The Consultative Council of European Judges (CCJE) adopted on 2 December 2022 its Opinion No. 25 (2022) on freedom of expression of judges.
The Opinion provides general guidance to judges and a broad framework for an ongoing discussion on which parameters to consider when judges exercise their right to freedom of expression, both inside and outside the court, including in the media and social media. It considers judicial expression that addresses matters of concern for the judiciary, as well as controversial topics of public interest, and examines the judicial restraint that must be exercised.
Judges enjoy the right to freedom of expression like any other citizen. However, in exercising this right, they should bear in mind their specific responsibilities and duties in society, besides the professional secrecy obligations related to their judicial role. The CCJE considers that judges should exercise restraint in expressing their views and opinion in circumstances where it could compromise their independence, impartiality or dignity of their office or jeopardise the judiciary’s authority.
The CCJE underlines that whenever democracy, the separation of powers or the rule of law are under threat, every judge has the duty to speak out in defence of judicial independence and the constitutional order – including on politically sensitive issues. They may also address threats to judicial independence at international level. Judges speaking on behalf of a judicial council or association should enjoy a higher level of protection.
The Opinion also stresses that individual judges – as well as judicial councils and associations - have an ethical duty to explain to the public the justice system, the functioning of the judiciary and its values in order to promote and preserve public trust in the judicial activity.
The CCJE provides detailed guidelines with regard to the use of social media. It considers that judges have a general duty of restraint in exercising their right to freedom of expression - regardless of whether they disclose their identity or use a pseudonym. This implies that judges should avoid expressing views or sharing personal information online that can undermine judicial independence or impartiality, the right to a fair trial, the dignity of the office or public confidence in the authority of the judiciary. In order to prevent certain risks, the CCJE recommends that the judiciary provides judges with adequate training on media and social media communication.
The Opinion also recommends that judges receive guidance regarding statements that might lead to their recusal or adversely affect the judiciary’s authority and reputation and concerning their exercise of freedom of expression when they have a political mandate.
The CCJE recommends that judges or judicial associations draw up rules or codes of conduct concerning the extent of judges’ freedom of expression and any limitations on its exercise.
The Opinion will be transmitted to the Committee of Ministers in charge of ensuring its dissemination and fostering its application in all member states.