Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The European Court of Human Rights found that code-of-conduct penalties imposed on a judge for publishing an injurious article about another notable judge did not violate the former’s right to freedom of expression. The applicant, Ms Panioglu, had written an article in the press insinuating that the President of the Court of Cassation’s previous career as a prosecutor was linked to the oppressions of the former communist regime. An investigation was opened up against the applicant by the Judicial Investigation Unit (the IJ) and the Disciplinary Commission for Judges (the CDJ) considered that she might have breached Article 18 § 2 of the Code of Conduct for Judges (the Code) by expressing an opinion that harmed a fellow judge’s moral and professional integrity. The judge’s section of the Superior Council of the Judiciary (the CSM), the CSM’s Plenary, and the Court of Cassation all subsequently found that the applicant breached the Code. As a result, the violation was included in her professional file which impeded her from advancing her career. The European Court of Human Rights held that the code-of-conduct violation was not a violation of the applicant’s right to freedom of expression. The penalty was foreseeably prescribed by law, pursued a legitimate aim, and necessary in a democratic society. Specifically, the national authorities had properly balanced the right to expression with the judiciary’s preservation/other judge’s reputation. The imposed penalty was not excessive in the circumstances. Thus, Article 10 of the European Convention of Human Rights was not breached.
The applicant in this case was Ms Daniela Panioglu, a judge in the Bucharest Court of Appeal. In March 2012, the applicant wrote an article about the President of the Court of Cassation (Judge L.D.S.) entitled “Nothing about how a Comrade Prosecutor has become the president of all judges”. The article’s content seemed to link the oppressions of the prior communist regime with the ascent of the President of the Court of Cassation, who had worked as a prosecutor at that time. Generally, it was implied that Judge L.D.S. had acted in an unlawful and morally questionable manner as a prosecutor between 1980-1994. The article appeared in a national newspaper, Cotidianul, and on an Internet news site, Juridice.ro. The applicant’s name and judicial title were in the article’s byline.
The IJ – part of the CSM – started a preliminary investigation against the applicant. The article had been damaging to Judge L.D.S.’ reputation by calling into question her honor and integrity. Under relevant national and international law, free speech was limited when “honor, reputation, and personal image were affected” [para. 10]. Likewise, judges like the applicant were understood to behave in a manner that upheld the dignity and impartiality of their office and the judiciary. The article seemed to exceed that duty of discretion, particularly the implied “moderation and restraint in presenting her opinions” [para. 10]. The IJ concluded that there was evidence that the applicant had potentially committed a disciplinary offence.
The CDJ ordered a disciplinary investigation to be launched against the applicant but closed the proceedings in May 2012, saying that the relevant law did not apply to the applicant. Instead, the CDJ referred the case to the judges’ section of the CSM, the SJCSM, for a decision on whether the applicant violated Article 18 § 2 of the Code which specified that “judges and prosecutors were prohibited from expressing their opinion with regard to the moral and professional integrity of their colleagues” [para. 59].
The CDJ found that the applicant might have breached the Code for presenting a “malicious and distorted” [para. 20] picture of Judge L.D.S. Whilst the article was written in “a literary manner” [para. 14] and contained well-known and factual accounts of the communist era and Judge L.D.S.’ career path, it did cast Judge L.D.S. in an unfavorable light without any supporting evidence. Specifically, certain terms, comparisons, and implications had established “a negative image” [para. 15]. Thus, the applicant did not comply with the provisions of professional conduct of legal professionals and “overstepped the limits of expression” [para. 18], i.e., the duty of discretion. The balance between expression and the State’s legitimate interest in ensuring that those in public office complied with Article 10 of the European Convention of Human Rights had been “broken” [para. 18].
In October 2012, the SJCSM also held that the applicant breached the Code for similar reasons as the CDJ. It noted an opinion that prosecutors did not collaborate with the communist regime – they were actually the “only obstacle” [para. 25] to its abuses. The applicant had provided no concrete evidence to the contrary and appeared to blame Judge L.D.S. for simply working as a prosecutor during communism.
The applicant challenged the SJCSM decision before the CSM’s Plenary. She argued that only the expression of concrete acts or facts as a subjective viewpoint would impair professional integrity and morality. However, her article did not engage in explicitly detailing acts or facts, it merely proposed rhetorical questions without generating “a categorical opinion” [para. 27]. She also cited international and European instruments and claimed that special diligence was required in cases concerning the investigation of judges. The applicant contended that this was not adhered to with her article, and that it had been “assessed excessively” [para. 29] to the preferences of the investigators. Likewise, the applicant argued that her piece concerned the office of President of the Court of Cassation, not Judge L.D.S. as a personal colleague. In that respect, judges had to be more tolerant of criticism as public figures. In exercising official State functions, they were of public interest and their careers were open to public debate.
The CSM’s Plenary dismissed the applicant’s challenge. It outlined that her right to freedom of expression was curtailed because she breached an officer of the court’s duty to discretion – not simply because she was an officer of the court. Generally, the applicant was permitted to express opinions about some parts of the justice system’s activity. Her expression did not adhere to the implied moderation and restraint though, and there were alternative means to conveying her expression, particularly “in a less intense manner” [para. 35]. Furthermore, the article’s opinions made no distinction between the office of President and the person holding it. The CSM Plenary added that the context of the case mattered, observing that there was a lack of trust in the justice system which compromised its authority and impartiality. As a judge, the applicant should have known better and been balanced in her expression.
The applicant appealed the decision to the Court of Cassation with the same arguments. In November 2013, the Court of Cassation dismissed the appeal as ill-founded for similar reasons.
Separately, in December 2015, the applicant asked the CSM to remove the SJCSM’s, CSM’s Plenary’s, and Court of Cassation’s decisions from her professional file because the Code violation negatively impacted her career advancement to become judge with the Court of Cassation. The CSM’s Plenary dismissed the request, saying there were no legal grounds to remove the documents. The applicant raised administrative proceedings against the CSM again seeking the documents’ removal. She also argued that the Code should be struck down as unconstitutional because it lacked clarity of who it protected, particularly who qualified as a “colleague”. The Piteşti Court of Appeal referred the objection to the Constitutional Court where proceedings were still pending.
Regarding the applicant’s professional file, the CSM requested that the IJ produce a report on the professional integrity of candidates who were eligible to participate in a competition for promotions to the Court of Cassation in 2017. The IJ report of the applicant included the SJCSM decision about the Code breach, and a separate incident whereby the SJCSM imposed a disciplinary penalty on the applicant following a dispute she had with a colleague in 2016. This led the IJ to conclude that the applicant did not meet the necessary requirements to compete for the promotion. On separate occasions in 2019, the CSM informed the Government that the applicant had met the lawful conditions for participation in the recent 2017 competition but had failed to attend the exams. The code-of-conduct penalty had not prevented her from applying.
On April 24, 2014, the applicant lodged an application against Romania with the European Court of Human Rights in respect of Article 10 of the European Convention of Human Rights.
The European Court of Human Rights sought to determine if the penalty imposed on the applicant in accordance with Article 18 § 2 of the Code violated her right to freedom of expression under Article 10 of the Convention. In particular, it evaluated whether the interference in her rights was prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society.
The applicant complained that the sentence imposed on her interfered with her Article 10 right to freedom of expression. The interference had not been provided by law because Article 18 § 2 of the Code had been unforeseeable – it had failed to define the concept of expressing an opinion on the moral and professional integrity of a colleague. Likewise, even if the interference had pursued a legitimate aim, it was neither necessary in a democratic society, nor required by a pressing social need, nor proportionate. Justifications for it were also “unconvincing and subjective” [para. 80]. She outlined that her article contained no accusations directed at Judge L.D.S but simply questions raised about her past. Furthermore, the article contributed to the larger societal context concerning prosecutors’ role in the communist regime. It also contributed to a debate about the suitability of a former communist prosecutor becoming a leader for pro-European reform of the judiciary – the focus rested on Judge L.D.S’ capacity as President and not as judge. Generally, Judge L.D.S. was not exempt from criticism and the degree of acceptable criticism was higher for her than an ordinary judge. Lastly, the imposed penalty was a barrier to advancing professionally. The use of IJ reports similarly prejudiced her future applications.
In response, the Government acknowledged that the penalty could be perceived as an interference with the applicant’s right, but the interference was provided by law, had pursued a legitimate aim, and had been necessary in a democratic society. Article 18 § 2 of the Code had been accessible and foreseeable to the applicant and it was not unclear to the extent that the applicant could not expect an investigation to be opened against her. Additionally, the penalty was taken in a fair and balanced way and sought to protect others’ reputations and the justice system. The article went “beyond simple satire or speculation” [para. 92] without credible information and was not based on “direct personal experience” [para. 97]. By using her position of judge in the article’s byline, the applicant accepted that the article’s content would attract readers who were likely to view her arguments as a “more accurate” [para. 96] telling of her profession. Lastly, the Government stated that the applicant was not barred from applying for the competition because of the Code violation. The IJ report was also premised on a disciplinary offence she had committed in 2016, and that was what prevented her from applying. The penalty was not imposed in a “severe, excessive or disproportionate” [para. 97] way.
The Court first delineated the question of admissibility. The Government argued that the applicant had not suffered any significant disadvantage and, without that criterion met, she had no interest in her application. The penalty had no automatic effect on her opting to advance her careers, and, even so, it was unsubstantiated that she was automatically prevented from sitting exams. Rather, her own failure to sit them stymied what interest she had in her application.
The applicant responded that the imposed sentence hurt her career “indefinitely” [para. 70]. She could not pursue her promotion since it was contingent on her achieving certain results in previous professional appraisals, and she claimed that her chances of passing the competition exams were “rather theoretical” [para. 71]. Overall, the penalty was permanently in her professional file and would always hinder her application for a promotion.
The Court noted three criteria had to be met for admissibility, but the first was the main criterion: whether there was “significant disadvantage”. Its fundamental premise was that violation of a right should attain a minimum level of severity to merit consideration. The “key importance” [para. 74] of freedom of expression was observed and “subject to careful scrutiny” [para. 74] by the Court. In the case, the applicant’s subjective perception of the alleged violation was that it impacted her career prospects and penalized her participation in debates concerning the justice system. Thus, such a violation of Article 10 in the context of the “essential role of a functioning justice system” [para. 75] entailed significant questions of principle. Similarly, the Government did not contest the assertion that the penalty was permanently in the applicant’s professional file and jeopardized her promotion applications. The Court was satisfied that the applicant suffered a significant disadvantage and did not consider the other two criteria. It dismissed the Government’s objection and declared the complaint admissible.
Regarding the merits, the Court firstly acknowledged that there was an interference with the applicant’s right under Article 10 § 1, as agreed by the parties. Regarding whether such an interference was prescribed by law and in pursuit of a legitimate aim, the Court observed that the applicant did not seem to contest the Code’s accessibility but contested its foreseeability. She also seemed open to accepting that the interference had pursued a legitimate aim. The Court reiterated that a norm was not a law unless presented with sufficient precision for individuals to properly regulate their conduct. In other words, individuals should have been able to reasonably foresee the consequences involved regarding a given action. Still, absolute certainty was unattainable and adaptable law could use terms that were vague and whose application was subject to practice. To a large extent, foreseeability was dependent on the relevant text, its relevant field, and those who it sought to address.
In relation to the case, no ambiguity was found in the contents of Article 18 § 2 of the Code. Simply, judges were prohibited from expressing an opinion regarding the moral and professional integrity of their colleagues. Whilst certain concepts were undefined, the Court noted that the SJCSM, CSM Plenary, and the Court of Cassation found the statements of the applicant’s article to fall within the concept of “opinion expressed on the moral and professional integrity” which was not an “arbitrary or unpredictable interpretation” [para. 102]. The concept of “colleague” included judges who indeed worked in other courts besides that of the applicant. Moreover, the approach the authorities took in the applicant’s case appeared to be consistent in interpretation across similar cases, and the capability of a provision to have more than one interpretation did not eliminate it from being foreseeable.
Based on the language itself, it was foreseeable for a penalty to be imposed. To a greater degree, the provision had been in force for several years at the relevant time and, as a professional judge, the applicant “could not claim to be ignorant of its content” [para. 106]. If she did have doubts, she could have refrained from publishing her article. Given these points, the Court found Article 18 § 2 of the Code to be sufficiently clear as to meet the requirements of precision and foreseeability under Article 10 § 2 of the Convention. The interference was thus prescribed by law and pursued the legitimate aim of protecting the rights and reputations of others and preserving the judiciary’s authority.
The Court proceeded to the final step of whether the interference was necessary in a democratic society. Referencing Morice v. France [GC] ECtHR [2015)] 29369/10 and Baka v. Hungary [GC] ECtHR  20261/12, it reiterated the general principles regarding the necessity of an interference with freedom of expression, the maintenance of the judiciary’s authority, and judges’ freedom of expression.
In terms of the current case, the Court noted that applicant used her name and title in the article’s byline. In assessing the interference, the Court thus sought to attach greater importance to the applicants’ position, her statements, and their context. The Court also noted that the article’s aim was to raise questions about prosecutors’ role during the communist regime and the “aptness of a person who had occupied such a position for reforming a modern justice system” [para. 112]. The article dealt with matters of general interest “regarding the functionality and reform of the justice system” [para. 112]. Correspondingly, the article pertained to the professional activity of a judge, who was subject to personal criticism within permissible limits, and who was “subject to wider limits” [para. 113] than ordinary citizens when acting in her official capacity.
In circumstances where the judiciary’s authority and impartiality mattered, the Court mentioned that public officials were expected to use restraint when exercising freedom of expression. This included judicial authorities exercising maximum discretion and eschewing the use of the press. Such a duty stemmed from the higher demands of justice and the larger office of the judiciary, whose preservation was important for continuing public confidence and the success of the judiciary’s duties, in turn.
Regarding the article’s content, the Court noted that the national authorities were better placed to examine the intention of certain statements and the general public’s reaction to them. Likewise, considering the article’s tone and wording, the Court agreed that it contained allegations that prosecutors had engaged in harmful conduct. Thus, there was the suggestion that Judge L.D.S. acted in an immoral and unlawful way, and that such acts were “established and incontrovertible facts” [para. 117]. The Court also noted that nothing in the applicant’s submissions evidenced that Judge L.D.S. had committed any acts of the kind referenced. Overall, having considered the elements of the article and the balanced approach taken by the national authorities, the Court found the national authorities’ reasoning to be sufficient and relevant. The Court reiterated that, as a judge, the applicant should have been more cognizant of the risks involved for Judge L.D.S. and the judiciary when publishing her article.
Finally, the proportionality of the penalty was assessed. The Court noted that the decision was permanently included in the applicant’s professional file which would affect the competition for promotion – an issue the Government did not dispute. Regarding this effect, the Court observed that the penalty was not the only punishment accounted for in its negative report. It noted that the penalty did not prevent the applicant from applying or participating for the promotion competition. In conclusion, the Court was not ready to speculate on the result of any competition or whether the violation of the Code would by itself lead to the applicant’s automatic disqualification from the competitions.
Regarding the issue of a chilling effect on freedom of expression, the Court believed that, even if there was a chilling effect from the proceedings against the applicant, the decision was not so excessive in the circumstances of the case. Therefore, the national authorities were deemed to have struck a fair balance between protecting the judiciary’s authority/other’s reputations and the need to protect the applicant’s right to freedom of expression. The interference was found to be necessary in a democratic society in accordance with Article 10 § 2 of the Convention.
Hence, based on the three-part test, no violation of Article 10 of the Convention was found. The Court’s decision was without prejudice to the applicant’s resolution to pursue the administrative proceedings she had begun against the CSM, which might offer her the chance to have her penalty removed from her professional record.
Besides Article 10, the applicant complained that she had been discriminated against by the authorities, violating Article 14 of the Convention taken jointly with Article 10 and Article 1 of Protocol No. 12 to the Convention. Specifically, she was punished as an ordinary judge for statements that were not serious, whilst the head prosecutor of the National Anticorruption Department had not been punished for violent and defamatory statements dealing with the activities of some magistrates who were identifiable. Following its review of all the material, the Court found this complaint did not present any seeming violation of rights or freedoms outlined in the Conventions or its Protocols. This portion of the application was rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case had a mixed outcome. The applicant’s right to freedom of expression was curbed and no Article 10 violation was founded. However, the limitation was not excessive. The Article 10 right was correctly balanced against the reputation of a fellow judge/judiciary which was protected in the circumstances.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Referenced by the Court to reiterate the general principles regarding the necessity of an interference with freedom of expression, the maintenance of the judiciary’s authority, and judges’ freedom of expression.
Referenced by the Court to reiterate the general principles regarding the necessity of an interference with freedom of expression, the maintenance of the judiciary’s authority, and judges’ freedom of expression.
Applicant found to have breached law which specified that “judges and prosecutors were prohibited from expressing their opinion with regard to the moral and professional integrity of their colleagues” [para. 59].
Case significance refers to how influential the case is and how its significance changes over time.
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