The decision of the ÎCCJ in the Danileţ case, annulled by the ECHR

The European Court of Human Rights decided, yesterday, that magistrates have the right to free expression in relation to public political issues, according to the decision handed down in the case in which former judge Cristi Danileţ accused the Romanian state of supporting the decision of the Superior Council of the Magistracy which sanctioned him for a post made on Facebook in 2019.

The ECHR decision taken by a simple majority (4 votes to 3) establishes that the Romanian state violated the provisions of Article 10 of the European Convention on Human Rights regarding freedom of thought in relation to Judge Cristi Dănileţ. Going over the provision of the ECHR sentence regarding the part of the compensation awarded to the former magistrate, we note that "in a democratic society, issues related to the functioning of justice are of general interest".

The cited document states: "Even if a question giving rise to a debate on the judiciary has political implications, that simple fact is not in itself sufficient to prevent a judge from making a statement on the subject. (...) It is true that the particular mission of the judicial power in society imposes on magistrates a reserve duty. In particular, we have a right to expect judicial officials to use their free speech with restraint whenever the authority and impartiality of the judiciary might be called into question. Disclosure of certain information, even if accurate, should be done with moderation and decency. (...) The Court first notes that at the time of the facts, the applicant was a judge at the Cluj Court. This position assigned him the duty of guarantor of individual liberties and the rule of law, through his contribution to the proper functioning of justice and thus to public confidence in it. We are therefore entitled to expect that the claimant has exercised his freedom of expression with restraint, the authority and impartiality of the judiciary being called into question. The Court considers, however, that any interference with a magistrate's freedom of expression requires careful examination."

In examining the case, the ECHR magistrates held that the disciplinary sanction applied by the CSM to Cristi Danileţ was based on "the plaintiff's failure to respect his duty of discretion and the attack on the dignity of the position of judge, on the impartiality and good image of the judiciary due to two messages" that the former judge published on his Facebook account.

It is about the message published on January 9, 2019, in which Cristi Danileţ stated: "Perhaps someone still notices the sequence of attacks, destructions and discredits against the following institutions: DGIPI, SRI, SPP, Police, DNA, Gendarmerie, PICCJ, ICCJ, Army . They do not seem accidental after the loud and clear declaration of "abuses of the institutions of force". We all know what it would mean to inefficiency or, worse, to take political control of these institutions: services, police, justice, army? And, speaking of the Army: did anyone pay attention to the provisions of art. 118 para. (1) of the Constitution according to which "the Army is subordinated exclusively to the will of the people to guarantee constitutional democracy"? What if one day we saw the army on the street guarding ... democracy, because we still saw today that the coefficient is decreasing?! Wouldn't it surprise you to realize that it would be ... constitutional!? I think we don't see the forest for the trees."

The ECHR sentence also states that, the next day, January 10, 2019, Cristi Danileţ published on his Facebook page a hyperlink leading to a press article entitled "The alarm signal of a prosecutor. It's a huge risk to live in Romania at the moment. The red line in justice has been crossed!", hyperlink the former judge commented: "Here is a prosecutor who has blood in his veins: he talks openly about the release of dangerous prisoners, about the ideas of political leaders about legislative reforms and the lynching of magistrates."

The CSM considered that by publishing his first message, Cristi Danileţ unequivocally and in front of several thousand readers, questioned the credibility of the respective institutions, implying that they are controlled by the political class and proposing the intervention of the army as a solution to guarantee constitutional democracy . As for the second message, the CSM assessed that the language used by the preacher Dănileţ exceeded the limits of decency and the status of a magistrate, findings also confirmed by the High Court of Cassation and Justice.

With regard to these aspects, the ECtHR judgment states: "The Court considers that, in order to reach these conclusions, the national courts neither carried out a weighting of the interests at stake in accordance with the criteria established in the Court's jurisprudence, nor did they properly analyze the necessity interference with the applicant and the right to freedom of expression. This imbalance of competing interests is itself problematic in terms of Article 10 of the Convention. (...) the national courts limited themselves to an assessment of the way in which the applicant expressed himself, without transposing the expressions used by him in the wider context, namely that of a debate on issues of general interest. (...) Regarding the first disputed message, the Court held that it rather contained criticism of the alleged political influences suffered by certain institutions, in this case the police, the judiciary and the army. The applicant referred to the constitutional provisions which stated that the army was subject to the will of the people and questioned the risks of any political control over this institution. Using rhetorical questions, he invited his readers to imagine the army one day acting against the will of the people, citing the pretext of wanting to defend democracy. According to him, it was a simple detail that hid a more serious problem. Contrary to the argument invoked by the Government, the Court considers that, placed in their context, the applicant's comments amount to value judgments according to which constitutional democracy was in danger, in the event of a resumption of political control over public institutions. These observations, which do not lend themselves to a demonstration of their accuracy, therefore concern matters of general interest related to the separation of powers and the need to preserve the independence of the institutions of a democratic state".

As for the second message, the ECHR held that Cristi Danileţ's statement related to the prosecutor that appeared in the press material represents the judge's adherence to the ideas expressed in the interview by the respective magistrate and a participation in the debate on the issues with which faced the Romanian magistrates at the time of the facts.

Thus, according to the ECHR judgment, "the position of the plaintiff was clearly included in a debate on issues of general interest, regarding the legislative reforms affecting the judicial system".

In the light of all the above considerations, the ECtHR concluded that, in the context of balancing competing interests, "domestic courts did not properly take into account certain important factors, in particular with regard to the wider context in which they included the applicant's claims, participation in a debate on matters of general interest, the question of whether the value judgments expressed in the present case were based on a sufficient factual basis and, finally, the potential dissuasive effect of the sanction applied".

Doing so, "the national judges did not give the freedom of expression of the person in question the weight and importance that such freedom deserves in the sense of the Court's jurisprudence, even in the face of the use of a means of communication (in this case a Facebook account accessible to the public ) which may give rise to legitimate questions regarding compliance with the magistrates' duty of confidentiality".

The ECtHR states that the Romanian court did not provide relevant and sufficient reasons to justify the alleged interference with the applicant's right to freedom of expression and that, therefore, there was a violation of Article 10 of the European Convention on Human Rights.

We remind you that former judge Cristi Danileţ sued the Romanian state at the ECtHR in March 2021, after he was disciplined for the posts from January 2019, in which he criticized PSD's assault on the rule of law and the independence of the judiciary. Danileţ was suspended from the judiciary three times by the CSM, but he won the appeals filed against the Council's decisions at the High Court.