freedom of expression

Freedom of Expression and Association; Disciplinary Proceedings

Nejvyšší správní soud

Supreme Administrative Court

12 Ksz 2/2008-124

29/09/2009

ECLI:CZ:NSS:2009:12.Ksz.2.2008.124

N/A

N/A

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 16. 9. 1999, Buscemi v Italy, application no. 29569/95
Decision of the ECtHR from 25. 6. 1992, Thorgeirson v Island, application no. 13778/88
Decision of the ECtHR from 8. 7. 1986, Lingens v Austria, application no. 9815/82

Freedom of expression – Public prosecutors – Media interview – Removal from office

How can a prosecutor appear in the media and give interviews?

N/A

N/A

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 from the Prosecutor General's Office gave an interview to a media outlet. Parts of the interview were later printed under headlines such as 'A prosecutor became friends with a mafia family' and 'I'm paying off the house, so I can't resign now'. In the text, the prosecutor justified her continued position as a prosecutor at the Prosecutor General's Office by citing the need to pay off her mortgage, even though she admitted that in the past she had had friendly contacts with people publicly identified as members of the criminal underworld. She went on to say, in reference to the possibility of being removed as a prosecutor, that "I will have to do everything I can to make it as long as possible to pay back as much as I can". The Prosecutor General then initiated disciplinary proceedings.

The Disciplinary Court first looked at the facts of the case. It concluded that the interview was a standard journalistic interview and that the published result did not deviate from what was said in the interview. The prosecutor knew that her interview with the journalist was being recorded and consented to the recording. The image created in the interview of the prosecutor's contacts with members of the Mafia family, against a background of undeniable facts, is likely to raise reasonable doubts in the minds of the public as to her seriousness and credibility. She herself confirmed this.
In its assessment, the Court considered that the purpose of the disciplinary offence is to ensure public confidence in the authority and impartiality of the prosecutor. Confidence in these values must be protected from any threat, including restrictions on the prosecutor's personal life and the exercise of political rights (in particular freedom of expression). The prosecutor must have been aware that by giving an interview to a publicly known journalist and justifying her remaining in the position of prosecutor by citing the need for material security, the protected values could be compromised. Furthermore, given her position and the circumstances, she must have been aware of the consequences of her statements.
In imposing the sentence, the court took into account the permanence and irreversibility of the consequences of the conduct on public confidence in the prosecution service. The standards for prosecutors are rightly high, and the court did not accept a defence based on state of mind or different moral values. Everyone has the right to have the public interest in criminal proceedings represented by a person whose credibility, integrity and impartiality cannot be doubted. If the public has, or can reasonably have, such doubts on the basis of the information available, the accused's statements are fatal to his or her future professional conduct. A penalty other than removal from office would not sufficiently reflect the seriousness of the disciplinary offence and the impossibility of restoring the reputation in the future. The Disciplinary Court therefore removed the public prosecutor from office.

N/A

N/A

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 case law.

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

N/A

N/A

N/A

No

Yes

N/A

N/A

N/A

The decision of the Supreme Administrative Court was reviewed by the Constitutional Court. The constitutional complaint was declared manifestly ill-founded by decision from 7. 4. 2011, no. I. ÚS 3061/09.

N/A

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

N/A