CEDH · CASELAW;CLIN;ENG — 8 décembre 2020

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Romania - 33794/14 Judgment 8.12.2020 [Section IV] Article 10 Article 10-1 Freedom of expression Fair balance struck in imposing code-of-conduct penalty on judge for publishing unsubstantiated allegations calling into question moral and professional integrity of a fellow judge: no violation Facts – The applicant, a judge in the Bucharest Court of Appeal, wrote an article about the President of the Court of Cassation. It was published in a national newspaper and on an internet news site, with the byline noting her name and profession. The judges’ section of the Superior Council of the Judiciary (SJCSM) subsequently held that the article had breached the Code of Conduct for Judges and Prosecutors. The applicant appealed unsuccessfully up to the Court of Cassation.   Law – Article 10: (a) Whether there was an interference prescribed by law and pursuing a legitimate aim – The SJCSM’s decision, which had subsequently been confirmed by the Court of Cassation’s final judgment had interfered with the applicant’s freedom of expression. The interference had been based on the Code of Conduct and the relevant provision had been accessible. It had further pursued the legitimate aim of protecting the rights and reputation of others and of maintaining the authority of the judiciary. In order for the interference to be considered as “prescribed by law”, the Court had to determine whether the provision in question had fulfilled the precision and foreseeability requirements. The relevant provision in the Code provided that judges were prohibited from expressing an opinion with regard to the moral and professional integrity of their colleagues. In regarding the points made in the applicant’s article as falling thereunder, the interpretation of the domestic courts did not appear arbitrary or unpredictable. They had considered implicitly that the concept of “colleague” had included judges who worked in other courts than the one the applicant was working, which had been consistent with their approach in a subsequent case. Although the Court of Cassation had later found that the concept of “colleague” had not been defined with sufficient precision, the mere fact that a legal provision was capable of more than one construction did not necessarily mean that it did not meet the requirement of foreseeability. Moreover, the Court of Cassation’s judgment had been delivered years after the proceedings against the applicant had ended with a final court judgment. While there had been very few cases in which the provision had been applied, this would not have rendered the domestic authorities’ application unpredictable or arbitrary. The impugned legal provision had been enacted to cover the conduct of judges, who formed a specific and restricted group, more specifically, opinions expressed by them about the integrity of other colleagues. At the time of the impugned events, the legal provision in question had been in force for several years and the applicant, who was a professional judge and who had extensive experience in the field, could not have claimed to be ignorant of its content. As a result, had she had doubts about the exact scope of the provision in question, she could have refrained from publishing the article. (b) Whether the interference was necessary in a democratic society – The ultimate aim of the applicant’s article had been to raise questions about the role public prosecutors had had during the communist regime and about the aptness of a person who had occupied such a position for reforming a modern justice system and ensuring its proper functioning. The article had been written in the context of a larger public debate about legislation concerning the lustration of the prosecution service. The article had not concerned Judge L.D.S’s private life, but rather her professional activity and rise to the highest judicial position in the country. The applicant’s article had therefore concerned matters of general interest regarding the functioning and the reform of the justice system. Moreover, an officer of the court might as such be subject to criticism within the permissible limits and not only in a theoretical and general manner, and might be subject to wider limits of acceptable criticism than ordinary citizens, particularly bearing in mind that her occupation of a very visible public office (namely that of President of the Court of Cassation). As to the content of the impugned article, the national authorities had held that the applicant had breached the Code because of the intended meaning of her article and the expressions used. In addition, they had been of the view that her article had breached her duty of discretion and that her statements had not been value judgments but had conveyed specific aspects and a clear and unequivocal personal opinion concerning the moral and professional integrity of the President of the Court of Cassation. The article might have caused a reasonable observer to doubt these qualities of the person targeted, and had been detrimental to the reputation of the judicial system and the dignity, independence and impartiality of the judiciary. Taking into account the overall tone and wording of the article, as well as the scope of the rhetorical questions concerning L.D.S.’s professional activity and rise, the article had actually contained allegations of specific conduct by prosecutors, in general, and L.D.S. in particular. The article had therefore suggested to the public that L.D.S. had behaved in an immoral and unlawful manner, and had been likely to lead it to believe that these were established and incontrovertible facts. However, this had not been supported by any of the information relied upon by the applicant in her submissions. In that context and as a judge, the applicant should have been aware and mindful of the risks involved in publishing her article and the impact it could have had both on Judge L.D.S.’s professional life. It could therefore be expected that she should show restraint in exercising her freedom of expression in all cases where the authority and impartiality of the judiciary were likely to be called into question. Concerning the proportionality of the penalty, the decision of the code-of conduct proceedings was permanently included in the applicant’s professional file and would be taken into account in her professional appraisal. During a competition for promotion to the Court of Cassation, the Judicial Investigation Unit (IJ) had relied on the aforementioned decision in producing a negative report concerning the applicant’s professional integrity, which suggested that the penalty had been relevant and affected the assessment of the applicant’s applications for promotion. However, the IJ had not only taken into account the code-of-conduct penalty in producing its report and the applicant did not seem to be prevented by the penalty either from applying to participate or from actually participating in promotion competitions. Even if the decision may have had a certain “chilling effect” on the exercise of the applicant’s freedom of expression, it had not been excessive in the circumstances of the present case. In light of the foregoing, and the particular importance that the Court attached to the position held by the applicant, the domestic authorities had struck a fair balance between the competing rights and interests. Conclusion: no violation (unanimously). The Court’s finding was without prejudice to the applicant’s decision to pursue the administrative proceedings she had initiated, seeking to have the provision of the Code struck down. (See also Di Giovanni v.   Italy , 51160/06 , 9 July 2013; Baka v. Hungary [GC], 20261/12 , 23 June 2016)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes