On 16 October 2024, the CEU DI Rule of Law Clinic submitted the third-party intervention in Danileţ v Romania case. The case concerned a disciplinary sanction imposed on a judge by Romania’s National Judicial and Legal Service Commission for posting two messages on his Facebook account.
In February 2024 the case of Danileţ v Romania was decided by the fourth section of the European Court of Human Rights (ECtHR). It was held by a majority that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. On 24 June 2024, the case was referred to the Grand Chamber and on 26 September 2024, the President of the Grand Chamber granted the CEU DI Rule of Law Clinic leave to intervene as a third party in the Court’s Grand Chamber proceedings.
The Rule of Law Clinic’s third-party intervention addresses three main topics:
- The general principles governing judges’ freedom of expression in Europe, particularly in light of the recent French updating of the guidelines codifying the ethical obligations of judges so as to cover inter alia the new and growing use of social media by judges;
- The general principles governing the freedom of expression of CJEU judges and, more broadly, that of public officials under EU law;
- The Court of Justice’s increasing reliance on a “contextual approach” in relation to restrictions placed on the fundamental rights of judges in its rule of law backsliding-related case law. In the case of Romania, this context has been characterised by a deliberate retreat from the rule of law which manifests itself inter alia by the abusive use of disciplinary proceedings and/or informal pressures targeting judges who publicly and critically react to attacks on the judiciary or merely seeks to uphold CJEU rule of law rulings.
Three main submissions are made:
- 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;
- Although the CJEU is yet to deal with cases directly raising the issue of judges’ free speech rights in a rule of law crisis or backsliding context, its recent case law, particularly in relation to the situation in Poland and Romania, shows how the Court has taken into account such a context when faced with national measures and/or practices targeting an individual magistrate, a group of magistrates or a particular court, or even the entire judiciary and/or a national judicial system. In the case of Romania, this context is characterised inter alia by ample evidence of disciplinary actions being “used against judges or prosecutors as political retaliation for their decisions or perceived political inclinations” or “wrongly used to influence which judges were assigned to sensitive trials” (US Department of State, 2023 Country Reports on Human Rights Practices: Romania, 22 April 2024).
Submission was authored by Professor Laurent Pech in his capacity as co-director of the Rule of Law Clinic.
