A/HRC/41/48
15.
The Guidelines on the Role of Prosecutors contains two provisions on the exercise
of fundamental freedoms by prosecutors. In the Guidelines, it is acknowledged that
prosecutors, like other citizens, are entitled to freedom of expression, belief, association and
assembly, and it is pointed out that in exercising these rights, prosecutors should always
conduct themselves “in accordance with the law and the recognized standards and ethics of
their profession” (guideline 8). The Guidelines also provide that prosecutors have the right
“to join or form local, national or international organizations and attend their meetings”
(guideline 8) and the right “to form and join professional associations or other organizations
to represent their interests, to promote their professional training and to protect their status”
(guideline 9).
B.
Regional standards
16.
A number of regional instruments contain provisions similar to those included in the
Basic Principles on the Independence of the Judiciary and the Guidelines on the Role of
Prosecutors.
17.
While expressly recognizing the right of judges to form and join professional
associations (para. 25), the Council of Europe recommendation of 17 November 2010
entitled “Judges: independence, efficiency and responsibilities” does not include a specific
provision on the exercise of freedom of expression. The Council recommends, however,
that judges exercise restraint in their relations with the media (para. 19) and that their
engagement in activities outside their judicial mandate is compatible with their impartiality
and independence (para. 21). The European Charter on the statute for judges also contains
detailed provisions on the exercise of freedom of expression (art. 4.3) and extrajudicial
activities (art. 4.2).
18.
With regard to prosecutors, in its recommendation of 6 October 2000 on the role of
public prosecution in the criminal justice system, the Council of Europe recommends that
member States take measures to ensure that public prosecutors have an effective right to
freedom of expression, belief, association and assembly, and provides that the exercise of
these rights “can only be limited in so far as this is prescribed by law and is necessary to
preserve the constitutional position of the public prosecutors” (para. 6).
19.
The Beijing Statement of Principles of the Independence of the Judiciary in the
LAWASIA5 Region, adopted in 1995, provide that judges have the right to exercise their
fundamental freedoms “to the extent consistent with their duties as members of the
judiciary” (principle 8); they are also free to form and join judicial associations to represent
their interests, promote their professional training and protect their independence (principle
9).
20.
The Statute of the Iberoamerican Judge recognizes that the “legitimate right to the
freedom of expression and information” (art. 3), as well as the right to form professional
associations “apart from exceptions established by the Constitution or legislation of each
country” (art. 36).
21.
Regional human rights courts and mechanisms in Europe and the Inter-American
system have also contributed to clarifying the way in which judges and prosecutors can
exercise their fundamental freedoms and the extent of permissible limitations aimed at
safeguarding the dignity of their profession and the independence and impartiality of the
judiciary.
22.
The European Court of Human Rights has developed a vast jurisprudence on the
balance between judicial freedom of expression and the need to safeguard the independence
and impartiality of the courts. 6 The European Court has considered the issue from two
5
6
Law Association for Asia and the Pacific.
See Sietske Dijkstra, “The freedom of the judge to express his personal opinions and convictions
under the ECHR”, Utrecht Law Review, vol. 13, No. 1 (January 2007); and Jorge Antonio Climent
Gallart, “La jurisprudencia del TEDH sobre la libertad de expresión de los jueces”, Revista Boliviana
de Derecho, No. 25 (2018) (in Spanish).
5
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