The freedom of expression of judges and the Consultative Council of European Judges (CCJE)

The Consultative Council of European Judges (CCJE) clarified its opinion on the freedom of expression of judges and pointed out that in several Member States there is an increased use of social media by judges, yet few ethical codes of conduct give concrete practical guidance in this regard



In its Opinion № 25 of 2.12.2022, the CCJE not only contemplates the legal and ethical duty of the judge to speak openly in order to defend the rule of law and democracy not only at national, but also at European and international level, but also sets out common guidelines for judges and a broad framework for ongoing discussion on the parameters to be taken into account when exercising their right to freedom of expression.

Firstly, note that the term “media” covers the entire palette of printed media, television and radio media and online media, including audio and video streaming services, thus fully accepting the definition of “media”, as proposed in Annex I to Recommendation CM/Rec (2022) 11 of the Committee of Ministers on Principles for Media and Communication Management, para. 4.

The different approaches of the legislator in the various member states of the Council of Europe are marked with regard to certain principles. However, it should be stressed that all national legislations guarantee judges their right to freedom of expression. However, the scope of protection varies, in many countries it covers out-of-court statements made in public or in relation to the professional qualities of judges, as well as extrajudicial statements made on behalf and in the interests of the judiciary. In some countries, judges enjoy immunity from prosecution for everything said in court, unless mala fides (bad faith) is established. Judges have a legal and/or ethical duty to abstain, which aims to preserve judicial independence and impartiality and public trust in the judiciary, as well as the proper management and dignity of the judiciary.

In most Member States, judges can comment on matters relating to the judiciary, its proper administration and independence or the separation of powers, provided that their criticism is based on facts and arguments and does not reveal the internal work of the judiciary. In some Member States, public expression in certain circumstances is even interpreted as an ethical obligation, in particular in response to political attacks on the judiciary. To this end, judges of higher instances are sometimes given greater freedom of expression. However, in some countries such behaviour has caused public disapproval. It is therefore not uncommon for judges to exhaust internal mechanisms if they are available within the judiciary before going public, or to remain silent when the judiciary intends to issue a formal institutional opinion. On the other hand, public criticism of fellow judges or the judiciary is a source of concern.

The use of social media is a popular topic. In several Member States there is an increased use of social media platforms by judges. However, few codes of conduct give concrete practical guidance in this regard. If they do so, they shall apply the general obligation of judicial restraint or call for caution in order to avoid undermining the independence, impartiality or public trust in the judiciary.

Desiring to assist judges in striking the balance between their right to freedom of expression and the objective of maintaining public confidence in their impartiality and independence, the CCJE, in its opinion of 2.12.2022, gave some guidance concerning statements that could lead to their withdrawal, statements that could affect the authority and reputation of the judiciary, as well as those affecting the exercise of political mandates that could lead to separation of powers issues. The following separate groups regarding judicial statements that were under consideration by the Advisory Board of the CCJE, are identified.


Statements relating to litigation

Judges must refrain from comments which could affect, or are reasonably expected to affect, the right to a fair trial of any person or question referred to them. Statements made by a judge about a pending case, including the tone and context of the statement, may affect this right, as the ECtHR has ruled. If a judge publicly suggests that he/she has already formed an unfavorable opinion on the claimant’s case before appearing in the case, his/her statements objectively justify the accused’s fears about his/her impartiality. Greater vigilance is needed in the context of ongoing investigations, especially in criminal investigations, with a view to ensuring the presumption of innocence enshrined in Article 6(2) of the ECHR. In criminal proceedings, judges must pay particular attention to the selection of their words if they want to inform the society of proceedings before a person is tried and found guilty of a specific offence. Statements about the guilt of the accused before the trial are in contradiction to Article 6 of the ECHR. The comments of judges in cases other than their own do not necessarily raise an issue of impartiality. Commenting on case-law is directly linked to their professional activity. In their professional activities, judges have the right to make constructive and respectful comments on resolved cases. Judges should exercise caution in their relations with the media and refrain from any personal exploitation of relations with journalists. The public should not be under the impression that judges want to influence the outcome of the case through media communication. Finally, under no circumstances may judges be compelled to explain publicly the reasons for their decisions.


Statements on public debates

Because of their unique position in a democracy based on the rule of law, judges have the expertise and the consequent responsibility to contribute to the improvement of the law, the protection of fundamental rights, the legal system and the administration of justice. Therefore, provided that their impartiality and independence are maintained, they should be entitled and even encouraged to participate in discussions on the law for informational and educational purposes and to express opinions and comments on the shortcomings in law enforcement and improvement of the law as well as of the legal system.


Statements on issues relevant to the judiciary as an institution:

When a matter directly affects the work of courts, judges should also be free to comment on politically controversial topics, including legislative proposals or government policy. Judges have the right to make requests and make comments on their status, working conditions, as well as on any other matter related to their professional interests. Associations of judges play an important role in this matter.


Statements representing public criticism of the judiciary/colleagues

Statements are admissible if they do not go beyond ordinary criticism from a strictly professional point of view, if they are part of a debate on matters of high public interest, and if they are based on substantinated claims, and criticism must not be motivated by personal discontent or hostility, or by an expectation of personal gain. It is important that the judicial system provides an atmosphere that allows judges to make critical comments, especially in a hierarchically organised judicial system where judges are dependent on higher colleagues in terms of contributing to promotions. However, judges must first take advantage of all existing corrective measures before expressing themselves publicly.


Statements on the occasion of an active political mandate or a previous political mandate

Commentary on the Bangalore Principles states that judicial duties are incompatible with certain political activities, such as membership of a national parliament or a local council. However, a previous political mandate on the list of a party is not such as to justify doubting the impartiality of the judge, especially if there is no indication that membership has any connection with the substance of the case. It is important to know that, in order to preserve the possibility of resuming the judicial function of these magistrates after their political mandate, it is imperative that they avoid making statements that make them unsuitable for judicial office.

The CCJE concludes that the general rule it supports is that the general obligation of judicial restraint should be valid for judges, while being careful when using social media. However, the application of judicial restraint to social media communications should not be understood as meaning that judges must withdraw from the public life that takes place on social media.

The EUCJ stresses that the nature of the different social platforms poses specific risks requiring judges to be given special attention in their communication. It is also noted that there is a significant risk that sharing personal content will adversely affect the reputation of a judge or the entire judicial system. Judges should be wary of the risk of misrepresentation when including statements in closed groups, and they should also be careful not to create a “profile” through their comments, which would give the impression of a lack of openness and objectivity.

Language, clothing style, photographs and disclosure of other personal data may damage the reputation of the judiciary. Allowing judges to share personal data, such as a lifestyle or family, carries its risks in this regard.

The obligation of judicial restraint applies to communication on social media, regardless of whether judges reveal their identity or are recognisable in the digital space by a pseudonym. Reflections in the direction that all content or opinions shared in a social platform profile are expressed in a personal capacity does not relieve judges from the obligation to abstain.

The importance of training all judges, regardless of whether they are new or with a great deal of experience in the judicial system, on social media applications and the ethical implications of their use in a personal and professional context, is underlined. Understanding which social networks are used, how do they work, what type of information may be suitable for sharing on them and what potential risks and consequences may be involved in communication on such platforms would be quite an adequate area for training of judges, emphasizing the need to acquire technical knowledge such as the different privacy settings of different social networks.

The Judicial ethics community is in the process of organizing a training on the topic.

You may find the full text of the Opinion № 25/2.12.2022 here.


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