Reconceptualizing the freedom of expression of judges, prosecutors and lawyers

Freedom of expression is one of the fundamental rights in a democratic society. This right includes freedom to hold opinions without interference by public authority and regardless of frontiers. However, its exercise may be subject to restrictions or penalties, if prescribed by law and necessary in a democratic society. Further to that, such restrictions must be in the interests of national security, for the prevention of disorder or crime, for preventing the disclosure of information received in confidence, or especially for maintaining the authority and impartiality of the judiciary. In that sense, it is particularly relevant to analyze the frontiers of their freedom of expression as set by the European Court of Human Rights. Such an analysis entails the notion of interference by a state and an assessment of its legitimacy and necessity in a democratic society. The role of judges, prosecutors and lawyers is of the utmost importance for the right to a fair trial, legal certainty and an overall confidence that a reasonably informed person should have in regard to these institutions. However, given all the specifics of the mentioned judicial functions, it is a very demanding task to set clear standards on their freedom of expression, especially concerning their official capacity, whether acting individually or collectively. For instance, in Serbia recently, 600 judges and prosecutors signed a petition against the pressure imposed on them by the President. This kind of collective action has been very rare. In terms of enhancing democracy and strengthening the rule of law, it could be seen as exceptional. It might even constitute a paradigm-shifting moment in protecting the principle of division of powers. Hence, cases such as Baka v. Hungary, Cascado Coca v. Spain, Morice v. France, Belpierto v. Italy, Kudeshkina v. Russia, Wille v. Lichenstein etc., are to be analyzed and compared. Such a comparison is to be done in two aspects, the first one consisting of relevant reasoning provided by the ECtHR, and second, different legislation and judicial practices at the national level.