CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 décembre 2020

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ROMANIA (Application no. 33794/14)     JUDGMENT   Art 10 • Freedom of expression • Fair balance struck in imposing code-of-conduct penalty on judge for publishing unsubstantiated allegations calling into question moral and professional integrity of a fellow judge • Interpretation of the Code provision reasonable and foreseeable for a professional with extensive experience in the field • Applicant expected as a judge to show restraint in exercising freedom of expression where the authority and impartiality of the judiciary are likely to be called into question • Decision permanently included on applicant’s professional file and taken into account when assessing applications for promotion, but not preventing participation in promotion competitions • Penalty proportionate in the circumstances   STRASBOURG 8 December 2020   FINAL   19/04/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Panioglu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Tim Eicke,   Faris Vehabović,   Iulia Antoanella Motoc,   Armen Harutyunyan,   Pere Pastor Vilanova,   Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   33794/14) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms   Daniela Panioglu (“the applicant”), on 28 April 2014; the decision to give notice of the application to the Romanian Government (“the Government”); the parties’ observations; Having deliberated in private on 17 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained that the sentence imposed on her following the High Court of Cassation and Justice’s (“the Court of Cassation”) final judgment of 1 November 2013 had automatically prevented her for years from taking part in exams to further her professional advancement. She also complained of a lack of foreseeability in respect of the Code of Conduct for Judges, in so far as it had failed to define the concept of an opinion expressed on the moral and professional integrity of a colleague, amounted to a breach of her freedom of expression. She relied on Article   10 of the Convention. THE FACTS 2.     The applicant was born in 1968 and lives in Bucharest. The applicant was represented by Mr C.L. Popescu, a lawyer practising in Bucharest. 3.     The Government were represented successively by their Agents, Ms   C. Brumar, Mr V. Mocanu, and Ms S.M. Teodoroiu, of the Romanian Ministry of Foreign Affairs. Background to the case 4.     The applicant is a judge attached to the Bucharest Court of Appeal. 5 .     In March 2012 the applicant wrote an article about the President of the Court of Cassation under the heading “Nothing about how a Comrade Prosecutor has become the president of all judges”. It read: “ To my great grandfather, [ N.O. ] , killed by the communists In 1980, when the communist camp was becoming more unbearable, the current President of the Court of Cassation was appointed prosecutor in the town where I was born. The town had a steel industry and a shipyard, [and] therefore was crawling with members of the Securitate , from small informants to the most privileged and smooth torturers. I was twelve years old and I was in the sixth grade. Because she was almost always at work and in order to spend as much time as possible with us, my mother used to take me and my younger brother to the parades on 23 August. Once we were taken to a stadium to see Nicolae Ceauşescu, who had travelled to our town by helicopter. I remember that we stood for countless hours under the scorching sun. There were many people in shabby clothes. All of us were standing upright, repeating the slogans. Next to me a woman was only mouthing the ovations because she was so tired. So, when I turned my head under the scorching sun, I saw a man grabbing her arm and telling her discreetly to follow him. Only because she had mouthed the words. I was no longer interested in seeing the great leader. We left and after we had left the stadium well behind I kept asking my mum: Why? Meanwhile the President of the Court of Cassation was a rising prosecutor. How did the Comrade Prosecutor fight to root out the enemies of the socialist order and for the pursuit of the new man? Naturally, with her weapon, the case files. I started to imagine what could happen in the dungeons, from where some came out dishonoured, broken and scared, and many did not come out alive. Who was hurting them? What did those who got hurt and those who were hurting them looked like? Where are the marks? Even today there is no desire to find out. Afterwards, in the seventh grade, during my internship in agriculture, I saw female detainees on the field where we were harvesting tomatoes. They were wearing a thick uniform with a striped skirt and a scarf on their head. I wanted to memorise one of their faces. The detainee status seemed incompatible to me with being a woman. They were crying and asking us to come near them as if we had been their own children. Other women appeared, authoritarian, dressed in uniforms fitted with leather belts. My mum told me that many of them had been convicted for abortion. Women chose to kill their unborn because they did not have the means to raise them. In addition to this internal turmoil, they were being hunted down by the police [ miliție ] and the prosecutors. How did the Comrade Prosecutor manage at that time, naturally still for the pursuit of the new man? For me, the world that had already taken shape consisted of severe poverty, the silence and terror from the earth’s surface, and the unknown hell from the dungeons from where screams were never heard. The prosecutors were somewhere above in an untouchable shining world, which made it impossible to see the sky for all those in my world. All these comrades, usurpers of Christ and His Law, sternly guarded the communist prison. The Comrade Prosecutor has also floated above us, omnipresent, for fourteen years, until 1994, when she transformed into a judge. That is to say when I was twenty-six years old. During all this time, I did my homework by candlelight, [the candle] glued to the edge of a jar[;]food was rationed; cold water only ran for two hours a day, warm water was long gone[;] we shivered with cold indoors[;] we waited at bus stops until we were freezing [and] afterwards we were lucky if we found room on the [bus’s] footboard to go to school. Now I realise that all this time, long as my entire childhood and adolescence, has not been wasted because the Comrade Prosecutor has accomplished so much, as to become the president of all judges herself. The President of the country appointed her in 2010, in a European State, where the justice system is continuously being reformed. That is to say to the old man, a new face. That is why the result is and will be an eternal failure.” 6 .     The applicant’s name was in the byline, which also stated that she was a judge attached to the Bucharest Court of Appeal. The article was printed both in a national newspaper, Cotidianul , and on an Internet news site, Juridice.ro . Disciplinary and code-of-conduct proceedings against the applicant Disciplinary proceedings against the applicant 7.     On 8 March 2012 the Judicial Investigation Unit ( Inspecția Judiciară – “the IJ”) attached to the Superior Council of the Judiciary ( Consiliul Superior al Magistraturii – “the CSM”) opened a preliminary investigation against the applicant on its own motion on the grounds that the article published by her was referring to the professional career of the President of the Court of Cassation. 8 .     On 17 April 2012 the IJ produced a note concerning the article published by the applicant and proposed that the note be forwarded to the Disciplinary Commission for Judges ( Comisia de disciplină pentru judecători – “the CDJ”) attached to the CSM to establish whether a disciplinary investigation had to be opened against the applicant for breaching Article 99   (a) of Law no. 303/2004 concerning conduct of judges and prosecutors affecting their professional honour and dignity. The IJ held that the article had drawn a parallel between the oppressions of the communist regime and the rise of the President of the Court of Cassation, who had worked as a prosecutor at that time. Judge L.D.S. had been appointed President of the Court of Cassation in 2010 lawfully, after she had passed the lawfully required vetting process to ensure that she had not been a member of or had collaborated with the secret services before 1990. Suggesting that she had behaved inappropriately at the time when she had been a prosecutor without providing specific facts had made it impossible for the IJ to verify the allegations. 9.     The article the applicant had put her name to had introduced the idea that Judge L.D.S. had carried out her professional duties unlawfully between 1980 and 1994, when she had worked as a prosecutor. The distorted presentation of Judge L.D.S.’s professional activity and the suggestion of questionable moral behaviour on her part had resulted in the President of the Court of Cassation’s professional reputation being damaged. The applicant’s personal opinions expressed in the article had constituted behaviour calling into question the honour and professional integrity of Judge L.D.S. 10.     Under relevant national and international law free speech was subject to exceptions when a person’s right to honour, reputation, and personal image were affected. Also, when exercising it, judges had to behave in such a way as to preserve the dignity of their office and the independence and impartiality of the judiciary. By expressing publicly her opinions about the professional activity of a judge, the applicant had breached the boundaries of the duty of discretion which had implied moderation and restraint in presenting her opinions. 11 .     The IJ took the view that in the applicant’s case there had been evidence suggesting that the disciplinary offence set out in Article 99   (a) of Law no. 303/2004 had been committed. It considered that the boundaries of the right to freedom of expression had been overstepped and that the applicant’s assessment of the Court of Cassation’s President’s professional activity had been conducted in a manner capable of creating a negative image about the way she had behaved as a prosecutor. 12.     On 19 April 2012 the CDJ ordered that a disciplinary investigation be initiated against the applicant for the disciplinary offence set out in Article 99(a) of Law no. 303/2004. 13.     On 18 May 2012 the IJ produced a note about the outcome of the disciplinary investigation concerning the applicant and proposed that the note be forwarded to the CDJ to establish whether disciplinary proceedings had to be instituted against the applicant. By relying on some of the arguments of the note of 17 April 2012 (see paragraphs 8-11 above), the IJ took the view that there was evidence in the case that might suggest that the elements of the disciplinary offence set out in Article 99   (a) of Law no.   303/2004 had been met in the applicant’s case. 14 .     On 21 May 2012 the CDJ closed the proceedings against the applicant in so far as they concerned the commission by the applicant of the alleged disciplinary offence set out in Article 99   (a) of Law no. 303/2004. However, the CDJ referred the case to the judges’ section of the CSM ( Secția pentru judecători a Consiliului Superior al Magistraturii – “the SJCSM”) for it to determine whether the applicant had breached Article   18 §   2 of the Code of Conduct for Judges (“the Code”). It held that Article   99   (a) of Law no. 303/2004 concerned circumstances where a judge or prosecutor had affected his or her own professional honour and dignity or the reputation of the justice system by his or her own actions and conduct. This had not been the applicant’s case. Her article had been written in a literary manner, had referred to aspects of the communist era which had been well known, and had reflected the restrictions imposed on the rights of the people during those times, which the applicant had been recalling. The article had also contained accurate information concerning the fact that Judge L.D.S. had worked as a prosecutor and as a judge and that starting from 2010 she had been appointed President of the Court of Cassation. The applicant had not used violent or foul language capable of disturbing public opinion and her article had not had a significant media impact. 15 .     However, the manner in which the applicant’s article had been written had created a negative image of how Judge L.D.S. had carried out her duties as a prosecutor during communism. By using the expression “Comrade Prosecutor” in the title of the article the applicant had implied that the President of the Court of Cassation had been at fault for having become “the president of all judges” even though she had been a prosecutor during the communist regime. By contrasting the situation of the people who were “poor, silent, and oppressed” with that of the prosecutor L.D.S. – who was characterised “untouchable” and “rising” – the applicant had practically held L.D.S. guilty for the fact that she had had a superior status because of her position as a prosecutor. 16.     Also, from the content of the article it could be understood that the case files processed by L.D.S. during communism had been used as a means of oppression in order to “root out the enemies of the socialist order and for the pursuit of the new man” or to convict women for abortion. In addition, the applicant stated generically in the article that “all these comrades”, implying also “the Comrade Prosecutor” mentioned in the title of the article, had been “usurpers of Christ and His Law” and had “sternly guarded the communist prison”. 17 .     Lastly, the article noted L.D.S.’s appointment as President of the Court of Cassation and referred to the fourteen years she had worked as a prosecutor during the communist regime when she “has accomplished so much, as to become the president of all judges herself”. 18.     The CDJ took the view that by writing the article in the above-mentioned manner the applicant had brought into question her compliance with the relevant legal provisions concerning the professional conduct of legal professionals. By relying on, amongst other things, Article 18 § 2 of the Code, Article 10 of the Convention, the case-law of the European Court of Human Rights (“the Court”), and on the applicant’s statements, the CDJ held that the applicant had overstepped the limits of expression that had to comply with the duty of discretion. Thus, the balance between an individual’s right to freedom of expressions and a democratic State’s legitimate interest in ensuring that a person holding public office had complied with the scope of Article 10 of the Convention had been broken. 19 .     The CDJ held furthermore that by expressing opinions which could make a reasonable observer – that is to say a well-intentioned, disinterested, and informed person – doubt a colleague’s professional integrity and morality, the applicant had overstepped the limits of freedom of expression in relation to that person’s right to personal image, honour and reputation. Therefore, there had been evidence suggesting that the applicant had breached Article 18 § 2 of the Code because in the article under her name she had implied that L.D.S. had not performed her professional duties lawfully between 1980 and 1994, when she had been working as a prosecutor. 20 .     The CDJ lastly held that the malicious and distorted presentation of L.D.S.’s professional activity and the suggestion that her behaviour had been questionable, without any supporting evidence in that regard, had caused unfounded suspicions to be raised about L.D.S.’s professionalism. The personal opinions expressed by the applicant in her article had amounted to conduct that had affected the right to personal image, honour, and reputation of the judge. Conduct proceedings against the applicant Decision by the SJCSM 21 .     In a decision of 16 October 2012 the SJCSM held that the applicant’s article had breached Article 18 § 2 of the Code, which set out one of the limitations imposed on an officer of the court’s right to freedom of expression. By relying on similar arguments to the ones relied on by the CDJ (see paragraphs 15-17 above), the SJCSM held further that the applicant’s article had been written in a manner that had created a negative image of how Judge L.D.S. had carried out her duties as a prosecutor during communism. 22.     The SJCSM dismissed the applicant’s argument that her article had merely been a literary essay and found that she had overstepped the limits of freedom of expression that had to comply with the duty of discretion. Thus, the balance between her individual right to freedom of expression and a democratic State’s legitimate interest in ensuring that a person holding public office had complied with the scope of Article 10 of the Convention had been broken. 23.     The applicant’s argument that Article 18 § 2 of the Code could not be read without taking into account the definition of good faith set out in Article 99 1 § 1 of Law no. 303/2004 could not be accepted given that that article defined bad faith and serious negligence and concerned exclusively the exercise of professional functions by judges or prosecutors. 24.     The SJCSM also reiterated the CDJ’s finding concerning the applicant’s conduct (see paragraphs 19-20 above). 25 .     In addition, the SJCSM held that in its decision of 28 March 2012 declaring unconstitutional the recently passed legislation on lustration, the Constitutional Court had noted that in their opinion submitted to the court the council of the Romanian Prosecutors’ Association had stated that in accordance with the relevant law in force during communist times civilian prosecutors had been competent to investigate only ordinary offences not political offences, and that prosecutors had not only not served the regime, but had been the only obstacle against abuses committed by repressive bodies. 26.     In contrast to the above-mentioned point, the applicant had referred to the case files processed by L.D.S. during that time as being used as a means of oppression in order to “root out the enemies of the socialist order and for the pursuit of the new man” or to convict women of abortion, without presenting any concrete evidence. She was therefore practically blaming the President of the Court of Cassation simply because she had worked as a prosecutor during communism. Thus she had clearly affected the professional and moral integrity of a fellow judge. The applicant’s challenge against the SJCSM decision 27 .     On 3 December 2012 the applicant challenged the decision before the Plenary of the CSM. She argued that Article 18 § 2 of the Code concerned the expression of an opinion, but failed to define the concept. In the absence of a definition of this concept it could be reasonably argued that it meant expressing a subjective point of view. However, in order to affect a person’s image, honour, and reputation such a personal opinion had had to clearly and expressly concern concrete acts and facts capable of compromising the professional integrity or the morality of that person. Her article had not contained any explicit clear statement concerning the morality and professional integrity of Judge L.D.S. Her essay had contained only several rhetorical questions which had not amounted to a categorical opinion. Also, by using the expression “Comrade Prosecutor” she had referred to an undeniable fact within the framework of portraying the communist times. 28.     Relying on international and European instruments concerning judges, the applicant argued further that those instruments required special diligence in cases concerning the disciplinary investigation of judges, including a careful selection and assessment of strictly objective and essential elements so that any exposure of a judge to unacceptable pressure would be avoided. The same requirements had to be complied with in cases of a conduct investigation, given that pursuant to domestic law an acknowledgement of a breach of the Code amounted to a disciplinary sanction which would prevent her career advancement. Unlike in other European states, the Romanian Code had not been merely a guide on moral issues but a disguised disciplinary code. 29.     Her conduct, which had consisted in her publishing a literary article depicting her personal experiences, had been examined in a deficient manner by breaching the highly important objectivity criteria set out in the relevant international instruments. Thus some segments and expressions from the text had been assessed excessively and had been given subjectively a certain meaning which had been preferred by the investigators. Also, the rules and principles concerning a judge’s duty of discretion had been misunderstood and had been interpreted very rigidly by relying on arguments that had had no connection to the text. The fact that the disciplinary proceedings had been diverted into code-of-conduct proceedings supported the argument of the pressure imposed of its own motion by an independent body which had not been created to investigate judges. 30.     The applicant also argued that her essay had concerned the post of President of the Court of Cassation and had not referred to a colleague because she had not had any interest in L.D.S. as a person. Under the relevant international rules concerning judges, a judge had to be more tolerant and open to questions and criticism since he or she was very exposed to the public. That was even more so in cases of judges exercising an official State function. The person exercising an official State function was a subject of public interest and therefore it was natural that all aspects concerning that person’s past and present career be debated publicly by any person. 31 .     Lastly, the applicant argued that her essay had been part of a series of other essays that she had already published and had not been a single and isolated work. Decision by the CSM’s Plenary 32.     By a decision of 23 January 2013 the CSM’s Plenary dismissed the applicant’s challenge. It held that the applicant’s status as an officer of the court had not deprived her of her right to freedom of expression. However, her conduct consisting of the statements she had made in her article published in the press had breached an officer of the court’s duty of discretion. Thus, the balance between an individual’s right to freedom of expressions and a democratic State’s legitimate interest in ensuring that a person holding public office had complied with the scope of Article 10 of the Convention had been broken. 33.     An officer of the court’s duty of discretion implied moderation and restraint in presenting his or her opinions. The applicant had been entitled to express her opinion on some aspects concerning the activity of the justice system. However, the manner of making some of her statements had broken the above-mentioned balance, especially since there was no evidence suggesting that under the circumstances the expressions used had represented for her the only way of conveying the information she had intended to present. 34.     By publishing the article, by the manner of presenting the events, and the expressions used, the applicant had affected the moral and professional integrity of a fellow judge. Her statements had not been value judgments but had in fact conveyed certain specific points and had been a clear and unequivocal personal opinion concerning the moral and professional integrity of the President of the Court of Cassation. Her argument that her article had concerned exclusively the post of President of the Court of Cassation had been ill-founded. The opinions expressed in the article had concerned the person holding that post since a distinction could not be made between the post and the person holding it. 35.     Moreover, presenting the realities of communist times could have been done in a less intense manner which would not have affected a colleague’s professional integrity and honour and with a focus on the problems faced by the justice system. 36 .     The Plenary also held that the applicant’s statements had to be examined in the context of the lack of trust in the justice system that had been apparent for a long time and which had seriously affected its authority and the appearance of impartiality. Clearly a judge should have known better than anyone the risks of statements which could have a significant impact on the reputation of the system. In this context using balanced language with an objective presentation of the system’s deficiencies was better than making statements breaching professional conduct about a colleague. Therefore the applicant’s argument that her essay had not contained a categorical opinion but only literary rhetorical questions could not be accepted. 37.     The manner in which the applicant had chosen to express her opinion about the realities of the communist regime in suggesting that a fellow magistrate had had questionable conduct and professional evolution had resulted in unjustified doubts being raised about the morals and professional integrity of the President of the Court of Cassation. 38.     Lastly, the CSM’s Plenary concluded that the personal opinions expressed by the applicant in her article had amounted to conduct that had affected the right to personal image, honour, and reputation of Judge L.D.S. The applicant’s appeal against the decision by the CSM’s Plenary 39.     The applicant appealed against the CSM’s Plenary’s decision before the Court of Cassation and reiterated the arguments of her challenge of 3   December 2012 against the SJCSM’s decision of 16 October 2012 (see paragraph 27-31 above). Judgment of the Court of Cassation 40.     In a final judgment of 1 November 2013 the Court of Cassation dismissed the applicant’s appeal as ill-founded. It held that the applicant’s article had presented in a distorted way the professional activity of the President of the Court of Cassation, suggesting that she had behaved questionably, without presenting supporting evidence. The expressions used by the applicant, such as “Comrade Prosecutor”, “all these comrades”, “usurpers of Christ and His Law”, and “have sternly guarded the communist prison” may have caused a reasonable observer – that is to say a well ‑ intentioned, disinterested, and informed person – to doubt the moral and professional integrity of the person targeted by the article and clearly overstepped the boundaries of the applicant’s duty of discretion. 41.     According to the relevant international instruments and the Court’s case-law the freedom of expression of officers of the court was exercised mainly under the umbrella of the Court’s case-law and of the Convention both as regards the duties and responsibilities incumbent on those who serve justice and as regards the limitations imposed on their rights which were necessary to guarantee the authority and impartiality of the justice system. As a result, the applicant’s argument that by presenting in an exclusively literary manner her personal life experiences she had not tarnished the dignity of the position of judge or the independence and impartiality of the judiciary could not be accepted, because the article had contained clear references to the professional activity and the behaviour of the President of the Court of Cassation and had made references to the communist period when she had worked as a prosecutor. 42 .     The court held furthermore that the applicant’s argument that the disciplinary proceedings had been diverted into conduct proceedings on the motion of an independent body which had not been created to investigate alleged misconduct by judges could also not be accepted. The rules and regulations concerning the organisation and functions of the CSM and its bodies provided expressly for a procedure concerning the examination of alleged breaches of the Code which was different from the procedure set out for the examination of alleged disciplinary offences. Also, the manner in which the decisions taken during these separate sets of proceedings could be challenged was different. Therefore, the CDJ’s decision of 21 May 2012 (see paragraph 14 above) had not represented a diversion of the disciplinary proceedings into code-of-conduct proceedings. Other relevant information Other CSM and administrative proceedings brought by the applicant 43.     On 15 December 2015 the applicant asked the CSM to remove from her professional file the SJCSM’s decision of 16 October 2012, the CSM’s Plenary’s decision of 23 January 2013, the Court of Cassation’s judgment of 1 November 2013, and any other information concerning the alleged breach of the Code by her. In addition she asked the CSM to annul its decision to introduce the Code. She argued that the CSM’s Plenary’s decision to introduce the Code and the Code itself had been unconstitutional and therefore any information concerning an alleged breach of the Code by her in her professional case file had been unconstitutional. 44.     On 21 January 2016 the CSM’s Plenary dismissed the applicant’s requests as ill-founded, reasoning that there had been no legal grounds for removing the documents indicated by her from her professional file. In addition, the decision to introduce the Code and the Code itself had not been unconstitutional. 45 .     On 29 April 2016 the applicant brought administrative proceedings against the CSM seeking to have the relevant documents and any other information concerning the alleged breach of the Code by her removed from her professional file and the CSM’s decision to introduce the Code annulled and Article 18 § 2 of the Code struck down. In addition, she raised an unconstitutionality objection concerning the decision to introduce the Code. She argued that, amongst other things, Article 18 § 2 of the Code was unlawful because it was unclear and lacked precision in so far as the person who was protected by this article was concerned. In particular, it was unclear whether the protection provided by the article in question concerned a “colleague” who was working for the same court as the officer of the court under investigation or one who was working for any other court in the country. A finding that an officer of the court had breached the Code could have negative consequences on his or her career in so far as professional evaluations and career advancement were concerned. 46.     On 19 September 2016 the Piteşti Court of Appeal (“the Court of Appeal”) referred the applicant’s unconstitutionality objection concerning the CSM decision to introduce the Code to the Constitutional Court. The Constitutional Court proceedings appear to be still pending. 47 .     In a judgment of 4 October 2016 which was amenable to appeal the Court of Appeal rejected the administrative proceedings brought by the applicant against the CSM as ill-founded. There is no evidence in the file whether this set of proceedings ended in a final judgment. Information submitted to the Court by the parties The applicant’s participation in competitions for posts at the Court of Cassation 48 .     On 3 February 2017 the CSM asked the IJ to produce a report on the professional integrity of the candidates, including the applicant, who had been declared eligible to participate in a competition organised from 3   January to 31 May 2017 for promotions to the Court of Cassation. 49 .     On 7 April 2017 the IJ produced the report concerning the applicant. It noted that: (i) following press allegations about unlawful rent reimbursement claims made by the applicant, the relevant authorities had stopped paying for her rent and she had initiated court proceedings against the authorities; (ii) the SJCSM had decided to impose a disciplinary penalty on the applicant following a conflict she had had with a colleague in 2016, but the decision had not been final at the time of the report; (iii) and that according to the final SJCSM decision of 16 October 2012 (see paragraph   21 above) the applicant had breached Article 18 § 2 of the Code. 50 .     Subsequently, the IJ concluded that the applicant had not met the necessary requirements of conduct, duties, and integrity to compete for a Court of Cassation post. 51.     On 22 January and 8 November 2019 the CSM informed the Government that the applicant had met the lawful conditions for participation in the 2017 competition (see paragraph 48 above), but she had failed to attend the actual exams. The outcome of the conduct proceedings against her had not prevented her from applying for promotions. According to the relevant legal provisions the SJCSM’s decision of 16 October 2012 had been attached to the applicant’s professional file, had to be taken into account during her professional evaluation, and would be effective for three   years. The applicant’s professional appraisals for 2011-13 and 2014 ‑ 16 had not been finalised because of objective administrative reasons. 52.     On 18 June 2019 the CSM informed the applicant that a judge’s possible promotion to the Court of Cassation was assessed in the light of a candidate’s last three finalised professional appraisals attached to his or her professional file. The rating of a judge’s activity in each of the appraisals had to be “very good” for him or her to be eligible to participate in the competition. An appraisal report’s finding concerning a judge’s integrity was effective only for the three-year period under assessment and did not have any effect on subsequent reports. Given the manner in which the ratings were calculated, a code-of-conduct penalty could not result on its own in the officer of the court not being given a “very good” rating in his or her appraisal report. Since 2012 the CSM had examined seven cases concerning possible breaches of Article 18 § 2 of the Code by judges and prosecutors. In two cases, including the applicant’s case, the SJCSM had found that Article 18 § 2 of the Code had been breached, while in the remaining five cases it had been decided in final decisions that the aforementioned article had not been breached. 53.     On 8 November 2019 the President of the Bucharest Court of Appeal informed the Government that the applicant would not be eligible to apply for promotions to the Court of Cassation until January 2021 regardless of the outcome of her appraisals because in 2018 the Court of Cassation had confirmed the disciplinary penalty imposed on the applicant for the events which had taken place in 2016 (see paragraph 49 above). The Court of Cassation’s judgment of 17 April 2019 54 .   In a final judgment of 17 April 2019 published in the Official Gazette No. 149 of 25 February 2020 the Court of Cassation allowed the administrative proceedings brought by Judge G.B., who was attached to a County Court – who had been found to have breached Article 18 § 2 of the Code following a public statement concerning the moral integrity of L.D.S., who had been the President of the Court of Cassation at the time of the statement – against the CSM seeking to have Article 18 § 2 of the Code struck down and an order that the judgment be published in the Official Gazette. The court held that the article in question was unlawful because it was unclear and had lacked precision in so far as the person who was protected by this article was concerned. In particular, it was unclear whether the protection provided by the article in question concerned a “colleague” who was working for the same court as the judge under investigation or who was working for any other court in the country. A finding that an officer of the court had breached the Code could have had negative consequences on his or her career in so far as the professional evaluations and career advancement were concerned. 55.     In a final judgment of 19 December 2019 the Court of Cassation allowed the proceedings brought by Judge G.B. seeking to have the final SJCSM decision finding her responsible for breaching Article 18 § 2 of the Code annulled with reference to the final judgment of 17 April 2019 (see paragraph 54 above). Information concerning the Government’s former Agent 56.     On 25 January 2019 the Government asked the Court for an extension of the initial time-limit set for the submission of their observations on the admissibility and merits of the applicant’s case in a letter which was signed on Ms Brumar’s behalf. The Court granted the requested extension and the Government eventually submitted their observations to the Court on 23 April 2019. 57.     Ms Brumar was replaced from the post of Government Agent on 13   February 2019. 58 .     On 15 February 2019, following an enquiry submitted by the applicant’s representative about Ms Brumar’s appointment to the post of Government Agent, the Government’s General Secretariat’s public relations department sent him an email informing him that the manner in which Ms   Brumar had been appointed to the post had been unlawful. RELEVANT LEGAL FRAMEWORK 59.     The relevant provisions of the Code of Conduct for Judges and Prosecutors, as in force at the relevant time, read as follows: Article 18 “(1)     The judges’ and prosecutors’ relations within the groups they belong to must be based on respect and good-faith, regardless of their work experience and position. (2)     The judges and prosecutors were prohibited from expressing their opinion with regard to the moral and professional integrity of their colleagues.” THE LAW PRELIMINARY REMARKS 60 .     On 18 February 2019, following Ms Brumar’s removal from the post of Government Agent, the applicant asked the Court to hold that all the procedural documents submitted by the Government in the case were null and void and that the Government were estopped from raising any inadmissibility objections because their former Agent had not been appointed lawfully. She relied on the Government’s General Secretariat’s public relations department’s email of 15 February 2019 confirming the unlawfulness of the appointment in question (see paragraph 58 above). 61.     In addition, the applicant argued that the Government had submitted several facts concerning the relevant domestic rules and laws applicable at the time the applicant had published her article which had been manifestly erroneous and had clearly proved the Government’s intention to mislead the Court. 62.     The Court notes that according to Rule 35 of the Rules of Court the Contracting Parties are represented by Agents who may be assisted by advocates or advisers. It notes further that none of the information available in the instant case file suggests that an official decision, administrative or judicial, has been taken with regard to the alleged unlawful appointment of Ms   Brumar to the post of Government Agent. Also, the Government have not informed the Court, either before or after Ms Brumar was replaced, of a potential impediment to her standing on their behalf. Moreover, the Court has not identified any procedural incident that would have raised doubts about her status as Government representative. Therefore, the Court sees no reason to conclude that the Government’s observations or any other documents were not validly submitted. 63.     As to the applicant’s allegation that the Government have provided erroneous or misleading information, the Court notes that there is no indication in the case file of any intention to mislead the Court. 64.     In the light of the above, the Court considers that the applicant’s above-mentioned request (see paragraph 60) and allegation (see paragraph   63) are ill-founded and must be rejected. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 65.     The applicant complained that the measure imposed on her that was automatically preventing her from taking part in exams that would have furthered her professional advancement and the lack of foreseeability of Article 18 § 2 of the Code in so far as it had failed to define the concept of an opinion expressed on the moral and professional integrity of a colleague had amounted to a breach of her freedom of expression. She relied on Article 10 of the Convention, which, in so far as relevant, reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility Submissions by the parties (a)    The Government 66.     The Government argued that the applicant had not suffered any significant disadvantage and had not had any interest in pursuing her application before the Court. As indicated also by the Court of Cassation’s judgment of 1 November 2013 the code-of-conduct penalties had to be distinguished from the disciplinary penalties because they were covered by different laws and had different effects. In particular, a code-of-conduct penalty had not had an automatic effect on a judge’s option to apply for a promotion. Even assuming that such a penalty would have made it virtually impossible for an officer of the court to obtain the “very good” rating which was needed for his or her promotion application to be validated, the applicant’s allegation that the officer of the court would have been automatically prevented from sitting the actual exams was unsubstantiated. 67.     The authorities’ conclusion that the applicant had breached Article   18 § 2 of the Code had not prevented her from applying for and participating in the 2017 competition. Therefore, the applicant’s failure to sit all the actual exams organised during the aforementioned competition raised questions as to what interest she could still have in pursuing her application before the Court. 68.     The applicant had not provided any argument and had not shown any actions that she had taken that would support her allegations. Therefore she had been unable to prove any actual damage that she had suffered following the decision of 16 October 2012. (b)    The applicant 69.     The applicant contested the Government’s submissions. 70 .     The applicant contended that the code-of-conduct penalty imposed on her could have negative effects on her career indefinitely. Since she was already a judge with the Court of Appeal the only promotion that she could still pursue was that of judge with the Court of Cassation. However, her application for such a competition would be conditional on receiving a “very good” rating in her last three professional appraisals. 71 .     Moreover, the decision imposing the code-of-conduct penalty had been permanently included in her professional file and would be taken into account every time she applied for a promotion to the Court of Cassation. Also, her chances of passing the competition organised by the Court of Cassation in 2017 had been rather theoretical, even though it was true that the above-mentioned decision had not made it automatically impossible for her to obtain a “very good” rating in her 2011-13 appraisal. The Court’s assessment 72.     The Court reiterates that it has considered the rule contained in Article 35 § 3 (b) of the Convention to consist of three criteria.