Limits of Freedom of Expression of Judges - საერთაშორისო გამჭვირვალობა - საქართველო
GEO

Limits of Freedom of Expression of Judges

30 June, 2021

 

Judges have the right to express their opinions in public, however, they must comply with established ethical norms in order to protect the authority of the court. These ethical standards use certain frameworks and all judges are obliged to observe it. Transparency International Georgia has examined the public statements of judges. Unfortunately, it turned out that the public actions of judges, particularly ones that hold or held high administrative positions, in many cases, violated the ethical standards.

Some judges often used derogatory epithets to refer to individuals or groups critical of the judiciary, often in forms that do not correspond to the status of a judge.

Naturally, a violation of the standard of freedom of expression by a judge cannot cause disciplinary sanctions. Disciplining all cases of unethical expression may have a “chilling effect” on diversity of opinions. The basis for imposing liability should be only such expressions as are directly and unambiguously provided for in the Organic Law on Common Courts. For example, there have been extreme cases where a judge has made political statements and participated in political debates. Such behavior clearly qualifies as an extreme violation of law, that directly harms the reputation of the judiciary and must entail disciplinary liability.

The study has revealed the following issues:

  • Freedom of expression of judges is protected, including their ability to participate in the discussions which concern the efficient functioning of the judiciary. Furthermore, when exercising this right, a judge must not act against the interests of justice, impartiality, and independence
  • The High Council of Justice (HCJ) is obligated to protect the reputation of the judiciary and that of individual judges. The Bangalore Principles  and the Rules of Judicial Ethics of Georgia apply to the judicial members of the HCJ when they are fulfilling this role. Unfortunately, actions by some of the judicial members of the HCJ have often failed to correspond to the high status of the judicial office and violated the standards of ethics.
  • A judge is not prohibited from using social media. However, similar to other cases, a judge must refrain from expressing opinions which would harm the interests of justice. In the Georgian reality, in a number of cases, the form of expression on the part of individual judges has not complied with the recognised ethics standards, which ultimately undermines public trust in justice.
  •  It is important that judges distance themselves from political activities. A judge must avoid any statements and/or actions of political nature which may cast doubt on his or her impartiality. Contrary to this, Judge Levan Murusidze participated in the public debate with a single-seat district candidate in the run up to the parliamentary elections where he failed to make an impression of being an impartial and independent judge. The opinions that Murusidze expressed during the debate were fully in line with the statements which had been made by the government representatives and aimed to discredit the candidate from a single-seat district. His action was one of the most severe violations of freedom of expression.
  • In the conditions of complete and unchecked power of an influential group of judges, public criticism of concrete persons on the part of individual influential judges must be assessed as a dangerous precedent.
  • Not all violation of freedom of expression constitute grounds for disciplinary liability. Disciplining all cases of unethical expression may have a “chilling effect” on the emergence or realization of a different opinion in the system. Liability should be imposed only on such actions that are unambiguously provided for in the Organic Law on Common Courts.
  • A judge must not have an expectation that exercising the right to freedom of expression would result in disciplinary sanctions. In the Georgian judicial system, expression of critical opinions by judges is not encouraged. Moreover, members of the Unity of Judges were gradually expelled from the system because of [expressing] dissenting opinions in the past. Things went as far as launching disciplinary proceedings against some of them.
  • Speaker-judges hardly communicate with the public. This institution in its current form is unable to fulfil the task of efficient communication with the public.

This publication was made possible by the support of the American people through the United States Agency for International Development (USAID). The opinions expressed in the study belong to Transparency International Georgia and may not reflect the views of EAST WEST MANAGEMENT INSTITUTE, USAID or the United States Government.

 

 

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