УДК 347.962 : 342.4

ORCID: 0000-0001-6002-4192

DOI 10.37566/2707-6849-2023-1(42)-1

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Viktor GORODOVENKO,

Judge of the Constitutional Court of Ukraine,Doctor of Laws, Professor,Corresponding member of the National Academy of Legal Sciences of UkraineHonored lawyer of Ukraine,Representative for Ukraine at the Advisory Council of European Judges to the Committee of Ministers of the Council of Europe

JUDGE’S RIGHT TO FREELY EXPRESS OWN VIEWS IN THE CONTEXT OF ESTABLISHING THE AUTHORITY OF THE JUDICIAL POWER IN SOCIETY

The author of the article has studied peculiarities of exercising the right to freely express own views by a judge in the context of establishing the authority of the judicial power in society, taking into account the provisions set forth in the Consultative Council of European Judges Opinion No. 25 dated from December 2, 2022 on the freedom of expression of judges. It has been determined that the right to free expression of own views is the right of a person to freely, without any influence, express own thoughts, judgments, beliefs in any form, which are formed on the basis of established knowledge, ideas, outlook and worldview about certain objects, phenomena, facts, etc., to assess them, in particular, to give support, criticism, characteristics.  

It has been established that the Consultative Council of European Judges adheres to a broad view of the personal scope of the right to freedom of expression of judges as an individual right, noting that the institutional and state nature of the judge’s position gives an ambivalent nature to the freedom of expression of a judge. It has been argued that the ambivalent nature of the freedom of expression of a judge means the simultaneous coexistence of judge’s conflicting opinions, assessments, etc., as well as the obligation to find the necessary balance between private interests and the interests of society in ensuring the authority of the judicial power. The ambivalent nature of the freedom of expression of a judge determines the establishment of additional restrictions on exercising the right to freely express own views, in addition to the general restrictions established by the Constitution of Ukraine, the Convention on the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.

The CJEU Opinion No. 25 (2022) on the freedom of expression of judges singles out the restrictions of freedom of expression of views / controversial cases in regard to statements related to litigation; statements regarding public debates; statements regarding matters of interest to the judicial power as an institution; public criticism of the judicial power / colleagues of judges; current political mandate / former political mandate.

It has been proved that the main criteria for imposing a legitimate restriction on the right to freedom of expression of views are rule of law and necessity in a democratic society. Such approaches are used by the European Court of Human Rights when hearing cases om violation of a judge’s right to free expression of own views, including in the context of a judge’s public criticism of legislative reforms related to the judicial power, or information on issues related to the judicial power, or criticism of judges who are colleagues.

Key words: judge’s right to freely express own views, judicial power, authority of the judicial power, restrictions of the constitutional right, ambivalent nature of the freedom to express own views by a judge, judicial ethics.

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