Limits of a Judge’s Freedom of Expressing His/Her Own Opinion: The Ukrainian Context and ECtHR Practice
Summary: 1. Introduction. – 2. The National Conception of a Judge’s Communicative Behaviour. – 3. Criteria for the Admissibility of a Judge’s Complaint in Violation of His/Her Conventional Right to Freedom of Expression. – 4. The Judge’s Right to Express an Opinion vs Right to a Fair Trial. – 5. Conclusion.
Abstract
European Court of Human Rights (hereinafter ECtHR, the Court). Understanding these limits is important not only for individual judges but also for society as a whole, as restrictions on freedom of expression may affect the state’s perception of the rule of law.
Systematic analysis of the key documents that regulate the issue of freedom of expression of a judge in Ukraine allows us to identify several spheres of imperative regulation of a judge’s behaviour in the context of communicative activity: during the administration of justice (in court procedure); in public speeches, particularly in the media; during the implementation of other activities not prohibited for the judge – literary, scientific, educational; during Internet communication; in everyday life.
ECtHR case-law in the context of assessing the limits of a judge’s freedom of expressing one’s opinion develops in two directions. In the first, the judge’s freedom is considered in the context of Art. 10 (freedom of thought, conscience, and religion, freedom of expression, and freedom of assembly and association) of the European Convention on Human Rights (hereinafter ECHR, the Convention). In the second, the right to freedom of expression is limited to the right to a fair trial of others (in the context of impartiality and independence of a court within the meaning of Art. 6 of the ECHR). In general, the matter of judicial evaluation was the statements of judges concerning cases that were in their proceedings; those criticising judicial reform measures and other administrative actions; those which criticised their colleagues.
The results of the analysis allow us to conclude that, despite the different preconditions, different circumstances, and varying implementation reflections, the freedom of a judge to express his/ her opinion is limited by his/her special status as a state servant (in a broad sense). Where the boundary is in a particular case should be determined by considering the specific circumstances. However, national law enforcement authorities must develop their own criteria for assessing the balance of public and private interests in a judge’s communicative behaviour
About Authors
Khotynska-Nor Oksana
Professor, Dr. Sc (Law), Head of the Department, Law School,
Taras Shevchenko National University of Kyiv, Ukraine
o.khotynskanor@knu.ua
https://orcid.org/ 0000-0002-4480-6677
Moskvych Lidiia
Professor, Dr. Sc (Law), Head of the Department
of Judicial and Prosecutorial Activities,
Yaroslav Mudryi National Law University, Kharkiv, Ukraine
l.m.moskvych@nlu.edu.ua
https://orcid.org/0000-0001-7339-3982
CONFLICTS OF INTEREST
The authors declare no conflict of interest of relevance to this topic. Although one of the author serves at same institution as one of the editors of AJEE, which may cause a potential conflict or the perception of bias, the final decisions for the publication of this article was handled by the editors, including choice of peer reviewers, and Editorial Board Members, who are not affiliated to the same institution.
DISCLAIMER
The authors declare that they were not involved in any state body’s activities. Prof. Khotynska-Nor and Prof. Moskvych serve as Members of the Scientific Advisory Board of the Supreme Court but do not represent any views of this body in this research, nor are they bound by that body in their legal research.
ACKNOWLEDGEMENTS
The authors would like to express their gratitude to the reviewers and editors of the journal and to the English editor, Sarah White.
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O Khotynska-Nor, L Moskvych ‘Limits of a Judge’s Freedom of Expressing His/Her Own Opinion: The Ukrainian Context and ECtHR Practice’ 2021 3(11) Access to Justice in Eastern Europe 170–180. DOI: https://doi. org/10.33327/AJEE-18-4.3-n000077
