Disciplinary sanction of non-promotion of a judge for harsh articles against the President of the Supreme Court. Accusations without proof. No violation of the right to freedom of expression
JUDGMENT
Panioglu v. Romania 08.12.2020 (app. no. 33794/14)
SUMMARY
Judges and freedom of expression. Official sanctions against a judge, in particular concerning promotion, due to an article she had written in the press.
The applicant wrote an article in the press entitled “Nothing about how a Comrade Prosecutor has become president of all the judges”. In it she harshly criticized the activities of the President of the Court of Cassation during the period of the oppressive communist regime, whenever she worked as a Prosecutor. She wondered how the “Comrade Prosecutor” had acted to “uproot the enemies of the socialist class” and to “chase” women who had had an abortion. . She spoke of the “dungeons” and “poverty” under the regime and the prosecutors “somewhere above in an untouchable shining world … All these
comrades, usurpers of Christ and His Law, sternly guard[ing] the communist prison”. She spoke about living in grinding poverty while “the Comrade Prosecutor ha[d] also floated above”.
The Court did not dispute the national authorities’ assessment that the article was detrimental to the reputation of the justice system and had harmed the judiciary, as it had been drafted without evidence. According to the ECtHR, the domestic authorities had properly balanced the applicant’s rights to freedom of expression with those of the President of the Court of Cassation and with the protection of the judiciary. She also considered that the sanctions imposed on her were not too harsh due to the circumstances, as they did not deprive her of judicial power nor was she sentenced to a fine.
The ECtHR did not find a violation of freedom of expression (Article 10 of the ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Daniela Panioglu, is a Romanian national who was born in 1968 and lives in Bucharest.
She is a judge of the Bucharest Court of Appeal.
In 2012 the applicant wrote an article about the President of the Court of Cassation entitled
“Nothing about how a Comrade Prosecutor has become president of all the judges”. In it she
described from her perspective some facts of life under the communist regime, linking her
description to the President of the Court, who under communism had been a prosecutor. She asked
how the “Comrade Prosecutor” had acted in “root[ing] out the enemies of the socialist order … [and]
‘hunt[ing] down’ women who had had abortions”. She spoke of the “dungeons” and “poverty” under
the regime and the prosecutors “somewhere above in an untouchable shining world … All these
comrades, usurpers of Christ and His Law, sternly guard[ing] the communist prison”. She spoke
about living in grinding poverty while “the Comrade Prosecutor ha[d] also floated above”. Many
other expressions in the text were cited as controversial or insulting in the subsequent domestic
decisions.
The article was published in both a national newspaper and on a website with the applicant’s name
and professional title in the byline.
On 8 March 2012 the Judicial Investigation Unit (“the IJ”) of the Superior Council of the Judiciary
(Consiliul Superior al Magistraturii – “the CSM”) opened an investigation into the article. The IJ
produced a report for the disciplinary body for judges, stating that the applicant had drawn a parallel
between communist oppression and the rise of the President, despite the fact she had been
appointed lawfully and had not had dealings with the intelligence services under the communist
regime. The applicant had suggested that the judge had worked unlawfully and suggested
questionable moral behaviour, calling into question the honour and professional integrity of the
President and damaging her professional reputation. It noted that there was an obligation on judges to preserve the dignity of their office, implying moderation when expressing opinions. The IJ stated that there had been a possible disciplinary offence in the applicant’s actions.
As a result, another investigation was ordered. The question of whether the applicant had breached
the Code of Conduct for Judges was passed onto the judges’ section of the CSM. The section held
that her article had not amounted to a disciplinary offence because of the literary-style presentation
of well-known aspects of the communist era, the lack of foul language, and the references to the
President before she had attained that position. However, she had breached the Code of Conduct
for Judges by associating the President’s rise and activities as a prosecutor with guilt, with
oppression of the poor and women, with maintaining the metaphorical communist dungeon. For
them, she had overstepped her duty of discretion and damaged the reputation of the President. A
decision of 16 October 2012 by the section confirmed that opinion.
The applicant challenged that decision before the plenary of the CSM, arguing that, among other
things, she had been referring to the post of president rather than the president herself, and that
the piece had been literary opinion rather than a statement of fact. That challenge was dismissed,
with the plenary holding that the article had directly affected the reputation of the President.
The applicant challenged that decision before the Court of Cassation. That appeal was dismissed on
1 November 2013 in a final judgment, holding furthermore that the diversion from disciplinary
proceedings to code-of-conduct proceedings had been justified.
The applicant sought to have the above decisions and other information related to an alleged breach
of the Code of Conduct removed from her professional file in 2015. She argued, in part, that the
decision and the Code itself were unconstitutional. The CSM dismissed that application.
The applicant brought administrative proceedings in respect of the above decision against the CSM,
which were rejected on 4 October 2016. The constitutionality question was referred to the
Constitutional Court, which has yet to rule.
A report was produced in 2017 regarding the professional integrity of candidates for promotion to
the Court of Cassation. Concerning the applicant, the report noted the breach of the Code, among
other concerns around the applicant’s integrity. It concluded that she did not meet the
requirements.
However, in 2019 the CSM asserted that the applicant had met the criteria for the promotion
competition, but that she had not sat the exams (the applicant stated that she had withdrawn to
avoid public humiliation, as she could not have succeeded owing to her professional file at that
time). It noted that her two most recent professional appraisals had not been finalised (the three
most recent were taken into account for promotion). Later the Bucharest Court of Appeal stated
that she would not be eligible to apply for promotion before 2021 owing to a 2012 conduct penalty.
On 17 April 2019 the Court of Cassation found the relevant provisions of the Code of Conduct for
Judges unlawful and struck them down.
Relying on Article 10 (freedom of expression), the applicant complained that preventing her from
gaining promotion because of an opinion expressed on a colleague had violated her right to freedom
of expression.
THE DECISION OF THE COURT…
Article 10
The Government argued, initially, that the applicant had not suffered any “significant disadvantage”
as she had not been prevented from sitting the exams, and so the application was inadmissible.
The Court reiterated the importance of freedom of expression for a functioning democracy, meaning
that it had to carefully examine that question in the current application. The Court judged that the
applicant had suffered a significant disadvantage in that she had been penalised for participating in a
debate around the judiciary and the penalties remained on her permanent record. The application
was admissible.
The Government argued that the interference with the applicant’s rights had been provided for by
law and had been clear and foreseeable. The Court agreed, stating that the applicant should have
known that a penalty would have been possible, given that the relevant provisions of the Code of
Conduct had been quite clear, particularly given that they had applied to a narrow group – judges.
The Court noted that the aim of the applicant’s article had been to raise questions about the
appropriateness of someone who had acted as a prosecutor in the communist regime being tasked
with leading and reforming the judicial system. The applicant had also focused on the President’s
professional life. The Court stated that officers of the court in their roles could be subjected to more
criticism than an ordinary citizen. However, it reiterated that officers of the court were expected to
show maximum discretion so as to maintain public confidence in the judiciary.
In the light of this, the Court did not call into question the national authorities’ assessment that the
article had been detrimental to the reputation of the justice system and had damaged the judiciary,
and had been presented without evidence. The Court was satisfied that the national authorities had
balanced the competing rights of the applicant and the President.
Concerning the penalty applied, the Court noted the reasons given by the applicant for her
withdrawal from the competition, but was not willing to speculate on what the outcome would have
been had she remained. Overall, the penalty had not been excessive. There had been no violation of
the applicant’s rights.
