1
THEMIS
Ethics Semi-final 3-6 July 2017, Budapest
The right to protest. Should judges and prosecutors react or
exercise reserve?
Mihai-Adrian Dinu (prosecutor trainee)
Ioana Gherasim (judge trainee)
Elena Băeșu (Grama) (judge trainee)
2
Motto:
”It should be borne in mind that what a judge says in public can have considerable impact since
people would naturally consider a judge’s views as balanced and verified.1”
INTRODUCTION
From the recent developments in Poland to the refugees crisis, from the February protests in
Romania against a governmental decree that was aimed to slow down the fight against corruption to
the initiative to close a famous university in Hungary, the recent European state of unrest about a vast
majority on issues has put forward an interesting, unsolved ethical dilemma: may a judge/prosecutor
express themselves publicly on sensitive topics or should they exercise reserve?
Judges and prosecutors should not be isolated from the society they live in, since the judicial
system can only function properly if they are in touch with reality. As citizens, judges and prosecutors
enjoy the fundamental rights and freedoms protected, in particular, by the European Convention on
Human Rights (freedom of opinion in art. 10), therefore they should remain generally free to engage in
the extra-professional activities of their choice.
Still, the freedom of speech should not exercised in a way prone to prejudice the dignity of the
judicial office or the impartiality and the independence of the judiciary.“Judges and prosecutors shall
exercise their freedom of expression in a manner compatible with the dignity of their office. They shall
refrain from public statements or remarks that may undermine the authority of the Court or give rise to
reasonable doubt as to their impartiality”.2
One of the main questions we plan to answer in the current paper is weather a judge/prosecutor
would still be able to maintain their impartiality after participating in any type of protest.
On this line of thought, another question rises: How far can a judge/prosecutor go in expressing
a viewpoint without inducing the public’s perception that he/she will not manage to be objective if
solving a case related to a specific issue?
The way freedom to protest is perceived by the judiciary and also by regular citizens is traced
in the political and cultural background of a society. In this respect, we plan to analyse the degree in
which the communities accept judges and prosecutors to intervene on a topic of intense public debate.
Given the partial lack of regulation on this topic, we consider it is important to see which is the peoples
level of acceptance of different types of public interventions of a judge or prosecutor. Moreover, we
think it is important to take into account the vision within the judicial system and the standing of the
judges of prosecutors on their own right to prostest.
1 Dissenting opinion of judge Nicolau, ECHR Case of Kudeshkina v. Russia (application mo. 2049/05 of 26 February
2009) 2The Resolution on Judicial Ethics adopted by the Plenary of our European Court of Human Rights on 23 June 2008, point
VI
3
For this purpose, we split in three parts the types of protests according to their object: the
ones against issues that affect the judiciary, protests on sensitive social aspects and protests that aim to
protect the rule of law and the fight against corruption.
Also we divide in five the types of standings that a judge or prosecutor may have on a specific
topic: signing a petition of supporting the cause, writing an article, appearing in the media (radio/tv),
expressing and opinion on the internet or social networks (blogs, FB, twitter), going on strike,
participating in a street protest in order to see the risks and the benefits of different sorts of protesting
which are to be found in Chapter 2.
We kindly asked Romanian judges and prosecutors and also regular citizens to answer a
questionnaire on their perception about the freedom to protest of judge/prosecutor (Chapter 3).
We think it is important to view how the freedom to protest of judge/prosecutor is regulated
and perceived in different European countries in order to understand why some societies are more
permissive than others of the judiciary commenting, protesting, issuing statements, going on strikes.
We pursued by addressing a set of questions to members of the judiciary from othe European countries
and in this way we want to thank them for their kind help.
CHAPTER I
I.1. Defining concepts
The protest can be defined as an expression of the freedom of speech through which people
demand the political power to correct or stop an illegal or abusive act of the state. In general, the acts
of the political class can be expressed in the form of administrative acts of the executive power and
legislative acts of the legislative power ( mainly there are the acts of the Parliament and in some cases
the acts of the Government).
Along with the right to vote, the right to protest is a strong feature of democracy.
What makes the protest so important, is that through it people managed to change the future
prospect of their country or city according to their direct will. In some cases, by going out on the street
to protest people succeded in hiting the nail on the head with their requests.
Political participation and political protest are building blocks of democratic regimes. They
allow citizens to be protagonist of the civil and political life and they allow a wider representation of
their interests. An active civil society is believed to lead to a more accountable democracy, since the
elected officials are `controlled` by citizens who get organized in order to raise issues and ask for
changes in the way their polity is governed. (Verba 1996, Kaase 2011-as quoted by the author). Some
4
argue that contemporary democracies are “social movement societies” (Meyer and Tarrow 1998 - as
quoted by the author). 3
Although the protest can be characterized mainly within the national bounderies, nowadays the
effects of protests can barely be restrained to a local cause. How can it even be possible? The answer
relies on the huge impact the internet, along with online platforms and the media have on spreeding the
news outside the country and these can make a local protest a source of inspiration for other
communities or countries located miles away to express discontentment on similar issues.
When we think to protest, the first image that comes to mind it that of a gathering of people in a
public place asking for their demands. The large number of people taking part in a street manifestation
is not an essential attribute of the protest, because small groups of people can protest and not
necessarly out in a public place, but also in a semi-public one, like a pub or a library or even in private
places, as well as online. Also, the protest can take the form of an individual action, too. ( e.g: the
japanesse protest )
So, the defining trait of the protest is not the quantity of people coming together, but the
concurrent will of those taking part in it to stand up for their beliefs and fight for a change in the
political arena.
This conclusion pretty much summarizes the answer of one question that energized/impelled
the academic research in the social science starting two centuries ago: why do people protest? Of
course, at the heart of every protest are grievances, be it experience of illegitimate inequality, feelings
of relative deprivation, feelings of injustice or moral indignation about some state of affairs.
(Klandermans, 1997 as quoted by the authors).4
Also, efficacy is another aspect worth taking into consideration, as the more effective an
individual believes protest participation is, the more likely she/he is to participate. 5In the 1980s it
became clear that instrumentality is not a sufficient reason to participate in protest. Increasingly, the
significance of collective identity as factor stimulating participation in protest was emphasized. 6
Social embeddedness has also been analyzed, as the decision to take part in protest is not taken
in social isolation. On the contrary, individual grievances and feelings are transformed into group-
based grievances and feelings within social networks. 7
3Mario Quaranta Political Protest in Western Europe, Contribution to Political Science pag. 1-2 Springer International
Publishing Switzerland 2015 4The social psychology of protest – Jacquelien van Stekelenburg and Bert Klandermans VU University, The Netherlands,
published on Sociopedia. Isa. Pag 2 5 Idem pag. 3 6 Idem pag 3 7 Idem pag 6
5
As we mentioned above, the right to protest is a reflection of the right to freedom of speech.
Nevertheless, the right to protest includes a large spectrum of civil rights and freedoms, exempli gratia:
freedom to chose the form and manner of protest, the freedom to chose the cause and issue of protest,
freedom of religion and thought, freedom of association, the right to labour strike, the right to take part
in the cultural affairs of the city.
I.2. The Romanian CASE
i) National regulation on the issue; the statute of judge/prosecutor in Romania
a) Before 1989
During the communist era, the freedom of expression of every citizen was severely limited and
thus, everybody who would speak against a decision taken by the leading communist party (especially
including people working for the communist apparatus-including here the judges and prosecutors)
would suffer negative consequences from being expelled from their profession to being sent to prison
as an enemy of the state.
Art. 28 of the Romanian Constitution of 1965 formally stated that the citizens of the Socialist
Republic of Romania are granted the freedom of speech, freedom of the press, freedom of assembly,
freedom to protest although this article could not be enforced freely due to Art. 29, which was used as
a pretext for putting away the voices that spoke against the communist party.8
b) After 1989
After the fall of the communist regime in1989, Romania adopted a new Constitution in 1991
which in Article 30 regulated the freedom of expression (1) Freedom of expression of thoughts,
opinions, or beliefs, and freedom of any creation, by words, in writing, in pictures, by sounds or other
means of communication in public are inviolable.
In what concerns the statute of judge/prosecutor, Romania is one of the states that take a very
restrictive stance on judges and prosecutors' involvement in politics. The Romanian Constitution of
2003 regulated in a rather skeptical manner the level of involvement in other activities than those
related to the office, given to the judiciary. Article 124 (2) The office of a Judge (…) and Article 131
(2) The office of a Prosecutor: shall be incompatible with any other public or private office, except that
of an academic professorial activity.
c) At present
8Art 29 of the Romanian Constitution of 1965 stated that the freedom of speech, freedom of the press, freedom of assembly,
freedom to protest cannot be used for purposes contrary to the socialist order and contrary to the interests of the working
class.
6
Currently, the legal regulation of the freedom of expression and to protest of a judge/prosecutor
can be traced in the Constitution, in the Law no. 303/2004 regarding the Statute of Judges and
Prosecutors and also on the Deontological Code for judges and prosecutors adopted by the Superior
Council of the Magistracy.
The current Constitution regulates in Art. 30 alin.1) Freedom of expression of thoughts,
opinions or beliefs and freedom of any creation, by words, in writing, in pictures, by sounds or other
means of communication in public are inviolable.
After its last modification, the Constitution kept the same vision for the statute of a
judge/prosecutor except it removed the word ”professorial” in ARTICLE 125 (3) The office of a Judge
and Article 132 (2) The office of Prosecutor: shall be incompatible with any other public or private
office, except that of academic activities.
The most relevant law treating the freedom of speech of judges/prosecutor is Law no. 303/2004
regarding the Statute of Judges and Prosecutors which also instates a full incompatibility between
judiciary and politics.
Art. 8(1) Magistrates shall not be subordinated to political purposes or doctrines.
(2) Magistrates shall not be members of political parties or organizations, or carry out
political activities.
(3) In the exercise of their powers, magistrates shall be bound to abstain from expressing or
showing their political beliefs, in any manner whatsoever.
Art.10 Magistrates may participate in preparing specialized publications or studies, literary or
scientific papers, or in audio-visual shows, except for political ones.
Art.99 The following shall be deemed as disciplinary departures:
b) failure to comply with the provisions of the Deontological Code of the Magistrates;
d) carrying out public political activities or expressing political convictions in the exercise of a
magistrate's service duties;
The most relevant articles from the Romanian Deontological Code for judges and prosecutors
are:
Art.4 (1) In exercising their professional duties judges and prosecutors shall not be influenced by
political doctrines.
(2) Judges and prosecutors must not militate in favor of other persons’ adhering to a political
party, must not participate in fund collecting for political parties and cannot allow the use of
their prestige or image to such aims.
(3) Judges and prosecutors must not give any support to a candidate to a political type public
function.
Art. 5 (2) Judges and prosecutors may not participate in political meetings.
Art.19 Judges and prosecutors can publicly express their opinion in exercising the right to rejoin, if
defamatory assertions addressed to them were published in mass media.
7
In Romania there is no legal interdiction for judges and prosecutors to take part in protests. On
the other hand, there is a stipulation against going on labour strike9. However, indirectly, there is a
legal frame for an analysis of the right to protest deriving from the regulations of a judge’s professional
behaviour, a conduct that should be expressed in such a manner that won’t interfere with reputation of
their profession. By no means, a judge should not engage in politics or express his/hers political views
during the labour hours. This is the very basic limitation of the freedom of speech. Furthermore, when
a judge takes into consideration to provide resistance to a particular issue, he/she must act in such way
that will not harm his/hers impartiality.
At the moment a judge is appointed by the president, he/she must take an oath to respect the
fundamental rights and freedoms of the person, the Constitution and to maintain the supremacy of law
in the state.10 As a consequence of this duty, it is understood that when the fundamental values of
society are at stake a judge can withdraw from the obligation of reserve and raise his/hers voice on the
matter. 11
ii) Relevant national case law: Judges and prosecutors attending/joining protests in Romania
In the past year, the meaning of protests in Romania witnessed a broad trend, the idea of
moving up the protest of the exits in the street of a few hundred people to support certain personal
claims like wage increases, working conditions, supporting causes in various socio-cultural domains,
to hundreds of thousands of people who have outlined a strong participatory civic spirit with the aim of
joint defence of the values of the rule of law and democracy.
One of the most relevant cases is represented by recent events in Romania, at the beginning of
the year 2017, when there have been held the largest protests since 1989. These protests have been
determined, according to the protesters, by a Government Emergency Ordinances, which had the
purpose to amend criminal law within the meaning of decriminalizing acts of corruption, as well as
about the pardon of convicted persons.
Being present at the scene of the protests, at a time of the debut of these demonstrations, the
President of Romania made the following statement in front of the journalists: "a clique of politicians
with criminal matters wants to change the legislation in Romania, wants to weaken the rule of law, or
as is not acceptable".
9Art. 202 of the Law 62/2011
10Article 34 og the Law 303/2004 11 Our national oath is in agreement with the soft law provisions of the report “ Judicial ethics: Principles, Values and Qualities” - at the
same time, the obligation of reserve cannot provide a judge with an excusefor inactivity. While he should not speak on cases with which
he deals personally, the judge is nonetheless ideally placed to explain the legal rules and their application. The judge has aneducational
roleto play in support of the law, together with other institutions, which have the same mission. When democracy and fundamental
freedoms are in peril, a judge’s reserve may yield to the duty to speak out
8
Later, among the people who participated in the protest were also identified judges and
prosecutors who have been criticised for their presence at an event that had a political character.
One of these cases is represented by judge Florin Moțiu, which was reported to the Superior
Council of Magistracy (SCM) that he would be participated through collective meetings with political
character as the protest movement in Timișoara, in breach of the provisions of the code of conduct of
magistrates. Judge Moțiu has posted on his facebook page a photo during the demonstrations, after it
took on a political character, once the main claim of the protesters, repealing Ordinance No. 13/2017,
was adopted in the Romanian Government.
The author of the complaint, a member of a political party, said that the judge would have
participated in the unauthorized protests in Timișoara on the evening of February 5. "Public
Manifestations of that period were aimed at forcing the Government to repeal ORDINANCE No.
13/2017. It was about a legitimate endeavor of protesters who took part in the event. It had a
pronounced civic character until February 5, 17.30. Around this hour, the Romanian Government,
through the voice of the Prime Minister, Grindeanu announced that EMERGENCY ORDINANCE nr.
13/2017 has been repealed. After this announcement, street protest became directed against the
Government, requiring Government's member’s resignation. Since the Government is the executive
power and Mr. Moțiu is part of the judicial power, we face an institutional conflict between the two
powers stipulated by the Constitution. Through its participation in the protests, Mr. Moțiu has violated
the provisions of the law 303/2004, which says that magistrates may not be part of the political parties
or forces, or to conduct or participate in political activities. "
Another relevant case is that of Mrs. Daniela Lecca, former spokeswoman of the Superior
Council of Magistracy by resigning from this position, after she posted on facebook a photo from anti-
Government protests from Victoria Square in Bucharest. "I understand I submit my resignation to,
because I don't want, in any way changing, to affect, the image of the SCM, through a post of a few
days ago, on my personal Facebook account. It is obviously related to what is happening lately and it
was expected that some would interpret my post in another sense than the one that I want. It's a risk I
take, "said Daniela Lecca, following the return to work of a judge.
I.3 The European perspective
Having a quick look at how the right to protest of the judge/prosecutor is regulated in EU state
members, in our research we assembled the information received from other states12 and we concluded
as follows: in none of the countries enquired is a clear legal restriction for judges to take part in
12Portugal, Slovenia, Latvia, Croatia, Austria, Norway
9
protests, but also there is no legal provision to regulate the content of this right with its limitations and
legal effects.
Traditionally, it is considered of paramount need that any reaction of a judge/prosecutor against
any topic should not harm their impartiality. Furthermore, in every one of the countries queried there is
an interdiction for judges to involve themselves in political activities. When considering the
involvement of a judge in the government of the judicial system, it is considered legitimate that he/she
must be a voice of authority. As a matter of fact, in states like Slovenia and Austria there have been
protests of judges caused by inadequate wage regulation and inappropriate working conditions.
The European Court of Human Rights’ view on the topic can be resumed as follows: the judiciary
system is one filled with prestige and, although is part of the public service system, it has its own
particularities. The judge performs his duties as to respect the rule of law in proceedings and maintain
the safeguard of the democratic principles that are fundamental for the integrity of the state and
exercises one of the three powers in state. Consequently, the judge as an employee has a moral
obligation of loyalty and reserve to the judicial system.
In addition, the Court has on many occasions emphasised the special role in society of the judiciary,
which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public
confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect
that confidence against destructive attacks, which are essentially unfounded, especially in view of the
fact that judges who have been criticised are subject to a duty of discretion that precludes them from
replying.
What is at stake as regards protection of the judiciary’s authority is the confidence which the courts
in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and
also in the public at large. For this reason the Court has found it incumbent on public officials serving
in the judiciary that they should show restraint in exercising their freedom of expression in all cases
where the authority and impartiality of the judiciary are likely to be called into question.13
Also, the Court emphasizes on the public interest that the functioning of the judicial system has for
the society, and as a consequence, the debate on this particular topic relies under the protection of
article 10. But also, there is extremely important to safeguard the impartiality of the profession and the
prominence of the system.14
We can see the freedom of speech, according to ECHR as composed of two alternative aspects, who
join together in a mutual censorship.
13
CASE OF KUDESHKINA v. RUSSIA (Application no. 29492/05), parg. 86 14 “... the Court has found it incumbent on public officials serving in the judiciary that they should show restraint in
exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be
called into question...” CASE OF KUDESHKINA v. RUSSIA (Application no. 29492/05), parag. 86
10
1. Freedom of speech related to issues of public matters as it is the judicial authority
2. Freedom of speech limited by the need to maintain the authority of the judiciary plus the
obligation of loyalty and reserve to the justice system.
Also, according to the ECHR case law, when we talk about whether a judge is actually entitled to
speak out about what is wrong in the judicial system, we must have a differentiated partitioning of the
subject of the speech:
Making statements concerning other judges (In Romania it is prohibited to express one’s
opinion in reference to the professional probity of another judge, as it is seen incompatible to
the high moral standards the society expects to see from judges. The reason for these
regulation is related to the position a judge has in the social hierarchy, because he is the
guarantor of the rule of law and as a result, he must act in such case by following the legal
procedure: pressing a charge) vs
making statements concerning the judicial system vs
making statement concerning judicial cases pending before a court. (the manner in which the
court conducts the case).
I.4. Should a judge/prosecutor be an opinion maker?
Opinion makers are individuals who obtain more media coverage than others and are especially
educated on a certain issue. They seek the acceptance of others and are especially motivated to enhance
their social status.15 They are believed to have more influence on people's opinions, actions, and
behaviors than the media. People do not feel they are being tricked into thinking a certain way about
something from someone they know. They appear to have an important part to play in encouraging,
inspiring and guiding people’s choices and development.
In the light of this short definition, further on the purpose of this short chapter is to answer the
question whether judges and prosecutors should be opinion makers.
In this attempt we will try to point out what this activity could entail in the case of for their
profession, which are the advantage or the disadvantages and other relevant aspects for the topic.
To begin with, we must point out the fact that the overall activity of judges and prosecutors is
governed by the independence, integrity and impartiality, these pillars of a democratic society being
elements that can determine people belonging to various social categories to be influenced by the
conduct of some judges and prosecutors in different everyday topics.
15
Rose, P.; Kim, J. (2011). Self-Monitoring, Opinion Leadership and Opinion Seeking: a Sociomotivational Approach". Current
Psychology. 30: 203–214
11
As regards participation in the protests, to support various causes areas or against decisions of
the authorities, we appreciate that the actions of judges and prosecutors to be manifested in a particular
direction, even in compliance with legal norms, but outside the procedural framework can put into
question their independence, impartiality and also, their appearance of independence and impartiality.
As long as judges and prosecutors, in cases that they investigate, through the proper application
of the law may determine groups of people to take a certain conduct, is relevant to the conclusion that
they may be opinion makers, nay, we may assert that it represents an ideal of bringing about justice
whereas not only did justice in a particular case but it has prevented the emergence of other litigation,
reinforcing the legal education of citizens.
However, characteristic to any law system, judges and prosecutors interprets and applies the
law so, at least in legal matters, they issue "opinions" through the solutions they offer. Thus, in terms
of the activity of the Court stipulation, they represent the most likely opinion makers (legal opinion).
Otherwise, their morale high status can represent a model of human dignity, reason that can be
appreciated by the public as being "opinion makers" by their own way of social behaviour, through
legal opinions which they express in a legal framework, without having to come up with certain
messages to broadcast, in order to determine the target groups to acquire them. But this latter
observation would be applicable only to the extent that "consumer advice" would assign it to them.
On the other hand, leaving aside the fact that judges and prosecutors must prove a pattern of
behavior in the society, we consider that their opinions should not be of greater significance than those
of other professionals in various fields, as regards aspects not covered by the causes with which they
are consenting.
Judges and prosecutors could be genuine opinion makers, to the extent that they are able to
distinguish between political spectrums and also to avoid showing their views on the various causes,
which they may be called upon to decide thereon. Public exposure poses a tricky problem in the case
of a judge or prosecutor, and we think that being inherent for an opinion maker, it raise numerous risks
in the sense of affecting their impartiality.
We believe that the environment in which it can be noticed the best as an opinion maker, a
judge or a prosecutor, is the academic one, as a Law Professor for example, or in subjects related to
human behavior, professional or moral conduct, (branches of philosophy, anthropology, psychology).
We do not associate a judge or prosecutor with the typical opinion maker nowadays, with frequent
appearances in the media, throwing views to the left and right on topics that he conquers, more or less.
Considering these aspects, can we say that the participation of a judge or prosecutor in any
form of protest would be able to substantiate the decisions of other citizens, perhaps undecided, to join
a protest?
12
I.5. The freedom of protest of judge/prosecutor
The Bangalore principles comprise a very important principle of conduct regarding the
moments when a the judge/prosecutor may feel a moral duty to speak:
”Occasions may arise when a judge - as a human being with a conscience, morals, feelings and
values - considers it a moral duty to speak out. For example, in the exercise of the freedom of
expression, a judge might join a vigil, hold a sign or sign a petition to express opposition to war
support for energy conservation or independence, or funding for an anti-poverty agency. These are
expressions of concern for the local and global community. If any of these issues were to arise in the
judge’s court, and if the judge’s impartiality might reasonably be questioned, the judge must disqualify
himself or herself from any proceedings that follow where the past actions cast doubt on the judge’s
impartiality and judicial integrity.”16
Taking this statement as a starting point, we analyze the different types of protests and the
uneven levels of public acceptance of freedom to protest of the judges and prosecutors.
a) Signing a petition of supporting a cause:
In general, any person and, implicitly, any judge/prosecutor has his / her own views on social,
political or ethical issues. Having the responsibility of judging impartially, the judge/prosecutor must
be aware of his or her personal opinions and distance themselves from bias in the administration of
justice.
Signing a petition is the least likely to affect the impartiality of a judge or prosecutor since it
usually involves the one time expression of a for or against opinion not a prolonged effort of
supporting or being against a specific cause.
The vision of our judicial system is that in principle, signing a petition is not necessarily
forbidden, as long as the issue under question does not affect the bias of judge/prosecutor. 17
For example, it raised no problems that, many judges and prosecutors in Romania signed in
September 2016, the Memorandum regarding justice, a document that included proposals of
modernizing and making justice more effective. Also, the petition included the proposal to dismiss
from office the Minister of Justice, which some courts and prosecutor s offices approved of.
Moreover, signing a petition is the most accepted form of expression of judge or prosecutor as
derives the questionnaires proposed to citizens and also, Judges and Prosecutors (see Chapter 3).
16
United Nations Office on Drugs and Crime, Commentary on the Bangalore Principles on Judicial Conduct, September
2007 17
Practical guide of professional ethics for Judges and Prosecutors issued by the Superior Council of the Magistracy, 2016
13
b)Writing an article, appearing in the media (radio/tv)
The practical guide of professional ethics of Judges and Prosecutors issued by the Superior
Council of the Magistracy, states that judges and prosecutors must exercise their freedom to express
their views in the media with "great caution." Judges/prosecutors must refrain from responding to
public criticism of judgments, in court or in any other way. The judge/prosecutor must not disagree
with other court rulings in the press.
It should be added that judges and prosecutors have the right to express their views on matters
relating to internal problems of the judicial power, but it is preferable to firstly raise such questions
through an association of judges/an internal body of the judiciary, without politicizing the debate in
any way. Usually, the judges and prosecutors may comment, even publicly, on inappropriate
management of the administration of courts or prosecutor's offices without necessarily be sanctioned.
Relating to the freedom of speech of judge/prosecutor, it is relevant to remind the ECHR
Case Kudeshkina v. Russia18where the Court found a breach of article 10 in the fact that Ms. judge
Kudeshkina was released from office due to her statements in the media that high political pressures on
the judicial system and targeted interventions on her particular cases were exerted.
The principles deriving from ECHR case law on the freedom of opinion of judges/prosecutors
derive from the idea that all civil servants owe to their employer a duty of loyalty, reserve and
discretion. The Court has emphasized the special role in society of the judiciary, which, as the
guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is
to be successful in carrying out its duties.
The Court has found it incumbent on public officials serving in the judiciary that they should
show restraint in exercising their freedom of expression in all cases where the authority and
impartiality of the judiciary are likely to be called into question. The Court reiterates that an act
motivated by a personal grievance or a personal antagonism or the expectation of personal advantage,
including pecuniary gain, would not justify a particularly strong level of protection. Still, the Court
grants a high level of protection when questions raised publicly by a judge/prosecutor regard the well
functioning of the rule of law.
The Court recalls the “chilling effect” that the fear of sanction has on the exercise of freedom of
expression which works to the detriment of society as a whole, is likewise a factor which concerns the
proportionality of, and thus the justification for, the sanctions imposed on the judicial servants, who is
undeniably entitled to bring to the public’s attention the matter at issues of public interest.19
18
Case of Kudeshkina v. Russia (Application no. 29492/05) of 29 February 2009 19
ibidem
14
c) Expressing opinions on the internet or social networks (blogs, FB, twitter)
The view in Romania is that expressing support for any political activities by
judges/prosecutors using social networks is forbidden.
A very interesting question arises: what if a judge/prosecutor posts on Facebook (for example)
his own interpretation of the Constitution or a law that has perfect applicability in a notorious issue of
national interest? Could a judge/prosecutor express a judicial opinion if his interpretation is against
what the Government/the President or the Parliament holds? Can a judge/prosecutor comment, from a
Constitutional point of view, on the President s participation to a civil street protest against the
Government?
In some cases, the will of the political power can be misunderstood by the citizens. That was
the case of the initiative to regulate the accountability of the judiciary, when overall the Romanian
society agreed with the idea. Because the issues is and will always be a delicate one, it was accepted
the need to come up with an explanation of the particularity that such an initiative has and most
important, why at that moment in time it was useless to regulate on that matter, even for a so called
legitimate purpose. Following these acts, a national judge expressed his views on the topic on the
personal Facebook account.
Another example is that of a national judge who also expressed his point of view on the
personal Facebook account with regard of a constitutional issue that arrised during the protests, which
took over at the beginning of the present year. The facts are as follows: in one of the days of protests,
the President of Romania joined the masses of people in the street to express his personal
disagreement, as a Romanian citizen against the initiative of the Government to discriminate a
corruption offence. Of course, there was an almost instantaneous fuss on media, the predominant
opinion being one of disapproval concerning the action of the President.
In this context, the message posted on FB was not one of political support for the presidency,
but one through which our judge tried to reveal relevant facts about how the constitutional role of the
President as a guarantor of rule of law in a state should be expressed during delicate times. Resuming,
the idea was that in protecting the rule of law, the President does not as a supporter of a political party,
because if there is accepted that the President can and must be detached from the political arena/scene,
he nevertheless cannot and must not be indifferent when the rule of law is at stake because of irrational
political decision.
So, the opinion expressed was not a regular personal judgement, but an interpretation of the
Constitution.
Another example is related to the case of a national judge who publicly exhibited his
discontentment regarding a judgement of the Constitutional Court. The main theme was also the
15
political initiative to discriminate a corruption offence, which seemed to have no objection from the
constitutional judges. Against our judge the constitutional Court has filed a motion with the judicial
inspection.20
To answer the questions, it is relevant to take into account the findings of the ECHR in
the case Wille against Lichtenstein21. Mr. Wille, the president of Lichtenstein Administrative Court
gave a special lecture at the Liechtenstein-Institute, a research institute, on the “Nature and Functions
of the Liechtenstein Constitutional Court” where he expressed the view that the Constitutional Court
was competent to decide on the “interpretation of the Constitution in case of disagreement between the
Prince (government) and the Diet”.
In this particular case, the right of the judge to exercise his freedom of expression was
interfered with the one of the Prince, who criticized the contents of the Mr. Wille’s speech, announcing
the intention to sanction him because he had freely expressed his opinion.
The Court found that the announcement by the Prince of his intention not to reappoint the
applicant to a public post constituted a reprimand for the freedom of expression, as it was likely to
discourage the judge from making statements of that kind in the future, which constitutes a violation of
Art. 10.
d) Going on strike
Compared to other countries, for ex. France, in Romanian judges and prosecutors are not allowed
to go on strike according the Romanian Law of Social Dialogue.22
Still, there were cases when judges and prosecutors went on strike, for example, in 2009, in
Romania, judges and prosecutors delayed the solving of their not urgent cases for three weeks being
unsatisfied with their wages.23
The situation occurred also in other European countries. Austria has had several strike activities
of judges. Once, serious deterioration of working conditions led to protest gatherings at courts,
restricting work to urgent matters during a certain very limited period of time, and two times (last time
more than 10 years ago) a strike was announced and at one time judges went on strike for half a day.24
Also in Poland, in 2008 the judges planned “a day without a docket” as they were dissatisfied
with their wages. It basically meant that they set one day on which no proceedings were carried out in
courts. A lot of judges who had some cases already scheduled on that day took a day off using sick
20
The investigating proceedings are in progress at the moment. 21
Case Wille against Lichtenstein (Application no. 28396/95) of 28 October 1999 22Art. 202 of the Law of Social Dialogue no. 62/2011 23 http://english.hotnews.ro/stiri-politics-5940645-romanian-magistrates-continue-their-protests.htm?nomobile= 24 Answer from Gerhard Reissner, Vicepresident of the Austrian Judges’ Association
16
leaves. However this behaviour was criticized by some part of the society as not in keeping with the
dignity of the office of the judge.25
Recently, in Poland, another protest of judges occurred as the governing party is preparing
some serious changes in the way of functioning of the judiciary. The changes concern e.g. the
procedure of selecting members of the National Council of the Judiciary which is a constitutional body
safeguarding the full independence of the courts and prosecution system. The governing party wants
the members to be selected by the Parliament while now, the judges themselves are selecting them.
Such change causes a serious threat to the independence of the judiciary.
Considering that, on the 20th of April this year, all judges, in order to demonstrate their
disapproval for the changes planned, participated in some sort of meeting (they called it a “meeting”
on purpose, as the strikes are forbidden by the law), which took place in every court at 12:00. This
basically meant that all the proceedings scheduled in courts were delayed for at least half an hour.
The part of the society which support the governing party criticized the judges for this protest,
however the majority of the legal professionals support the judges as they are also disagreeing with the
political changes that the governing party is undertaking and are aware of the threat that the changes
may cause to the principle of division of power and checks and balances.26
e) Participating in a street protest
The vision within our judiciary system is that judges and prosecutors should be extremely
cautious in participation in public or social events (egg street protests) that turn into manifestations
with political connotations. Still, this right must be exercised in a way that balances the importance of
the facts that are being discussed or disclosed.
Most of the street protest may turn easily into political demonstrations, therefore, it is strongly
recommended that the judges and prosecutors avoid attending street rallies although they seem
apolitical at the first glance.
Article 5 (2) of the Romanian Deontological Code of the Judges/Prosecutors makes an
important ban (Judges and prosecutors may not participate in political meetings.), and it is
recommended that it be respected in practice by judges/prosecutors, irrespective of the theoretical
disputes it may arise. In some situations, participation in public demonstrations involves substantial
risks, being in contradiction with the dignity of a judge/prosecutor.
25Answer from a Polish Judge 26 Poland s judges halt session to protest planned changes- http://www.voanews.com/a/poland-s-judges-halt-sessions-to-
protest-planned-changes/3818259.html
17
European institutions share this vision also, for example the Consultative Council of European
Judges that found there is a need to strike a balance between the judges’ freedom of opinion and
expression and the requirement of neutrality. It is therefore necessary for judges, even though their
membership of a political party or their participation in public debate on the major problems of society
cannot be proscribed, to refrain at least from any political protest liable to compromise their
independence or jeopardise the appearance of impartiality.
As shown above, judges and prosecutors participated in street protests in Romania against the
decree no. 13/2017 that was supposed to slow down the fight against corruption.
This initiative occurred in other European countries as well: for example in Germany, as private
individuals, judges take part in public protests all the time. This is neither recorded nor problematic. A
German respondent to our questionnaire claimed that recently, while participating in a street protest, he
could personally say that he met a member of the German Federal Constitutional Court at a street
protest.27
Some years ago, in Germany there were organized protests by judges for higher remuneration
and some judges even wore gowns to these protests. That was seen as problematic but still permissible
as the topic of the protest was so closely connected to the office of judge.
Currently, there are judges in Germany that take part in the Pulse of Europe demonstrations,
every first Sunday of the month. These are protests against radicalization of political life that aim to
promote a united, democratic Europe.
In the past, there were German judges participating in Anti-Nazi-Demonstrations wearing a
gown (egg: in Hamburg, Dresden). 28
There were street protests carried out by judges and prosecutors in other European countries, as
well. For example, in Bulgaria last year a significant number of judges gathered in front of the Palace
of Justice in order to claim changes in the Judiciary system act. Afterwards, there was another protest
in front of the building of the Supreme Judicial Council, which was held to demonstrated against how
some courts in the country are overwhelmed with cases, while some courts have less than 20 cases per
month.29
Also in Belgium, recently (June, 7th 2016) judges and prosecutors organized their own protest at
the “Palais de justice” against government’s saving plans. 30
In 2012, Belgium judges and prosecutors protested against the shortage of places in prison.31
27
Answer from a German Judge 28ibidem 29Answer from a Bulgarian Judge 30http://deredactie.be/cm/vrtnieuws.english/News/1.2403377 31http://deredactie.be/cm/vrtnieuws.english/videozone_ENG/2.1350/2.3815/1.1256729
18
In Hungary, there were recent protests against the state s decision to close the Central European
University in Budapest where judges and prosecutors participated.32
Last year, the Turkish Union of Judges and Prosecutors (YARSAV) delivered protested outside
the Supreme Court of Appeals, against the announced government plan for redesigning the Supreme
Court of Appeals and the Council of State by reassigning or dismissing hundreds of senior judicial
members. The Union called on all judicial associations, bar associations, nongovernmental
organizations, judges and prosecutors to speak up against the draft bill and the authoritarian one-man
regime it leads to, in reference to President Recep Tayyip Erdoğan33.
CHAPTER II
ADVANTAGES OF PROTESTING
1. An argument in favor of judges and prosecutors reacting especially through means of mass
media and social networks (which usually have a large impact) is helping the public make an educated
opinion. There are often cases when people rally to protest about issues that are highly technical from a
legal and judicial point of view. In order to avoid confusions, judges and prosecutors who are
professional law experts, should be able to take action and explain the legal implications of a specific
legislative mechanism, judicial procedure, or other similar undertaking.
2. Participating in a protest can be a real and effective catalyst for a better understanding of the
current social realities that a judge/prosecutor must intake cognitively. There were numerous opinions
of those who participated in the February protests, organized in Romania, Bucharest, in The Victory
Square, showing that their presence in the middle of the crowd gave them a sense of solidarity and a
feeling of belonging to society / community.
3. The third benefit of participating in protests is related to dismantling the image of judges and
prosecutors being a faction,an idea which brings disadvantages to the social system, since the judges
and prosecutors are not in a higher position than other citizens, but instead have the special duty to
provide society with the correct and just application of the law.
4. Participating in protests can be, in some cases, the only mean of making cease an intrusive action
arising from political or administrative decisions. This applies especially when the presumptuos move
is aimed at the independence of the judiciary, since other professional bodies would not be interested
in reacting in favor of judges/prosecutors. In the end, only the insiders of the judicial power may be
able to present adequately the problems concerning the judiciary (Egg: overcrowding in courts, lack of
32Answer from a Hungarian prosecutor 33https://www.turkishminute.com/2016/06/27/union-judges-prosecutors-protest-govt-plan-redesign-judiciary/
19
supplies at the workplace, overwhelming volume of work) being the best positioned to look for
solutions and, nevertheless, to respond through protests.
5. One of the main reasons why people protest is related to the sense of identity shared with other
citizens that participate in such a public event. The feeling of being part of your society is even more
accute in the context in which the professional sphere of the judiciary implies a rather cautious,
reserved social involvement. Of course, balanced against the identified risks, it is admitted that this
reasonable impulse must not prevail, since, ultimately, the restriction of the right to protest is part of
the obligations and responsibilities assumed by every judge and prosecutor at the beginning of their
activity, even though these restricions reach beyond the limit of the expected discretion of any other
citizen (egg: responsability of facebook likes on certain posts).
DISADVANTAGES OF PROTESTING
1.As judges and prosecutors should exercise reserve when it comes to expressing themselves
against the political power, there a high risk that a street protest might turn into a demonstration against
Government or Parliament, risk that it is not recommended to take, given the fact that participation in a
political meeting is strictly forbidden.
2. If the protests take place in a small community and the contested issue is brought before Court,
there is a considerable risk of creating a stress point in the court's activity, if all judges come to abstain.
In the Romanian judicial system, if a judge considers he/she must abstain from judging, the case is
randomly assigned to another panel and if the second judge abstains also and there are no other judges
to settle the case in court, the file must be relocated to another court. This procedure involves costs,
time and effort invested through the engagement of several institutions, with consequences that will
affect the parties by creating the risk of not adhering to the reasonable time of solving the cases.
3. When it comes to a specific law adopted by the Parliament, participating in a protest to abort
such an act residesin the dissatisfaction with the content of that law. The request for abrogation is a
political act in itsfelf given the fact that in a democracy where rule of law prevails, regulation is carried
out through the Parliament, an institutional body composed of politcal parties.When representatives of
the judiciary claim that a certain law is harmful asking for its modification/abrogation, they initiate a
request of a legislative nature, since the legislative power is the only one that can modify the law by
virtue of its constitutional role.
4. If a judge who has publicly expressed his dissatisfaction on a specific law, has then to solve a
case in which there are questions whether that law should be enforced or not, this raises some issues
regarding its capacity to apply that law correctly/with impartiality. Unfortunately, his/her judgment
will always be seen in the light of the previously expressed opinion, and if that is corelated with the
20
consensus of social dissatisfaction on that law, then it decredibles the act of justice. Everyone will tend
to consider that in the case shallow judgement was given, since the applicable law could have not
provided a fair and equitable solution.
CHAPTER III
In this chapter, we tried to obtain a concrete perspective on the subject brought into question,
on one hand, to see the view of judges and prosecutors, and on the other hand, to see the perception of
citizens acting in fields that do not involve the interpretation and application of law, summarizing the
results of the study carried out in the table below.
Should judges and prosecutors
be able to attend to any form of
protest? a) when is affected directly the activity of the Court
or the Prosecution
b) when is affected the independence of the
judiciary system
c) when is affected the professional status of judges
and prosecutors
d) when the payroll system of judges and
prosecutors is affected
What about cases
concerning protests against
various civil matters?
What about cases concerning
protests against actions of the
legislative and executive powers
aimed at defending the rule of law
and democracy?
May the participation to a protest
regarding a certain theme be able to
affect the judge or prosecutor’s
independence and impartiality in
causes concerning the same issue they
went to protest about?
Judges and
Prosecutors
Citizens Judges and
Prosecutors
Citizens Judges and
Prosecutors
Citizens Judges and
Prosecutors
Citizens
YES NO YES NO YES NO YES NO YES NO YES NO YES NO YES NO
a) 54
b) 45
c) 42
d) 33
a) 6
b) 6
c) 9
d) 6
a) 105
b) 102
c) 99
d) 84
a) 12
b) 12
c) 9
d) 18
36
30
66
42
39
33
84
27
27
36
48
60
In carrying out the survey were interviewed a number of 150 people, of which approximately
50 judges and prosecutors and 100 people with higher education, at the rate of approximately 70%, the
rest being citizens without higher education with middle incomes toward small.
From the analysis of the data, it appears that both judges and prosecutors, as well as other
citizens asked, lean towards believing that judges and prosecutors should be given the right to protest,
but the majority does not subsist anymore when they are asked about the manner in which participation
in the protest might influence their independence, impartiality, namely the appearances of
independence and impartiality.
If in what concerning judges and prosecutors, from the answers given by them, it is clear that
there is a different perception according to the object of the protest, in what regards the other citizens,
the survey has shown that they consider timely the reaction of judges and prosecutors, with a
predilection against actions of the legislative and executive powers aimed at defending the rule of law
and democracy, and are more reluctant when it comes to protests against various civil matters.
21
CONCLUSIONS
Our society, in general, considers that the profession of a judge/prosecutor should be mainly
focused on matters related to solving cases, they should not be involved in any type of political
activity, nor hold any position in the Government (for example, in Romania a judge/prosecutor cannot
hold the office of a Minister of Justice).
This conclusion should be nuanced according to the data in our table. When it comes to issues
that affect the judicial system, magistrates and also citizens agree that protesting could be a legitimate
way to solve the problem. This could be explained by the fact the people perceive the issues that affect
the judiciary as public matters deeply related to the well functioning of the society as a whole.
On the other hand, when it comes to political interventions that affect the rule of law that
obviously includes the separation and the balance of powers, judges and prosecutors and also citizens
become disbeliever about the right to protest of the magistrates. The reason why this happens could be
connected to the fact that through this specific type of protest, mainly anti-political, judges and
prosecutors would exceed their duty to only apply the law, turning themselves in those who are
censoring the legislative power. It is well known that in any democratic state judges are independent
when solving cases they apply the law and only the law, responsibility that should prevent them from
criticizing that law.
Very often, us, as human beings, are affected by "ethical blindness" which means the
inability to identify an issue as an ethical problem. We often perceive the ethical issue, but we tend
neglect it, to consider it not relevant.
In our capacity as judges and prosecutors, the challenge is to be aware of such blindness so
we can act in accordance with ethical standards. It is crucial that moral issues are part of daily, open
discussions between us and that a culture of understanding and awareness is cultivated.
Proposal for the future:
From our research which exposes the uncertainty, fear or just lack of knowledge regarding the
way judges and prosecutors should react, we can draw the conclusion it would be highly useful if
European national institutes for judicial training and Councils for Magistracy drafted ethical
recommendations framing guidelines in which the right to protest should be exercised.
