Judgment I. ÚS 2617/15 – Restricting a judge’s freedom of speech when commenting on political competition

13 September 2016

In order to preserve public confidence in the judicial power, it is essential that judges, in their speech, maintain a clear distance from political competition at any level, including the local level. Judges cannot take part in the campaigns of political parties, political movements or election groupings, or individual politicians, nor can they use their post-election statements to influence future coalitions.

The complainant is a judge who owns a cottage in a small community where he participated in the election campaign for municipal elections by preparing and distributing his own flyers, and subsequently, through an article in a local periodical, publicly commented on the results of the elections and possible coalition alternatives, including the post of the community’s mayor. He was found guilty by a disciplinary court for this conduct, because in exercising his political rights he acted in such a way as to endanger the dignity of the judicial office and thus misused his judicial office in order to promote private interests. However, the disciplinary court refrained from imposing any disciplinary measure on the complainant.
The Constitutional Court commented on the alleged unconstitutionality of a single-level disciplinary proceeding in this case only briefly, referring to its key judgment file no. Pl. ÚS 33/09, which addressed this issue thoroughly. The Constitutional Court also did not find the alleged deficiencies in instructions on the part of the disciplinary court to exist; thus, in its opinion, the procedural guarantees for protection of fundamental rights were observed. The Constitutional Court also found incorrect the claim of violation of the freedom of thought, which reflects the internal thought process of every person and is an absolute, non-restrictible right. Of course, the complainant was not punished by the disciplinary court for his internal thoughts, but for the external expressions of his opinions.

Therefore, the Constitutional Court considered in more detail only the complainant’s claim concerning violation of freedom of speech. Relying on the case law of the European Court of Human Rights (the “ECHR”), it did not call into question the principle that a judge’s speech also comes under the protection of art. 17 of the Charter and art. 10 of the Convention. Of course, because of the nature of the public office of a judge, this speech is subject to special restrictions. In this regard, the Constitutional Court cited the duty of loyalty and restraint deriving from the case law of the ECHR, which applies to all state employees in relation to their exercise of the freedom of speech, including judges. This is because it is an essential prerequisite for the correct and effective functioning of an independent and impartial judiciary that the judicial power enjoy public confidence.

The Constitutional Court concluded that, while a judge is bound by the duty of loyalty only as regards the fundamental principles and values of a democratic, law-based state, the duty of restraint is wider. It emphasized the experience of history from before 1989, due to which it is necessary to insist that judges maintain a clear distance from political competition. The present constitution, based on a discontinuity of values with the communist regime, has a special interest in preventing the linking of judges with political parties and their excessive involvement in political competition. Thus, in exercising his freedom of speech, a judge must act with restraint in relation to political competition at all levels. It cannot be overlooked that a judge submits to these constitutional limitations on freedom of expression based on his own free decision, at the moment when he accepts the office of judge and takes the judicial oath.

According to the case law of the ECHR and the Constitutional Court, when evaluating to what extent a judge observed the duties of loyalty and restraint in his speech, it is necessary to take into consideration whether the speech was in sharp conflict with the fundamental values of a democratic legal order and whether it violated public confidence in the independence and impartiality of the judicial power. These duties also apply to a judge in his private life, but that depends on the particular circumstances in which he makes his statements. Speech must be evaluated more strictly when the individual expressly refers to his office or directs his speech to a circle of persons who know that he is a judge. On the contrary, a high degree of protection will be enjoyed by judges’ statements concerning issues related to the administration and organization of the judiciary. Finally, it is necessary to evaluate whether the nature and gravity of the potential penalty is commensurate with the determined misconduct.

Applying the abovementioned principles to the present case, the Constitutional Court concluded that the disciplinary court’s decision pursued the legitimate aim of the protection of the independence and impartiality of the judicial power. While the Constitutional Court did not criticize the complainant for violation of the duty of loyalty, it could not reach the same conclusion regarding the duty of restraint. The complainant’s judicial office was expressly used in the distributed flyers to benefit a particular party’s campaign, and the complainant also entered the public debate in a significant manner by publishing an article in the local magazine, when there were grounds to connect this speech with his office. Thus, in this speech, the complainant breached the duty of restraint which, as a judge, he has, because through his speech he himself, on his own initiative, actively, openly, and with excessive intensity, became involved in political competition.
The judge rapporteur in the case was Kateřina Šimáčková. No judge filed a dissenting opinion.