March 06, 2026
By Louize Hannah Knops
Social media has profoundly changed the exercise of free speech by enabling broader participation in public discourse while introducing risks regarding the rapid and widespread dissemination of information. This shift is equally evident within the judiciary; as judges increasingly utilise social media to voice their opinions, national authorities must balance the individual right to freedom of expression against the judicial duty of discretion to maintain public confidence in the impartiality and authority of the legal system. To address these tensions, the Strasbourg Court has gradually developed guiding principles to weigh these competing interests. Notably, the Grand Chamber’s judgment in Danileţ v. Romania represents the Court’s most comprehensive and recent refinement of these standards.
In this blogpost, the facts of the case, the five-criteria analysis, the Grand Chamber’s decision, and the fundamental disagreements that suggest the debate on judicial speech (on social media) is far from over will be discussed.
The case concerned a Romanian district court judge, Mr. Danileţ, known for his active participation in public debates on the rule of law and democracy. He maintained a Facebook page with approximately 50,000 followers, where he frequently posted messages. In January 2019, two of Mr. Danileţ’s posts – widely quoted and commented by followers and media outlets – initiated disciplinary proceedings.
In the first post, Mr. Danileţ commented on the public debate regarding the President’s extension of the Army Chief of Staff’s mandate. He suggested that systemic attacks on Romania’s key institutions posed a threat to constitutional democracy, controversially questioning whether the army might eventually be required to defend the constitutional order (para. 17). In the second post, he shared a hyperlink to an interview with a prosecutor regarding the professional difficulties prosecutors face. He accompanied the link with a comment praising the prosecutor for having ‘blood in his veins’ (sânge în instalaţie) and for speaking out against the ‘lynching’ of judges and prosecutors (para. 19).
Consequently, the Romanian judicial authorities initiated a disciplinary investigation. Mr. Danileţ was sanctioned with a five per cent salary reduction for two months – a measure intended to deter similar future conduct (para. 26) – on the grounds that he had breached his duty of discretion. This decision was subsequently upheld by the Romanian High Court.
In its judgment of 20 February 2024, the Strasbourg Court found a violation of Article 10 ECHR by a narrow four-to-three margin. While acknowledging the duty of discretion inherent to members of the judiciary, the Chamber held that the domestic authorities had failed to balance the competing interests in accordance with the Court’s established criteria (for an analysis of the initial Chamber judgment, see Koen Lemmens’ blogpost). Following a request by the Romanian Government, the case was referred to the Grand Chamber, leading to the judgment of 15 December 2025.
The Grand Chamber reaffirmed the finding of a violation of Article 10, applying its classic three-part test. As in the Chamber’s judgement, the Grand Chamber observed that the Romanian legal provision characterising disciplinary offenses was quite general. However, the Court noted that flexibility in disciplinary rules is often necessary to account for changing circumstances and avoid excessive rigidity. Considering Mr. Danileţ’s status as an experienced judge, the Court found the provision sufficiently foreseeable. Furthermore, the interference pursued the legitimate aim of maintaining the authority and impartiality of the judiciary.
The Grand Chamber’s analysis centred on whether the interference was necessary in a democratic society. While this approach is standard, the case is particularly noteworthy for what followed: the Court introduced a structured and detailed analysis based on five distinct criteria: (i) the content and form of the message (para. 150-156); (ii) the context and the capacity in which the comments were made (para. 157-160); (iii) the consequences of the message (para. 161-162); (iv) the severity of the sanction (para. 163-164); and (v) whether procedural safeguards were afforded (para. 165).
The Court thus appears to have addressed Judge Răduleţu’s call in his previous concurring opinion for clearer guidelines for judges addressing general interest topics outside the strict functioning of the judiciary. Notably, the Court stated there is no hierarchy among these criteria; their relevance depends on the specific circumstances of the case (para. 149).
The Grand Chamber confirmed that remarks made by judges on matters of public interest, particularly those involving the functioning of the justice system, enjoy a high degree of protection. While judges are not expected to live in total social isolation, they must remain independent and impartial in the eyes of a reasonable, informed observer. Consequently, judges must exercise circumspection and prudence in their tone, and posts should be phrased clearly to avoid multiple interpretations. Regarding the first message, the Court found it amounted to a value judgment aimed at defending the constitutional order. While clearer language would have been preferable, the Court found that – in the absence of any intent to incite violence or public disorder – the metaphorical reference to the army did not upset the balance between the judge’s participation in society and the requirement of independence and impartiality. Crucially, the Government provided no evidence that the remark impaired the dignity of the judiciary. Regarding the second post, the Court noted that the expression ‘sânge în instalaţie’ was the primary justification for the domestic sanction. However, the domestic courts failed to demonstrate how this expression significantly overstepped the limits of propriety inherent to judicial office, or to evaluate the remarks within their broader context. Mr. Danileţ was not merely posting in a vacuum: he was expressing a personal opinion as part of a broader effort to raise awareness for human rights and judicial independence – a debate of high public interest where a greater degree of freedom of expression is afforded (para. 173-184).
The Court held that remarks must be evaluated against the historical and social background. It noted that while Mr. Danileţ did not hold a high-ranking representative position, ‘ordinary’ judges are also entitled to contribute to public debate. While social media carries risks of rapid dissemination, the messages contained no calls to violence and were aimed at defending the constitutional order (para. 185-197).
The Court found the salary cut, though not the most severe penalty, likely to produce a ‘chilling effect’ on Mr. Danileţ and the wider judiciary. The Grand Chamber expressed serious reservations regarding the adequacy of the domestic judicial review, noting that the Romanian authorities failed to examine the context or provide adequate reasoning (para. 198-204).
Considering all these criteria, the Court held that Mr. Danileţ’s messages remained within the bounds of a reasonable balance between civic engagement and the duty of judicial discretion. The Court determined that the interference lacked a pressing social need, as the domestic authorities failed to offer relevant and sufficient justifications for the restriction. By a 10 to 7 vote, the Court found the interference disproportionate, resulting in a breach of Mr. Danileţ’s right to freedom of expression.
Judge Krenc concurred with the finding of a violation but argued that the domestic authorities’ argumentation was sufficient. In his view, the violation rested solely on the fact that the statements were not serious enough to warrant a disciplinary sanction. He cautioned that the Grand Chamber’s principles risk being too theoretical without stronger procedural safeguards. Judges Gnatovskyy and Răduleţu, in their joint concurring opinion, stressed the importance of the use of clear language by judges, and the need for them to be circumspect and prudent in tone and reasoning given the implications for judicial dignity. Only when national courts assess the language used and provide adequate reasoning for any decision taken in this regard, the Court can properly evaluate disciplinary measures.
Seven judges dissented. While they endorsed the five criteria in theory, they disagreed with their application. They viewed Mr. Danileţ as a private individual fully bound by the duty of judicial discretion. They argued that international courts should not ‘second-guess’ a national authority’s assessment of linguistic nuances, especially when the international judges do not speak the language in question (para. 12 dissenting opinion).
The introduction of five detailed criteria is to be welcomed. While the criteria do not depart from established case law regarding judges’ freedom of expression, they provide much-needed guidance for judges and prosecutors active on social media. However, the persistent disagreement, evidenced by the narrow margins in both judgments, highlights a fundamental tension. While all judges agreed that Mr. Danileţ’s remarks fell within the sphere of public interest, they differed on the capacity in which those remarks were made.
The majority seeks to protect judges as participating citizens speaking on matters of public interest outside the strict domain of the justice system’s functioning, thus entitling them to strong protection. This reasoning aligns with Judge Răduleţu’s concurring opinion in the Chamber judgment and scholars’ classifications: when a judge expresses themselves on a matter of public interest, a distinction must be drawn between the capacity of the speaker and the topic. A judge speaking on the functioning of the justice system must observe their duty of discretion, meaning their speech is less protected. Conversely, judges in prominent roles – such as court presidents, chief prosecutors, spokespersons for a court, or members of a judicial council – receive heightened protection and may even have a duty to speak. The general rule, however, is that judges are seen as individuals, thereby receiving strong protection.
The dissenting judges viewed Mr. Danileţ as a ‘private individual’ who thus ‘remained fully bound by the duty of discretion inherent in his judicial office’ (para. 3, dissenting opinion). From a labour law and fundamental rights perspective, this view is striking, as it suggests that judges always remain bound by their professional role, even when speaking on matters that do not undermine the judiciary’s authority and impartiality. The dissenting judges limited the categories of public interest speech to only two: a judge acting as a private individual, and a judge exercising wider freedom of expression because they are speaking in an official capacity on matters directly concerning the functioning of the justice system. This, of course, significantly narrows the options for judges wishing to express themselves on matters of public interest.
Another point of disagreement is the linguistic debate. Although the majority acknowledged that Mr. Danileţ could have used clearer language, they concluded that the national authorities failed to demonstrate how the chosen language actually exceeded the bounds of propriety. In contrast, the dissenting judges argued that ‘the national authorities are best placed to assess the impact of language used’ and that Strasbourg judges ‘who do not speak the language in which the statements were made’ are not in a position ‘to seek to second-guess that assessment’ (para. 6, dissenting opinion). This analysis is remarkable, particularly given that the Romanian Strasbourg judge, Judge Răduleţu, did not find the language used in violation of Mr. Danileţ’s duty of discretion (though he did admit the language was fairly provocative).
Finally, a remaining question concerns how the purely individual sphere fits into this framework. What if judges express themselves on matters related neither to judicial decision-making nor to the public interest, but solely to private life, such as a previous holiday or a dinner with friends? Further research and judicial clarification are needed in this regard.
The Danileţ judgment serves as a roadmap for the digital age of the judiciary. The Court’s message is twofold: judges who express themselves on social media should use clear language to avoid misinterpretation, yet the burden of proof rests on the national authorities. It is up to them to explain exactly how an expression oversteps the limits of propriety and why it is sufficiently serious to warrant disciplinary sanctions. Both judges who want to participate in public discourse and the national authorities are warned.
Ultimately, the persistent disagreement among the Court’s judges proves that judicial freedom of expression remains a deeply unsettled topic. Even when there is theoretical agreement on the criteria, their application remains subjective. As a result, judges still cannot with certainty foresee which actions will be permitted and which will be sanctioned. The cloud of legal uncertainty will therefore continue to hang over the judiciary’s participation in the digital world. Nonetheless, clarity is getting closer with each step.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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