Impartiality, freedom of expression

Freedom of Expression and Association; Disciplinary proceedings

Ústavní soud

Constitutional Court

I. ÚS 2617/15

5. 9. 2016

ECLI:CZ:US:2016:1.US.2617.15.1

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Freedom of expression of judges – political competition – local elections – commentary – division of powers

The question in this case was how much a judge can be involved in election process as a “journalistic” commentator.

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Art. 17 of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)
§ 80(4) and (5) of the act no. 6/2002 Coll., on Courts and Judges (zákon o soudech a soudcích)

The judge was accused of undermining the dignity of the judicial office and abusing the judicial office to promote private interests while exercising his political rights. Shortly before the local elections, the judge wrote and distributed a leaflet in a village where he had a hut, evaluating the electoral programmes of political parties. Subsequently, after the election, he published an article in the local newspaper thanking people for voting, analysing possible coalitions, supporting the election's winner and warning of disaster if the leader of that party did not govern the village as a mayor. The disciplinary chamber found the judge guilty of disrespect for his office but refrained from imposing any penalty, as it deemed the hearing of the case in the disciplinary proceedings itself as sufficient.

The Constitutional Court began with general principles governing the freedom of expression of judges in political competition. Based on the jurisprudence of the ECtHR, the Constitutional Court stated that judges also have freedom of expression, but this is subject to specific limitations. The duty of loyalty and restraint binds them. On the one hand, according to a similar interpretation of the Czech Charter, judges should not question the fundamental values of the state, as the duty of loyalty binds them. On the other hand, the duty of restraint is broader. According to the case law of the ECtHR, judges must be impartial and independent. Their appearance in this sense is essential; therefore, the judge's statements must be restrained so as not to undermine confidence in the impartiality and independence of the judiciary.
The separation of powers is also important, all the more so given the Czech experience with the communist regime. Therefore, there is a particular interest in preventing judges from being linked to political parties and being excessively involved in political competition. Given the recent past, it is necessary to strengthen public confidence in the independence of the judiciary from political interests.
The Constitutional Court then analyses the criteria for assessing the judge's speech. On the basis of the ECtHR and its own case law, it distinguishes between factual assertions, value judgements or hybrid statements. The judge's statement must not flagrantly contradict the fundamental values of the democratic rule of law, must not undermine public confidence in the independence and impartiality of the judiciary, and must not excessively involve the judge in political competition. Moreover, speeches in which an individual explicitly refers to his or her position as a judge should be assessed more strictly. On the other hand, judges are more protected when criticising the judiciary. Last but not least, the sanction imposed must be evaluated.
In this case, the judge made hybrid statements. Although the statements do not contradict the fundamental values of the state, the judge, through his speech, on his own initiative, actively, openly and with excessive intensity engaged in political competition. In addition, the Constitutional Court found it contrary to the Constitution that the judge, through his public speeches, attempted to influence the shape of the coalitions in the council or who would serve as mayor. As a result, the judge infringed the duty of discretion. The sentence imposed was considered appropriate. In the end, the judge's constitutional complaint was rejected.

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consistent interpretation, proportionality

The Constitutional Court cited its own case law.
There are no foreign judgements mentioned.

There was no interaction with other national supreme courts.
The court cited ECtHR extensively to assess basic rules on freedom of expression of judges.

The Constitutional Court cited the ECtHR case law extensively to build up the basic assumptions about freedom of expression of judges and subsequent analysis. Subsequently, it used the Convention and ECtHR case law to interpret the national Charter.

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Ondřej Kadlec, Šimon Chvojka, Masaryk University

1. Supreme administrative court, decision no. 16 Kss 7/2017-92 of 11. 5. 2015
2. Constitutional court, decision no. I. ÚS 26/17/15 of 5. 9. 2016