A/HRC/41/48
8.
It is increasingly accepted that judges and prosecutors are entitled to exercise the
rights to freedom of expression, belief, association and assembly, as well as political rights,
on an equal basis with others. Nevertheless, it is also clear that the exercise of these rights
may be subject to specific restrictions aimed at preserving the dignity of their office and, in
the case of judges, the independence and impartiality of courts and tribunals.
9.
The aim of the present report is to offer practical guidance to State authorities in
striking a fair balance between the fundamental rights of individual judges and prosecutors
and the legitimate interest of a democratic State in ensuring the independence, impartiality
and authority of its civil service. It also aims to offer a practical tool to judges and
prosecutors to assist them in taking their own decisions on how to exercise their
fundamental freedoms, whether online or offline, in a way that is consistent with the dignity
of their profession and the independence and impartiality of their office.
III. Legal standards
A.
International standards
10.
A number of instruments adopted at the international level include provisions on the
exercise of fundamental freedoms by judges and prosecutors.
11.
The Basic Principles on the Independence of the Judiciary provide that members of
the judiciary, like other citizens, are entitled to freedom of expression, belief, association
and assembly (principle 8), and are free to form and join professional associations to
represent their interests, to promote their professional training and to protect their status
(principle 9).3 The Basic Principles also acknowledge that, in the light of their special duties
and responsibilities, judges should show restraint in exercising these rights and always
conduct themselves in such a manner as to preserve the dignity of their office and the
impartiality and independence of the judiciary (principle 8).
12.
The Bangalore Principles of Judicial Conduct provide extensive guidance for judges
on the kind of conduct that is to be expected from them in order to maintain their
independence, integrity and impartiality and enhance public confidence in the judicial
system. Principle 4.6 is an almost verbatim restatement of principle 8 of the Basic
Principles. Principle 4.13 provides that judges may form or join associations of judges or
participate in other organizations representing the interests of judges.
13.
The Commentary on the Bangalore Principles of Judicial Conduct lists a number of
activities that are incompatible with judicial office and provides that, as a general principle,
judges should not be involved in public controversies. It also identifies a number of
situations in which a judge may properly speak out about matters that are politically
sensitive (for instance, in order to comment on legislation and policies that directly affect
the operation of the courts, the independence of the judiciary, or fundamental aspects of the
administration of justice).4
14.
The Universal Charter of the Judge contains two provisions concerning the exercise
of freedom of expression. Article 3-5 provides that judges have the right to freedom of
expression (with the same limitations identified in principle 8 of the Basic Principles) and
the right to join professional associations to defend their legitimate interests and their
independence. In accordance with article 6-2, judges are required to be impartial – and to be
seen as impartial – in the exercise of their duties, to perform their duties with restraint and
attention to the dignity of the court and of all persons involved and to refrain from any
behaviour, action or expression that may affect confidence in their impartiality and
independence.
3
4
4
Questions relating to the establishment, composition and functions of judicial councils or similar
independent and autonomous bodies are dealt with in a previous report specifically devoted to this
issue (A/HRC/38/38).
United Nations Office on Drugs and Crime (UNODC), (Vienna, September 2007), paras. 134–140.
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