How the ECHR argues the decision in the case of Cristi Danileț, sanctioned in Romania for crime of opinion: None of the reasons cited by the national authorities indicate how his statements would have disrupted the proper functioning of the judicial system

Disciplinarily investigated and sanctioned in Romania for posts on Facebook, former judge Cristi Danileț definitively won at the ECHR the case filed against the Romanian state. “Judges have the right, when democracy or the rule of law are seriously threatened, to express themselves publicly on matters of general interest, presenting views and opinions on matters of which the public would have a legitimate interest in being informed,” says the European Court.

Disciplinarily sanctioned by the CSM for posts made on Facebook, former judge Cristi Danileț won the case brought to Romania at the ECHR as early as February 2024, but the Ciolacu Government appealed the decision. The decision was challenged through the Ministry of Foreign Affairs then headed by Luminița Odobescu. On Monday, the Grand Chamber of the ECHR ruled in favor of the judge, who has since retired.

In the final decision handed down on Monday, the ECtHR considers that the statements made by Danileț in the two messages published on Facebook for which he was sanctioned “were not likely to disturb the reasonable balance between, on the one hand, the degree of involvement of the applicant, as a judge, in society, to defend the constitutional order and institutions and, on the other hand, his duty to preserve his independence, impartiality and the appearance of this independence and impartiality in the exercise its functions”.

In the opinion of the European Court, the two messages concerned matters of general interest, about which the public had a legitimate interest in being informed, and “none of the reasons invoked by the national authorities convincingly indicate in what way these statements would have disrupted the proper functioning of the national judicial system and would have harmed the dignity and honor of the profession of magistrate or the confidence that litigants should have in it”.

The disciplinary sanction against Danileț, “an interference in the exercise of his right to freedom of expression”

In justifying the decision, the ECHR explained that there are no pertinent and sufficient reasons for the CSM to sanction the former judge, for the posts he made on Facebook.

Some of the ECHR's arguments for Monday's decision:

• “The court considers that the disciplinary sanction applied to the applicant constituted an interference in the exercise of his right to freedom of expression.
• The Court emphasizes that a balance must be struck between, on the one hand, the right to freedom of expression guaranteed to magistrates, as to any person, by Article 10 of the Convention and, on the other hand, the obligation of reserve, a social value that originates in the deontological obligation imposed on magistrates in order to protect the confidence of litigants in the judicial system and which is part of the “duties and responsibilities” referred to in Article 10 § 2 of the Convention.
• Examining the messages published by the applicant in the light of the criteria he defined, the Court notes that the applicant, in his first message, undoubtedly participated in a controversy of a political nature. However, this circumstance is not, in itself, sufficient to prevent a magistrate from taking a position on a matter of public interest.
• In the Court's opinion, the applicant's claims, according to which constitutional democracy would be in danger in the event of taking over political control over public institutions, could be interpreted as having the purpose of defending the constitutional order and preserving the independence of the institutions of a democratic state.
• Moreover, nothing in the reasons cited by the national authorities indicates how the applicant's statements would have disrupted the proper functioning of the national judicial system and would have harmed the dignity and honor of the profession of magistrate or the confidence that litigants should have in it.

“Judges have the right, when democracy or the rule of law are seriously threatened, to express themselves publicly on issues of general interest”

• As regards the second message, the Court considers that there is no doubt that it referred to matters of general interest regarding legislative reforms in the judiciary, i.e. the functioning of the judiciary, a subject which entails a high level of protection under Article 10.
• The Court notes that the Romanian expression “blood in the installation” was the main element that led the national courts to sanction the applicant. However, the national courts did not explain to what extent this expression exceeded “far beyond the limits of the decency of the position” held by the applicant and was of such a gravity as to require the application of disciplinary sanctions.
• In addition, the Court recalls that the lack of clarity of statements made by a magistrate on social media can be problematic. Although it would have been preferable, in the present case, for the applicant to use clearer language, thus avoiding leaving room for different interpretations, it must be noted that the references to the army contained in his first message highlight, in essence, in a rhetorical form, his fears regarding the risk of political influence on the said institution.
• In the absence of other elements confirming a possible intention of the applicant to incite his readers to take to the streets or to resort to violence, these simple references to the army, however ambiguous they may seem, cannot be sufficient to disturb the balance that had to be maintained between the degree of involvement of the applicant, as a judge, in society and the preservation of his independence and impartiality, as well as the appearance of this independence and impartiality in the exercise of his functions.
• The Court considers, at the same time, that the plaintiff's statements could be understood reasonably, considering the reference to the Constitution and the need to preserve the separation of powers in the state, as aiming at the defense of the democratic order. They were expressed in the context of a debate on topics of general interest regarding the extension of the mandate of the Chief of Staff of the Army, an event that generated an institutional conflict between the Ministry of Defense and the presidential administration and retained the attention of the media.
• In this sense, the Court recalls that judges have the right, when democracy or the rule of law are seriously threatened, to express themselves publicly on matters of general interest, presenting points of view and opinions on matters about which the public would have a legitimate interest to be informed. Furthermore, statements made in such a context generally enjoy a high level of protection under Article 10 of the Convention.
• The Court also finds that the applicant's position, expressed in the second message, was clearly part of a debate on topics of general interest, regarding the legislative reforms of the judicial system, topics that were also the subject of debates within the Venice Commission and the European Commission. This context was not taken into account by the national courts in assessing the second message of the applicant, which was thus not subject to a rigorous examination, imposed by the circumstances of the case.

Neither the CSM nor the ICCJ examined whether Danileț's statements “had a factual basis”

• Regarding the observance of procedural guarantees, the Court notes that neither the disciplinary section of the SCM nor the High Court examined, although they had the opportunity to do so, whether the value judgments formulated by the applicant in his first message had a sufficient “factual basis”.
• Also, they did not indicate the concrete reasons why the Romanian expression “blood in the installation” contained in the second message was, in their opinion, likely to exceed “by far the limits of the decency of the position he occupied”.
• They also failed to examine the context in which the applicant made these statements.
• Consequently, the Court has doubts about the quality and extent of the judicial control carried out in the case, which do not seem to have been sufficient”.

The messages on Facebook for which the CSM sanctioned Danileț

In 2019, the Superior Council of the Magistracy fined Cristi Dănileț 5% of her salary for a period of two months, accusing her of tarnishing the image and honor of the judicial system and violating the obligation of discretion through Facebook posts.

The CSM also said that the language used in another post exceeded the limits of decency, and Dănileți behaved unworthy of a judge.

In May 2020, the Supreme Court of Cassation and Justice rejected the appeal of Mr. Danileţ and confirmed the decision of the CSM.

In the first post, Dănileț shared an interview given by Claudiu Sandu, then the first prosecutor of the Prosecutor's Office attached to the Brașov Court, in which he denounced in very harsh terms the assault of the PSD government on the judiciary.

Danileț accompanied the interview with his own comment: “Here, this prosecutor with blood in the installation: he talks openly about dangerous criminals at large, about the bad ideas of the governors in changing the Justice laws, about lynchings against magistrates!”.

The second post by Danileț that attracted the sanction was a citation of Article 118 of the Constitution, which states that “The Army is subordinated exclusively to the will of the people, to guarantee (…) constitutional democracy”. The CSM classified the post as incitement to armed revolt.