freedom of expression

Freedom of Expression and Association; Disciplinary Proceedings

Nejvyšší správní soud

Supreme Administrative Court

12 Ksz 4/2023-58

20/12/2023

ECLI:CZ:NSS:2023:12.Ksz.4.2023.58

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Decision of the ECtHR from 13. 11. 2008, Kayasu v Turkey, applications no. 64119/00 and 76292/01
Decision of the ECtHR from 28. 10. 1999, Wille v Lichtenstein, application no. 28396/95
Decision of the ECtHR from 11. 12. 2018, Brisc v Romania, application no. 26238/10
Decision of the ECtHR from 26. 4. 1979, Sunday Times v the United Kingdom, application no. 6538/74
Decision of the ECtHR from 13. 6. 2016, Baka v Hungary, application no. 20261/12

Freedom of expression – Public prosecutors – Internal criticism – Low intensity of the conduct

How far can a prosecutor go in criticising the situation within the prosecutor's office and his superior?

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Art. 17 of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)
§ 24; § 28 of the act. no. 283/1993 Coll., on Public Prosecutors Offices (zákon o státním zastupitelství)
§ 19(2) of the act no. 7/2002 Coll., on Proceedings in Matters concerning Judges, Public Prosecutors and Enforcement Officers (zákon o řízení ve věcech soudců, státních zástupců a soudních exekutorů)

A prosecutor in a Higher Public Prosecutor's Office sent an e-mail to his superior and some other employees of the office after the superior's resignation, calling him a coward, telling him to be ashamed and criticising his resignation. The Prosecutor General saw a possible threat to the dignity of the prosecutors or the dignity of the prosecutor's office and the duty to show due respect to other prosecutors. As a result, he initiated disciplinary proceedings.

The Disciplinary Court began by setting out the general grounds for the prosecutor's freedom of expression, based on international and national human rights. It stated that freedom of expression also applies to prosecutors, but that it is limited (similar to the freedom of expression of judges). The limits placed on prosecutors by law, such as the obligation to refrain from any conduct that may undermine the dignity of the office of prosecutor or the dignity of the prosecution service, or undermine confidence in the impartial and professional performance of their duties and the duty of respect towards others, are in line with these human rights obligations. Prosecutors play a key role in criminal proceedings and public mistrust of them may affect confidence in the government as a whole.
The disciplinary offence of a prosecutor can be only a serious and grave breach of his duties. The intensity of the conduct must be commensurate with this. Prosecutors may also criticise internal conditions. Prosecutors should be courageous people who are not afraid to speak their minds and to stand up for their opinions, including those that are openly critical of their superiors, in a factual and polite manner, the Court noted.
The Disciplinary Court did not consider the statements of the defendant to be appropriate. It is appropriate for a public prosecutor to express his opinions, including critical opinions, in a somewhat measured, factual and detached manner. The fact that the criticism was sent to a superior by e-mail, which, among other things, allows the author to reflect on the content of the message and the choice of words (compared to a conversation), and that the adressee can repeatedly returnt to it or it can be over and over circulated, makes it all the more powerful. However, superiors have no special protection against such statements compared to others. The defendant thus violated his legal obligations.
On the other hand, in the Court's view, the speech did not rise to the level of a disciplinary offence. The expressions used in the e-mail in question do not constitute pure vulgarity. Nor was there any indication that the defendant intended to harm his superior in any way. The accused was therefore acquitted.

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consistent interpretation

The Supreme Administrative Court does not cite Regional courts' case law or other foreign courts case law.

The Supreme Administrative Court relies on the ECtHR and the Constitutional Court case law.
The Supreme Administrative Court also cites its own disciplinary case law, mainly to set out the basic grounds for disciplinary liability.

The Supreme Administrative Court used the ECtHR decisions to establish that the freedom of expression also covers the public procecutors and that the statutory limits are compliant with the human rights obligations.

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No

Yes

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Ondřej Kadlec, Šimon Chvojka, University of Masaryk (MUNI)

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