freedom of expression

Freedom of Expression and Association; Disciplinary Proceedings

Freedom of Expression and Association; Disciplinary Proceedings

Supreme Administrative Court

11 Kss 6/2015-53

06/06/2016

ECLI:CZ:NSS:2016:11.Kss.6.2015.53

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Decision of the ECtHR from 7. 12. 1976, Handyside v the United Kingdom, application no. 5493/72
Decision of the ECtHR from 28. 10. 1999, Wille v Lichtenstein, application no. 28396/95
Decision of the ECtHR from 26. 9. 1995, Vogt v Germany, application no. 17851/91
Decision of the ECtHR from 26. 4. 1979, Sunday Times v the United Kingdom, application no. 6538/74
Decision of the ECtHR from 27. 5. 2014, Baka v Hungary, application no. 20261/12
Decision of the ECtHR from 26. 2. 2009, Kudeshkina v Russia, application no. 29492/05
Decision of the ECtHR from 16. 9. 1999, Buscemi v Italy, application no. 29569/95
Decision of the ECtHR from 21. 1. 1999, Janowski v Poland, application no. 25716/94
Decision of the ECtHR from 27. 3. 1996, Goodwin v the United Kingdom, application no. 17488/90
Decision of the ECtHR from 31. 1. 2008, Albayrak v Turkey, application no. 38406/97
Decision of the ECtHR from 26. 10. 1984, Pierscak v Belgium, application no. 8692/79
Decision of the ECtHR from 21. 12. 2000, Wettstein v Switzerland, application no. 33958/96
Decision of the ECtHR from 17. 1. 1970, Delcourt v Belgium, application no. 2689/65

Freedom of expression – Expression of political opinion – Refugees – Media articles

What are the limits of a judge's freedom of expression when the judge is expressing an opinion on highly political issues not directly related to his or her work?

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A judge published articles on a dubious website that are now considered to be extreme political journalism, containing vulgarity and sexual or violent innuendo. The publication took place despite the fact that the judge in question had been warned about the inappropriateness of similar articles following his previous articles.
The first of the articles, entitled 'Letter from a disoriented refugee', exaggeratedly describes the fictitious journey of an African to Scandinavia in search of jobless material security. On the way, however, he and his family end up in another country where two different tribes, by which author means NGOs and employees, are fighting each other. The story ends with a shoot-out between the two NGOs over the refugees, who are supposed to be a source of funds for the NGOs.
The second of the articles, entitled ""Report on the Journey to Germany"", exaggerates the story of an African pretending to be a Syrian refugee who is detained in the Czech Republic on his way to Germany. The story ends with the arrival of ministers and NGO directors to help the refugees, who are portrayed as incompetent.
The third and final article is entitled 'Report by the European Commissioner on the state of human rights in the Muslim village'. It describes (again with obvious exaggeration and irony) the political and social developments in the fictional European village over the ten years since the 'adoption of democratisation', when, using formally democratic institutions, radical Islamist organisations (including the Taliban, Al-Qaeda, the Muslim Brotherhood and the Islamic State) have gradually taken power, while maintaining a veneer of political pluralism.
The president of the Regional Court considered that these articles were likely to undermine the dignity of the office of judge and public confidence in the court's independent, impartial and fair decision-making, and therefore brought disciplinary proceedings.

In assessing the judge's conduct, the Disciplinary Court started with possible restrictions on the judge's freedom of expression. It did not consider the writing of the articles in question as a reason for intervention per se. The Disciplinary Court did not find that the choice of subject matter or the general tone of the articles constituted an abuse of rights. Therefore, the articles (regardless of the personality of the author) fall under the guaranteed freedom of expression; indeed, the ECtHR has also inferred a right to disseminate hurtful, shocking or disturbing ideas. Thus, although the Court considered the articles to be generalising and biased works, which in some cases portrayed certain groups of people in a highly dehumanising and simplistic manner, even this form of satire should not be censored.
The Court also considered the compatibility of the judicial function with the publication of these articles. First, it noted that judges are restricted in their freedom of expression in order to ensure the authority and impartiality of the judiciary. This is a proportionate restriction. The judge is also a constitutional official in his civil life, representing one of the branches of state power, and the exclusion of excesses in his conduct must therefore be subject to public regulation. In general, therefore, a judge should have the right to his own opinion (it is even desirable) and he has the right to express it publicly. There is therefore nothing to be said against his expressing himself (even critically) on matters of public life and on specific events, even by artistic or journalistic means. He can also express himself on issues that are perceived as political and controversial. However, a judge may not publicly express support for a particular political entity or programme, or promote or disseminate ideas that are contrary to the principles of a democratic society. The corrective for his actions must be the limit beyond which he could give the impression that the views he expresses could affect the exercise of his judicial function.
The Disciplinary Court then examined each article to determine whether the judge had exceeded the limits set. It found that in the case of the first two articles the judge (author) had exceeded the acceptable limits of expression and that their publication could have led to the dignity of the judicial function being undermined. At the same time, however, the Court did not find that confidence in independent, impartial and fair judicial decision-making could be undermined, especially since the articles were not directly related to judicial activity and there was no attempt to influence the decision of another judge. In the case of the last article, the Court concluded that there was no disciplinary offence. Unlike the previous articles, it was an unequivocal criticism of Islamic extremism against the background of known, real events. The Disciplinary Court saw a clear parallel in this case with events that have taken place in some countries in the Middle East and North Africa in recent years, although there is a conflation and an overall simplistic interpretation using literary hyperbole. However, such an approach can be fully justified by the freedom of authorship.
As a result, the Disciplinary Court reprimanded the judge for the first two articles, considering that the intensity of the judge's action was low.

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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 relies on the ECtHR case law while determining general grounds for disciplinary liability in regard to the freedom of expresion and to establish the proportionality of the limitation on judges right.

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No

Yes

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The decision of the Supreme Administrative Court was reviewed by the Constitutional Court. The constitutional complaint was rejected by decision from 11. 4. 2017, no. IV. ÚS 2609/16.

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

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