The Open Dialogue Foundation is proud to have contributed to the report of the Special Rapporteur on the independence of judges and lawyers, which was presented during the 21st session of the Human Rights Council, in the framework of Item 3.
In its report, the SR focuses on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online. In it, various forms of interference with the exercise of fundamental freedoms by judges and prosecutors are documented. As underlined: “not all disciplinary measures adopted against judges and prosecutors in these cases can be regarded as being necessary in a democratic society to maintain public trust in the judiciary or the public prosecution. In some cases, these sanctions appear to be an expedient to punish the individual judge or prosecutor for the opinions expressed or the action taken in the exercise of his or her duties.”
ODF submitted inputs concerning particularly the cases of Poland and Moldova, countries where the government’s attempt to put, or keep, courts under political control, has seriously undermined the principle of separation of powers and weakened the rule of law.
A few relevant highlights from the Report and the list of the Special Rapporteur’s recommendations:
IV Freedom of Expression
55. States’ submissions to the Special Rapporteur provide limited information on cases where judges and prosecutors have been subjected to legal or disciplinary proceedings in relation to the exercise of their right to freedom of expression.40 Submissions from civil society organizations, on the other hand, refer to several cases from Bulgaria, Egypt, Morocco, the Philippines, Poland and the Republic of Moldova.
VI Political Rights
75. In some submissions respondents provided specific examples of disciplinary proceedings against judges for their views and opinions expressed on issues of a political nature. The Helsinki Foundation for Human Rights and the Open Dialogue Foundation referred to several cases where judges and prosecutors expressing critical views on the reform of the judiciary in Poland or on the situation of the judiciary in the Republic of Moldova had been subjected to disciplinary proceedings.
VIII Conclusions
89. In the present report, the Special Rapporteur shows that, as public officials, judges and prosecutors have special duties and responsibilities that justify the introduction of specific restrictions on their fundamental freedoms. However, such restrictions are only legitimate when provided by law and when they are necessary in a democratic society to pursue a legitimate aim, such as the protection of the independence, impartiality and authority of their institutions.
90. There may be situations in which a judge, as a member of society, considers that he or she has a moral duty to speak out. The jurisprudence of regional courts has established that in situations where there is a breakdown of constitutional order, judges may even have a duty to speak out in favour of the restoration of democracy and the rule of law.
IX Recommendations
Development and implementation of national standards
93. National legislation on the organization and functioning of the judiciary and the public prosecution should include specific provisions recognizing that judges and
prosecutors are entitled to exercise the right to freedom of expression, belief, association and assembly, as well as political rights, on an equal basis with others, and that the exercise of these rights can only be subject to those restrictions that appear necessary in a democratic society to maintain the authority of the judiciary or the public prosecution, as well as the independence and impartiality of individual judges and prosecutors.
94. Professional associations of judges and prosecutors should include specific provisions in codes of conduct, where these exist, or otherwise develop specific guidelines on the exercise of fundamental freedoms by judges and prosecutors. Such standards should serve as self-regulatory standards that help judges and prosecutors to make their own decisions on how to exercise their human rights and fundamental freedoms in a manner consistent with the dignity of their office and the independence and impartiality of the judiciary or the prosecution service. As such, these principles should remain separate from the disciplinary rules applicable to judges and prosecutors, in the sense that failure to observe such principles should not automatically constitute a disciplinary infringement.
95. The Special Rapporteur considers that judges and prosecutors themselves are best placed to determine the scope and content of legal and ethical norms on the exercise of their fundamental freedoms and political rights. Accordingly, national legislation and ethical standards should be developed through an open and transparent process involving judges, prosecutors and their representative organizations. Existing international standards relating to the exercise of fundamental freedoms and the jurisprudence of regional human rights courts and mechanisms should be taken into account in the development and implementation of such principles.
96. Judges and prosecutors should receive adequate training on ethical principles relating to the exercise of their fundamental freedoms, both in relation to their profession and with regard to outside activities. Such training should include, in particular, practical guidance on the use of social media.
97. The Special Rapporteur encourages professional associations of judges and prosecutors to establish consultative and advisory bodies that advise judges and prosecutors whenever they have uncertainties as to whether a given activity in the private sphere is compatible with their responsibilities and duties as civil servants. Such advisory bodies should be separate from the bodies responsible for imposing disciplinary sanctions.
98. Any charge or complaint against judges or prosecutors relating to the exercise of their fundamental freedoms should be brought before an independent authority, such as a judicial or prosecutorial council, or a court. Disciplinary proceedings should be determined in accordance with the law, the code of professional conduct and other established standards and ethics.
99. Removal from office should only be imposed in the most serious cases of misconduct, as provided in the professional code of conduct, and only after a due process hearing granting all guarantees to the accused.
100. Decisions in disciplinary proceedings should be subject to an independent review.
Freedom of expression
101. In exercising their freedom of expression, judges and prosecutors should bear in mind their responsibilities and duties as civil servants, and exercise restraint in expressing their views and opinions in any circumstance when, in the eyes of a reasonable observer, their statement could objectively compromise their office or their independence or impartiality.
102. As a general principle, judges and prosecutors should not be involved in public controversies. However, in limited circumstances they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service. In situations where democracy and the rule of law are under threat, judges have a duty to speak out in defence of the constitutional order and the restoration of democracy.
103. Judges and prosecutors should show circumspection in their relations with the press. They should always refrain from comments on the cases they are dealing with, and avoid any unjustified comments that may call their impartiality into question.
104. Judges and prosecutors should be cautious when using social media. When posting on social media, they should take into account that anything they publish becomes permanent, even after they delete it, and may be freely interpreted or even taken out of context. When making anonymous comments on the Internet, judges should always be mindful that there are various ways to identify the person who posted the comment.
105. Any personal information or photograph shared on social media should be modest and decent. Judges and prosecutors should always refrain from making partisan political comments, and never post anything that may conflict with the dignity of their office or otherwise affect the judiciary or the prosecution service as an institution.
106. Judges and prosecutors may use Twitter; however, since a Twitter account identifies them as a judge or a prosecutor, it should only be used for informational and educational purposes and for activities connected with their work.
Freedom of assembly and association
107. Judges and prosecutors have the right to freedom of peaceful assembly. In exercising this right, they should bear in mind their responsibilities and duties as civil servants, and exercise restraint whenever their participation in a peaceful demonstration could be regarded as being incompatible with the authority of their institution or inconsistent with their duty to be, and to be perceived as, independent and impartial.
108. Judges and prosecutors have the right to form and join professional organizations to protect their professional interests. They can also be members of other organizations, provided that their membership of these associations does not compromise the dignity of their office or their independence and impartiality.
Political rights
109. The Special Rapporteur acknowledges that there is no general international consensus on whether judges and, to a lesser extent, prosecutors should be free to participate in politics or not.
110. As citizens, judges and prosecutors are entitled to exercise their political rights on an equal basis with other citizens. However, judges and prosecutors should show restraint in the exercise of public political activity, in order to preserve the independence of the judiciary and the separation of powers.
111. Even in cases where their membership of a political party or their participation in public debate is not expressly prohibited, it is necessary for judges and prosecutors to refrain from any political activity that might compromise their independence or jeopardize the appearance of impartiality.
112. With regard to direct involvement in politics, the Special Rapporteur is of the view that judges and prosecutors should avoid any partisan political activity that may undermine their impartiality or be inconsistent with the principle of the separation of powers.
