A/HRC/41/48 I. Introduction 1. This is the third report submitted by the Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán, pursuant to Human Rights Council resolution 35/11. 2. In the present report, the Special Rapporteur focuses on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online, and aims at identifying the kinds of restrictions to which judges and prosecutors may legitimately be subject in a democratic society to achieve a legitimate aim, such as maintaining the authority of their office and the independence and impartiality of the judiciary. 3. In preparing the present report, the Special Rapporteur sent out a questionnaire, calling for contributions from States, international and regional human rights mechanisms, professional associations of judges and prosecutors, and civil society. At the time of writing, the Special Rapporteur has received 43 responses. He expresses his gratitude to all States and non-State actors that contributed to the preparation of the report (see annex for a list of respondents). The questionnaire and the submissions are available on the website of the Office of the United Nations High Commissioner for Human Rights. 1 4. The Special Rapporteur thanks the Human Rights Clinic of the Human Rights Research and Education Centre of the University of Ottawa for its continuous support in the research and drafting of the present report. II. Overview 5. At times, judges and prosecutors are subjected to disciplinary sanctions, including suspension and removal from office, for exercising their right to freedom of expression, alone or in association with others, in a courtroom or on a social media platform. In the vast majority of cases, disciplinary proceedings are initiated on the basis of an alleged violation of the duties that judges and prosecutors are bound to fulfil in their capacity as civil servants, in particular the obligation to exercise restraint in the exercise of their fundamental freedoms so as to preserve the dignity of their office and the impartiality and independence of the judiciary. In some of these cases, however, the interference with the exercise of their fundamental freedoms cannot be regarded as necessary in a democratic society to pursue a legitimate aim, such as maintaining public trust in the judiciary or the public prosecution. 6. Social media occupy a significant place in the daily lives of people all over the world, including judges and prosecutors. They represent a formidable tool for outreach and public education, and can contribute to strengthening public trust in the judiciary. However, their use may give rise to new challenges and ethical concerns, relating to the propriety of the content posted, the unintended demonstration of bias or interest or unintended consequences arising from the interaction of judges and prosecutors with third parties. 7. Since the inception of the mandate, the Special Rapporteur has addressed several cases where disciplinary measures imposed on judges (and to a lesser extent, prosecutors) appeared to be an expedient to punish the judge for the opinions expressed or the action taken in the exercise of his or her profession. In some circumstances, the severity of the sanction also had a “chilling effect” on other members of the judiciary or public prosecution, who were discouraged from expressing critical views out of fear of being subjected to punitive measures. Most of these cases were addressed through the communications procedure.2 1 2 See www.ohchr.org/EN/Issues/Judiciary/Pages/ExpressionAndAssociation.aspx. See, for example, AL PHL 6/2018; AL BRA 6/2018; AL KOR 3/2018; and AL MDA 21/2018. These communications are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. 3