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Freedom of Expression of Judges, the Duty of Discretion and Judicial Independence in Danileţ v Romania: Striving for Clarity, Ending in Greater Obscurity

Published online by Cambridge University Press:  06 October 2026

Mohor Fajdiga Open the ORCID record for Mohor Fajdiga [Opens in a new window]
Mohor Fajdiga*
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University of Ljubljana, Faculty of Public Administration, Slovenia, email: mohor.fajdiga@fu.uni-lj.si University of Ljubljana, Faculty of Law, Slovenia, email: mohor.fajdiga@pf.uni-lj.si
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European Constitutional Law Review , First View , pp. 1 - 23
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Introduction

On 15 December 2025, the European Court of Human Rights (the Court) issued a Grand Chamber judgment in Danileţ v Romania.Footnote 1 The case concerned the freedom of expression of a first instance court judge, who had been disciplined for publishing two messages on his public Facebook profile. While most prior cases concerning freedom of expression of judges – an increasingly prolific area of the Court’s case law – can be described as fairly straightforward, Danileţ was a contentious case, where the outcome was far from obvious.

As usual, the Court’s decision hinged on the question of whether the restriction of freedom of expression was proportionate. The Court found a violation of Article 10 of the European Convention of Human Rights (the Convention) with ten votes to seven. The majority ruled that the applicant’s statements were acceptable,Footnote 2 while the dissenting judges argued that the applicant had violated his duty of discretion – an obligation, requiring judges to exercise restraint and moderation in their public appearances to preserve the public trust in their independence and impartiality. In their opinion, the applicant’s first statement could be understood not only in line with the interpretation of the majority – as a warning against political interference in the institutions of the democratic state – but also as an appeal to force. They also argued that the Romanian authorities could reasonably conclude that the applicant’s second statement exceeded the limits of judicial free speech, as he had used an inappropriate colloquial expression – ‘to have blood in his veins’ – to describe a prosecutor who had openly criticised political pressure and legislative changes affecting the judiciary.Footnote 3

The Strasbourg judges also differently evaluated the national procedures. While the minority was satisfied with the domestic handling of the case,Footnote 4 the majority ruled that the applicant had not been afforded sufficient procedural safeguards and criticised the Romanian authorities for not taking into account the national context marked by successive amendments to Romania’s legislation on justice and for the failure to demonstrate any concrete adverse consequences for public trust in the judiciary that the applicant’s Facebook messages allegedly generated.Footnote 5 The disagreement persisted in the evaluation of the sanction imposed. The dissent found the sanction of a two-month 5% salary cut to be proportionate as it had been among the lightest disciplinary measures available,Footnote 6 while the majority disagreed and warned about the chilling effect on the profession as a whole.Footnote 7

Judge Krenc predominantly agreed with the dissent, but ultimately voted with the majority. He opined that the applicant had violated his duty of discretion, but argued the disciplinary sanction was unnecessarily harsh. The outcome was therefore not far from the complete split we witnessed in the Fourth Section’s four to three decision in this case in February 2024.Footnote 8

However, judges managed to unite on what would normally be the most significant part of the ruling: they unanimously (re)defined the general principles for the assessment of proportionality of interferences with freedom of expression of judges. The checklist thus established could have proven an invaluable source of guidance for the national authorities as well as for the different sections of the European Court. Still, as this case note shows, the checklist lacks important criteria and is therefore not exhaustive, contrary to what Danileţ suggests. Moreover, some criteria lack adequate grounding in prior case law and are presented in a confusing manner. Instead of clarifying and consolidating the case law, the checklist therefore further obscures the applicable standards. Danileţ’s most noteworthy contribution thus lies elsewhere: ins the Court’s clarification of the duty of discretion and the purpose it ultimately serves: to maintain public trust in the judiciary – a necessary requirement for sustaining judicial independence over time.

This case note begins by describing the national background of the decision and outlining the Chamber and Grand Chamber rulings, along with their separate opinions. The commentary first claims that the entire body of case law concerning the freedom of expression of judges is heavily influenced by an underlying principle, which is central to the role of judges in a democratic society: judicial independence. After placing the case in a broader legal context, it zooms in onto the Danileţ ruling to demonstrate how it supports and reinforces the paramount role of judicial independence in the Court’s jurisprudence regarding judges’ freedom of expression. Against this backdrop, the commentary analyses the newly established checklist and argues that it does not do what it intends to do – to clarify and consolidate the Court’s jurisprudence. The case note concludes by deploring the Court’s missed opportunity to give a hand to national judges and national authorities in striking the proper balance between freedom of expression and the duty of discretion – a daunting task that judges often face nowadays.

Background of the case: from Facebook to Strasbourg

In January 2019, the applicant, a judge at the Cluj County Court who was also a social media opinion leader, posted two messages on his public Facebook account, which had around 50,000 followers. The first message concerned the alleged unlawful extension of the mandate of the Army Chief of Staff by the President of Romania. The applicant drew attention to attacks on the courts, the prosecution service, the army, and other state institutions, arguing that the intention was to subordinate them politically. He continued:

And speaking of the army, have you ever given much thought to Article 118 § 1 of the Constitution, which provides that ‘the army shall solely serve the will of the people in order to preserve … constitutional democracy’? What would happen if one day the army could be seen out on the streets defending … democracy, because support appears to be waning these days? Would you be surprised to know that this solution would be … constitutional?! I think we can’t see the wood for the trees … Footnote 9

Before the national authorities and the Court, the applicant argued that he wanted to alert the public to the potential abuse of the army, alluding to events from 1989, to further entrench the position of those in power, under a pretext of defending democracy.Footnote 10 In contrast, the Romanian authorities argued that the applicant had cast doubt on the credibility of state institutions and understood the message as an appeal to the army to intervene against the ruling majority and restore the democratic order.Footnote 11

The day after the first statement was published, the applicant posted a hyperlink to an interview with a Romanian public prosecutor who openly highlighted political pressure on magistrates and linked the surge in violent crime to legislative changes that had weakened law enforcement, while also warning about outdated equipment and chronic underfunding in the prosecution services.Footnote 12 Judge Danileţ added the following comment:

Now here’s a prosecutor with some blood in his veins (sânge în instalaţie), speaking his mind about dangerous prisoners being freed, our leaders’ bad ideas on legislative reform, and judges and prosecutors being ‘lynched’!Footnote 13

The domestic authorities found the second Facebook post, in particular the expression ‘blood in his veins’, to be inappropriate.Footnote 14 The applicant disagreed, arguing that the expression was acceptable, as it was often used by politicians, journalists and other public figures.Footnote 15

Both messages received significant media attention.Footnote 16 The Judicial Inspection Board reviewed the case of its own motion and decided to open an official investigation. After hearing the applicant and several witnesses, the Board decided to initiate disciplinary proceedings before the Disciplinary Board for Judges of the Superior Council of the Magistracy. By a majority of six to three, the Disciplinary Board found that both applicant’s posts had ‘impaired the honour and image of the justice system’ in violation of Article 99(a) of Law No. 303/2004. The second most lenient disciplinary sanction was imposed: a 5% reduction in salary for two months, while the domestic legislation allowed for a reduction of up to 25% in salary for a period of one year. After assessing the decision in light of standards of domestic law and the Convention, the High Court of Cassation and Justice rejected the applicant’s appeal in its entirety. It found that while the applicant had not intended to impair the image of the justice system, the boundary of propriety had still been overstepped.Footnote 17 In response, the applicant lodged an application to the European Court.

Chamber judgment and joint dissenting opinion

The case was first heard by the Fourth Section of the Court. By a majority of four to three, the Court found that by imposing the disciplinary measure on the applicant, Romania had violated Article 10 of the Convention. The majority ruled that the first statement ‘relat[ed] to the separation of powers and the need to preserve the independence of the institutions of a democratic State’, while the second concerned ‘legislative reforms affecting the justice system’ – both of which are topics that enjoy strong protection, leaving the national authorities only a narrow margin of appreciation.Footnote 18 The majority found that the Romanian authorities had failed to place the applicant’s statements in a broader domestic context, characterised by the successive amendments to legislation on judicial organisation that adversely affected the position of judges and prosecutors. They also found that the authorities had not established whether the value judgements had a sufficient factual basis, had identified no concrete adverse consequences for the image of justice, had imposed a sanction that was not the least severe and had neglected entirely the danger of a chilling effect.

The joint dissenting opinion did not dispute the right of judges to criticise the government but emphasised that this should be done with restraint and propriety. The dissenting judges highlighted that the applicant’s statements ‘were not reasoned criticisms of conditions within the judiciary or reforms affecting the judiciary, made from a strictly professional perspective, but a series of statements expressed in colourful language’. They disagreed with a narrow margin of appreciation and argued that the national authorities are better placed to assess the nuances of language, such as ‘blood in his veins’. They opined that the applicant’s remarks did not enjoy the highest level of protection, particularly the first, as it concerned not only the judiciary but also the army. Given the very lenient sanction imposed, they concluded that Article 10 had not been violated.Footnote 19

Grand Chamber judgment and separate opinions

The majority of the Grand Chamber largely followed the Chamber’s assessment. After finding that the interference had an accessible legal basis, the Court turned to its foreseeability. It argued that disciplinary offences are inevitably couched in abstract terms to encompass a variety of different situations, and that, as an expert in the field, the applicant could foresee the risks of his conduct. The Court deemed the law sufficiently foreseeable but left two issues for the proportionality assessment: the alleged unclarity of the duty of discretion under national law and the supposed lack of criteria for the demarcation between ethical and disciplinary liability – two types of professional liability governing the applicant’s situation but entailing different consequences. The ethical liability could only indirectly influence the position of the judge by way of having a negative impact on the prospect of promotion, while the disciplinary liability would entail additional negative repercussions. The Court then found that the sanction had been imposed to maintain the authority and impartiality of the judiciary – a legitimate aim recognised in Article 10(2) of the Convention – and stressed the paramount importance of the duty of discretion and public trust in the administration of justice for the functioning of the domestic judiciaries and the Convention system.

The Court began the discussion of proportionality by pledging to consolidate and clarify the Convention standards by defining a set of criteria to be used by the Court and the national authorities for striking a balance between the competing interests, especially for weighing the freedom of expression against the duty of discretion.Footnote 20 The criteria, which were established unanimously, include the content, form and context of remarks, the capacity in which they were made, their consequences, the severity of the sanction, and the domestic procedural safeguards.Footnote 21 The disagreements between the judges arose when the Court applied these principles to the specific case in question.

Regarding the first statement, the government argued, as is often the case before the Court in cases on freedom of expression of judges, that it concerned a political issue, entirely unrelated to the functioning of the judiciary.Footnote 22 The applicant disagreed and rightly alluded to the Court’s settled case law, according to which the fact that a statement has political implications cannot per se prevent a judge from making it.Footnote 23 Despite recognising that the applicant ‘unquestionably participated in a political controversy’,Footnote 24 the Court interpreted the first statement as essentially a warning that ‘there would be a threat to constitutional democracy in the event that public institutions were to fall under political control’, and qualified it as ‘aiming to defend the constitutional order and the continued independence of the institutions of a democratic State’.Footnote 25

The dissenting judges strongly disagreed, highlighting the ambiguity of the statement.Footnote 26 They argued that it could be understood, as the national authorities indeed did, ‘as implying, however hypothetically, that the army might intervene in political life to safeguard democracy’ and underlined that ‘such language – capable of being construed as an appeal to force – was incompatible with the restraint expected of holders of judicial office’.Footnote 27

Regarding the second statement, the government agreed that it concerned the functioning of the justice system,Footnote 28 but argued that a more accurate translation of ‘sânge în instalaţie’ – the Romanian expression used to describe somebody courageous – would be ‘to have balls’, because ‘blood in his veins’ – the expression used by the Court – did not reflect adequately the coarseness, crudeness and vulgarity of the Romanian expression, which clearly fell short of the standard of reserve expected of judges.Footnote 29 The entire Court agreed that the national authorities were better placed than the Court to assess the nuances of the language.Footnote 30 The dissent relied on the margin of appreciation to find no fault in the assessment of the Romanian authorities,Footnote 31 whereas the majority argued that the authorities failed to explain how such language violated the duty of discretion – something that could have avoided the controversy surrounding the translation at the Court.Footnote 32

Although the entire Grand Chamber recognised the context of successive legislative reforms concerning the justice system,Footnote 33 the judges remained divided in the assessment of the context of the statements and their consequences. The majority criticised the national authorities for ignoring the broader context of the remarks and reiterated that judges are entitled to speak out on matters of public interest ‘where democracy or the rule of law is under serious threat’.Footnote 34 It qualified the first statement as a legitimate defence of the constitutional order and found that the Romanian authorities had failed to establish any adverse consequences for the authority of the judiciary resulting from the second statement.Footnote 35 The minority disagreed, arguing that the applicant unnecessarily engaged in a political controversy with the executive. They claimed that this controversy was ultimately resolved by the domestic courts and that the applicant’s ‘reference to the army as a solution to preserve constitutional democracy … bore no direct connection to the matter at stake’.Footnote 36 The minority also noted that the first statement had a large resonance in the media and ‘risked weakening the perception of judicial neutrality’, while the second ‘risked trivialising the image of the judiciary and eroding public confidence in its decorum’, thus diminishing the public trust in the justice system.Footnote 37

Finally, opinions on the sanction naturally diverged due to different assessments of the propriety of the applicant’s expression. The majority warned against the chilling effect stemming from the disciplinary sanction.Footnote 38 The dissent highlighted that the sanction ‘was among the lightest’ possibleFootnote 39 and expressed concern that by ‘vindicating individual judges who act as ordinary influencers’, the Grand Chamber ruling will lead to the abandonment of the duty of discretion – a particularly worrisome development ‘in an increasingly polarised world’.Footnote 40 Judge Krenc considered the statements inappropriate, but nevertheless agreed that Article 10 had been violated. He argued that a disciplinary measure had not been necessary and that an ethical sanction would have been preferable.Footnote 41

Commentary

The Court rarely hears a case as divisive as Danileţ v Romania. There are several reasons why the case proved so contentious. First, the very idea of granting judges freedom to express themselves is a relatively new development. The traditional view that judges should speak only through their judgments continues to exert considerable influence.Footnote 42 Although it is nowadays widely accepted that judges enjoy freedom of expression,Footnote 43 their speech is not as free as that of ordinary citizens. While there is European consensus on the existence of the duty of discretion,Footnote 44 the exact limits of judges’ freedom of expression are often a matter of much controversy. The Court understands the duty of discretion as ‘a fundamental principle intended to ensure that judges and prosecutors maintain high standards of integrity, impartiality and professionalism’.Footnote 45 According to the Court, the duty applies to both professional and private conduct,Footnote 46 and mandates that judges ‘show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question’.Footnote 47 In particular, judges should ‘exercise maximum discretion with regard to cases with which they deal’Footnote 48 and be extremely cautious in addressing cases that they may be called to adjudicate.Footnote 49 They should refrain from using the press, even when provoked.Footnote 50 Political partisan statements are not allowed,Footnote 51 while judges may express statements that are not political per se but have political implications.Footnote 52 ‘The dissemination of even accurate information must be carried out with moderation and propriety’.Footnote 53 They must use ‘clear language … to preclude multiple interpretations that could undermine public confidence in the justice system’.Footnote 54 Although these requirements provide a reasonably clear understanding of the duty of discretion, applying them in specific cases can be complex and is likely to give rise to differing viewpoints, especially given that the different professional cultures of European countries can influence the evaluation of the applicable criteria.

The second reason why the case is divisive is the fact of the applicant’s unconventional character. He was a county court judge and a former member of various judicial governance bodies as well as a social media opinion leader with around 50,000 followers. While he has contributed to many initiatives to safeguard judicial independence and the rule of law,Footnote 55 some of his social media posts are simply bizarre, particularly for a judge.Footnote 56

The third reason is, as the previous section shows, that Danileţ is a genuinely hard case. It is difficult to argue convincingly either for or against a violation of Article 10, as competing considerations point in different directions.

While the points of dispute among the judges of the Grand Chamber offer fertile ground for academic discussion, this case note instead focuses on aspects that enjoy unanimous support yet appear to have received insufficient attention from the Court. In the first part, it presents judicial independence – an ideal common to both proponents and opponents of judges’ free speech – as the fundamental principle, permeating and governing this entire area of the Court’s case law. After showing that safeguarding judicial independence is the underlying motive of many Article 10 complaints of judges and a reason for heightened scrutiny of the Court, the commentary highlights those parts of the ruling that confirm that judicial independence also serves as a normative benchmark for striking the appropriate balance between freedom of expression and the duty of discretion.

The second part exposes the flaws in the checklist of proportionality criteria that the Court established in Danileţ for judges’ freedom of expression cases. It observes that the Grand Chamber predominantly failed in its attempt to clarify and consolidate the applicable standards and argues that the result is increased obscurity rather than the promised clarity.

Judicial independence: the raison d’être of the voluminous body of case law, trigger of strict scrutiny and normative lodestar of judges’ freedom of expression

In Strasbourg, judges are unable to claim a violation of judicial independence as a self-standing principle. In 2016, judge Sicilianos argued for such a subjective right to independence as part of Article 6 of the Convention.Footnote 57 Even though his proposal was endorsed by some academics,Footnote 58 and the Court itself explicitly raised this issue in three pending cases,Footnote 59 the legal position remains unchanged:Footnote 60 judges can address violations of their independence only indirectly, by claiming a violation of one of the Convention rights. Besides relying on the right to access to court or fair trial guarantees from Article 6, they very often invoke freedom of expression from Article 10. Therefore, Article 10 applications are often vehicles for judges to protect their independence.Footnote 61 If a subjective right to independence existed, as proposed by Sicilianos, national judges would probably not turn to Article 10 as frequently as they currently do, and the body of case law on judges’ freedom of expression would be significantly less extensive.Footnote 62

The concern for judicial independence could arguably also explain the wide material scope the Court accords to their free speech. The Court has expanded the material scope of Article 10 to encompass statements judges give in a formal capacity in the exercise of an official duty (official speech) even though it could be argued that they acted in the name of the state and not as individuals.Footnote 63 It has also shifted the burden of proof for establishing a causal link between the interference and public expression of a judge from the applicant to the government, thus allowing cases with a more attenuated connection between public expression and the interference to reach the Palace of Human Rights.Footnote 64 These two approaches further contributed to the prolific body of case law on freedom of expression of judges.

Furthermore, the Court has been relying on judicial independence to justify its close scrutiny of any interference with freedom of expression of a judge.Footnote 65 In Danileţ, the Grand Chamber has arguably taken this a step further: instead of ‘close’ scrutiny and ‘certain’ margin of appreciation, the scrutiny is now ‘strict’ and the margin ‘narrow’. While prior case law reserved such strict scrutiny and the narrow margin only to statements that were beyond reproach and made from a strictly professional perspective in defence of the rule of law and judicial independence,Footnote 66 the Danileţ ruling seems to have relaxed these requirements. Nevertheless, it would be premature to claim that strict scrutiny and narrow margin of appreciation are now the default features whenever judges’ freedom of expression is at stake.Footnote 67

While defending judicial independence may be the underlying motive for filing complaints to the Court as well as the reason for the Court’s wide material scope of protection and strict level of scrutiny, it may also serve as a benchmark for the normative assessment of judicial expression in individual cases. At first glance, this may not be apparent, since the Court bases its evaluation of Article 10 complaints of judges on a series of guiding general criteria, such as the position of the judge and content, context and consequences of the expression. However, these criteria can arguably only be properly understood and applied in light of the underlying governing principle: judicial independence. Although Judge Krenc explicitly adopts judicial independence as his guiding principle, he does not elaborate further on that matter. Footnote 68 The central role of judicial independence in the judges’ freedom of expression jurisprudence is also not immediately apparent from other separate opinions in Danileţ and the Court’s prior case law. This case note therefore draws on the Court’s jurisprudence, particularly on Danileţ, and on theoretical justifications of free speech to reveal judicial independence as the lodestar for navigating between freedom of expression of judges and their duty of discretion.

Duty of discretion: a means of sustaining trust in the judiciary and its independence

According to the functional approach, the Court bases the scope and level of protection offered by Article 10 on the role that different individuals play in a democratic society.Footnote 69 Judges ensure independent, impartial and high-quality adjudication, thereby safeguarding the rule of law and fundamental rights, and preserving the system of checks and balances. As the Court has ruled on countless occasions, judges must be seen by society at large as qualified, independent and impartial; otherwise, they cannot fulfil their mission.Footnote 70 Therefore, protecting public trust in the judiciary is of paramount importance for democratic societies.

The duty of discretion, which is rooted in ethical rules of conduct and binds judges in their public appearances, is designed precisely to safeguard that trust – a connection the Grand Chamber rightly makes in Danileţ, and in previous cases.Footnote 71 The ‘elevated nature of the judicial function’ (fr. ‘la grandeur de la fonction judiciaire’), often invoked in the Court’s case law,Footnote 72 is therefore not an end in itself. Rather, it is one of the necessary elements for maintaining public trust. When trust in an independent, impartial and competent judiciary is lost, legal subjects either resort to other means to settle their disputes or do not accept judicial decisions that go against their interests. Moreover, without sufficient confidence in the courts, it becomes extremely challenging to preserve the independence of the justice system.Footnote 73 Without sufficient popular support, legal institutions, including courts, work as speed bumps but cannot stop determined autocrats from expanding their power at the expense of the judiciary and the society as a whole.Footnote 74 The authoritarian strategy currently employed in many parts of the world therefore aims to delegitimise the judiciary in the eyes of the public to enable its subsequent subordination.Footnote 75

Against the paramount importance of public trust in the judiciary, it is particularly noteworthy that in Danileţ, the Court recognised that the Convention system cannot function properly without public trust in the domestic judiciaries, which in turn relies (among other factors) on the appropriate exercise of the duty of discretion by domestic judges.Footnote 76 Through the lens of subsidiarity, the Court regards the duty of discretion as a systemic value of supranational importance. The duty of discretion is therefore one of the prerequisites not only for maintaining the confidence in the domestic judiciaries, but indirectly also for the proper functioning of the Convention system.

Prior to Danilet, the Court similarly ruled in Grzęda,Footnote 77 that the Convention system depends on the independence of national judges. The Court has now applied the same rationale, effectively restating the dictum from Grzęda, albeit in a more indirect way: if domestic judges disregarded their duty of discretion, the trust in the judiciary would be lost, leading to a loss of judicial independence – a prerequisite for the rule of lawFootnote 78 and the Convention system itself. Therefore, a novel and particularly noteworthy element of Danileţ is the connection between the duty of discretion and (the preservation of) judicial independence, without which the Convention system cannot function.

Freedom of expression: a means of sustaining judicial independence

Despite the limitations imposed by the duty of discretion, judges retain a part of their freedom of expression that is indispensable for democratic societies. Democracy requires the people to be properly informed about various issues of public concern if they are to exercise their sovereignty meaningfully (informing function of speech).Footnote 79 Therefore, the emphasis is not on the right of judges to express themselves, but on the right of their fellow citizens to be informed. Although the Court has never explicitly articulated this point, it is implicit in its jurisprudence, which assigns particular weight to statements concerning the functioning of the judiciary – an area of heightened public concern.Footnote 80

The duty of discretion therefore does not mean that judges should be silent observers. It should not serve as an excuse for sanctioning judges that publicly defend the rule of law. Judges may raise their voices and protest against judicial ‘reforms’ or various other measures that threaten their independence.Footnote 81 The Polish experience has taught us that prompt action by judges is crucial to alert the ordinary citizens, journalists and the opposition, who may not be aware of these measures or their implications. Judicial voice is also essential for addressing the threats from within the judiciary. Unacceptable informal practices, which are often hidden from the public sphere, are crucial for understanding how the rules are applied and where the problems lie.Footnote 82 In such contexts, imposing a strict duty of discretion on judges – the guardians of the rule of law and fundamental rights – in order to sustain public trust in judicial independence and impartiality, would turn against its own very purpose. While judicial independence may therefore require limitations of speech through the duty of discretion, it may also legitimise judicial speech when judicial independence is under threat.Footnote 83

Nevertheless, as was rightly clarified in Danileţ, the duty of discretion applies regardless of the topic or context of expression. ‘[T]he right to speak out in order to protect the very basics of the rule of law … goes hand in hand with the duty of discretion, which is equally necessary for maintaining the authority and impartiality of the justice system’.Footnote 84 With this holding, the Court rejected the view of the applicant, who claimed that the duty of discretion must give way to judges’ freedom of expression when matters of public interest are at stake.Footnote 85 Judges are always called to be circumspect and reserved even when judicial independence, democracy and the rule of law are under threat. In such a context, it is perhaps even more important that they comply with the duty of discretion. Everything that they say may be (and often is) used against them. Disposing of the duty of discretion would therefore have a disastrous effect on the public trust in the judiciary. To ensure that their statements build, rather than undermine, the public trust necessary for sustaining judicial independence, judges must discern whether, how and through which channels they will publicly express their opinions. Freedom of expression of judges is a double-edged sword: it can build and defend or undermine and weaken judicial independence. The role of the duty of discretion is to mitigate this double-edged character by curbing the speech that could harm judicial independence.

The Danileţ checklist: striving for clarity, ending in greater obscurity

Finding the right balance between freedom of expression and the duty of discretion is a daunting task. The Court’s efforts to clarify and consolidate the applicable criteria for guiding individual judges, national authorities and the Court itself, must therefore be appreciated. However, the Court largely failed to live up to its promise. Rather than providing clarity, Danileţ appears to have further obscured the relevant standards.

Criteria beyond the court’s seemingly exhaustive checklist

At first glance, the greatest added value that Danileţ brings is the fact that the Court established a checklist of general criteria for assessing the proportionality of interferences with freedom of expression of judges: content, form and context of remarks, the capacity in which they were made, their consequences, the severity of the sanction, and domestic procedural safeguards.Footnote 86 It is noteworthy that these general criteria were established unanimously. However, when applying the checklist to the present case, the Court relies on additional elements that do not feature in the checklist.

Some of these elements originate from prior steps of adjudication – the legality of the interference and the legitimate aim – but the Court largely left them to be evaluated as part of the assessment of proportionality. For instance, the Court developed the duty of discretion and its implications, as described in the previous section of this case note, in the part of the ruling devoted to the legitimate aim, but then relied on it at the stage of proportionality. Similarly, the Court left the issue of distinguishing ethical from disciplinary liability, identified in the part concerning the legality of interference for the proportionality analysis. This shows that some elements originating in prior steps of adjudication may enter the assessment of proportionality, even though they are not the part of the checklist. The checklist should therefore not be regarded as exhaustive and isolated from previous steps of adjudication, but rather as an enumeration of criteria that can be supplemented and informed by other elements.

While Danileţ shows that the proportionality assessment is open to elements from prior parts of the adjudicatory process, the case law prior to Danileţ shows that the proportionality is determined by other criteria that the Danileţ checklist does not include. For example, in many previous cases, the Court took into account the motive behind the statement of the judge and even developed the general principle that ‘an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection’.Footnote 87 Therefore, it is not only about the content of remarks and the topic they address, but also why the judge made them. Even in Danileţ, it seems that the Court took the motive into account, albeit only implicitly, when ruling that the applicant’s statements were part of the human rights awareness-raising activity aimed at defending the constitutional order and the independence of state institutions.Footnote 88 Therefore, the motive should have featured in the checklist.

The same is true of the channel of communication – another important element that can be identified in prior case law,Footnote 89 which Danileţ fails to sufficiently address. The Court did distinguish online from offline expressionFootnote 90 as well as online channels openly available to everybody from those accessible only to a closed group of people.Footnote 91 These elements were examined as part of the consequences of the applicant’s remarks. However, these two distinctions are still too broad. Digital fora diverge greatly in terms of not only accessibility, as recognised in Danileţ, but also in terms of their aim, genre, accepted format, characteristics of audience (general or professional public, younger or older generations), degree of editorial control, interactive features, online culture and so on: from X and TikTok on the one hand to online blogs and even online scientific journals on the other. The channel of expression should therefore not merely be subsumed under the ‘consequences’ criterion. It is analytically distinct and therefore warrants explicit recognition in the checklist. The Court missed an opportunity to clarify how characteristics of digital channels beyond their accessibility influence its assessment of judges’ freedom of expression.Footnote 92

The Court’s rhetoric is therefore misleading, since it creates the false impression that the checklist is exhaustiveFootnote 93 and that national authorities need look no further than to section c) Criteria to be applied in weighing up the competing rights and interests Footnote 94 to get the gist of the Convention standards, while in fact they must also apply criteria stemming from other parts of the judgment and from prior case law. The need to take additional criteria into account calls into question the very purpose of the checklist.

A different checklist for statements made offline?

The Court ruled that the checklist ‘will be applicable to the various manifestations of the freedom of expression of judges and prosecutors that may be found on the internet and social media’.Footnote 95 The Court’s language seems to imply a different checklist for the offline expression. While there is indeed a need to distinguish statements based on the online-offline dichotomy, this does not mandate a different checklist. On the contrary, the checklist should remain the same but should take due account of the channel of communication as one of its elements. The Danileţ checklist itself is based on prior cases, only a fraction of which related to the internet. Prior case law therefore does not suggest a need for the differentiated treatment, neither does the nature of the criteria commend that they be applied only in a digital setting. Moreover, such an differentiated approach would be inconsistent with soft law instruments that clearly argue for continuity of the standard acquis developed for the offline world, with the necessary consideration of special characteristics of the online environments.Footnote 96

Increased protection for judges in special (representative) positions and other high-profile judges?

The position held by the applicant judge is one of the standard criteria determining the proportionality of interferences with freedom of expression of judges. The Court therefore rightly included this element in the checklist. However, case law prior to Danileţ does not give a conclusive answer as to whether judges in special (representative) positions, such as court presidents, members of the judicial councils, presidents of judicial associations and court spokespersons, enjoy increased protection under Article 10.

In Danileţ, the Court directly addressed this issue, albeit in a somewhat confusing manner. It granted judges in special positions increased protection after relying on two problematic justifications. First, it argued that ‘[t]he Court’s case law as it stands’ grants such a preferential treatment. While the special position of a judge or a prosecutor indeed mostly resulted in increased protection, some previous cases suggest that it can also reduce the level of protection.Footnote 97 Moreover, in Żurek v Poland the Court limited the increased protection to situations where a judge expresses a view in defence of the ‘rule of law, judicial independence or other similar values’Footnote 98 in his or her professional capacity.Footnote 99 In Danileţ, by contrast, the reference to expressing a view in defence of the important Convention values in a professional capacity is omitted. Therefore, the first justification – that the increased protection is grounded in prior case law – is questionable.

According to the Court, the second justification for the increased protection is that ‘public statements [of judges in special positions] are very often motivated by a desire to preserve the justice system’.Footnote 100 A literal reading of Danileţ indicates that the intention to preserve the justice system is no longer a condition for heightened protection – contrary to what Żurek suggested. However, the Court’s unfortunate language should not be understood as automatically granting increased protection by mere virtue of occupying one of the special positions. Such an understanding would turn against judicial independence and the rule of law precisely in countries where these two values are most affected. There, judicial leadership positions are occupied by government loyalists, who could rely on their privileged free speech to publicly defend the status quo against legitimate efforts to restore the rule of law. Instead, a more plausible reading is that the Court established a rebuttable presumption of just motive for judges in special positions. If it turns out that the expression was not motivated by the desire to preserve the justice system,Footnote 101 the Court may decline the heightened protection, and may even rely on the special position to reduce the level of protection, where it finds that the statement was driven by an improper motive. What it seems that the Court framed as a justification for the increased protection – the fact that statements of judges in special positions are often motivated by the desire to preserve the justice system – arguably constitutes a presumed condition for granting them additional freedom in their public statements. However, due to the Court’s confusing justification, the proposed construction needs to be confirmed with less ambiguity in future cases.

Not only did the Court fail to consolidate and clarify the case law in respect of the standard of protection of judges in special (representative) positions, it also disregarded the issue that had featured prominently at the oral hearing: the impact of Danileţ’s vast readership on the level of protection of his freedom of expression. The High Court and the Government argued that increased visibility entailed increased responsibility, whereas the applicant contended that he should be afforded greater protection.Footnote 102 Although there has been an academic attempt to justify greater protection for high-profile judges, including those in special (representative) positions, with the notion of chilling effect,Footnote 103 only future decisions will clarify the matter.

Conclusion

In her 2023 book, judge Sietske Dijkstra compared the exercise of freedom of expression by judges to walking a tightrope.Footnote 104 Many had hoped that the Grand Chamber’s ruling in Danileţ v Romania would help them to find the right balance. The result was disappointing. Not only did the Court’s promise to clarify and consolidate the applicable guiding principles turn out to be largely empty, but the Court also adopted some questionable dicta and turned a blind eye to its previous case law, thus increasing obscurity instead of bringing the promised light.

The checklist for assessing proportionality, established in Danileţ, is far from perfect. It lacks important elements and is therefore not exhaustive – contrary to what Danileţ implies. Strictly following the enumerated criteria – the essential idea of any checklist – casts doubt on the continued relevance of several important aspects of prior case law, especially given that the checklist enjoys unanimous support from the Grand Chamber. A checklist supported by a divided Grand Chamber would therefore have been less disruptive and, paradoxically, would have better served consistency, clarity and consolidation of the Court’s case law. Moreover, the divergent application of these unanimously adopted criteria calls into question their very purpose. How can the Court’s newly established checklist guide national judges in different countries and help them to tackle the different cases brought to their attention, if its application has sharply divided the Court itself?

Although Danileţ was a disappointment to those who had hoped for greater clarity, it is important to recognise that it provided some valuable points of reference and developments, particularly with regard to the duty of discretion. The disappointment partly stems from the Court’s overly ambitious promise, which set high expectations. While the Court strived to establish minimal common standards, the fact remains that the perspectives on freedom of expression of judges still vary greatly throughout Europe, despite important harmonisation by the Court in recent decades. This may partly explain the amount of friction among the judges of the Court. This dynamic area will therefore inevitably continue to evolve and present challenges to national judges, domestic authorities and the Court itself. Freedom of expression of judges remains a tightrope that can only be mastered carefully and diligently: from the level of an individual speaker to the level of the Grand Chamber.

Acknowledgements

I would like to thank the editors and the anonymous reviewers for their detailed and constructive comments on an earlier draft of my paper. Their input proved invaluable in refining and clarifying the ideas and arguments presented in this case note. Any remaining errors are, of course, my own.

References

1 ECtHR (GC) 15 December 2025, No. 16915/21, Danileţ v Romania.

2 Ibid., paras. 175, 179–181, 185, 192.

3 Joint dissenting opinion of judges Ktistakis, Šimáčková, Elósegui, Felici, Derenčinović, Arnardóttir and Ní Raifeartaigh in Danileţ, supra n. 1, paras. 4–5.

4 Ibid., para. 10.

5 Danileţ, supra n. 1, paras. 190, 193, 194, 197, 203–204.

6 Joint dissenting opinion, supra n. 3, para. 10.

7 Danileţ, supra n. 1, para. 200.

8 ECtHR 20 February 2024, No. 16915/21, Danileţ v Romania.

9 Ibid., para. 17.

10 Ibid., paras. 21, 87.

11 Ibid., paras. 27, 35, 37–39.

12 I.E. Dogioiu, ‘Semnalul de alarma al unui procuror: E un risc enorm sa traiesti in Romania in momentul de fata. S-a trecut linia rosie in justitie! Interviu’ [A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the justice system! Interview], Ziare.com, 10 January 2019, https://ziare.com/stiri/justitie/semnalul-de-alarma-al-unui-procuror-e-un-risc-enorm-sa-traiesti-in-romania-in-momentul-de-fata-s-a-trecut-linia-rosie-in-justitie-interviu-1545215?uord=MT5dWeHitHalZ85iVGtiHRMQUJRxnDjhYG8JMkCtWGW7tKJ1ZaWrID2HQ5J8HG-YlAbKMJ36U%3DTISIHCgDN8UEmrJ2lfIxQQTGNxlAKfLGY/MEPgIri_hXVuNFK8I2gsVUNEUbl8, visited 19 August 2026.

13 Danileţ, supra n. 1, para. 18.

14 Ibid., paras. 27, 36.

15 Ibid., para. 89.

16 Ibid., para. 28.

17 Ibid., paras. 28, 39.

18 Danileţ, supra n. 8, paras. 69, 75.

19 Joint dissenting opinion of judges Kucsko-Stadlmayer, Eicke and Bormann, in Danileţ, supra n. 8, paras. 1, 5–7.

20 Danileţ, supra n. 1, paras. 146–147.

21 Ibid., supra n. 1, paras. 149–165; Joint dissenting opinion, supra n. 3, para. 2; Joint concurring opinion of judges Gnatovskyy and Rădulețu in Danileţ, supra n. 1, para. 1.

22 Danileţ, supra n. 1, paras. 97, 99, 173–174.

23 Oral hearing in Danileţ, supra n. 1, 13:57–14:17. ECtHR (GC) 28 October 1999, No. 28396/95, Wille v Liechtenstein, para. 67. See also ECtHR (GC) 23 June 2016, No. 20261/12, Baka v Hungary, para. 165, which is reproduced verbatim in some subsequent cases.

24 Danileţ, supra n. 1, para. 174; see also para. 188.

25 Ibid., paras. 175, 185, 192.

26 Judge Krenc also argued that the first statement ‘was certainly not without ambiguity’ (Concurring opinion of judge Krenc in Danileţ, supra n. 1, para. 6).

27 Joint dissenting opinion in Danileţ, supra n. 3, paras. 4, 6.

28 Danileţ, supra n. 1, paras. 99, 181. See also joint dissenting opinion, supra n. 3, para. 7.

29 Danileţ, supra n. 1, para. 99; Oral hearing in Danileţ, supra n. 1, 47:33–48:14; 02:26:58–02:28:41.

30 Ibid., para. 183. See also: joint dissenting opinion, supra n. 3, para. 5; Concurring opinion of judge Krenc, supra n. 26, para. 6.

31 Joint dissenting opinion, supra n. 3, para. 5. See also Concurring opinion of judge Krenc, supra n. 26, para. 6.

32 Danileţ, supra n. 1, paras. 183–184.

33 Ibid., paras. 185–187, 190; Joint dissenting opinion, supra n. 3, para. 7.

34 Ibid., paras. 186. See also paras. 189–190, 193.

35 Ibid., paras. 193–194, 197.

36 Joint dissenting opinion, supra n. 3, para. 6.

37 Ibid., paras. 6, 8–9.

38 Danileţ, supra n. 1, para. 200.

39 Joint dissenting opinion, supra n. 3, para. 10.

40 Ibid., para. 13.

41 Concurring opinion of judge Krenc, supra n. 26, para. 11.

42 M. Wojtanowski, ‘Towards Greater Freedom of Expression for Judges. The Rejection of a Culture of Judicial Silence and Its Benefits for Liberal Democracy’, 17 Journal of the University of Latvia (2024) p. 124.

43 Bangalore principles of judicial conduct, UN Judicial Group on Strengthening Judicial Integrity, 25–26 November 2002, para. 4.6.

44 In Danileț, the Court relied on a comparative survey of 35 countries to confirm that the duty of discretion is part of the European consensus (Danileț, supra n. 1., paras. 74–76).

45 Ibid.

46 Ibid.

47 See, for example: Baka, supra n. 23, para. 163, Wille, supra n. 23, para. 64; ECtHR 5 August 2020, No. 3594/19, Kövesi v Romania, para. 201.

48 Baka, supra n. 23, para. 163; ECtHR 5 February 2009, No. 22330/05, Olujić v Croatia, para. 59; ECtHR 9 March 2021, No. 76521/12, Eminağaoğlu v Turkey, paras. 122, 136.

49 EComHR 7 May 1984, No. 10279/83, E v Switzerland. In Danileț, the Court clarified that in principle, the mere fact that a controversy has attracted a certain amount of media coverage, does not in itself create a risk of legal proceedings that would prevent judges from addressing the matter (Danileț supra n. 1, para. 188).

50 ECtHR 8 December 2020, No. 33794/14, Panioglu v Romania, para. 114; ECtHR 9 July 2013, No. 51160/06, Di Giovanni v Italy, para. 80. See also the dissenting opinion of judges Sajo and Pinto de Albuquerque challenging that view of the majority in Di Giovanni.

51 ECtHR 6 April 2000, No. 39822/98, Altin v Turkey; ECtHR 5 February 2013, No. 8696/09, Jhangiryan v Armenia, paras. 4–5, 40–41, 43; ECtHR 17 November 2016, Karapetyan and Others v Armenia, paras 54–55.

52 Wille, supra n. 23, para. 67. Baka, supra n. 23, para. 165, which is reproduced verbatim in some subsequent cases.

53 Wille, supra n. 23, paras. 64, 67; ECtHR 26 February 2009, No. 29492/05, Kudeshkina v Russia, para. 93; Baka, supra n. 23, para. 164.

54 Danileț supra n. 1, para. 156.

55 For example C. Danileţ, ‘Justice versus Politics: From Inability to Independence’, in D. Călin (ed.), 900 Days of Uninterrupted Siege upon the Romanian Judiciary (Editura CH Beck 2020).

56 For example: Digi24HD, ‘Cristi Danileț a fost exclus din magistratură din cauza unor filmulețe pe TikTok’ [Cristi Danileț was removed from the judiciary because of some TikTok videos], 14 December 2021, https://www.youtube.com/watch?v=teanN-xvWek, visited 29 March 2026; Facebook, ‘Judecatorii care ne judeca’ [Judges who judge us], 17 July 2020, https://www.facebook.com/iamflorianajucan/videos/judecatorii-care-ne-judecaastazi-dl-judecator-cristian-danilet-statul-de-drept-e/908537062967202/, visited 19 August 2026.

57 Concurring opinion of judge Sicilianos in Baka, supra n. 23.

58 P. Ducoulombier, ‘Le Droit Subjectif Du Juge à La Protection de Son Indépendance : Chaînon Manquant de La Protection de l’Etat de Droit En Europe ?’, in L. Branko, I. Motoc et al (eds.), Procès équitables : perspectives régionales et internationales, Liber Amicorum Linos-Alexandre Sicilianos (Anthemis 2020); M. Leloup, ‘Who Safeguards the Guardians? A Subjective Right of Judges to Their Independence under Article 6(1) ECHR’, 17 EuConst (2021) p. 394. Cf M. Fajdiga, ‘Chilling Effect: Turning the Poison into an Antidote for Fundamental Rights in Europe’, 31 Maastricht Journal of European and Comparative Law (2024) p. 9.

59 ECtHR, communicated on 30 April 2022, No. 13278/20, Biliński v Poland; ECtHR, communicated on 23 May 2022, Nos. 46453/21, 8076/22, 9988/22, 15928/22, Synakiewicz and others v Poland; ECtHR, communicated on 6 December 2022, Nos. 39471/22, 39477/22, 44068/22, Leszczyńska-Furtak and Others v Poland.

60 ECtHR 15 January 2026, No. 13278/20, Biliński v Poland.

61 A telling example is the famous case of Baka v Hungary, supra n. 23. The premature dismissal of the president of the Hungarian supreme court and former judge of the Strasbourg court was primarily an issue concerning judicial independence, not the access to court under Art. 6 or freedom of expression under Art. 10. See also D. Kosař and K. Šipulová, ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law’, 10 Hague Journal on the Rule of Law (2018) p. 83.

62 Fajdiga, supra n. 58, p. 11–12.

63 Baka, supra n. 23. This approach was reiterated in Kövesi, supra n. 47 and in ECtHR 16 June 2022, No. 39650/18, Żurek v Poland, albeit not always unanimously: see dissenting opinion of judge Wojtyczek in Baka, supra n. 23 and dissenting opinion of judge Kūris in ECtHR 11 December 2018, No. 26238/10; Brisc v Romania. See also S. Dijkstra, ‘The Freedom of the Judge to Express His Personal Opinions and Convictions under the ECHR’, 13 Utrecht Law Review (2017) p. 1 at p. 3, who claims that ‘it is not self-evident that these complaints meet the requirements of Article 34 ECHR’. It could be argued that when Baka criticised the judicial reforms, he was exercising his duty, under the Hungarian legislation, to give opinions on legislative proposals affecting the position of the judiciary (paras. 44 and 168), but the Court found a violation of his right to freedom of expression. Similarly, in Brisc, the applicant had been sanctioned for publishing a press release and giving a short TV interview. He claimed that he was merely doing his job of informing the public about pending criminal investigations. The Court nonetheless found a breach of the right to freedom of expression. Judge Kūris dissented, arguing that the applicant was not exercising his right, but fulfilling his duty, and was not expressing himself, but was merely stating the facts. On that basis, he concluded that Art. 10 should not apply.

64 Baka, supra n. 23, para. 149–151; Kövesi, supra n. 47, para. 189.

65 Wille, supra n. 23, para. 64. See also Baka, supra n. 23, para. 165, which is reproduced verbatim in many subsequent cases.

66 Baka, supra n. 23, para. 171; Kövesi, supra n. 47, para. 207; Żurek, supra n. 63, paras. 223–224. See S. Dijkstra, ‘The Freedom of Expression of Judges in Europe: An Analysis of the Case Law under Article 10 of the European Convention of Human Rights: The Rule of Law in the Leading Role’, in F. Casarosa et al. (eds.), Freedom of Expression of Judges: European and National Perspectives (Routledge 2025) p. 18 at p. 25–26.

67 Danileţ, supra n. 1, para. 170. An argument in support of such development is that the Court now regards judges as a special category of civil servants, loyal not to their superiors or the state, but to the rule of law (see ECtHR 9 March 2021, No. 1571/07, Bilgen v Turkey, para. 79; ECtHR (GC) 15 March 2022, No. 43572/18, Grzęda v Poland, para. 264). However, the narrow margin of appreciation would be difficult to reconcile with the varied perspectives on freedom of expression of judges among different countries in Europe.

68 Concurring opinion of judge Krenc, supra n. 26.

69 M. Fajdiga and S. Zagorc, ‘Freedom or Feardom of Expression of Judges? Exploring the “Chilling Effect” on Judicial Speech’, 19 EuConst (2023) p. 249 at p. 257.

70 Danileţ, supra n. 1, para. 138; ECtHR (GC) 23 April 2015, No. 29369/10, Morice v France, para. 128; Baka, supra n. 23, para. 164.

71 Danileţ, supra n. 1, para. 147; Kudeshkina, supra n. 53, para. 86; Panioglu, supra n. 50, para. 114; ECtHR 9 July 2013, No. 51160/06, Di Giovanni v Italy, para. 71.

72 ECtHR, 16 September 1999, No. 29569/95, Buscemi v Italy, para. 67; ECtHR 13 November 2008, No. 64119/00 76292/01, Kayasu v Turkey, para. 100; Panioglu, supra n. 50, para. 114; Di Giovanni, supra n. 71, para. 80.

73 P. Bárd and J. Krommendijk, ‘Conclusion to Sustaining the Rule of Law’, in P. Bárd and J. Krommendijk (eds.), Sustaining the Rule of Law (Edward Elgar 2025).

74 T. Ginsburg et al., ‘The Coming Demise of Liberal Constitutionalism?’, 85 The University of Chicago Law Review (2018) p. 239 at p. 258. A similar argument was recently advanced in M. Tushnet and B. Bugaric, Constitutionalism and Its Discontents (University of Chicago Press 2026).

75 P. Köker et al., ‘Populists before Power: Delegitimization Strategies against Independent Judiciaries’, 32 Democratization (2025) p. 1432; Safeguarding the independence of judicial systems in the face of contemporary challenges to democracy – Report of the UN Special Rapporteur on the independence of judges and lawyers, A/HRC/56/62, 24 June 2024, https://docs.un.org/en/A/HRC/56/62, visited 19 August 2026.

76 Danileţ, supra n. 1, para. 140.

77 Grzęda, supra n. 67, para. 324.

78 Danileţ, supran. 1, para. 138.

79 A. Bhagwat and J. Weinstein, ‘Freedom of Expression and Democracy’, in A. Stone and F. Schauer (eds.), The Oxford Handbook of Freedom of Speech (Oxford University Press 2021) p. 82 at p. 90–92.

80 See also M. Wojtanowski, ‘Rethinking Rules of Judges’ Conduct: Judicial Ethics Meets Social Media’ (forthcoming) in the New Bulgarian University Publishing House’s Forum ‘Legal Studies’ series.

81 In Danileţ, the Court abandoned the language used in Żurek. It no longer speaks about a ‘duty’ but rather a ‘right’ to speak out in defence of the rule of law and judicial independence: Danileţ, supra n. 1, para. 152; Żurek, supra n. 63, para. 222; ECtHR 6 June 2023, No. 63029/19, Sarisu Pehlivan v Turkey, paras. 41–42; ECtHR 7 November 2024, No. 20592/21, Bakradze v Georgia, para. 78. See also UN Special Rapporteur on the independence of judges and lawyers, Opinion A/HRC/41/48, 29 April 2019, https://www.ohchr.org/en/documents/thematic-reports/ahrc4148-independence-judges-and-lawyers-report-special-rapporteur, visited 19 August 2026, para. 102; Consultative Council of European judges, ‘Opinion no. 25 on freedom of expression of judges’, 2 December 2022, https://rm.coe.int/opinion-no-25-2022-final/1680a973ef%0A%0A, visited 19 August 2026, para. 58 and the references contained in footnote 58 of that opinion; European Network of Councils for the Judiciary, ‘2013 Sofia Declaration on Judicial Independence and Accountability’, 7 June 2013, https://www.encj.eu/images/stories/pdf/GA/Sofia/encj_sofia_declaration_7_june_2013.pdf, visited 19 August 2026, para. vii. It remains to be seen whether this change will be confirmed in subsequent cases. For now, it can only be observed that by softening the rhetoric, Danileţ relinquished part of the normative intensity that characterised the dictum from Żurek.

82 For example D. Kosař et al., ‘Informality and Courts: Uneasy Partnership’, 24 German Law Journal (2023) p. 1239.

83 G. Halmai and Á. Kovács, ‘All Quiet in the Judiciary: Low Voice of Hungarian Judges and the Role of European Courts’, in F. Casarosa et al. (eds.), Freedom of Expression of Judges: European and National Perspectives (Routledge 2025) p. 81 at p. 92.

84 Danileţ, supra n. 1, para. 154.

85 Oral hearing in Danileţ, supra n. 1, 1:52:40–1:53:43.

86 Danileţ, supra n. 1, paras. 146–147, 171, 206.

87 Kudeshkina, supra n. 53, para. 95; ECtHR (GC) 12 February 2008, No. 14277/04, Guja v Moldova, para. 77. See also Eminağaoğlu, supra n. 48, para. 140, ECtHR 15 October 2020, No. 965/12, Guz v Poland, paras. 86, 94. See also A. Krzywoń, ‘Freedom of Expression of Civil Servants: Balancing Duties and Responsibilities with the Requirements of Open and Free Public Debate’, in A. Krzywoń, K. Sommermann and C. Fraenkel-Haeberle (eds.), The Civil Service in Europe (Routledge 2025) p. 806 at p. 822–823.

88 Danileţ, supra n. 1, paras. 175, 185, 187, 191–192.

89 For example: Di Giovanni, supra n. 71, para. 80; ECtHR 1 March 2022, No. 16695/19, Kozan v Turkey, para. 66; Guz, supra n. 87, paras. 85, 91. See also A. Krzywoń, supra n. 87, p. 819–820.

90 Danileţ, supra n. 1, paras. 143, 145, 147–148.

91 Danileţ, supra n. 1, para. 162.

92 While the limits of this case note do not allow for a detailed analysis of the various characteristics of online channels of communication, some tentative reflections on the role of the channel of communication are nevertheless provided. Compared with online blogs or journals, social media posts are more spontaneous, which justifies greater tolerance. However, the increase in protection on account of spontaneity is lower for judges compared to ordinary citizens, since judges must be mindful of their duty of discretion, which is imposed precisely to counter spontaneity. From the perspective of the audience, the fact that a certain online channel is devoted to the general public, on the one hand requires more caution, since the risk of misinterpretation is greater. On the other hand, addressing the general public often requires simplification and therefore in principle enjoys more protection compared to a more professional setting. The interactive features of online channels carry a risk of escalation and confrontation. This may justify requiring greater caution when publishing there, in comparison to internet sites that do not allow comments or other reactions.

93 Danileţ, supra n. 1, para. 148–149.

94 Ibid., paras. 149–165.

95 Danileţ, supra n. 1, para. 147. See also paras. 145, 148.

96 Wojtanowski, supra n. 80, relies on soft law instruments to claim: ‘Established standards of judicial conduct … apply equally to social media. Within the relevant professional discourse, there is no doubt that social media does not call into question the standard framework of judicial ethics but rather requires its appropriate application, taking into account the specificity of this sphere.’ The UN Non-Binding Guidelines for example state: ‘The Bangalore Principles of Judicial Conduct and other existing international, regional, and national rules, standards, and conventions of judicial conduct and judicial ethics apply to judges’ digital lives as much as to their real lives. … There may also be additional requirements that would inform judges’ discretion in using this technology. Any such additional requirements should not, however, be specific to particular technologies in use at any given time but should be of general applicability.’ (UNODC, Non-Binding Guidelines on the Use of Social Media by Judges (The Global Judicial Integrity Network) 2019, https://www.unodc.org/res/ji/import/international_standards/social_media_guidelines/Social_Media_2020.pdf, visited 19 August 2026, para. 2.)

97 Wille, supra n. 23, para. 64. Eminağaoğlu, supra n. 48, para. 139; Jhangiryan, supra n. 51, paras. 4, 40; ECtHR 25 May 2021, No. 15783/16, Erotocritou v Cyprus, paras. 25, 53–56.

98 The Court did not define defending which ‘similar values’ increase protection for judges in special positions.

99 Żurek, supra n. 63, para. 222. See also Joint dissenting opinion in Danileţ, supra n. 3, para. 3.

100 Danileţ, supra n. 1, para. 159.

101 Preserving the justice system should not be understood narrowly, for example as being confined to statements, given in a situation where the justice system is in a state of crisis and needs to be ‘preserved’. Such an understanding would be difficult to reconcile with prior case law. The term ‘protéger’ in French version of the ruling is more faithful to the Court’s established standards.

102 Danileţ, supra n. 1, para. 41; Oral hearing in Danileţ, supra n. 1, 27:03–28:50, 44:56–45:19, 2:04:07–02:05:04.

103 Fajdiga and Zagorc, supra n. 69, p. 266–267.

104 S. Dijkstra, Walking the Tightrope: The Judge and His Freedom to Express His Personal Opinions and Convictions (Eleven International Publishing 2023).