Magistrates can publish their opinions on social media

For the European Court of Human Rights, magistrates must be free to post their opinions on social media, as long as they do not talk about ongoing cases and do not undermine the authority and independence of the administration of justice. The authorities that then proceed to impose anydisciplinary sanctions must comply with a set of criteria to decide whether the posts disseminated on the network by the toughest lawyers have crossed the threshold of legitimacy. This is according to a final ruling by the Grand Chamber, which condemned Romania because the national Csm had sanctioned a magistrate for two posts on Facebook published in January 2019.

First of all, the Court of Human Rights recalled that in the event that 'democracy or the rule of law were seriously threatened, judges have the right to express their views on matters of public interest, and that observations made in this context generally enjoy a high degree of protection'.

It then detailed a set of criteria that must guide those who are called upon to decide whether any sanctions against magistrates for their posts on social media are correct or not. The ECHR states that first of all the content and form of the posted messages must be considered. Then one must 'pay particular attention to the context in which they were made and to the position held by the judge or prosecutor who posted them'.

The Court then goes on to consider the different profile of magistrates in the context of statements made in public debate. It thus observes that, although judges and prosecutors who hold certain posts within the judicial system, such as the president of a court, the chief prosecutor, enjoy greater protection of their freedom of expression, because their public statements are very often motivated by a desire to preserve the judicial system, this does not mean that ordinary judges and prosecutors, who do not hold specific positions within the judicial system and do not speak in a particular capacity, cannot publicly express their opinions on matters of public interest.

Moreover, the Court warns, the consequences of the posted messages must also be considered, that is, the negative effects, as a whole, that a magistrate's posts have caused or could cause. The nature and severity of the sanction and the dissuasive effect it may generate on other magistrates, thereby depressing their recognised freedom of expression, must also be examined, and finally theprocedural guarantees granted to the magistrate subject to disciplinary proceedings must be considered.