECHR) had been violated. (He also invoked Article 8, but the Court rejected that claim as inadmissible and in this short blogpost there is no reason to go into that discussion.)

Judgement

Accepting that the disciplinary sanctions amounted to an interference with the applicant’s freedom of expression, the Strasbourg Court assessed whether the three conditions of the second paragraph of Article 10 for justifying an interference had been fulfilled.

When it comes to the legal basis, the Court is clear: there was no doubt that sanctions had been imposed in accordance with the established legal rules and procedures. The applicant argued nevertheless that there were some issues of foreseeability, especially since the applied disciplinary rules contained quite open notions (such as “the good image of justice”). The Court, however, is quite straightforward in its answer: as a professional judge, the applicant should have been able to understand the scope of the legislation.

The legitimate aim did not present any difficulties: it is clear that the disciplinary proceedings could be understood as safeguarding the authority and impartiality of the judiciary.

As often in Article 10 cases, the proportionality test was decisive. The Court recalls here that while judges enjoy freedom of expression, they are subject to a duty of restraint (“devoir de réserve”) in exercising it. This is because the public must still be able to see judges as impartial. The Court explains that the words of judges are seen by the public as “objective” and that they are interpreted not only as the expression of an individual but also as the expression of the judiciary as a whole. At the same time however, discussions on the functioning of the judiciary are matters of general interest and as such ordinarily enjoy the highest protection under article 10 ECHR.

In the present case, the Court found that the disciplinary body (the High Council of the Judiciary) and the High Court should have conducted a better balancing exercise. It held that the applicant discussed an issue of general interest in a specific political context, which implied that the authorities only had a narrow margin of appreciation in regulating his speech. The applicant moreover didn’t attack the reputation or dignity of his colleagues and it was not sufficiently analyzed whether his statements were value judgements with a sufficient legal basis. Finally, the chilling effect of the sanction was not sufficiently taken into account. The Court therefore decided that there had been a violation of article 10.

Dissenting opinion

Although the Court found a violation, it was a close vote. Three dissenting judges thought the disciplinary sanction wás a proportionate response to the applicant’s Facebook posts. In the first place, they stressed that the applicant was not a whistleblower (as in Halet v. Luxembourg) or someone who commented upon specific legal reforms as part of their mandate as a member of a particular professional organization, as had been the case in Baka v. Hungary, the predominant precedent supporting the majority’s reasoning. To the contrary, the applicant was a local judge without (at that time) specific mandates relating to the organization of the judiciary. Moreover, he commented upon political developments going beyond the mere sphere of the judiciary. The comments were posted on Facebook, which means that the applicant could have expected much attention to them. The dissenters argued that in such circumstances, unlike in those present in Baka, there is no need to apply a narrow margin of appreciation. In the second place, they stressed that the debate in the present case was focused on the tone of voice and the language in which the messages were formulated, not on their contents. With regard to that issue in particular, the dissenters argued that national authorities are far better placed than the Strasbourg Court to appreciate the appositeness of disciplinary measures. Although they agreed that a less severe sanction had been available to the domestic authorities, they stressed that the sanction imposed was all in all rather mild. Therefore, according to Judges Kucsko-Stadlmayer, Eicke and Bormann, article 10 ECHR had not been violated.

Judge Rădulețu’s concurring opinion and concluding reflections

I think there is much to say for the arguments put forward by the dissenters. Obviously judges should be entitled to speak out about the functioning of the judiciary, but it is equally clear that they are subject to a duty of restraint (devoir de réserve). Striking a fair balance between the rights and the duties at stake, will not always be very easy. The concurring Judge Rădulețu highlights in this respect that the Court’s case law at present lacks clear guidelines as to the limits of this devoir de réserve in cases like the one under discussion, in which the topics addressed are related to the general interest, but go beyond the strict functioning of the judiciary. Yet there is another problem, distinct from delimiting the substantive scope of the freedom of expression of judges in these circumstances and that is the tone of voice used in exercising that freedom. Even if we assume that judges should be given the possibility to participate in (general) public debates, there is the question whether this means that they can express themselves in the most creative way, including the use of vulgar and hyperbolic language, or whether, on the contrary, they should adopt modest and restrained language. The majority, as well as the concurring and dissenting judges, seem to agree that judges have to respect a certain decorum in their expressions in order to safeguard the status of the judiciary, as its authority depends of course to a large extent on the public’s trust in the judges. However, while it is easy to agree on such a general principle, it appears to be a lot more complicated to decide whether in a given situation judges expressed themselves appropriately.

The answer to such a question may depend largely on linguistic subtleties. That is why I feel that the dissenters have a good point. I must admit that the quotes in the judgment, referring to the applicant’s statements on Facebook, are very hard to “understand”. Without good knowledge of the Romanian political context and without any command of the Romanian language, the connotation of its sayings and expressions, it is very difficult to assess whether the limits of professional discretion or decency have been overstepped. For the dissenters, this is a reason to adopt a deferential approach and to question whether it is for an international court to substitute the domestic courts’ appreciation with its own. Be that as it may, this case certainly illustrates that it might be an excellent idea for future applicants to sufficiently explain the linguistic and contextual specificities of their statements to the Strasbourg Court.