CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 mars 2021

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padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .s5E1F8B46 { margin-top:14pt; margin-left:19.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s3B2F4E5 { margin-top:14pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s673D6A53 { font-family:Arial; font-size:11pt; color:#ff0000 } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s4B8D41EE { font-family:Arial; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     THIRD SECTION CASE OF BENITEZ MORIANA AND IÑIGO FERNANDEZ v. SPAIN (Applications nos. 36537/15 and 36539/15)     JUDGMENT   Art 10 • Freedom of expression • Unjustified criminal conviction of non-profit-making association members, for open letter in newspaper criticising a judge in proceedings on environmental issue • Criticisms of a nature that a judge could expect to receive in the performance of their duties and not capable of undermining the proper conduct of judicial proceedings • Significant sanctions of criminal nature imposed, without considering that the remarks were made by laymen who were not parties in the proceedings   STRASBOURG 9 March 2021   FINAL   09/06/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Benitez Moriana and Iñigo Fernandez v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Georges Ravarani,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the applications (nos.   36537/15 and 36539/15) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Spanish nationals, Mr Sergio Benitez Moriana and Mr Ivo Aragón Iñigo Fernandez against Spain (“the applicants”), on 16 July 2015; the decision to give notice of the applications to the Spanish Government (“the Government”); the parties’ observations; Having deliberated in private on 8 December 2020 and 2 February 2021, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns the alleged violation of the applicants’ right to freedom of expression because of their criminal conviction for the publication of an open letter in a local newspaper complaining of the conduct of a judge in proceedings affecting them. THE FACTS 2.     The applicants were born in 1977 and 1976 respectively and live in Jaca (Huesca) and Madrid. They were represented by Ms Aranda Iglesias, a lawyer practising in Madrid. 3.     The Government were represented by their Agent, Mr Rafael-Andrés León Cavero, State Attorney. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicants are members of the board of Plataforma Ciudadana Aguilar Natural, a non-profit-making association constituted on 19 April 2008 with the aim of promoting sustainable economic development, exploiting natural resources within the limits of their regeneration, and guaranteeing the conservation of the landscapes and natural environment of the village of Aguilar del Alfambra (Teruel). background TO the case (proceedings relating to a   mining licence) 6.     On 14 August 2007 Watts Blake Bearner España S.A. (WBB), holder of a mining contract, applied to the Aguilar del Alfambra municipal council for an environmental licence for classified activities. 7.     WBB’s request for an environmental licence was initially positively assessed by an architectural consultancy firm but was then re ‑ examined. A second technical analysis was required, which was carried out on 31 March 2008 by an architect, Mr I.Z. 8.     By a decree of 25 June 2008, the municipal council declared the proceedings requesting the administrative licence null and void up to that point, in so far as the classified activities for which the licence had been requested required an analysis to evaluate their environmental impact, and not a simple administrative licence. 9.     On 24 September 2008 WBB brought a judicial administrative appeal against the decree before administrative judge no. 1 of Teruel. 10.     In view of the contradictory assessments mentioned above, the judge requested an independent expert, whose name was drawn from a list of five mining engineers submitted by the Official Association of Mining Engineers. The expert was appointed by the judge in the presence of the parties, and no objection was raised. The municipal council contested the report produced by the appointed expert, Mr M.A., an engineer. The company WBB cast doubt on the impartiality of the report by Mr I.Z. and on his professional capacity. 11.     By a judgment of 25 November 2009, the judge ruled that the application was admissible and declared the decree of 25 June 2008 null and void. That ruling was based on the conclusions drawn by the expert M.A. whom the judge had appointed. The judge decided to follow the conclusions of the report presented by M.A. because of its clarity, coherence and forcefulness of its explanations, the impartiality of its author insofar as he had been designated in the course of the judicial proceedings and because Mr I.Z. was the father of the second applicant before the Court. 12.     On 18 December 2009 the municipal council lodged an appeal with the Administrative Chamber of the Aragon High Court. 13.     On 30 November 2012 the High Court dismissed the appeal, relying on the same reasons given by the first-instance judge, namely on I.Z.’s lack of qualifications as an engineer and his lack of impartiality owing to his family ties to one of the members of Plataforma   Ciudadana Aguilar Natural. criminal proceedings brought against the applicants 14 .     On 11 March 2010, while the appeal against the first judgment was pending, the applicants published an open letter to the first-instance judge in the “Letters to the Editor” section of a local newspaper, Diario de Teruel. It read as follows: “OPEN LETTER TO Ms [M.M.], ADMINISTRATIVE JUDGE OF TERUEL Ms [M.M.], With regard to judgment no. ... issued by your court in the lawsuit between [WBB] and the municipal council of Aguilar del Alfambra, which we abide by even though it is by no means fair, you have demonstrated your partiality and lack of competence. The judgment shows that you were not interested whatsoever in the technical matters at issue. You concluded, for no proper reason, that the expert responsible for assessing the project was independent and impartial, by ignoring his technical and methodological deficiencies. You did not consider whether there could be something dubious in the expertise of somebody who had not set foot in Aguilar and had only used material and documentation provided by [WBB]. On the other hand, you don’t use against [WBB] the same arguments that you use to discredit the municipal council, despite their similarity. The first ground of your judgment consists of discrediting the report presented by the municipal council, [which was] drafted by an urban-planning architect and an urban-planning lawyer, because they are not mining engineers. However, you approve the report of a building engineer whose [professional] background is unknown, who has not read the planning legislation of Aguilar and who has no competence to give his views on planning issues ..., but who agrees with WBB. Furthermore, you discredit the report [of Mr I.Z.] owing to [his] family ties to ... a spokesperson for this platform. It is unacceptable that you hide the fact that the constitution of this platform and the election of its heads took place a long time after the drafting of the report. It is unacceptable that you accept without question the arguments of a witness, [Mr   L.J.], who acknowledged his friendship with the president of [WBB] and who lied, scornfully, at the hearing. You have documentary evidence of this. But your sad work has not ended there. You are unaware of the relevant case-law, and what is worse, you outrageously washed your hands of the affair, even though you had documentary evidence challenging an expert opinion, but you did nothing. And you were not in the least disturbed when your expert did not answer a question which you had put. As a judge, madam, you represent the power of the State. Your decisions determine people’s lives, or, in this case, the life of a whole village which attended the hearing (surely you had never seen the room so full). People who were waiting for your judgment with anticipation, and [who] deserved rigour and seriousness. [Waiting for] you to do a thorough job in reaching fair conclusions. But you were not willing to budge an inch in relation to technical matters, you ignored them. And [that] gives the impression that you ruled first and then came up with reasons, under the formal guise of a shaky expert opinion. Ms [M.M.], you have authority, but you do not represent justice.” 15.     A second text drafted by the applicants in response to a letter to the editor concerning their letter was published some days later in the same newspaper, explaining that they were not party to the proceedings before administrative judge no. 1 of Teruel, and that they were criticising, in a reasoned and well-founded manner, a judgment which affected the general interest, on the basis of facts supported by documents, except for the parts of their text containing opinions. They stated that they were acting within the limits of their right to freedom of expression. 16 .     Criminal proceedings against the applicants were started by the public prosecutor of his own motion. By a judgment of 10 July 2012, criminal judge no. 1 of Teruel found the applicants guilty of serious insult committed publicly. The conviction included a daily fine of 8 euros (EUR) for a period of ten months, with an alternative penalty of deprivation of liberty, the modalities of which were as follows: failure to pay the fine due for two days, that is, EUR 16, would result in a one-day deprivation of liberty. The applicants were ordered to have the judgment published in the same newspaper which had published their comments, at their own expense. The total fine was EUR 2,400 for each of the applicants, and the cost of the publishing was EUR 2,758.80. They also had to pay compensation to the administrative judge for non-pecuniary damage caused, in the amount of EUR   3,000 each. 17 .     The judgment stated: “In a case of this kind, where criticism focuses on a specific judge, the balancing [exercise] must be carried out by determining whether the remarks published in the newspaper were limited to criticism of the judgment or, on the contrary, went beyond this limit, formulating ideas and remarks directly aimed [personally] at the judge who [had] drafted it, whether on merely personal grounds, [or] on [the grounds of] her professional behaviour. ... Some of the written remarks, such as [those relating to the judge’s] ignorance of the case-law or refusal to consider technical matters, could be considered to be within the limits of normal criticism if taken in isolation, but [taken] together with other [remarks] whose basis is not explained ... [they] became a personal attack against the person who was professionally performing [her] judicial function, turning the article into a personal denigration of the judge, [and] attributing to her a lack of competence, [a lack] of knowledge of the case-law and professional practice, and even an attitude contrary to judicial practice, by mentioning her ‘partiality’.” 18 .     The applicants lodged an appeal. By a judgment delivered on 29   January 2013, the Audiencia Provincial of Teruel upheld the judgment which had been appealed against, giving the following reasoning: “... the charging ... and the conviction [of the applicants were] not based on the fact that they [had] accused the [judge] of committing specific acts, such as founding her judgment on an expert’s report considered by the [applicants] to be outrageously biased – which could be considered bitter but legitimate criticism of the attacked decision – but [were based] on value judgments [made] about [that judge], who [had been] described as unjust, ignorant and biased. [These value judgments went] beyond the legitimate right to criticise and disagree with a judicial decision, and affect[ed] the core of human dignity ... ... in the exercise of freedom of expression and the right to criticise, the Constitution does not prohibit the use of hurtful, annoying or sharp remarks. However, constitutional protection under Article 20   §   1 (a) of the Constitution excludes remarks [which are] absolutely vexatious; namely, those remarks that, according to the specific circumstances of the case, and in total disregard of [their] truthfulness or untruthfulness, are offensive, ignominious or outrageous, unrelated to the ideas or opinions held, and therefore unnecessary for such a purpose and inappropriate to express the opinions or information concerned ... As the criminal judge reasonably argue[d] in the contested judgment, the legitimate right to criticise the administrative judge’s decision might protect some of the remarks made in that letter, [such] as [those relating to] the [judge’s] lack of interest as regards the technical matters at issue, her conclusion that the expert was independent, or even her lack of awareness of the relevant case-law. But [the legitimate right to criticise the administrative judge’s decision] cannot protect some of the other remarks attributing to the judge ignorance, partiality or unjust behaviour, which directly affect[ed] the victim’s core of human dignity ...” 19.     The applicants lodged an amparo appeal with the Constitutional Court, alleging a breach of their right to freedom of expression. 20.     On 6 February 2015 the public prosecutor intervened in the proceedings before the Constitutional Court in support of the applicants’ arguments, and asked that court to conclude that there had been a violation of their right to freedom of expression and to declare null and void the contested judgments of 10   July 2012 of criminal judge no. 1 of Teruel and of 29 January 2013 of the Audiencia Provincial of Teruel. 21.     By a judgment of 13 April 2015, the Constitutional Court dismissed the amparo appeal. The court referred to the limits of the right to freedom of expression: “... even when the legal system does not prevent, without sufficient reason, the widest circulation and dissemination of ideas and opinions, [the] expression [of such ideas and opinions] always entails some duties and responsibilities, as does the exercise of any civil freedom, as the Court of Strasbourg regularly reiterates in this area (see, among other authorities, Haldimann and Others v. Switzerland , no.   21830/09, § 46, ECHR 2015). Regarding the present case, within these limits, it appears to be necessary to respect the honour of others (Article 20   §   4 of the Constitution), a constitutional asset which, in addition, has the quality of a fundamental right in itself (Article 18   §   1 of the Constitution) ...” 22.     The Constitutional Court noted that the Constitution also protected professional life, and stated: “Mere criticism of professional expertise in the performance of an activity should not, in itself, be confused with an attack on honour; but Article 18   §   1 of the Spanish Constitution protects [citizens] from criticism that, despite being formally directed against the professional activity of an individual, actually constitutes personal disparagement directly affecting the individual dignity [of the person], with special importance being attached to those [injurious remarks] that cast doubt [on the victim] or show disdain for [his] probity or ethics in the performance of that activity. This will obviously depend on the circumstances of the case, on who [has been offended], [and on] how, when and in what way the professional standing of the offended person has been questioned.” 23.     The Constitutional Court noted that the right to freedom of expression did not encompass a right to proffer insults. It pointed out that the Constitution did not prohibit the use of injurious remarks in all circumstances. However, freedom of expression did not protect vexatious remarks which, regardless of their veracity, were offensive and humiliating and were not pertinent for the purpose of conveying the opinions or information in question. The Constitutional Court stated: “... remarks that could ... damage the honour of others, owing to their insulting or outrageous nature, may only be considered legitimate, where appropriate, if, according to the context, they would be necessary or adequate in support of the discourse concerned, since ... if ... such remarks which may damage honour have been made independently, [in the absence] of [any] connection to the discourse to which they relate, or ... without the minimum factual basis that allows them adequate support, [one] would be left with pure insult, which, needless to say, our Constitution does not defend whatsoever ... the fundamental rule [which does not prohibit the use of injurious remarks in all circumstances] neither recognises nor accepts an alleged ‘right to insult’, [a right] which would be radically irreconcilable with persons’ dignity (Article 10   §   1 of the Constitution). The constitutional protection granted by Article 20   §   1   of the Spanish Constitution does not therefore include ‘the absolutely vexatious expressions, that is, those which, in the specific circumstances of the case, irrespective of their veracity, are offensive or outrageous and are irrelevant for expressing the opinions or information in question’.” 24.     As regards public servants and, in particular, judges, referring to Belpietro v. Italy (no. 43612/10, § 48, 24 September 2013), the Constitutional Court pointed out that judges were in a particular position, in so far as damage to their honour in the event of unfounded discredit would also be inextricably linked to confidence in justice in general. It stated: “Unlike ... other authorities ..., judges – who ... express themselves only through their decisions – for obvious reasons of reserve, prudence and containment, lack the same personal capacity to reply which [other authorities] have in order to contest criticism of their function that they deem unfair, false or offensive to their professional honour [the court cited, among other authorities, Prager and Oberschlick   v.   Austria , 26 April 1995, § 34, Series A no. 313, and, inter alia , Falter Zeitschriften GmbH v. Austria (no. 2) , no. 3084/07, § 39, 18 September 2012]. ... Lastly, ... it should not be ignored that unfounded criticism of judges exercising their functions can not only damage their good professional reputation – as was raised in the proceedings in question – but also, as mentioned above, ... undermine public confidence in the judicial system ( Morice v. France , no. 29369/10, § 107, 11   July   2013 [1] ), which is one of the existential pillars of the rule of law.” 25.     The judgment was adopted by a majority of four judges. Two dissenting judges appended an opinion to the judgment. RELEVANT LEGAL FRAMEWORK 26.     The relevant provisions of the Spanish Constitution read as follows: Article 18 “1. The right to honour, to personal and family privacy and to one’s own image is guaranteed.” Article 20 “1. The following rights shall be recognised and protected: (a) the right to freely express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts, and in particular by the right to honour and to a private life, and the right to control the use of one’s image and to the protection of young persons and children.” 27.     The relevant provisions of the Criminal Code read as follows: Article 208 “Acts or remarks which undermine another person’s dignity by attacking his or her reputation or self-esteem shall constitute insult[s]. Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ... Insults consisting in attributing facts to another person shall not be deemed serious, except when this has been done in the knowledge that [such statements of fact] are false, or with reckless disregard for the truth.” Article 209 “The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Otherwise, the fine shall be payable for periods between three and seven months.” Article 210 “Whoever is accused of insult shall be exempt from all accountability if [he] proves the truth of statements [either] made against civil servants exercising their official duties or referring to the commission of criminal or administrative offences [by the civil servants].” Article 211 “Slander and insult shall be deemed to have been public when disseminated by means of printed media, radio broadcasting or any other similarly effective means.” 28.     When their honour is attacked, public servants, including judges, may, in respect of acts during the exercise of their functions, bring civil or criminal actions against the offender. In civil proceedings, no special requirements are established when a judge is offended by slander or insult (Article 249   §   1 of the Code of Civil Procedure). The public prosecutor intervenes as a party in civil proceedings as the guarantor of the legality and in protection of human rights. In criminal proceedings, when a public servant, authority or agent (including judges) are offended by slander of insult, the procedure shall start ex officio by the public prosecutor when the offence concerns the exercise of their duties. In case the public prosecutor decides not to request the opening of the proceedings, the civil servant can still decide to appear as a private prosecutor (Article 109 bis of the Code of Criminal Procedure). THE LAW JOINDER OF THE APPLICATIONS 29.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 30.     The applicants complained that the judgments of the domestic courts had unduly restricted their right to freedom of expression guaranteed by Article 10 of the Convention, which 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 ... 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 31.     The Court notes that the applications are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits The parties’ submissions 32. The applicants limited their observations to the claim in respect of just satisfaction. 33.     The Government did not deny that the applicants’ conviction had constituted an interference with the exercise of their right to freedom of expression. They took the view, however, that the interference had been prescribed by law and had pursued a legitimate aim. On that latter point, they argued that the interference had sought to maintain the authority and impartiality of the judiciary, and to ensure the protection of the reputation or rights of others. 34.     The Government took the view that the applicants’ statement in the media had concerned a subject of general interest, but that there had been no such public interest in insulting the judge who had been dealing with the ongoing proceedings, and this had been entirely unnecessary. 35.     The Government submitted that attacks on judges did not contribute to informing the public about relevant issues, and reiterated that judges had no right of reply. They stated that it would be unfair if a judge’s private life was adversely affected for this reason. As regards the judge in question, her behaviour had been irreproachable. 36.     The Government pointed out that the applicants had not been parties to the administrative proceedings, and that many of the alleged facts in their open letter had been false. Moreover, mentioning the judge’s name in the letter had been patently offensive; the publication of the letter in Diario de Teruel had resulted in its wide dissemination, and had affected the personal and family life of the judge to the greatest possible extent. 37.     As to the sanction imposed on the applicants and the compensation for non-pecuniary damage which they had had to pay, the Government were of the view that they could not be regarded as excessive. 38.     The Government thus submitted that there had been no violation of Article 10 of the Convention. The Court’s assessment (a)    Existence of an interference 39.     The Court notes at the outset that it is not in dispute between the parties that the applicants’ criminal conviction constituted an interference with the exercise of their right to freedom of expression as guaranteed by Article 10 of the Convention. That is also the Court’s opinion. (b)    Justification for the interference 40.     An interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph, and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 67, ECHR 2004-XI, and Ricci v.   Italy , no. 30210/06, § 43, 8 October 2013). (i)       Whether the interference was prescribed by law and had a legitimate aim 41.     The legislation providing a basis for the proceedings brought against the applicants is set out in Articles 208 to 211 of the Spanish Criminal Code, which regulate the crime of insult. The Court is satisfied that the legislation is accessible, foreseeable and compatible with the rule of law. 42 .     The Government argued that the aim of the interference had been to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary. The Court does not see any reason to adopt a different view. 43.     It therefore remains to be examined whether the interference was “necessary in a democratic society”, and this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient. (ii)     Whether the interference was necessary in a democratic society and proportionate (α)      General principles 44.     In order to determine whether the interference was “necessary in a democratic society”, the Court must ascertain whether it met a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Perinçek v. Switzerland [GC], no. 27510/08, § 196 (iii), ECHR 2015 (extracts), and Peruzzi v. Italy , no. 39294/09, § 45, 30 June 2015). 45.     The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities, but rather to review under Article 10 the decisions they have delivered pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference are “relevant and sufficient” and whether the interference was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France , no. 64915/01, §   70, ECHR 2004-VI) and In so doing, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Perinçek , cited above, § 426, Peruzzi , cited above, §§ 46-47, and the references therein). 46 .     In addition, and in so far as the applicants’ conviction pursued the legitimate aims referred to in paragraph 42 above, the Court refers to the general principles applicable to balancing the right to freedom of expression against the “protection of the reputation or rights of others”, as summarised in Perinçek , cited above, § 198, and Medžlis Islamske Zajednice Brčko and   Others   v.   Bosnia and Herzegovina ([GC], no. 17224/11, § 77, 27 June 2017). For Article   8 to come into play, an attack on personal reputation must reach a certain level of seriousness (see Axel Springer AG v.   Germany [GC], no.   39954/08, § 83, 7 February 2012; Bédat v.   Switzerland [GC], no.   56925/08, § 72, 29 March 2016; and Medžlis Islamske Zajednice Brčko and   Others , cited above, §§ 76-79). 47.   Moreover, and in so far as an interference with freedom of expression in the context of the alleged defamation of a judge is concerned, the Court refers to Miljević v. Croatia (no. 68317/13, § 53, 25 June 2020) and Morice v. France [GC] (no. 29369/10, §§   124 et seq., ECHR 2015). The courts ‑   the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying. Unfounded attacks can be an obstacle to public servants performing their duty (see Janowski v. Poland , no.   25716/94, § 33, 21 January 1999, and Nikula v. Finland , no. 31611/96, §   48, ECHR 2002 ‑ II), and this protection also applies specifically to the judiciary. The judiciary must be in a position where it can be respected by the accused and in public opinion (see Vides Aizsardzības Klubs v. Latvia , no. 57829/00, § 42, 27 May 2004; Kudeshkina v.   Russia , no. 29492/05, §   86, 26   February 2009, and the references therein; and Medžlis Islamske Zajednice Brčko and Others , cited above, §§ 86-87). 48 .     As regards the level of protection of freedom of expression, there is little scope under Article 10 § 2 of the Convention for restrictions on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending in respect of other defendants. A degree of hostility and the potential seriousness of certain remarks do not obviate the right to a high level of protection of freedom of expression, given the existence of a matter of public interest (see Paturel v. France , no.   54968/00, §   42, 22 December 2005, and Morice [GC], cited above, §   125). Save in the case of gravely damaging attacks that are essentially unfounded, judges may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity, they may thus be subject to wider limits of acceptable criticism than ordinary citizens (see Morice [GC], cited above, §   131). 49.     Lastly, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the sanctions imposed are also factors to be taken into account. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of a criminal fine ( see Mor v. France , no.   28198/09, § 61, 15 December 2011) does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression. Generally speaking, while it is legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see Morice [GC], cited above, §   127, with further references). (β)       Contribution to a debate on a matter of public interest 50.     Turning to the present case, the Court takes the view that the applicants’ impugned remarks – which concerned the functioning of the judiciary, in the context of proceedings which were still ongoing, and in a matter of environmental relevance for the local population – fell within the context of a debate on a matter of public interest. Moreover, the Court has accepted that when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no.   48876/08 , §   103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press ( ibid ., Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11 , §   166, 8 November 2016 and Medžlis Islamske Zajednice Brčko and Others , cited above, § 86). Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, do indeed fall within the public interest. The applicants’ remarks thus called for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities. (γ)       Nature of the impugned remarks and reasoning of the domestic courts 51 .     The Court has drawn a distinction between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see De Haes and Gijsels v. Belgium , 24 February 1997, § 42, Reports 1997-I). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether a sufficient “factual basis” for the impugned statement exists: if it does not, that value judgment may prove excessive (ibid., § 47; Lindon, Otchakovsky-Laurens and July v.   France [GC], nos. 21279/02 and 36448/02, §   55, ECHR   2007 ‑ IV; and Morice [GC], cited above, §   126). 52.     The Court notes that, in convicting the applicants, criminal judge no.   1 of Teruel took the view that the applicants had gone beyond the limit of criticising the judgment and had formulated “ideas and remarks directly aimed [personally] at the judge who [had] drafted [the judgment], whether on merely personal grounds, [or] on [the grounds of] her professional behaviour”. This criticism had turned into “a personal attack against the person who [had been] professionally performing [her] judicial function, turning the article into a personal denigration of the judge, attributing to her a lack of competence, [a lack] of knowledge of the case-law and professional practice, and even an attitude contrary to judicial practice, by mentioning her ‘partiality’” (see paragraph 17 above). The Audiencia Provincial of Teruel considered that the applicants had not only criticised the judge’s decision, but also attributed to her “ignorance, partiality or unjust behavior, which directly affect[ed] [her] core of human dignity” (see paragraph 18 above). For the domestic courts, given the circumstances of the case, it appears to have been important to ensure that the protection of the judge’s reputation should prevail over the applicants’ right to freedom of expression. 53.     The Court takes the view that, as established by the judgment of the Audiencia Provincial of Teruel (see paragraph 18 above), in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the administrative judge in the course of the proceedings. 54.     It thus remains to be examined whether the “factual basis” for those value judgments was sufficient. 55.     Turning to the text of the letter itself (see paragraph 14 above), the Court considers that the expressions used by the applicants had a sufficiently close connection with the facts of the case, in addition to the fact that their remarks could not be regarded as misleading and could be inferred from the judgment. In substance, the applicants reproached Ms   M.M.   for two reasons:   for taking unfair decisions, and for being a “biased” judge, having demonstrated her “partiality and lack of competence”. The Court observes that the applicants are not lawyers and their comments about the professional conduct of the judge have to be considered in this regard, their open letter showing their profound disagreement with the specific procedural decisions and the overall outcome of the case. The Court reiterates in this connection that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb” (see De Haes and Gijsels , cited above, §   46). Similarly, the use of a “caustic tone” in comments aimed at a judge is not incompatible with the provisions of Article 10 of the Convention (see, for example, Gouveia Gomes Fernandes and Freitas e Costa v. Portugal , no. 1529/08, §   48, 29 March 2011). In the Court’s view, the accusations made by the applicants in their letter were criticisms that a judge can expect to receive in the performance of his or her duties, were not entirely devoid of any factual grounds and therefore were not to be regarded as a gratuitous personal attack but as a fair comment on a matter of public importance (see Kudeshkina , cited above, §   95, and Morice [GC], cited above, §   125). It therefore does not appear that the disputed remarks have exceeded the limit of permissible criticism in this case. (δ)       Maintaining the authority of the judiciary 56.     The Government relied on the fact that the judicial authorities had no right of reply. 57.     The Court reiterates the general principles developed by it in this regard and summarised above in paragraph 47. Indeed, while it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, bearing in mind that in a number of countries judges are prevented from reacting by their duty of discretion, this cannot have the effect of prohibiting individual