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THE JUDGE AND HIS/HER FREEDOM OF EXPRESSION UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS

THE JUDGE AND HIS/HER FREEDOM OF EXPRESSION UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS. The tension between freedom and restraint Sietske Dijkstra. ARTICLE 10.

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THE JUDGE AND HIS/HER FREEDOM OF EXPRESSION UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS

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  1. THE JUDGE AND HIS/HER FREEDOM OF EXPRESSION UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS The tensionbetweenfreedom and restraint Sietske Dijkstra

  2. ARTICLE10 “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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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.”

  3. ARTICLE 10.1 THE JUDGE = A CIVIL SERVANT “These principles (Article 10) apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention.” (ECHR 28 October 1999, 28396/95, Wille v. Liechtenstein, par. 61)

  4. ARTICLE 10.1 Does the measure complained of lay within the sphere of holding a public post? => a right not secured in the Convention: “the disputed measure is essentially related to the applicant’s ability properly to exercise the post of President of the Supreme Court, that is to the appraisal of his professional qualifications and personal qualities in the context of his activities and attitudes relating to State administration of the Supreme Court.” (ECHR 29 June 2004, 62584/00 Harabin v. Slovakia) (ECHR 15 November 2016, 75255/10 Simicv. Bosnia Herzegovina)

  5. ECHR 23 June 2016, 20261/12, Bakav. Hungary, par. 151: “Accordingly, it agrees with the applicant that the premature termination of his mandate was prompted by the views and criticisms that he had publicly expressed in his professional capacity.”

  6. “At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court”. (ECHR 23 June 2016, 20261/12 Baka v. Hungary, p. 165) (ECHR 29 June 2004, 62584/00 Harabin v. Slovakia) (ECHR 28 October 1999, 28396/95, Wille v. Liechtenstein, par. 64)

  7. 10.2 THREE CONDITIONS “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.”

  8. NECESSITY Necessity => A pressing social need The Court looks at the interference complained of in the light of the case as a whole and determines whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced are ‘relevant and sufficient’. Is there a fair balance between the fundamental right to freedom of expression and the legitimate interest of the authorities in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2?

  9. A CERTAIN MARGIN “In carrying out this review, the Court will bear in mind that whenever civil servants’ right to freedom of expression is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.” (ECHR 28 October 1999, 28396/95, Wille v. Liechtenstein, par. 62)

  10. “Given the prominent place among State organs which is occupied by the judiciary in a democratic society, the Court considers that this is particularly so in case of a restriction on the freedom of expression of a judge in connection with the performance of his functions, albeit the judiciary is not part of the ordinary civil service.” (ECHR 8 February 2001, 47936/99, Pitkevich v. Russia)

  11. THE NARROW MARGIN “171. (…)Accordingly, the Court considers that the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State.” (ECHR 23 June 2016, 20261/12, Baka v. Hungary, par. 171)

  12. “Public officials serving the judiciary should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question.” (ECHR 28 October 1999, 28396/95, Wille v. Liechtenstein, par. 64) (ECHR 23 June 2016, 20261/12, Baka v. Hungary, par. 164)

  13. “The Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10.” (ECHR 26 February 2009, 29492/05, Kudeshkina v. Russia, par. 86)

  14. “However, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially 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.” (ECHR 26 February 2009, 29492/05, Kudeshkina v. Russia, par. 86, ECHR EcomHR 7 May 1984, 10279/83, E. v. Szwitzerland, ECHR 8 February 2001, 47936/99, Pitkevich v. Russia).

  15. consequences of the expression: damaging? • consequences of the interference: loss of salary, chilling effect • motive of the judge • words and tone used • severity of the penalty • facts/value judgements: supported by facts? • national historical, social, political context • PUBLIC DEBATE

  16. ARTICLE 6.1 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

  17. “118. (…) Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (…). As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance (…). When it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (…) 119. In applying the subjective test, the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (…)” ECHR Grand Chamber 15 December 2005, 73797/01 (Kyprianou v. Cyprus)

  18. What fears are objectively justified? knowledge feelings patience expectations understanding priorities the reasonable observer

  19. ECHR 22 June 2004, 47221/99, PablaKyv. Finland ECHR 25 November 1994, 14191/88, Holmv. Sweden ECHR 1 June 1999, 26323/95, Kiiskinen and Kovalainenv. Finland ECHR 15 June 200, 43505/98 Salamanv. United Kingdom

  20. “Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (…) neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interaction. The question is always whether, in a given case, the requirements of the Convention are met.” (ECHR 22 June 2004, 47221/99, PablaKyv. Finland, par. 29)

  21. ‘The Court stresses, above all, that the judicial authorities are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges. That discretion should dissuade them from making use of the press, even when provoked. It is the higher demands of justice and the elevated nature of judicial office which impose that duty.’ (ECHR 16 September 1999, no. 29569/95, Buscemiv. Italy, p. 67) (ECHR 28 November 2002, nr. 58442/00, Laventsv. Latvia, p. 118) (ECHR 5 February 2009, no 22339/05, Olujicv. Croatia, p. 59)

  22. Overall picture

  23. PUBLIC CONFIDENCE IN THE JUDICIARY

  24. “What is at stake as regards the protection of the judiciary’s authority is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large” (ECHR 26 February 2009, 29492/05, Kudeshkina v. Russia, p. 86) • “In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. (ECHR 24 May 1989, 10486/83, Hauschildtv. Denmark, p. 48)

  25. THE END

  26. ENCJ JUDICIAL ETHICS REPORT 2009-2010 Values: independence, integrity, impartiality, reserve anddiscretion, diligence, respect andabilityto listen, equality of treatment, competence, transparancy Virtues: wisdom, loyalty, humanity, courage, seriousnessandprudence, listeningandcommunication

  27. ARTICLE 34 “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

  28. “it would have been preferable for Judge A.K. to have refrained from expressing his views in the media entirely, in order to avoid any possible misgivings about his impartiality” (ECHR 12 April 2018, 36661/07 and 38433/07, Chim and Przywieczerski vs Poland, p. 165)

  29. “The Court notes that in each country’s public-service sector certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State’s sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty.” (ECHR 8 December 1999, 28541/95, Pellegrin vs France)

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