Freedom of expression of judges and prosecutors: UNHRC report

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While the freedom of expression of public officials can be sometimes restricted with a view to protecting the impartiality and independence of institutions, in the event of a breach of the rule of law, judges and prosecutors can be seen as having a moral duty to speak out - says the report.



On 24 June 2019, the United Nations Human Rights Council issued a report titled ‘Independence of Judges and Lawyers: Report of the Special Rapporteur on the independence of judges and lawyers’ Its main conclusions are the following:

 

  • Judges and prosecutors, just like all citizens, can exercise their right to freedom of expression, belief, association, and assembly; however, they have to do it in such a way that does not violate the dignity of their office
  • The use of social media is not appropriately regulated, and therefore cases of accidental breach of professional standards of conduct take place
  • Specific restrictions on the fundamental freedoms of judges and prosecutors can be justified only when they are legitimized by law and necessary in a democracy to protect the independence, impartiality, and authority of institutions
  • In the case of constitutional violations, judges may even be considered to have a moral duty to speak out in defence of democracy and the rule of law
  • Some of the disciplinary proceedings against judges and prosecutors can be seen as an expedient to punish individuals for expressing their opinions or acting in the exercise of their duties

 

The report, besides addressing important issues regarding freedom of expression of judges and prosecutors, has significant repercussions for the situation in Poland, where disciplinary proceedings as a means of repression against lawyers are becoming increasingly common.

 

In recent months, several disciplinary proceedings have been initiated against judges or prosecutors concerning public statements or attendance at events supporting the independence of the judiciary.  One of the most recent case was that of prosecutor Krzysztof Wójtowicz, against whom a disciplinary proceeding was initiated following his participation in a demonstration organised in 2017 by the Committee for the Defence of Democracy (KOD) to support free courts.

 

Another case concerns judge Waldemar Żurek, former spokesperson of the National Council of the Judiciary, who was known for actively supporting the independence of the judiciary in the public sphere. Żurek was forcefully transferred from one court division to other without consultation with the court’s council, which is a legal prerequisite.

 

Three other judges, Małgorzata Kluziak, Piotr Gąciarek, and Marek Celej, have faced disciplinary proceedings for critical statements about the vice-president of the district court in Warsaw – a controversial figure due to the questionable legitimacy of his appointment to that court. The action was widely seen as an attempt at quieting and intimidating the judges for expressing their opinion publicly.

 

Another three prosecutors from the board of the ‘Lex Super Omnia’ prosecutorial association, Krzysztof Parchimowicz, Katarzyna Gembalczyk, and Dariuszow Korneluk, have been also subjected to disciplinary proceedings following their disapproval of a colleague who publicised the personal details of a judge handling a case involving the death of the Minister of Justice’s father. Broadly speaking, the members of the association are a frequent target of disciplinary proceedings and are summoned to explain most of their public statements and publications.

 

As the report suggests, while the freedom of expression of public officials can be sometimes restricted with a view to protecting the impartiality and independence of institutions, in the event of a breach of the rule of law, judges and prosecutors can be seen as having a moral duty to speak out. That was indeed the situation in Poland with most of the officials subject to disciplinary proceedings. They were targeted for attending public demonstrations supporting the independence of the Supreme Court, openly opposing the politicisation of the judiciary, or criticizing court presidents controversially appointed by the current Minister of Justice and Prosecutor General.

 

[by Martyna Olejnik]



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Published

October 24, 2019