In December 2025 the Grand Chamber of the European Court of Human Rights issued a judgment in Danileţ v Romania case, in which the Rule of Law Clinic submitted amicus curiae brief.
The case concerned the freedom of expression of a judge, who had had a sanction imposed on him by the National Judicial and Legal Service Commission (Consiliul Superior al Magistraturii – CSM) for posting two messages on his publicly accessible Facebook page.
The Court ruled that where democracy or the rule of law was under serious threat, judges were entitled to speak out on matters of public interest. Remarks made in such a context generally enjoyed a high degree of protection. The Court considered that the applicant’s posts had not upset the reasonable balance between, on the one hand, the degree to which the applicant, as a judge, could be involved in society 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 discharge of his duties.
In the reasons given by the national authorities, there was nothing to indicate convincingly how his remarks had allegedly disrupted the proper functioning of the domestic justice system and impaired the dignity and honour of judicial office or the public confidence that such office should inspire. Examining the posts in the light of the criteria it had established with regard to the freedom of expression of judges and prosecutors on the internet, the Court found that the interference with the applicant’s freedom of expression had not been based on relevant and sufficient reasons and had not met a pressing social need
In its third party intervention the Rule of Law Clinic argued that while it is generally accepted that judges may be subject to an “enhanced” duty of restraint, including when exercising their freedom of expression via social networks, insofar as this is necessary to preserve the authority and impartiality of the judiciary, this duty cannot be interpreted as prohibiting individual or collective public statements. This “enhanced” duty of restraint is furthermore replaced by an “enhanced” freedom of expression in a situation of rule of law crisis or backsliding. In such a situation, members of the judiciary do not simply have the right to exercise their freedom of expression, they have a duty to speak out in defence of the rule of law, including by expressing views and opinions in a manner which might otherwise constitute a breach of their duty of restraint;
Submission was authored by Professor Laurent Pech in his capacity as co-director of the Rule of Law Clinic. The Rule of Law Clinic at the CEU Democracy Institute is an academic program focusing on impartial engagement with European Union values with a particular emphasis on the rule of law. Its expertise and experience draw on contributions of academics and practitioners from across the European Union and the Council of Europe. The Rule of Law Clinic does not represent the institutional position of CEU.
