ABSTRACT

While holding public office may justify restrictions on the use of fundamental freedoms, the question arises as to how far such restrictions should go. The answer to this question is of great public interest, since the level of transparency of the civil service and the associated right to speak, or ban on speaking, is a measure of its democratic character. If we consider freedom of expression as a way of discovering the truth, giving sufficient protection to civil servants’ freedom of expression is paramount. This contribution focuses on the freedom of expression of a special case of state personnel: the judiciary. Even though the judiciary does not form part of the ordinary civil service, the duty of loyalty and discretion also applies to this third branch of government. According to settled case law, the judge is required to show restraint when the authority and impartiality of the judiciary come into question. At the same time, the European Court of Human Rights (ECtHR) has considered that, having regard, in particular, to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge calls for close scrutiny. This contribution examines how the general ethical duties of civil servants, such as the duty of loyalty, discretion and (political) neutrality, could be applied in the case of the judiciary. On the basis of the analysis of the ECtHR case law, the contribution concludes that the obligations of discretion and neutrality, which apply to civil servants, are also applicable to judges, but the rationale behind this is different, namely to safeguard the independence and impartiality of the judiciary.

INTRODUCTION

Freedom of expression has particular significance in relation to the proper functioning of the constitutional democratic process. This freedom distinguishes open from closed, and liberal from authoritarian, societies. While holding public office may justify restrictions on the use of fundamental freedoms, the question arises as to how far such restrictions should go. The answer to this question is of great public interest, since the level of transparency of the civil service and the associated right to speak, or ban on speaking, is a yardstick of its democratic character.