DISSENTING OPINION OF JUDGE KŪRIS, JOINED BY JUDGE YUDKIVSKA

I

1. It may seem somewhat bewildering that, having voted against the admissibility of the application under Article 10 of the Convention and against the finding of a violation of that Article, I nevertheless take satisfaction in the fact that the applicant has won his case in Strasbourg. I really do. The way the applicant was treated by the domestic authorities does not hold water against any standards of due process, let alone reasonableness.

2 . The applicant complained under Article 10 and some other provisions of the Convention, including those of Article 6 §§ 1 and 2. The case was communicated to the Government only under Article 10. The other complaints were declared inadmissible.

3. What prompts my objection to the instant judgment is the fact that the applicant ’ s situation has been assessed from the angle of Article 10.

But before I come to this point, let me address the gist of the case.

II

4. The applicant was a chief prosecutor at county level. He was tasked with keeping the press informed about pending criminal investigations. A disciplinary action was instituted against him on account of the information he had imparted to the press about a case which clearly concerned a matter of general interest. He was found guilty of two disciplinary offences and was officially reprimanded. On top of that, as a direct consequence of being sanctioned in disciplinary proceedings, he was also removed from the position of chief prosecutor.

5. The criminal investigation about which the applicant officially informed the press in a press release and, soon afterwards, in a TV interview concerned alleged influence peddling within the judiciary, related to the presumably conditional release from prison of a detainee in exchange for money. Information about the incident had already been disseminated in the media before the applicant intervened. In particular, the public had been informed that a suspect was caught red-handed while accepting the money. Apparently, the suspect was not himself in a position to order a release from prison, and thus he would either have pocketed the money without having done what he promised to do for the detainee in question, or intended to share the money with someone who was in a position to take such decisions. No wonder that the incident, a clear harbinger of a high-profile corruption case, attracted public attention. Consequently, some kind of official communication to the public regarding the incident was a matter of course. The press release issued by the applicant contained a mention that the suspect had told the detainee in question that part of the money was to go to the “magistrates, judges and prosecutors responsible for the conditional release of detainees”. It was not asserted that this statement by the suspect was reliable. The TV news programme which interviewed the applicant added its own comment to the official communication. It alluded to one specific judge (who had until then chaired the commission for conditional release), raising speculation as to whether the ending of her assignment to the prison in question was (not) related to the alleged criminal activity. The allusion was most inappropriate and unprofessional, because it was based on inaccurate information that, indisputably, was not provided to the programme by the applicant. The judge ’ s name, however, was not revealed in that programme. Nonetheless, as is often the case, such secrets remain unknown for but a short time.

Quite understandably, the judge concerned was not happy about the hints dropped during the news programme. Quite understandably, she initiated proceedings to have retracted the information linking her to the alleged influence peddling. No less understandable was her displeasure at the silence on the part of the TV channel and the formalist response given by the National Audiovisual Council. What was less understandable was that she then directed her dissatisfaction against the applicant, who had not in any way alluded to her (or any other judicial officer) specifically, but only referred to the suspect ’ s words (the veracity of which he did not endorse) pointing to a broad, vague and indeterminate group of “magistrates, judges and prosecutors”. Even less understandable was that a disciplinary investigation against the applicant was commenced – unless such a procedural step was needed before the judge ’ s complaint could be dismissed. And what was not at all understandable, even jaw-dropping, was the sanctioning of the applicant for something that was not his, but the news programme ’ s , doing.

6. When questioned by the disciplinary commission, the applicant asserted that his press release had been prepared on the basis of information received in discharging his functions. The applicant ’ s lawyer claimed that the applicant had acted in good faith in informing the press about the incident, his references had been general and impersonal, and no reference had been made to any specific person; he had merely fulfilled his obligation to inform the press about a pending criminal investigation, of which the public was already aware. It was the TV channel which had expanded on the matter, providing more information in its news programme than it had received from the applicant.

7. This stance was corroborated by various institutions and officials. The National Audiovisual Council found that the TV broadcast did not contain any specific reference to the judge who had complained to them. The prosecutor at the Office for Public Information and Relations with the Mass Media held that the information provided by the applicant in the press release had been “minimal and general, but necessary so that the public could understand the facts of the case”, and that the applicant ’ s action had complied with the practice followed by the public prosecutor ’ s office. In the opinion of the president of the district court, the press release did not make any reference to the identity of the magistrates allegedly involved in the influence peddling. The prosecutor in charge of the case considered that the press release had not jeopardised the outcome of the criminal investigation.

8. Notwithstanding these elements, the disciplinary commission found against the applicant. It held that the applicant had provided information about the alleged recipient of the money for influence peddling without checking the accuracy of the suspect ’ s statements (as though the applicant could have verified this accuracy when he was not in charge of the case, which, incidentally, was in its early stages). In the commission ’ s opinion, it was precisely this “non-checking” which had led to the identification of one particular judge as the alleged recipient of the money and the media speculation as to whether the termination of her assignment could be related to the crime in question. It further held that the “way” in which the press release was drafted posed a risk that the result of the investigation would be undermined or confidential sources revealed (this being in contradiction to the explicit statement of the prosecutor in charge of the case).

9. The commission did not burden itself with explanations as to what would have been the proper “way” to draft the press release. It simply imposed on the applicant the disciplinary sanction of a reprimand, having found him guilty of failure to observe the confidentiality of documents of a secret nature and of adopting a disrespectful attitude toward colleagues in the exercise of his duties. On the latter count the decision was reached by three votes to two. The logic of the dissenters ’ arguments could hardly be rebutted, but it is the majority ’ s opinion which has legal force.

10. The commission ’ s action came into effect instantly after its approval. On the very same day the commission, as a result of its own finding, decided to remove the applicant from his position as chief prosecutor. This decision was taken before the applicant had even had a chance to challenge the disciplinary commission ’ s findings before anybody – even before the plenary of the members of the Superior Council of the Magistracy itself. When he applied to the plenary, his removal was already a fait accompli , because he had had to resign as chief prosecutor after new disciplinary proceedings were opened against him, threatening him with complete exclusion from the profession. His challenge was dismissed.

11. The High Court of Cassation and Justice also dismissed his appeal. The reasoning of the High Court was that once disciplinary sanctions had been imposed, even if this was in the form of a reprimand, a prosecutor had necessarily to be removed from his position. This was so irrespective of the fact that a reprimand appears to be the mildest of a number of disciplinary sanctions provided for in the law, and bears no comparison with removal from office as an autonomous – and the heaviest – sanction.

Where does such reasoning leads us? If a prosecutor is necessarily removed from his or her position no matter what disciplinary sanction is imposed, then all sanctions milder than removal from office are fictitious , as they all lead to the prosecutor ’ s removal from office: either immediately, or as a result of the imposition of any milder sanction. Tertium non datur . In fact, secundum non datur : the choice is between dismissal and dismissal. Great standard. If such uncompromising, unbending rules are consistently applied (are they? felicitări !), the Romanian prosecutorial corps must indeed consist of exclusively flawless, infallible, squeaky-clean officers.

12. Be that as it may, the applicant lodged an appeal on points of law with the High Court of Cassation and Justice against the commission ’ s decision to find him guilty of two disciplinary offences and to impose a reprimand. He averred that he had not supplied the press with any confidential information. On the contrary, the press release was aimed at preventing possible speculation about the incident, already known to the press, which could have been detrimental to the judiciary. He also dismissed the accusation that he had shown a disrespectful attitude towards the judge in question. The Association of Romanian Magistrates intervened in the proceedings in support of the applicant, contending that he had observed the relevant regulations, both domestic and those of the Council of Europe.

All this to no avail. The High Court, by a majority, dismissed the appeal, pointing out that the applicant should have limited his press release to the minimum of information, which would not have allowed the identification of any magistrate as the alleged recipient of the money that was changing hands. Had he not mentioned in the press release that the money in question was to be obtained by “magistrates, judges and prosecutors responsible for the conditional release of detainees”, then, in the eyes of that court, everything would have been hunky-dory.

13. The High Court did not provide any explanation as to how it would have been possible to report on an investigation into the alleged unlawful conditional release of a detainee from prison in exchange for money without hinting, at least in a general way, that the alleged recipient(s) of that money was one (or more) of those taking the decisions concerning that detainee ’ s conditional release (with the proviso that this was so only according to the words of the suspect). Who else would be taking decisions pertaining to the release of detainees, if not “magistrates, judges and prosecutors”? Surely not secretaries, librarians, chauffeurs or janitors working somewhere in the judicial system? This is as plain as a pikestaff.

It is easy to imagine that withholding even a slight hint that the alleged recipient could (assuming that the suspect ’ s words were proved correct) be a magistrate, a judge or a prosecutor would have raised, in the eyes of the public, suspicion that attempts were being made to protect someone. Apparently, in the High Court ’ s opinion, withholding such “information” (which amounted to what a reasonable person could himself have concluded), and thus raising a legitimate suspicion that something fishy was going on, would have been perfectly legitimate.

III

14. The problem with which I am concerned here emerged when the applicant, in his appeal on points of law against the commission ’ s decision, complained (not only that the disciplinary proceedings against him had been unfair, but also) that the imposition of a disciplinary sanction had infringed his right to impart information to the press. He relied on Article 10. Perhaps he (and his lawyer) considered that this additional argument would make his case stronger.

15. It did – if not at the domestic level, where the judges were not convinced by this argument, but certainly in Strasbourg, because the applicant has ultimately won his case here. In my opinion, however, this has been achieved at the expense of clarity with regard to what Article 10 is about.

16. Let us have a closer look at the arguments by which the applicant substantiated his claim under Article 10. I limit myself only to those which directly concern the very essence of that Article (and do not enter into considerations regarding the confidential or non-confidential status of the information disclosed; the risk which it allegedly posed for the ongoing investigation; the role of the TV news programme in raising speculations regarding a specific judge; or the adequacy or nor-adequacy of the examination of whether that judge ’ s public image was tarnished).

17. The applicant stressed (more than once) that he imparted to the press the impugned information in his capacity as the staff member designated to maintain contact with the press . He had been in charge of providing information to the press for about five years.

No question about that. Informing the press was his job – an important function. The media had a professional duty to inform the public, and he had the professional duty to inform the media so that they could properly perform their professional duty. This is known as the public authorities acting in the public interest. It has something to do with authorities ’ accountability, transparency, public trust, and the rule of law, that is to say, with civic virtues which are not the least among those defended by the Convention – but also by Romanian law.

18. The applicant asserted that he was fulfilling his obligation to inform the public about facts relating to pending criminal proceedings. No legitimate aim could be pursued through imposing a disciplinary sanction on a prosecutor who had merely carried out his professional duty to provide prompt and accurate information to the press, in a role to which he had been assigned. None of the other prosecutors who issued press releases had been disciplined by the commission, even when they imparted more information about ongoing criminal investigations than he did. They presumably discharged their duties properly, while it was considered that the applicant did not.

19. The applicant made it clear that his obligation to inform the press about the case was even greater because information about it had already been released to the public by the media, and rumours about the possible involvement of judicial officers had spread in the town concerned. An official reply to the media was necessary in order to protect the image of the judiciary. He did his best to ensure that his information was accurate.

20. The paradox is that the applicant, while asserting that his rights under Article 10 were violated, in fact argued that he merely performed his duties as a public official – not that he exercised any rights.

21. The duties of public officials are not the subject of Article 10. This Article guarantees the right to freedom of expression .

This right includes the freedom to hold opinions and to receive and impart information and ideas .

There must be no interference in the imparting of information and ideas by a public authority .

Thus, Article 10 implicitly draws a distinction between private persons and public authorities, and the latter must not interfere with the freedom of expression of private persons.

Admittedly, the expression of public persons, such as, for example, members of parliament, may also be protected by Article 10 (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, 17 May 2016), but, as the cited case shows, that expression must be exercised independently from the performance of official functions.

In addition, the Court, in developing its case-law and enhancing the standards of human rights protection, has interpreted Article 10 to the effect that it can also be invoked to protect access to information (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, 8 November 2016).

22. Freedom of expression, or speech in the widest sense of the word, is a broad concept. With the advancement of technologies and globalisation it only expands.

The notion of expression (or speech) includes not only oral or written communication, but also non-verbal communication, even silence: not expressing oneself explicitly may also convey information, opinion or ideas. These different forms of expression manifest themselves in very diverse areas, thus making the notion of freedom of expression applicable not only to everyday parlance or political speech (which remains the central target of applicability of this concept in litigation), but also to expression of religious (or non-religious) faith or the absence thereof, scholarly research and teaching (academic freedom), artistic expression, literature and journalism, broadcasting and electronic media, even commerce and propaganda, etc. – all forms of one-to-one, one-to-many and many-to-one communication. I am unable to deal with all these issues here (but will not let pass the opportunity to refer to a great source of inspiration for thoughts on the importance of freedom of expression in its diverse manifestations: Timothy Garton Ash, “Free Speech: Ten Principles for a Connected World” (London: Atlantic Books, 2016).

The Court ’ s case-law on the many spheres of application of the concept of freedom of expression is abundant; there is no need to cite it here.

23. Nevertheless, a broad concept is not necessarily all-encompassing. The Court has excluded the applicability of Article 10 in many cases where the applicants claimed that it was their freedom of expression which had been infringed. It is the Court which defines the ambit of the Articles of the Convention. Apart from many other things, jura novit curia means also that. And it is the Court which determines that something which falls within the ambit of an Article, in this case Article 10, does not, however, enjoy its protection. Hate speech, as well as speech inciting disorder and crime, is normally not protected. Commercial advertising can be restricted. Disclosure of sensitive information (including confidential information and State secrets) may be well justified. Freedom of expression must be balanced and may retreat against the right to privacy. Speech aimed at impairing the authority and impartiality of the judiciary may be prosecuted. And so on.

Thus, there may be – and indeed are – types of expression which do fall within the ambit of Article 10, but do not enjoy its protection.

24. In this case, however, we are concerned not with the protection of something which falls in the ambit of Article 10. What troubles me is the fact that what was held by the majority to be protected by that Article was clearly outside its ambit.

The sine qua non for an activity to f all within the ambit of Article 10 is that the activity in question must constitute an expression within the meaning of that Article. This is so banal – and yet it should not be overlooked that the activity in question must contain two constitutive (or determinative) elements: ( i ) it has to be an expression of something which (ii) was performed in exercise of the respective freedom . An expression (by words, sounds, signs, actions, writing, symbols, silence, etc.) taken alone would not suffice for it to be a manifestation of freedom of expression in the sense of Article 10 . For this, both elements are needed.

A railway flagman expresses himself in the sense that he conveys a message to someone. However, does this mean that he thus exercises his freedom of expression ? In other words, does he, by expressing himself, express his own self ? Or: a policeman who uses a whistle to stop a speeding car is certainly engaged in expression – but does he exercise freedom of expression? If one wishes to consider an opposite example, take a person who expresses himself loudly in his sleep. Would such an expression constitute an exercise of any freedom? (Some do express themselves in this way, and they are not always happy to learn what they expressed and to whom .) A positive answer to this seemingly rhetorical question would amount to holding that a person who sleepwalks is exercising his freedom of movement under Article 2 of Protocol No. 4. Come on.

25. Turning to the applicant ’ s situation, I believe that the very essence of what freedom of expression means has been overlooked in this case.

It is undisputable that the applicant never asserted that he had held any opinion on the case about which he informed the media. Indeed, nothing in his press release or TV interview could be interpreted as an expression of his opinion – in fact, of any opinion. It was a communication of the facts as they were known at that stage.

The applicant was more than clear that he had expressed no ideas of his own, or even someone else ’ s ideas. Ideas were not there at all , unless we attribute the word “idea” to any form of speech.

And there was no interference in the applicant ’ s imparting of official information to the public by any public authority . On the contrary, he exercised his duty while being himself part of public authority . He acted, in fact, as the mouthpiece of authority.

In theory, had he withheld this information on a matter of public interest, he could have violated the public ’ s right to be informed or the media ’ s right of access to information. This was not so in the instant case.

He would have also deviated from his official functions (and perhaps violated domestic regulations), had he not informed the public about the incident, which was related to a matter of public concern. This was not the case.

Where then is an infringement of the applicant ’ s Article 10 right?

Where does that right exist in this case?

26. To sum up, the crux of the applicant ’ s arguments before the Court was that he had not exercised any freedom when imparting the information to the media. He was not free not to impart it or, in the alternative, to impart only some of the relevant information by withholding what was essential and what was anyway understandable to any reasonable person, or at least to those who had some idea about who adopts decisions on the conditional release of detainees. He had not imparted anything that was not justified by the public interest. Such had been the general practice for years – not only the applicant ’ s practice, but that of all officials (prosecutors) tasked with similar functions.

He had thus not engaged in a n activity protected by Article 10.

IV

27. The above is not meant to argue that the applicant did not engage in an activity protected by the Convention or that he did not have a case in Strasbourg.

Of course he did.

Only this case ought to have been examined not under Article 10, but under Article 6, or Article 8, or under both of these Articles.

28. At this stage of proceedings the Court was precluded from examining the applicant ’ s complaints under Art icle 6 (and those under Article 1 of Protocol No. 1) as they had been declared inadmissible by another judicial formation. It might well be that the reasons for this were perfectly valid at that stage.

29. Nonetheless, the Court ’ s case-law is a constantly and ceaselessly developing body. Since 2015, when the application was communicated to the Government, new case-law has come into being which would indicate that the applicant ’ s situation (especially his speedy and unconditional removal from office) clearly fell under Article 8. Perhaps the most recent authority would be Denisov v. Ukraine ([GC], no. 76639/11, 25 September 2018). One could also refer to Bărbulescu v. Romania ([GC], no. 61496/06, 5 May 2017). The doctrine contained in these two judgments (especially the former) would suggest not only that the appl icant ’ s case fell under Article 8, but that the finding of a violation of Article 8 could have been a likely outcome. But even in 2015 there were authorities (such as, for example, Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, 27 July 2004) which would have suggested the same.

30. The same also goes for the applicability of Article 6. To conclude so, it is enough to have a glimpse at Oleksandr Volkov v. Ukraine ([GC], no. 21722/11, 9 January 2013) or Morice v. France ([GC], no. 2969/10, 23 April 2015), or Baka v. Hungary ([GC], no. 20261/12, 23 June 2016).

31. However, I do not want to prejudge such examination, especially as it never took place and would be purely hypothetical.

There is another point that I wish to make.

32. The Court sometimes includes in the ambit of certain Articles something that does not belong there.

With regard to Article 8, a recent most unfortunate example was Erményi v. Hungary (no. 22254/14, 22 November 2016), where the Court went further than in the landmark judgment in Oleksandr Volkov (cited above), and where the notion of “private life” was interpreted so that it could, in principle, also include activities of a professional or business nature. The applicant, who had been dismissed from the post o f Vice-President of the Supreme Court, complained under Articles 6, 13 and 14, but the Court, being “master of the characterisation to be given in law to the facts of the case” and relying on the jura novit curia principle, requalified his complaint as falling under Article 8 and found a violation of that Article. The applicant ’ s “relationships with the outside world”, his social life or even his professional relations were thus considered to be fully dependent on his post, which was but an additional function to his judicial service and status as a judge. The notion of “private life” was thus extended to embrace virtually any act by the authorities vis-à-vis an individual, as a participant in the labour market or as member of a profession or holder of any other official function.

In Denisov (cited above) the Court backed away from this all-inclusive approach. It found a complaint under Article 8, in many respects similar to that examined in Erményi , to be incompatible ratione materiae with the Convention and thus inadmissible (albeit without formally denouncing Erményi ).

33. Something similar is now happening with Article 10. The present judgment interprets the scope of Article 10 too broadly, importing into it what should be perceived as clearly lying outside it by all standards of logic.

I do not argue that this is already a general tendency. But once judgments become final, they are referred to² in other cases – and not always critically. The instant judgment therefore has the potential to reproduce itself by multiplying its underlying approach in future case-law.

This falls not far short of a prediction that a day will come when the Grand Chamber will have to revisit the Brisc approach – and to overturn it. For the new type of Erményi a new Denisov will be needed.

V

34. What should have been done? And could anything have been done, given that the applicant did not complain under Article 8 and his complaints under Article 6 were declared inadmissible?

35. Since Radomilja and Others v. Croatia ([GC], nos. 37685/10 and 22768, 20 March 2018) this does not seem to be a big problem. Jura novit curia . This principle (among other things) validates the requalification of applications, which has become a widespread practice.

36. Such requalification of the present applicant ’ s complaints as falling under Article 8 would have been very logical, had the Chamber felt bound by the interpretation of private life as expounded in Denisov (cited above).

Consequently, Mr Brisc ’ s case ought to have been recommunicated (even if not communicated from the outset) to the Government under Article 8.

37. Most regrettably, this option was rejected. Perhaps the case had been pending before the Court for too long. It was too old (the application dates back to 2010).

But the backlog of pending cases is a problem of a different nature, and it cannot be solved in a satisfactory way by deciding cases under the “wrong” Articles, when there is new case-law making it clear under what Article they should be examined.

38. In view of all this, the argument set out in paragraph 89 of the present judgment is strange – but at the same time also revealing. The majority state:

“It is not in dispute between the parties that there had been an interference with the applicant ’ s right to freedom of expression under Article 10 of the Convention. For its part, the Court finds no reason to find otherwise.”

Of course, “it is not in dispute”! So what?

A similar trick (only in a much more brutal manner) was already used in Erményi (cited above, § 31).

But what about jura novit curia ?

Is it the Court which knows the law – above all, the law of the Convention? Or is it the parties which “know” it, and if they do not disagree, then the Court must follow their underst anding, whatever that may be?

39. The above quotation, however, is indeed remarkable for one more reason.

Let it be repeated once again that the right to freedom of expression, as enshrined in Article 10, includes the freedom to hold opinions and to receive and impart information and ideas.

If the majority indeed agrees with the parties that “there had been an interference with the applicant ’ s exercise of free dom of expression under Article 10”, they could – or rather should – (leaving “information” aside, which the applicant, according to his own submissions, was not “free” not to impart) have tried to indicate at least one of the “opinions” or “ideas”, which the applicant had allegedly expressed (please note the plural form of both words).

In the impugned press release, I found none.

The majority also have mentioned none.

Because there were none.

40. So what is it that the applicant ’ s case is about?

It is about the “exercise” of – what ? Freedom ?!

41. This sends the whole opposition of rights and duties (and many other chapters of legal theory) to the waste-basket.

For the submissions from the applicant (who perhaps sincerely, but quite mistakenly, invoked Article 10, and the Government, alas, failed to notice this) to the Court, and in the domestic proceedings, radiate around one single message: I was not free in doing what I did! I only performed my professional duty! A mere obligation! I had to do what I did – not more, not less!

42. Every such reinterpretation leads somewhere.

So – where does the understanding of obligation as a right lead us to?

Where have we read that freedom is duty? Or – that duty is freedom?

Was it in Hegel? That freedom is a recognised necessity?

Or maybe in “1984” – that freedom is slavery?

[22 November 2018]