independence, impartiality, freedom of expression

Freedom of Expression and Association; Disciplinary proceedings

Ústavní soud

Constitutional Court

ECLI:CZ:US:2016:2.US.2490.15.1

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Freedom of expression – Judges – Election campaign – Forwarding fictional interview – Impartial and independent judiciary

Limits of freedom of expression of judges while forwarding e-mail related to political campaigns from personal e-mail to, among others, journalists.

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Art. 17 of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)
§ 80, § 87(1) of the act no. 6/2002 Coll., on Courts and Judges (zákon o soudech a soudcích)

The judge was found guilty of disciplinary misconduct by the Disciplinary Chamber of the Supreme Administrative Court. Just as the campaign for the local and senatorial elections were beginning, he forwarded a message from his personal e-mail to 32 different recipients, including journalists. The message gives the impression that it is a transcript of conversations between politicians of a major Czech political party, contains many vulgar expressions and implies illegal actions of the persons mentioned in it, although he was aware that it was a fictitious document. The Disciplinary Chamber reduced his salary by 10% for three months. The judge challenged this decision before the Constitutional Court.

The Constitutional Court agreed with the Disciplinary Chamber as to whether the limits of freedom of expression had been exceeded. The content of the e-mail in question had considerable defamatory potential, and any explanatory comments by the judge did not accompany the e-mail. Moreover, it could reasonably have given some people the impression that it was an authentic conversation between politicians. The Court also considered that the circle of persons to whom the e-mail in question had been forwarded did not indicate that the complainant’s conduct had been purely private. By his conduct, the complainant expressed a certain indifference as to how the text would be treated and interpreted and as to the fact that the complainant, i.e. the person holding judicial office, would be identified as the sender of the message.
In defining the limits of the judges’ freedom of expression, the Constitutional Court referred to the ECtHR and its previous decisions. Although judges must be guaranteed freedom of expression, its exercise is subject to certain limitations. To the extent necessary, the exercise of freedom of expression by judges and other judiciary representatives may be required to be exercised with a certain degree of restraint, i.e. in particular so as not to compromise the authority and impartiality of the judiciary unduly. This same degree of restraint applies to the exercise of freedom of expression in their private life.
While the judge sent the e-mail from his personal e-mail, the recipients included journalists who only knew the judge professionally. If the judge forwarded the e-mail in question to these persons, in some cases even to their work address, without any comment, he must have been fully aware that in this situation, the content of the e-mail in question could become public, with the judge identified as the sender of the message. From this point of view, therefore, the e-mail communication cannot be regarded as purely private, even though it was forwarded from the judge’s private address. At the same time, by forwarding a message with content that can be considered highly defamatory, the complainant may have interfered with the personal rights of the politicians to whom the content of the message related. Although the Constitutional Court subsequently found fault with some of the evidence, the complaint was dismissed in its entirety.

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Consistent interpretation

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

There was no interaction with other national supreme courts.
The Constitutional Court cited the ECtHR sporadically and in an ornamental way.

The Constitutional Court wanted to strengthen its reasoning, as the case was concerning human rights of the judge. However, the use of case law is very ornamental.

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Ondřej Kadlec, Šimon Chvojka, Masaryk University