5.  The applicant was born in 1963 and lives in Baia Mare.
6.  At the relevant time, the applicant was the chief prosecutor in the prosecutor’s office attached to the Maramureş County Court. He was also the staff member in the prosecutor’s office tasked with providing information to the media in relation to criminal proceedings.
7.  On 21 October 2008 the prosecutor’s office attached to the Maramureş County Court had caught V.F. red-handed being given money by a relative of V.T.V., who was detained in Baia Mare Prison.
8.  According to statements given by the detainee, V.F. had promised to intervene and pass on the money to the prosecutors and judges who were to make the decision concerning his conditional release from prison.
9.  On 22 October 2008 the file was transferred to the National Anticorruption Department (“the NAP”), which by law was competent to continue the investigation.
10.  On the same day, the applicant issued a press release, which received considerable public attention.
11.  The press release read as follows:
“After being informed by police that V.F. seeks and receives money from individuals in exchange for intervening in favour of the conditional release of detainees held in Baia Mare Prison, the prosecutor’s office attached to the Maramureş County Court organised a flagrante delicto operation on 21 October 2009. V.F. was caught red-handed while accepting the sum of 1,650 euros (EUR) from a detainee’s relative...
A criminal investigation into influence peddling was opened and, according to the initial findings in the case, it was found that the suspect had received EUR 9,850 of the EUR 11,000 she had sought for intervening to influence favourably the conditional release of that detainee or the allocation of his work placements.
According to the detainee, the suspect claimed that the intended recipients of the money were prison employees with responsibility for the allocation of work to the detainees or members of the commission for conditional release. Moreover, the suspect told the detainee that part of the money was to go to the magistrates, judges and prosecutors responsible for the conditional release of detainees.
As the object of the offence of influence peddling was a sum of money exceeding EUR 10,000, the file was transferred to the National Anticorruption Department.”
12.  On the same day, at the request of a local television channel, AXA TV, the applicant gave a short statement providing mainly the same information as was contained in the press release.
13.  The newscaster added the following comments to the information provided by the applicant:
“The commission for conditional release, which comprises nine members, is chaired by a delegated judge. We don’t know whether it is purely coincidence that yesterday, the same day on which the flagrante delicto operation was organised and the detainee was conditionally released, that judge’s assignment to the Baia Mare Prison came to an end...”
14.  A few local newspapers wrote articles about the incident. Some of them contained images of the flagrante delicto operation, taken by journalists who had been present at the operation organised by the prosecutors and police.
15.  On 3 November 2008 judge G.E. lodged a complaint with the Superior Council of the Magistracy (“the SCM”) seeking the commencement of a disciplinary investigation against the applicant in connection with the manner in which he had informed the media about the incident of 21 October 2008. She contended that at the time of the incident she had been the judge delegated to Baia Mare Prison and because of the applicant’s press release and interview with AXA TV it was suggested by the media that she might be the alleged recipient of the money.
16.  The disciplinary commission for the prosecutors of the SCM instituted an investigation against the applicant in connection with two disciplinary offences, namely failure to observe the secrecy of deliberations or the confidentiality of documents that are of a secret nature, and adopting a disrespectful attitude towards colleagues in the exercise of his duties under Article 99 letters d) and k) of Law no. 303/2004 on the Statute of Judges and Prosecutors. The SCM also held that the applicant had breached the provisions of Article 12 § 1 let e) of Law no. 544/2001 concerning the restriction of citizens’ access to information in relation to criminal proceedings at the investigation stage.
17.  The applicant was questioned by the SCM’s disciplinary commission for prosecutors on 23 March 2009. According to his statement, he had prepared the press release after receiving additional information about the investigation from the chief prosecutor of the NAP. He had then submitted the press release to two colleagues at the NAP, namely the prosecutor in charge of the case and the chief prosecutor, and had asked for their opinion. The first had had no objections concerning the press release; the other had advised him that he should limit its content to aspects concerning the investigation carried out by his office.
18.  On 27 March 2009 the applicant’s lawyer received a letter from the president of Baia Mare District Court. In that letter the president of the court had stated that he had not considered it necessary to open an investigation into corruption offences allegedly committed by judges from Baia Mare District Court because in his opinion “the press release did not make any reference to the identity of the magistrates involved”.
19.  At a hearing held before the SCM’s disciplinary commission on 31 March 2009 the applicant was assisted by a lawyer of his choice. He proposed as evidence a video recording of the news programme presented by AXA TV concerning the incident of 21 October 2008 so that it could be compared to the press release drafted by the applicant. He also proposed that the news editor of AXA TV be questioned. As documentary evidence he requested copies of the articles published in the local newspapers concerning the incident and the letter addressed by the National Audiovisual Council to judge G.E. in reply to the complaint she had lodged in connection with the comments made by AXA TV about her alleged involvement in the influence peddling.
20.  At the same hearing the SCM’s disciplinary commission heard evidence from the prosecutor who had organised the flagrante delicto operation. He stated that it had taken place in a public space, namely a bar, in the presence of two journalists, one of whom had taken pictures. The pictures accompanied articles published by local newspapers in the days following the events.
21.  The applicant asked the SCM to question the two journalists. This request having been rejected, the journalist who had taken the pictures gave a written statement, which was joined to the case file by the applicant. The journalist maintained that he had been present at the flagrante delicto operation by chance: he had been attending a conference in the building in which it had been staged. Seeing masked police officers entering the bar, he had followed them and had seen suspect V.F. being caught red-handed.
22.  When questioned by the SCM at the hearing of 31 March 2009, the prosecutor in charge of the case at the NAP stated that the press release issued by the applicant had not jeopardised the outcome of the criminal investigation. Moreover, the press release had only referred to “statements at the initial stage of the investigation, while the case was still at the prosecutor’s office attached to the Maramureş County Court”.
23.  The SCM’s disciplinary commission heard evidence from judge G.E. She stated that before lodging her complaint with the SCM she had asked AXA TV to retract its remarks concerning any possible connection between the termination of her mandate as the delegated judge to Maramureş prison and the case of influence peddling. As she had not received any reply she had referred the matter to the National Audiovisual Council but had not been satisfied with its response.
24.  The applicant joined to the case file copies of the complaints lodged with the television channel and the National Audiovisual Council by judge G.E. and the letters she had received in reply.
The relevant part of the letter sent by the National Audiovisual Council read as follows:
“On 11 November 2008 the Council, convened in a public meeting, examined the report prepared by the Inspection Department and watched a recording of the broadcast mentioned in your complaint....
It was noted that the news item had been broadcast on 22 October 2008 at 9.30 p.m. As the information broadcast did not contain any specific reference to you, the item could not infringe your right to a protected public image.
The members of the Council considered that the requirements for granting the right of reply or remedy, as provided for under Articles 52 and 60 of Decision no. 187/2006 concerning the regulation of audio-visual content, were not met.”
25.  On 6 April 2009 the applicant sent a letter to the General Prosecutor’s office attached to the High Court of Cassation and Justice. He attached a copy of the press release issued by him on 22 October 2008 and asked the opinion of the Prosecutor General about the way in which he had drafted it and especially whether it had been drafted in compliance with Order no. 116 issued by the General Prosecutor on 24 May 2007 regulating activities undertaken in relation to the mass media within the public prosecutor’s office (see paragraph 63 below).
26.  On 10 April 2009 the applicant received a reply to his letter from a prosecutor working at the Office for Public Information and Relations with the Mass Media based in the General Prosecutor’s office attached to the High Court of Cassation and Justice.
27.  In the prosecutor’s view, 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”. As regards the fact that the applicant had issued the press release after the case had been transferred to the NAP, the prosecutor concluded that the action had complied with the practice observed by the public prosecutor’s office. Moreover, the press release had contained only information concerning the investigation carried out by the prosecutor’s office attached to the Maramureş County Court.
28.  This letter, accompanied by the General Prosecutor’s Order no. 116/2006, was added by the applicant to the case file to be examined by the SCM on 13 April 2009.
29.  In his oral submissions before the disciplinary commission, 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 he had made no reference to any specific person. He also submitted that the applicant had merely fulfilled his obligation to inform the press and to protect the image of his institution and of the legal system by informing the public about a pending criminal investigation. The public had already been exposed to information about the incident as the two journalists who had been present at the flagrante delicto operation had published articles about the incident. The lawyer also pointed out that the applicant had observed the confidentiality of the investigation and had referred only to the activity carried out by his office without making statements which could have led to the identification of the magistrate, judge or prosecutor who was the alleged recipient of the money from V.F. The applicant’s reference to “magistrates, judges and prosecutors responsible for the conditional release of detainees” was too general to have resulted in the identification of the magistrate concerned. The lawyer concluded by submitting that the information presented by AXA TV about the incident had been more comprehensive than the information provided by the applicant in the press release and in his interview with the AXA TV channel.
30.  On 5 May 2009 the SCM’s disciplinary commission found the applicant guilty of two disciplinary offences under Article 99 letters d) and k) of Law no. 303/2004 and imposed a disciplinary sanction under Article 100 of Law no. 303/2004 in the form of a reprimand. The disciplinary commission noted that the applicant had issued a press release and given an interview to AXA TV revealing information about the investigation into the offence of influence peddling on 22 October 2008.
31.  It further noted that the applicant had provided information about the alleged recipient of the money from V.F. without checking the accuracy of the detainee’s statements and had done so one day after the case file had been transferred to the NAP. Such information had led to the identification of judge G.E. as one of the alleged recipients of the money. The disciplinary commission concluded that the applicant had therefore breached the provisions of Article 12 § 1 let e) of Law no. 544/2001 concerning the restriction of citizens’ access to information in relation to criminal proceedings at the investigation stage when there was a risk that the result of the investigation would be undermined or confidential sources revealed. From the way in which the press release was drafted, “the circle of magistrates who could have been the recipients of the money was restricted and limited and made possible the identification of the judge delegated to Baia Mare Prison in the person of judge G.E.” As the six-month term of her delegation expired just at the time of the events in question, the mass media made speculative suggestions that the termination was connected with the influence‑peddling case.
32.  Two of the five prosecutors comprising the disciplinary commission were opposed to reprimanding the applicant for the offence of adopting a disrespectful attitude toward colleagues in the exercise of his duties. They expressed their position in a dissenting opinion.
33.  They noted, among other things, that:
(i)  the names of the persons who were allegedly to receive money from the influence peddler were not mentioned in the press release or in the television interview; there was only a general, impersonal reference to the judges and the prosecutors who were involved with the conditional release of detainees;
(ii)  individuals in this sphere included not only the judge delegated to the prison but also the judges who examine requests for conditional release at first instance and on appeal, as well as the prosecutors who attend the hearings concerning these requests. AXA TV’s reference to the judge whose involvement with the prison had just ended was made in an additional comment that was not included in the press release;
(iii)  the reference to the delegated judge made possible the identification of the magistrate, but since this statement was attributable exclusively to the television channel, the latter should bear responsibility for all subsequent comments and speculations;
(iv)  only the additional information concerning the end of the delegated judge’s mandate allowed the identification of judge G.E. Possible damage to her reputation could therefore not be imputed to the press release from the prosecutor’s office;
(v)  the press release from the prosecutor’s office attached to the Maramureş County Court and the interview with the defendant referred to the offence of influence peddling and not to the offence of active bribery. The defendant stated that the allegations concerning the alleged recipients of the money had been made by the detainee.
34.  The applicant lodged an appeal on points of law against the decision of the SCM’s disciplinary commission.
35.  In his appeal the applicant complained about the unfairness of the proceedings before the disciplinary commission. Relying on Article 10 of the Convention the applicant also complained that the imposition of a disciplinary sanction had infringed his right to impart information to the press.
36.  He argued that questioning the two journalists who had been present at the flagrante delicto operation would have proved that he had not supplied any confidential information. They had published articles, accompanied by pictures of the incident, stating that “according to unofficial sources, V.F had connections in prison employees’ and magistrates’ circles”.
37.  Moreover, the main reason for issuing the press release had been to prevent possible speculation in the media about the operation ‒ which was already known to the press ‒ that could have been detrimental to the judiciary.
38.  As regards the accusation that he had shown a disrespectful attitude towards his colleague judge G.E., the applicant submitted that the latter had not contacted him to express any displeasure about the press release before lodging her complaint with the SCM. If he had known that she had felt that her reputation and public image had been damaged by his press release of 22 October 2009, he could have clarified the matter by issuing a new one.
39.  The High Court allowed a request lodged by the Association of Romanian Magistrates to intervene in the proceedings in support of the applicant’s appeal.
40.  The association justified its intervention in the disciplinary proceedings by referring to its role as protector of the magistrates’ status and their public image, pointing out that ‒ in its opinion ‒ the decision delivered by the SCM against the applicant had had a serious negative impact on his professional career. It further argued that in its opinion the press release issued by the applicant had complied with the provisions of Law no. 554/2001, with the guidelines issued by the SCM concerning cooperation between courts and prosecutor’s offices and the media, and with guidelines issued by the General Prosecutor’s office attached to High Court. It also pointed out that the applicant had observed Recommendation Rec(2003) 13 of the Committee of Ministers of the Council of Europe in so far as he had not disclosed confidential information concerning the criminal investigation to the media and had not in any way undermined the outcome of the criminal proceedings.
41.  On 23 November 2009 a panel of nine judges of the High Court of Cassation and Justice dismissed the applicant’s appeal on points of law. It held 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 obtained by the influence peddler from the detainee’s family. In the High Court’s opinion the applicant should not have added to his press release the reference to “magistrates, judges and prosecutors responsible for the conditional release of detainees”.
42.  One of the judges drafted a dissenting opinion, noting that the press release drafted by the applicant contained only general and impersonal information about the flagrante delicto operation and the pending criminal investigation. The judge noted that the applicant had not mentioned in his press release and interview any magistrates or prison employees involved in the conditional release of detainees in Baia Mare Prison. The applicant could not be held liable for the fact that, after presenting his press release, AXA TV had made express references to the judge delegated to the Baia Mare Prison. The evidence in the file proved that judge G.E. already had a strained relationship with the local media.
43.  On 5 May 2009, the day on which the disciplinary action against the applicant was approved, the SCM’s disciplinary commission for prosecutors issued a decision to remove him from his position as chief prosecutor in the prosecutor’s office attached to the Maramureş County Court.
44.  The applicant challenged this decision before the plenary of the SCM’s members on 8 May 2009.
45.  On 21 May 2009 in a plenary meeting, the SCM dismissed the applicant’s challenge.
46.  The applicant appealed against this decision before the High Court of Cassation and Justice.
47.  By a decision of 8 December 2009 the High Court dismissed the applicant’s appeal. It held that the applicant’s removal as chief prosecutor had been the direct consequence of imposing on the applicant a disciplinary sanction pursuant to the mandatory provisions of Article 51 § 2 let c) of Law no. 303/2004. The removal of a magistrate from a leading position following imposition of a disciplinary sanction is similarly mandatory according to the law (see paragraph 50 below).
48.  On 19 May 2009 the deputy chief prosecutor in the prosecutor’s office attached to the Maramureş County Court lodged a complaint against the applicant, claiming that the latter had continued to act as chief prosecutor in spite of the SCM’s decision of 5 May 2009 by which he had been removed from that position (see paragraph 43 above).
49.  A fresh set of disciplinary proceedings was instituted against the applicant, who alleged that he had been threatened with exclusion from the profession if he continued to exercise his duties as chief prosecutor. He had therefore decided to give up his position even though the appeal on points of law against the SCM’s decision to remove him from the position of chief prosecutor had had a suspensive effect according to the law.