I. ÚS 2617/15 of 5 September 2016
Restrictions on judges’ freedom of expression when commenting on the political
campaign
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
HEADNOTES
1. A person who assumed the office of judge shall be bound by the duty of loyalty
and discretion while exercising his or her freedom of speech under Article 17 of the
Charter and Article 10 of the Convention. The freedom of speech of such person is
therefore subject to special limitations arising from that duty. By his or her
speeches, a judge may not in particular undermine the public confidence in that he
or she will act in accordance with the fundamental principles of the democratic
rule of law or the confidence in the impartiality and independence of the judiciary.
Each judge must therefore act with discretion in any of his or her speeches made
concerning political competition, especially in the public evaluation of individual
candidates and political parties and groups and the formation of political
coalitions. Each case, however, must be assessed individually, considering all the
circumstances, while it is necessary to take into account the particular position of a
judge making a speech, the content of his or her statements, the place and manner
of speech, and the overall context in which such statements were made.
2. It is essential for maintaining the public confidence in the judiciary that judges
keep their distance from political competition in their speeches, at any level,
including the local one. Judges may not participate in the campaign of political
parties, political movements or election groups or individual politicians. By
analogy, it is not fitting that judges attempt to influence, by their public speeches,
the form of coalitions in a municipal council or who will hold the office of mayor.
Such speeches undermine the public confidence in that judges will decide disputes
according to law and not according to political interests.
JUDGMENT
The Constitutional Court has decided through the panel composed of its
Presiding Judge David Uhlíř, Judge Tomáš Lichovník, and Judge Rapporteur Kateřina
Šimáčková in the case of the constitutional complaint filed by the complainant, Mr K.
K., represented by JUDr. Michal Paule, lawyer based at Benešovská 1897/24, Prague
10, against the decision of the Supreme Administrative Court, ref. No. 16 Kss 7/2014-
92, of 11 June 2015, with the participation of the Supreme Administrative Court as a
party to the proceedings and the President of the Municipal Court in Prague as an
intervener, as follows:
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The constitutional complaint is dismissed.
REASONING
I. Summary of the previous proceedings and the petition
1. The complainant is a judge of the Municipal Court in Prague (hereinafter referred
to as the “Municipal Court”). The President of the Municipal Court filed a petition to
institute disciplinary proceedings against the complainant. This petition was decided by
the Supreme Administrative Court as the disciplinary court (hereinafter referred to as
the “Disciplinary Court”) by the contested decision.
2. Through its contested decision, the Disciplinary Court found the complainant
guilty of a disciplinary offence. According to the Disciplinary Court, the complainant
deliberately breached the duties of a judge arising from Section 80 (4) and (5) (a) of Act
No. 6/2002 Coll., on courts and judges, as amended, as a result of exercising his
political rights in the manner threatening the dignity of judicial office and abusing his
position of a judge for the promotion of private interests. However, the Disciplinary
Court, in accordance with Section 88 (3) of the Act on Courts and Judges refrained from
imposing a disciplinary measure upon the complainant.
3. In view of the Disciplinary Court, the complainant committed a disciplinary
offence by the following conduct: “during the election campaign before the municipal
elections held on 10 and 11 October 2014, he made it possible that, on his behalf and
stating his position of a judge of the Municipal Court in Prague, a leaflet was drawn up
and distributed to letter boxes in the municipality of Mnichovice, district of Prahavýchod,
where he owns a cottage, while in the leaflet at issue, he evaluated the election
campaign in the municipality of Mnichovice run by:
 the association of candidates “Mnichovice - město na Vaší straně” as unfair,
claiming another’s successes as their own, and populist;
 the party TOP 09 as unfair and promising a land-use plan which is incompetent
and legally contestable;
 the party KDU-ČSL as not containing any election programme related to the
municipality; and
 the party “Volba pro město - Volba pro Mnichovice” as not engaging in any
objectionable conduct during the campaign,
while subsequently, after the elections, continued in his involvement by publishing in
Issue No. 7 [of the local magazine Život Mnichovic] an article in which he thanked all
the voters who “considered responsibly who to vote for” and elaborated upon what
coalition might be formed in the council of the municipality of Mnichovice and appeals
to the newly elected representatives to realise that the absolute winner of the elections
was the party “Volba pro město - Volba pro Mnichovice” led by Ing. Peter Schneider
who was better suited to lead the municipality than candidates of other parties, also
thanks to his technical education, and expressed his concerns that “if the municipality is
not led by Ing. Schneider, the municipality faces a disaster”.
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4. According to the Disciplinary Court, it has been proved that the complainant had
drawn up that part of the leaflet assessing the election campaign run by all four parties.
The complainant claimed the authorship of this part of the leaflet and admitted that he
prepared the evaluation of the election campaign while expecting that it will be
published in Mnichovice before the elections.
5. On the other hand, however, it has not been proved that the complainant had
written another part of the leaflet. That part points out that the complainant “is the judge
of the Municipal Court in Prague who passed an unsuspended sentence upon the “assetstripper”
of H-Systém, Mr Smetka, [who] disputed in the media the amnesty proclaimed
by the President Klaus, and [... who] has been engaged in the judiciary in the longterm”.
Nor was it proved that the complainant had ordered the delivery of leaflets to
letter boxes of voters in Mnichovice. The complainant denied that he had written that
part of the leaflet or that he had ordered its distribution. On the contrary, Mr Luboš
Janoud, witness, testified that he had written that part of the leaflet and that the
distribution of the leaflet had been ordered by his wife with the post office. As the
authorship of that part of the leaflet and the order for its distribution were originally in
the disciplinary petition attributed to the complainant, but the facts were not proven, the
Disciplinary Court omitted them from the statement of the offence. However, in view of
the Disciplinary Court, the identity of the offence remained unchanged since the alleged
consequence was proved.
6. According to the Disciplinary Court, it remained “somewhat unclear” why the
complainant failed to familiarise himself with the final form of the leaflet after returning
from training in Kroměříž on 3 October, as it had been agreed with Mr Luboš Janoud.
The complainant stated that Mr Luboš Janoud sent him an edited version of the leaflet
on 3 October. On that day, as said by the complainant himself, the complainant met
with Mr Luboš Janoud who told him that he had already ordered the leaflet distribution.
However, according to the order, the order for the distribution was placed with the post
office as late as 6 October. On the contrary, Mr Luboš Janoud testified as a witness that
no meeting occurred and that he could not contact the complainant on 6 October and
that they met as late as a week later. Under this state of affairs, the Disciplinary Court
wonders why the complainant failed to “distance himself at least verbally in his
subsequent article in Issue No. 7 of Život Mnichovic” from the indication of his office
of judge in the leaflet, which according to the Disciplinary Court “suggests rather that
[the complainant] knew the actual content of the leaflet before its distribution, or at least
could have known, and failed to object to that”. The complainant indirectly upheld the
tone of the leaflet according to the Disciplinary Court also by including the words “Part
Two, Post-election” in the title of his article.
7. The complainant’s authorship of this article is undisputed; he sent it himself for
publication in the local magazine Život Mnichovic.
8. According to the Disciplinary Court, the complainant as a judge may not be
completely excluded from exercising his constitutionally guaranteed political rights, but
exercising the freedom of speech includes pursuant to Article 10 (2) of the European
Convention on Human Rights (hereinafter referred to as the “Convention”) also the
duties and responsibilities and it may be restricted by law if it is necessary in a
democratic society, among other things, in order to maintain the authority and
impartiality of the judiciary. These starting points are reflected in Section 80 (1) (4) and
(5) (a) of the Act on Courts and Judges. In view of the Disciplinary Court, the
4
complainant exceeded the thus established framework of exercising his rights particularly
the freedom of speech.
9. Referring to the judgment file No. III. ÚS 1076/07, of 28 January 2008 (N 14/48
of the Collection of Judgments of the Constitutional Court 145), the Disciplinary Court
stated that a judge is perceived by the public as a judge continuously, not only while
serving in his capacity of judge, high demands are laid on judges and, in order to avoid
any conflict of interests, judges should virtually be dedicated only to their professional
judicial activities. The relevant public was aware that the complainant is a judge and it
is, therefore, immaterial whether the complainant himself pointed to this fact expressly.
10. According to the Disciplinary Court, the complainant allowed that his office was
misused to promote private interests. The relevant part of the local community perceives
him as a judge with the relevant informal authority and his texts favour the party “Volba
pro město - Volba pro Mnichovice” and disfavours the remaining three parties. In
addition, according to the Disciplinary Court, the texts included confrontational features
and statements “subject to subjective interpretation as expressive and capable of
harming the honour of some representatives of criticised political parties”. This is
according to the Disciplinary Court in breach of the duty to refrain from anything that
would compromise the dignity of the judicial office.
11. The Disciplinary Court holds that a judge may engage in election meetings in the
local elections where he or she has the right to vote, and reasonably also where he or
she, for example, owns a real property and frequently resides there. Such judge,
however, must do so with discretion and in a moderate manner which does not result in
a misuse of the office of judge for promoting the private interests of a particular party or
candidate. A judge’s behaviour should “not deviate from the general ideas of citizens
about public involvement in pre-election events and from the usual average of the
performance of such activities”; a judge should not express himself or herself in an
authoritarian or a confrontational manner even in individual cases. Any speech of a
judge might be critical but must be within the matter-of-fact criticism and must not
harm the honour of those criticised. As a result of any failure to abide by these limits, a
judge brings his or her office into disrepute.
12. Given the current judicial office of the complainant, the Disciplinary Court
considered the disciplinary proceedings conducted in the case to be sufficient and
waived imposing any disciplinary measure.
13. The Constitutional Court further established from the file of the Disciplinary
Court the following facts about the course of disciplinary proceedings.
14. The Disciplinary Court sent a petition to institute disciplinary proceedings to the
complainant in writing, advising him of the “right to choose a defence counsel from
among judges or lawyers [...]; the right to comment on the matters which he is blamed
for and the evidence thereof; the right to give facts in his favour and propose the
evidence thereof; the right to remain silent”, provided that those are “reasonably
exercised rights of the accused under the Criminal Procedure Code” (Article 20 of the
file of the Disciplinary Court). During the hearing, the Disciplinary Court noted that the
complainant “has been advised of his rights in writing and exercised his right to a
defense counsel” (Article 67 of the file of the Disciplinary Court). During the hearing,
the Disciplinary Court also heard Mr Luboš Janoud, witness, and advised him
5
“adequately under Section 101 of the Criminal Procedure Code” (Article 71 of the file
of the Disciplinary Court).
II. Parties’ Arguments
15. The complainant notes that the proceedings before the Disciplinary Court are
single-instance proceedings and there is “no way to defend oneself” against a decision
of the Disciplinary Court. He holds that it constitutes an infringement upon his right to a
fair trial and argues that the provisions of the Criminal Procedure Code providing for
the two-instance nature of proceedings shall also be applied, by analogy, to the
disciplinary proceedings.
16. He further argues that he was “sentenced for (convicted of) the idea the
dissemination of which he could not prevent”, though it was not created by him and he
did not disseminate it either. In view of the complainant, his freedom of thought under
Article 15 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to
as the “Charter”) has thus been infringed upon.
17. Further, according to the complainant, the Disciplinary Court also infringed upon
his freedom of speech under Article 17 of the Charter. The complainant states that he
communicated to a third party - Mr Luboš Janoud - his political view on the pre-election
situation in Mnichovice, on the assumption that his ideas would be elaborated upon
further. Mr Luboš Janoud, without the knowledge of the complainant, used his opinion
for the production of a leaflet where he identified the complainant expressly as a judge
and even listed some “cases” decided by the complainant, while mentioning, however,
obviously incorrect data. Mr Luboš Janoud then distributed the leaflet in that form.
According to the complainant, it was Mr Luboš Janoud who mentioned the information
threatening the dignity of judicial office and misused the office of judge for the
promotion of private interests. The complainant argues that he cannot be punished for
that he expressed his opinion to a third party, as this would infringe upon his freedom of
speech. He states that the contested decision deprives him of the right to your own idea
or political opinion in private, since it makes him responsible for any misuse of such
thoughts or political opinion by a third party.
18. The complainant does not dispute that he is the author of the article published in
Issue No. 7 of Život Mnichovic and that this article was published in the magazine with
his knowledge. However, the complainant points out that this article responds to the
previous article written by another person, in which the complainant was attacked. The
complainant also points out that did not sign under the article as a judge, but as a natural
person identifying himself also as a “cottager”. In that article, the complainant then
exercised his right to participate in public affairs pursuant to Article 21 of the Charter,
by publishing his political opinion. The complainant emphasises that he expressed his
opinion as a cottager, therefore, like everyone else who is interested in the municipality
public affairs, and did so because of a personal relationship to the municipality, without
expressly attacking anyone. He refuses to be held liable in a disciplinary manner for
such conduct only because according to the Disciplinary Court it is common knowledge
in the municipality that the complainant serves as a judge. In this context, the
complainant asks the question what he would have to do to be able to publish as a
citizen his political opinion and not to be held liable in a disciplinary manner.
19. Finally, according to the complainant, the proceedings before the Disciplinary
6
Court involved serious procedural deficiencies and a decision arising from the
proceedings may not be subject to review. Specifically, the complainant argues that
contrary to the Criminal Procedure Code he was advised of neither his right to refuse to
testify and to comment on all the facts and the evidence presented nor related rights.
Neither was Mr Luboš Janoud, as a witness, advised of his rights according the
complainant. Further, the complainant argues that under the disciplinary action he was
blamed for a “completely different conduct” than for which he was found guilty by the
Disciplinary Court. He considers the lack of identity of the offence “a fatal
misconduct”. He argues that the disciplinary action specifically describes the conduct
which he allegedly committed, but the Disciplinary Court found him guilty of that he
made that conduct possible for a third party. The conduct thus defined, however, was
not contained in the disciplinary action. Moreover, the decision does not contain any
description of what specifically the complainant did, i.e. lacks the description of the
conduct.
20. The Disciplinary Court, in its statement, at first pointed out that according to the
judgment, file No. Pl. ÚS 33/09 dated 29 September 2010 (N 205/58 of the Collection
of Judgments of the Constitutional Court 827; 332/2010 Coll.), the single-instance
disciplinary proceedings are in accordance with the Constitution. The Disciplinary
Court further notes that its decision is not directed against the exercise of the
fundamental rights pursuant to Articles 15, 17, and 21 of the Charter by the judge, but to
the way in which the complainant did so and, in this context, refers to the contested
decision. The Disciplinary Court emphasises that the complainant as a judge may
engage in the election events in the municipality where he owns a cottage; however, as a
judge, he must do so with discretion and in a manner which does not lead to any misuse
of the office of judge for private interests. The conduct of a judge should not deviate
“from the general ideas of citizens about public involvement in pre-election events and
from the usual average of the performance of such activities”. While doing so,
according to the Disciplinary Court, a judge should never behave in an authoritarian or a
confrontational manner. The complainant, however, conducted in a manner which could
threaten the dignity of the judicial office and his conduct showed signs of misuse of the
office of judge for promoting private interests, since the complainant by his speeches
sought the advantage for one of the political parties and its leader, at the disadvantage of
the other parties, and his speeches include confrontational elements.
21. According to the Disciplinary Court, the identity of the act between the petition to
institute disciplinary proceedings and its decision has been preserved. The act was only
modified with respect to the findings of fact made. The Disciplinary Court further notes
that the complainant and witnesses were both advised of their rights in writing before
the hearing. At the hearing, such advice was referred to and its content was recalled. As
for the complainant, such advice was merely restricted to stating that “as for his rights,
the limits of Section 33 of the Criminal Procedure Code are followed”, because the
judge is a criminal judge and advise people of such rights “virtually every day”. Any
simplification of such advice could not be and was not to the detriment of the
complainant or witness.
22. Finally, the Disciplinary Court emphasised that a judge must not use his or her
office to promote private interests. This is related, according to the Disciplinary Court,
to the fact that a judge is forbidden to participate in the executive power and according
to Article 82 (3) of the Constitution is incompatible with any office in public
administration. Therefore, a judge should make his or her political speeches with utmost
7
discretion. However, through both speeches, the complainant intended to promote the
private interests of a particular political party, close to himself, which was additionally
supported by his expressive criticism of political opponents.
23. The President of the Municipal Court in Prague commented on the single-instance
nature of disciplinary proceedings. Even though the President of the Municipal Court
does not consider this issue as disputable from a constitutional law perspective, he
highlights the deficiencies of the current regulation of disciplinary proceedings. In his
view, the two-instance proceedings would facilitate the achievement of a higher
standard of judicial protection and, in addition, would give the parties to proceedings
room for negotiations and “certain moderation of the disputed story”. The President of
the Municipal Court is of the opinion that the current single-instance model restricts
disciplinary claimants, does not allow imposing cumulative or aggregate sentence, often
leads to the expiry of the limitation period or the creation of res judicata, and reduces
the possibility of complementing the evidence. The person accused of a disciplinary
offence has the opportunity to respond to the factual and legal findings of the
Disciplinary Court only through a constitutional complaint.
24. The complainant decided not to comment on this in his reply.
III. Assessment by the Constitutional Court
25. The constitutional complaint complies with the requirements for the subjectmatter
consideration.
26. The Constitutional Court notes that according to the contested decision of the
Disciplinary Court, the complainant committed a disciplinary offence by his two
speeches, namely those contained in the leaflet and in the article, which were
disseminated in Mnichovice. In view of the Disciplinary Court, the complainant
threatened the dignity of judicial office by his speeches and misused the office of judge
in order to promote private interests.
27. The complainant argues that the regulation of disciplinary proceedings is
unconstitutional because the decision of the Disciplinary Court may not be appealed
against. Further, he raises several objections to the procedure of the Disciplinary Court
and its decision which concerns with regard to contents thereof the right to a fair trial.
Moreover, the complainant argues that the contested decision has infringed upon his
freedom of thought and freedom of speech.
28. At first, the Constitutional Court will examine the procedural aspect of the case inadmissible
appeals in disciplinary proceedings (Part A below) and objections
concerning the right to a fair trial (Part B below). Then, the Constitutional Court will
examine the substantive aspect of the case - an alleged infringement upon the freedom
of thought (Part C below) and the freedom of speech (Parts D to E below).
A. Single-instance nature of disciplinary proceedings
29. Firstly, the complainant argues that he was unable to appeal against the decision
of the Disciplinary Court. This is according to the complainant contrary to the right to a
fair trial. According to the complainant, the provisions of the Criminal Procedure Code
providing for the two-instance proceedings shall apply by analogy to the disciplinary
8
proceedings.
30. The Constitutional Court notes that pursuant to Section 21 of Act No. 7/2002
Coll., on proceedings relating to judges, public prosecutors and enforcement officers, as
amended, “an appeal against the decision in the disciplinary proceedings is
inadmissible”.
31. The issue of the constitutionality of this provision has already been dealt with by
the Constitutional Court, namely in its judgment, file No. Pl. ÚS 33/09 of 29 September
2010 (N 205/58 of the Collection of Judgments of the Constitutional Court 827;
332/2010 Coll.), as correctly pointed out in its statement by the Disciplinary Court. In
this judgment, the Constitutional Court has come to the conclusion that the provision
referred to herein is not unconstitutional, for two reasons. Firstly, neither the
Constitution nor the Charter guarantees the right of appeal at all (judgment, file No. Pl.
ÚS 33/09, Items 44 and 56). Secondly, disciplinary proceedings are not criminal
proceedings under the Convention and have a disciplinary nature. The right of appeal in
criminal cases under Article 2 (1) of Protocol No. 7 to the Convention, which is not
even absolute and contains a number of exceptions, shall not apply to disciplinary
proceedings conducted against judges (judgment Pl. ÚS 33/09, Items 45 to 55).
32. At the moment, the Constitutional Court does not see any space for a different
assessment of the issue.
33. The European Court of Human Rights (hereinafter referred to as the “ECtHR”) in
its current case-law considers disciplinary proceedings conducted against the judge and
leading to his or her dismissal or other serious consequences as civil proceedings,
covered by the civil branch of Article 6 of the Convention. However, the ECtHR has not
yet reached a conclusion in any of its decisions that the disciplinary proceedings could
be regarded as criminal proceedings in terms of the Convention. In its judgment in the
case of Olujić v. Croatia of 5 February 2009, No. 22330/05, Section 32 to 44, dealing
with the removal from office of judge, as well as in its judgment in the case of Harabin
v. Slovakia of 20 November 2012, No. 58688/11, Sections 119 to 124, dealing with a
serious disciplinary offence connected with a salary reduction, the ECtHR only applied
the civil branch of Article 6 of the Convention. In its judgment in the case of Oleksandr
Volkov v. Ukraine of 9 January 2013, No. 21722/11, which also covers the removal
from the office of judge, the ECtHR also applied the civil branch under Article 6 of the
Convention (Section 87 to 91), and not the criminal branch under Article 6 of the
Convention (Section 92 to 95), although in this respect the ECtHR emphasised that the
complainant’s removal from the office of judge does not prevent that judge from
pursuing another legal profession (Section 93). Only the civil part of Article 6 of the
Convention has been applied in the recent cases of removed judges (cf. the judgment in
the case of Jakšovski and Trifunovski v. Macedonia of 7 January 2016, No. 56381/09
and 58738/09, Section 32; the judgment in the case of Gerovska Popčevska v.
Macedonia on 7 January 2016, No. 48783/07, Section 38).
34. The Constitutional Court states that in accordance with the case-law of the
ECtHR, from a constitutional point of view, a judge applies the standards of civil
branch of the right to a fair trial under Article 6 of the Convention to any disciplinary
proceedings, regardless of the outcome of such proceedings. The very fact that the
decision on a disciplinary charge is entrusted to the court means the full applicability of
the civil branch of Article 6 of the Convention (cf. the judgment of the Grand Chamber
9
in the case of Vilho Eskelinen and others v. Finland of 19 April 2007, No. 63235/00,
Section 61, according to which disputes with government employees shall always be
governed by the civil branch of Article 6 of the Convention, provided that for a
particular type of dispute a judicial review is not expressly excluded and, at the same
time, the exclusion of judicial review is justified by the nature of the dispute; in relation
to judges, see also the judgment in the case of Juričić v. Croatia on 26 July 2011, No.
58222/09, Sections 55 to 56; and see also the judgment of the Grand Chamber in the
case of Baka v. Hungary of 23 June 2016, No. 20261/12, Section 103 to 106).
35. As regards the application of the criminal branch of Article 6 of the Convention,
the Constitutional Court notes that although the ECtHR did not exclude expressly the
application of the criminal branch to the disciplinary proceedings against judges, the
exceptional circumstances which would allow according to the ECtHR (cf. the
judgment in the case of Oleksandr Volkov v. Ukraine of 9 January 2013 No. 21722/11,
Sections 92 to 95) the application of the criminal branch under Article 6 (1) of the
Convention (although until now the ECtHR has never found the application of the
criminal branch justified) - i.e. the removal from the office of judge and, at the same
time, the impossibility to pursue another legal profession afterwards - obviously did not
occur in the present case. The Disciplinary Court regarded the consideration of the case
in the disciplinary proceedings as sufficient and refrained from the imposition of any
disciplinary measure. Neither the complainant’s continuance in his judicial office nor
the possibility to pursue any other legal profession (voluntarily in the future upon his
discretion) have therefore been jeopardised. It can be stated that the disciplinary
proceedings with the complainant may not be regarded as criminal proceedings under
the Convention or the Charter (for more on this, cf. the above-mentioned judgment of
the Constitutional Court, file No. Pl. ÚS 33/09). This conclusion is not affected by the
subsidiary application of the Criminal Procedure Code to the disciplinary proceedings
against judges (cf. Section 25 of Act No. 7/2002 Coll., on proceedings relating to
judges, public prosecutors and enforcement officers, as amended), which however does
not indicate an intention to consider disciplinary proceedings against judges as a
specific form of criminal proceedings (this intention is unequivocally excluded by
Section 15 (1) and (2) of Act No. 7/2002 Coll.). This interpretation is supported also by
the judgment of the ECtHR in the case of Olujić v. Croatia in which the ECtHR
considered a similar Croatian legal regulation under which the disciplinary proceedings
conducted against Mr Olujić, the then President of the Croatian Supreme Court, are
governed on a subsidiary basis by the Criminal Procedure Code (cf. Olujić against
Croatia of 5 February 2009, No. 22330/05, Section 41), and despite that concluded that
the criminal branch of Article 6 (1) of the Convention did not apply to the case (cf.
Olujić v. Croatia of 5 February 2009, No. 22330/05, Section 44).
36. In this respect, the Constitutional Court also notes that there are “admissible
exceptions” to the right of appeal in criminal cases under Article 2 (1) of Protocol No. 7
to the Convention “if the person concerned was tried in the first instance by the
Supreme Court”. Even if the disciplinary proceedings against a judge have the nature of
criminal proceedings under the Convention, it would be possible to regard disciplinary
panels at the Supreme Administrative Court as the supreme court within the meaning of
the quoted provision (cf. also the judgment Pl. ÚS 33/09, Items 55 and 61).
37. The single-instance disciplinary proceedings may not be regarded as
unconstitutional (cf. also the judgment Pl. ÚS 33/09, Items 57 to 58).
10
38. The fact that the complainant could not appeal against the decision of the
Disciplinary Court, therefore, did not infringe upon any of the complainant’s
fundamental rights and freedoms.
B. Right to a fair trial
39. The complainant further raises a number of objections relating to other aspects of
the right to a fair trial.
40. As an introduction, the Constitutional Court notes that the right to a fair trial
under Article 36 of the Charter shall always apply to the disciplinary proceedings
against a judge. The disciplinary proceedings against a judge are also to be considered
as civil proceedings under Article 6 of the Convention and subject to the standards of
the civil proceedings arising from this provision (cf. Items 33 to 34 of this judgment).
41. Specifically, the complainant argues that the Disciplinary Court has infringed
upon his right to a fair trial by failing to advise him or the witness interrogated in the
disciplinary proceedings of their rights.
42. The Constitutional Court pointed out in its case-law that the person accused of a
disciplinary offence must be advised by a disciplinary court of his or her rights
[judgment file No. III. ÚS 1076/07 of 21 January 2008 (N 14/48 of the Collection of
Judgments of the Constitutional Court 145), Item 23 in fine]. Generally, however, it is
sufficient if the disciplinary court gives such advice to the person accused of a
disciplinary offence in writing, e.g. together with a petition to institute disciplinary
proceedings [judgment file No. III. ÚS 1076/07, Item 28]. The advise must be repeated
only if it turns out that the person accused of a disciplinary offence did not understand it
[judgment file No. I. ÚS 2420/11 of 16 November 2011 (N 197/63 of the Collection of
Judgments of the Constitutional Court 291), Item 29].
43. In the present case, the Disciplinary Court advised the complainant of his rights in
writing (cf. Item 14 of this judgment). Nothing indicates that the complainant did not
understand that advice. Therefore, the Constitutional Court does not see any misconduct
as to the advice of the complainant.
44. According to the complainant, the Disciplinary Court did not advise Mr Luboš
Janoud, witness, of his rights properly either. The Constitutional Court, however, must
note that a complainant may only defend himself or herself through a constitutional
complaint against any infringement upon his or her fundamental rights and freedoms
[Section 72 (1) (a) of the Act on the Constitutional Court]; a constitutional complaint
may not be filed in the interest of another person to protect his or her fundamental rights
and freedoms. The complainant failed to explain how his fundamental rights and
freedoms could have been infringed upon due to an inadequate or lack of advice given
to the witness. The Constitutional Court does not see any such connection there.
45. The decision of the Disciplinary Court is not based on the testimony of Mr Luboš
Janoud, witness. The judgment of the Disciplinary Court was based primarily on the
testimony of the complainant and the documentary evidence - leaflet, article, and
distribution order (cf. Items 3 to 7 of this judgment). The testimony of Mr Luboš
Janoud, witness, had only positive effect on the complainant’s position. As a result of
this testimony, the Disciplinary Court concludes that it has not been proved that the
11
complainant had presented himself in the leaflet as a judge or that he had ordered
personally the distribution of that leaflet (cf. Items 5 to 6 of this judgment).
46. The complainant’s objection that his fundamental rights and freedoms have been
infringed upon as a result of that Mr Luboš Janoud, witness, had been improperly
advised of rights is, therefore, unjustified.
47. The complainant further argues that the Disciplinary Court found him guilty of a
different offence than that mentioned in the petition to institute disciplinary
proceedings. In addition, according to the complainant, the contested decision does not
contain a description of the conduct and may not be subject to review.
48. The Constitutional Court in the past reviewed also whether the verdict of guilt
corresponds to the offence for which the petition to institute disciplinary proceedings
has been filed [judgment file No. I. ÚS 2420/11, Item 28]. Therefore, the Constitutional
Court reviewed the contested decision also in terms of this objection and related
objections filed by the complainant.
49. In the present case, a disciplinary petition was originally filed against the
complainant on the grounds that he drawn up and distributed in Mnichovice a leaflet
(with the contents described in Items 3 and 5 of this judgment) and that he had an article
(with the contents referred to in Item 3 of this judgment) published in the mentioned
local magazine. The Disciplinary Court, however, concluded that a part of disciplinary
petition related to the leaflet does not correspond to the facts found. It has not been
proved that the complainant had drawn up a whole leaflet - namely that part of the
leaflet mentioning his office of judge, recounting part of his activities, and noting that
the complainant has been engaged in the judiciary throughout his life. The fact that the
complainant had the leaflet distributed in Mnichovice has not been proved either. The
complainant denied those two facts and Mr Luboš Janoud, witness, said that he had
added the controversial passage in the leaflet himself, while the distribution of the
leaflet had been ordered by his wife. In this respect, therefore, the Disciplinary Court
attempted to modify the definition of the offence (cf. Item 5 of this judgment). At the
same time, however, the Disciplinary Court reached the conclusion that the established
circumstances indicated that the complainant was aware of the entire contents of the
leaflet including the controversial parts of the text or could have familiarised with its
wording (cf. Item 6 of this judgment) even before its distribution. Therefore, the
Disciplinary Court found the complainant guilty for that “he allowed that a leaflet [...] in
his name and stating his office of judge [...] was drawn up and distributed [...] in the
municipality of Mnichovice [...]”. The remaining part of the verdict of guilt referring to
the article drawn up by the complainant is not disputed. According to the Constitutional
Court, there is a difference between “drawing up and distributing” a leaflet and
“allowing drawing up and distributing” a leaflet, nevertheless - given the nature of the
disciplinary proceedings against judges which are not conventional criminal
proceedings within the meaning of the Charter and the Convention and are only
governed by the standards of civil branch of the right to a fair trial under Article 6 of the
Convention (cf. for more details, Items 34 to 35 of this judgment) - the identity of the
offence in the present case is preserved due to the identity of the consequence, even if
the conduct of the person accused of a disciplinary offence is not identical to the way it
was defined in the petition. However, the procedure of the Disciplinary Court does not
affect the constitutionality of the contested decision.
12
50. The wording of the verdict of guilt is not entirely clear in the part relating to the
leaflet, however, the Constitutional Court notes that in conjunction with the reasoning it
is clear what the complainant’s conduct consisted in.
51. Before the municipal elections, the complainant drawn up an evaluation of the
election campaign of all four parties, while the evaluation was to be distributed in some
form in Mnichovice before the elections, on which he collaborated with Mr Luboš
Janoud. According to the testimony of the complainant, Mr Luboš Janoud sent an edited
version of the leaflet on 3 October and on that date the complainant met, as said by
himself, with Mr Luboš Janoud. As indicated in the order, the distribution of the leaflet
was ordered with the post office as late as 6 October (cf. Item 6 of this judgment). The
complainant therefore knew that in accordance with his intention Mr Luboš Janoud was
going to publish the prepared evaluation of the election campaign and that Mr Luboš
Janoud edited the leaflet. Between the dates of 3 and 6 October, the complainant had
sufficient opportunity to check the contents of the leaflet and possibly prevent its
distribution. The complainant’s claim that Mr Luboš Janoud notified him that he
ordered the distribution of leaflets as early as 3 October changes nothing - also in this
case, the complainant was able to check the contents of the leaflet and prevent the
distribution which could only begin only after the actual date of order, i.e. on 6 October.
The complainant thus drawn up his evaluation of the election campaign, collaborated in
the publication thereof with Mr Luboš Janoud, and even though - in his own words - he
knew about the final version of the leaflet and its forthcoming distribution, he did not
stop it even though he could have stopped it. The culpability of the complainant thus
relates to the active preparation of the main part of the leaflet and the passive
acceptance of that its edited version complemented by the controversial part, namely the
information that the complainant is a judge, will be distributed. It is a combination of an
act of commission and an act of omission, while both types of conduct can constitute a
breach of the duties of a judge and a disciplinary offence. For these reasons, also the
disputed part of the leaflet and the fact that an edited version of the leaflet was
distributed in Mnichovice are also attributable to the complainant.
52. On the contrary, the Constitutional Court does not share an opinion of the
Disciplinary Court that the complainant claimed the authorship of the leaflet as a whole
in his article by including the words “Part Two, Post-election” in the title of his article.
The full title of the complainant’s article “May a Question Mark Be at the Beginning?
Part Two, Post-election”. It is a response to the article “May a Question Mark Be at the
Beginning?”, published in the previous issue of Život Mnichovic by another author [see
Život Mnichovic, Issue 6/2014, page 9, and Život Mnichovic, Issue 7/2014, pages 11 to
12, both available at http://www.mnichovice.info/index.php/zivot-mnichovic/casopis].
Although the consideration of the Disciplinary Court is mistaken, for the reasons
described in the preceding item, it does not constitute the defectiveness of the decision.
53. The second part of the verdict of guilt relates to an article which the complainant
wrote and had published in a local magazine (“he continued in such his engagement by
publishing an article [...] in Issue No. 7 [of the local magazine Život Mnichovic]”). The
wording of this part of the verdict of guilt is unequivocal and the complainant’s
objections do not apply to it.
54. It can thus be summarised that the main part of the leaflet evaluating the election
campaign of four parties is a manifestation of an opinion of the complainant. The
remaining part of the leaflet stating that the complainant is a judge is attributable to the
13
complainant. Also the fact that the leaflet was distributed in Mnichovice is attributable
to the complainant. Regarding the article as a whole, it is a manifestation of an opinion
of the complainant.
55. The complainant’s objections as to the right to a fair trial are therefore not
justified. The complainant’s right to a fair trial has not been infringed upon.
C. Freedom of thought
56. The complainant further alleges that the contested decision has infringed upon his
freedom of thought because he was punished for the ideas that he held and that were
disseminated by a third party (Mr Luboš Janoud) without his knowledge.
57. The freedom of thought is protected by Article 15 (1) of the Charter and only
applies to the internal process of thought of each person (forum internum). It is an
absolute right which may not be interfered with in any manner whatsoever [judgment
file No. Pl. ÚS 18/98 of 2 June 1999 (N 82/14 of the Collection of Judgments of the
Constitutional Court 181; 151/1999 Coll.)]. The Disciplinary Court, however, did not
find the complainant guilty of ideas that he held but of the opinions expressed publicly.
The argument that the complainant’s opinions were disseminated by Mr Luboš Janoud
without the complainant’s knowledge and consent cannot be held valid for the reasons
set out above (cf. Items 51 and 54 of this judgment).
58. Therefore, the freedom of thought of the complainant has not been infringed upon
by the contested decision.
D. Freedom of speech - general principles
59. Finally, the complainant argues that the contested decision has infringed upon his
freedom of speech.
60. The Constitutional Court recalls that the freedom of speech is guaranteed by
Article 17 of the Charter and Article 10 of the Convention. The mentioned provisions
guarantee the freedom of speech of everyone, even persons holding a public office, such
as judges.
61. The Charter does not imply in any of its provisions that it would be possible to
deny the freedom of speech of anyone only because that person holds a public office (cf.
a contrario Article 44 of the Charter which relates to possible legal limitations of
fundamental rights and freedoms of persons holding a public office). The fact that a
person holds an office of judge, therefore, does not deprive the person of the freedom of
speech under Article 17 of the Charter.
62. Also the European Court of Human Rights (hereinafter referred to as the
“ECtHR”) has concluded in its case-law that also civil servants are entitled to the right
to freedom of speech under Article 10 of the Convention [see the judgment of the Grand
Chamber in the case of Vogt v. Germany of 26 September 1995, No. 17851/91, Section
43; the judgment of the Grand Chamber in the case of Guja v. Moldova of 12 February
2008, No. 14277/04, Section 52], including judges [the judgment of the Grand Chamber
in the case of Wille v. Liechtenstein of 28 October 1999, No. 28396/95, Sections 41 to
42; the judgment in the case of Kudeshkina v. Russia of 26 February 2009, No.
29492/05, Section 79; the judgment in the case of Harabin v. Slovakia of 20 November
14
2012, No. 58688/11, Section 149; cf. also the judgment of the Grand Chamber in the
case of Baka v. Hungary of 23 June 2016, No. 20261/12, Sections 140 to 142].
63. The freedom of speech of any person holding the office of judge is thus protected
by Article 17 of the Charter and Article 10 of the Convention; however, it is subject to
special limitations.
64. The case-law of the ECtHR is based on the fact that civil servants are bound when
exercising their freedom of speech by a duty of loyalty and discretion - cf. e.g. the
judgment of the Grand Chamber in the case of Guja v. Moldova of 12 February 2008,
No. 14277/04, Sections 70 to 71; the judgment of the Grand Chamber in the case of
Vogt v. Germany of 26 September 1995, No. 17851/91, Section 53; the judgment in the
case of Ahmed and others v. the United Kingdom of 2 September 1998, No. 22954/93,
Section 56, and the judgment in the case of De Diego Nafria v. Spain, of 14 March
2002, No. 46833/99, Section 37. This duty is also binding on judges (cf. e.g. the
judgment in the case of Kudeshkina v. Russia, Section 85). The freedom of speech
under Article 10 (2) of the Convention also includes duties and responsibilities (in
relation to the freedom of speech of judges, cf. the judgment of the Grand Chamber in
the case of Baka v. Hungary of 23 June 2016, No. 20261/12, Section 162).
65. The Constitutional Court concludes that also Article 17 of the Charter needs to be
interpreted by analogy.
66. The Constitutional Court has already stressed in its case-law that the judiciary
must enjoy public confidence if it is to fulfil its role successfully [see the judgment, file
No. Pl. ÚS 11/04, of 26 April 2005 (N 89/37 of the Collection of Judgments of the
Constitutional Court 207; 220/2005 Coll.); and the judgment, file No. I. ÚS 750/15, of
19 January 2016, Items 23 and 27 to 28]. Similar comments were made by the ECtHR
[cf. the judgment in the case of De Cubber v. Belgium, of 26 October 1984, No.
9186/80, Section 26; the judgment of the Grand Chamber in the case of Kyprianou v.
Cyprus, of 15 December 2005, complaint No. 73797/01, Section 172; the judgment of
the Grand Chamber in the case of Micallef v. Malta, of 15 September 2009, No.
17056/06, Sections 97 to 98; the judgment of the Grand Chamber in the case of Morice
v. France of 23 April 2015, No. 29369/10, Section 78 and especially Section 128; and
the judgment of the Grand Chamber in the case of Baka v. Hungary, of 23 June 2016,
No. 20261/12, Section 164]. It is essential to protect this public confidence in the
judiciary and its impartiality.
67. The primary duty of any judge is to protect the fundamental rights and freedoms
(Article 4 of the Constitution) and decide in accordance with the fundamental principles
of the democratic rule of law (Article 1 (1) of the Constitution). Disputing those
fundamental values in a judge’s speeches would even dispute his or her basic duties
and, therefore, hardly could inspire public confidence. In relation to these fundamental
values, a judge has therefore the duty of loyalty that restricts the judge while exercising
the freedom of speech.
68. The Constitutional Court notes that it does not intend to restrict thus the public
debate about the scope, content, and impact of these fundamental principles. On the
other hand, however, the judge must refrain from any speeches that challenge the very
essence of such principles and contravene them grossly. As the Constitutional Court
noted in its judgment, file No. Pl. ÚS 19/93, of 21 December 1993 (N 1/1 of the
15
Collection of Judgments of the Constitutional Court 1; 14/1994 Coll.), the Constitution
of the Czech Republic is not neutral in terms of values. A judge may not challenge the
basic values by his or her speeches.
69. While the judge has a duty of loyalty only towards the fundamental principles and
values of the democratic rule of law, the duty of discretion is broader.
70. The public confidence can only be enjoyed by the courts and judges who are
impartial and independent. In assessing the impartiality and independence, a certain
importance is also given to the appearance shown by courts and judges [the judgment in
the case of Piersack v. Belgium, of 1 October 1982, No. 8692/79, Section 30; the
judgment in the case of Campbell and Fell v. the United Kingdom of 28 June 1984, No.
7819/77 and 7878/77, Section 78; the judgment of the plenum in the case of Sramek v.
Austria of 22 October 1984, No. 8790/79, Sections 37 to 42; the judgment of the Grand
Chamber in the case of Incal v. Turkey of 9 June 1998, No. 22678/93, Section 65; cf.
accordingly the judgment Pl. ÚS 11/04]. Judges then have a duty of discretion while
making their speeches in order not to compromise the impartiality and independence of
the judiciary (cf. the judgment of the Grand Chamber in the case of Baka v. Hungary of
23 June 2016, No. 20261/12, Section 164).
71. To maintain public confidence, it is also essential that judges keep their distance
from political competition, even when exercising the freedom of speech.
72. The judiciary is the guarantor of justice in the democratic rule of law and its
activity consist in deciding disputes according to law. However, this requires a certain
distance from political actors and their interests, i.e. from political competition and
party politics. The speeches of judges given while participating in the party politics
(within the meaning of partisan politics, i.e. “political politics”; as for this, cf. Brian Z.
Tamanaha, The Several Meanings of “Politics” in Judicial Politics Studies: Why
“Ideological Influence” Is Not “Partisanship”, Emory Law Journal, 2012, Vol. 61, Issue
No. 4, pages 759 to 778) undermine the public confidence in that the courts and judges
will decide disputes according to law and not according to political interests.
73. The separation of the judiciary from political competition is based on the
separation of powers. This concept is supported in the wording of Article 2 (1) of the
Constitution; however, it permeates the whole system of the Constitution and is
reflected in the system of checks and balances established by the Constitution [see e.g.
the judgment, file No. Pl. ÚS 7/02 of 18 June 2002 (N 78/26 of the Collection of
Judgments of the Constitutional Court 273; 349/2002 Coll.); judgment, file No.
Pl. ÚS 77/06, of 15 February 2007 (N 30/44 of the Collection of Judgments of the
Constitutional Court 349; 37/2007 Coll.), Item 47; judgment, file No. Pl. ÚS 18/06, of
11 July 2006 (N 130/42 of the Collection of Judgments of the Constitutional Court 13;
397/2006 Coll.); judgment, file No. Pl. ÚS 14/15, of 2 February 2016 (87/2016 Coll.),
Item 41 to 42]. The concept of separation of powers is taken into account when
interpreting the fundamental rights and freedoms protected by the Convention also by
the ECtHR (see e.g. the judgment of the Grand Chamber in the case of Kleyn and others
against the Netherlands of 6 May 2003, No. 39343/98 and others, Section 193; in
relation to the judges, the judgment of the Grand Chamber in the case of Baka v.
Hungary of 23 June 2016, No. 20261/12, Section 165). While the legislative power and
the executive power (at the highest level) are inseparably linked to political competition
(see e.g. Article 16 et seq. of the Constitution on the parliamentary elections, Article 68
16
of the Constitution on the responsibility of the government to the Chamber of Deputies,
and Article 56 of the Constitution on the election of President), the situation is different
in the case of the judiciary.
74. Moreover, the Charter is based on the fact that judges may be limited in their right
to form political parties and political movements and to associate therein under Article
20 (2) of the Charter (Article 44 of the Charter). The Constitution provides that “the
office of a judge is incompatible with that of the President of the Republic, a Member of
Parliament, as well as with any other office in public administration” (Article 82 (3) of
the Constitution). It should be stressed that this provision also prohibits judges from
holding any office in “public administration” and the incompatibility of offices relates
to any office in both the public government and the self-government, both the regional
and the municipal. The Constitution thus limits the interconnection between the judicial
power the legislative power, executive power, as well as the local self-government. In
this context, the Constitutional Court emphasises that the political competition also
takes place in the local self-government (see e.g. Article 102 of the Constitution) and,
therefore, a judge may not be excessively involved at that level either.
75. Judges’ keeping distance from political competition and the interests of political
parties or individual politicians have a special importance with regard to historical
experience. Before 1989, the judiciary was linked with the Communist Party, subject to
its interests, and in “politically sensitive” cases carried out specific instructions, not to
mention the political trials in the fifties of the last century. The independence of the
judiciary was thus liquidated (for details, see KÜHN, Zdeněk. Socialistická justice
(Socialist Justice). In BOBEK, Michal, Pavel MOLEK and Vojtěch
ŠIMÍČEK. Komunistické právo v Československu: kapitoly z dějin bezpráví
(Communist Law in Czechoslovakia: The History of Injustice). Brno: Masaryk
University, International Institute of Political Science, 2009, pages 822 to 847. Also
available at www.komunistickepravo.cz). The current Constitution, based on the value
discontinuity with the communist regime (cf. the judgment, file No. Pl. ÚS 19/93), has a
special interest in preventing any links between judges and political parties and the
excessive involvement of judges in political competition. Given the recent past, it is
necessary to strengthen the public confidence in the fact that the judiciary is not subject
to political interests.
76. Therefore, while exercising their freedom of speech, judges must act with
discretion and in relation to political competition at all levels. Each case, however, must
be assessed individually, considering all the circumstances, while it is necessary to take
into account in particular the position of a judge making a speech, the content of his or
her statements, and the overall context in which such statements were made (cf., by
analogy, the judgment of the Grand Chamber in the case of Baka v. Hungary of 23 June
2016, No. 20261/12, Section 166).
77. The Constitutional Court notes that the duty of discretion also applies to some
other areas - for example, judges are imposed upon the confidentiality obligation to
protect the rights of parties to the proceedings. The Constitutional Court, however, does
not consider it necessary to comment on these other areas in this judgment, because they
do not relate to this case.
78. The Constitutional Court notes that it is aware that Article 17 of the Charter does
not refer expressly, in contrast to Article 10 (2) of the Convention, to the duties and
17
responsibilities. The duties and responsibilities of judges, however, arise from different
standards of the constitutional order of the Czech Republic, namely from Articles 81 to
82 and Articles 90 to 96 of the Constitution. The Constitutional Court is also aware of
the fact that the number of possible legitimate aims for restricting the freedom of speech
(not only judges) in Article 17 (4) is smaller than under Article 10 (2) of the
Convention. In contrast to its equivalent in the Convention, Article 17 (4) of the Charter
does not expressly set out, inter alia, the possibility to limit the freedom of speech in
order to protect the impartiality and authority of the judiciary. However, as the
Constitutional Court has already stated in Item 93 of its judgment, file No. I. ÚS 517/10,
of 15 November 2010 (N 223/59 of the Collection of Judgments of the Constitutional
Court 217), the impartiality and authority of the judiciary are constitutional values that
are part of the concept of the rule of law pursuant to Article 1 (1) of the Constitution of
the Czech Republic (hereinafter referred to as the “Constitution”) and that may be a
legitimate objective of limiting the freedom of speech,while the impartiality of the
judiciary is protected at the constitutional level also by Article 36 (1) of the Charter,
which guarantees, inter alia, the right to a fair trial, and Article 82 (1) of the
Constitution, according to which no one may endanger the impartiality of judges (cf.
also the judgment, file No. I. ÚS 750/15, of 19 January 2016, (22); and the resolution,
file No. I. ÚS 1486/15, of 9 February 2016, Item 21). For the sake of completeness, the
Constitutional Court notes that the freedom of speech may be restricted even for the
purpose of protecting the independence of judges and the judiciary, namely pursuant to
Article 36 (1) of the Charter and Articles 81 and 82 (1) of the Constitution. It can be
stated that the decision of the Disciplinary Court and the legislation applied pursue a
legitimate objective of protecting the impartiality and independence of the judiciary
within the meaning of Article 10 (2) of the Convention, Article 6 (1) of the Convention,
and Article 36 (1) of the Charter in connection with Articles 1 (1), 81, and 82 (1) of the
Constitution. In this respect, the Constitutional Court also emphasises that the
complainant submits to these constitutional limitations of the freedom of speech based
on his own free decision, at a moment when he assumed the office of judge and took a
judge’s vow.
79. Therefore, the Constitutional Court notes for the reasons mentioned above that a
person who assumed the office of judge shall be bound by the duty of loyalty and
discretion while exercising his or her freedom of speech under Article 17 of the Charter
and Article 10 of the Convention. The freedom of speech of such person is therefore
subject to special limitations arising from that duty. By his or her speeches, a judge may
not in particular undermine the public confidence in that he or she will act in accordance
with the fundamental principles of the democratic rule of law or the confidence in the
impartiality and independence of the judiciary. Each judge must act with discretion in
any of his or her speeches made concerning political competition, especially in the
public evaluation of individual candidates and political parties and groups and the
formation of political coalitions. Each case, however, must be assessed individually,
considering all the circumstances, while it is necessary to take into account in particular
the position of a judge making a speech, the place and manner of speech, the content of
his or her statements, and the overall context in which such statements were made.
80. From a constitutional point of view, any speech of a judge should be assessed
using the criteria listed below.
81. First and foremost, any speech or its individual parts must be examined as
whether they contain factual allegations, value judgments or - as it will be in most cases
18
- hybrid statements. As already stated by the Constitutional Court in its judgment, file
No. I. ÚS 750/15, of 19 January 2016, Item 24:
In assessing the admissibility of statements in terms of the freedom of
speech, the ECtHR distinguishes between the factual statements the
truth of which can be verified by evidence and the value judgments as
for which - by definition - it is not possible (the judgment of the Grand
Chamber of the ECtHR in the matter of Pedersen and Baadsgaard v.
Denmark, of 17 December 2004, complaint No. 49017/99, Section 76).
Often, however, the nature of the statement excludes that it is thought of
as a purely factual statement or a value judgment. The latest case-law of
the ECtHR thus abandons the strict dichotomy of factual
statement/value judgment and instead works with the factual statement
and value judgment as two counterparts, while the imaginary line
between these opposites constitutes a sort of continuum (cf. e.g. the
judgment of the ECtHR in the case of Karsai v. Hungary of 1 December
2009, No. 5380/07, Section 53). The statements which combines the
factual basis and an evaluation component are known as hybrid
statements (for hybrid statements, cf. Kosař, D. Kritika soudců v České
republice (Criticism of Judges in the Czech Republic). Soudní
rozhledy, 2011, Issue No. 4, page 118) or value judgment with the
factual basis (cf. e.g. Lindon, Otchakovsky-Laurens and July v. France,
the judgment of the Grand Chamber, 22 October 2007, No. 21279/02
and 36448/02, Section 57; or Kuliś and Różycki v. Poland, the
judgment, of 6 October 2009, No. 27209/03, Sections 37 to 39). In that
event, it is therefore necessary to determine to what extent such hybrid
statements have a factual basis and whether any such statements are not
exaggerated due to the proven factual basis (the judgment of the Grand
Chamber of the ECtHR in the case of Pedersen and Baadsgaard as cited
above, Section 76; hereinafter the judgment of the ECtHR in the case of
Jerusalem v. Austria of 27 February 2001, complaint No. 26958/95,
Section 43; and the judgment of the Grand Chamber of the ECtHR in
the case of Morice v. France of 23 April 2015, complaint No. 29369/10,
Section 126). When assessing the nature of the statements, according to
the ECtHR, it is also necessary to take into account their overall tone
and circumstances of the case (ibid, Section 126; the judgment of the
ECtHR in the case of Brasilier v. France, of 11 April 2006, complaint
No. 71343/01, Section 37).
82. The distinction between factual statements, value judgments, and hybrid
statements shall also be applied to assessing any speech of the judge [the judgment in
the case of Kudeshkina v. Russia, Section 84, as for the application, see Section 91 et
seq.; cf., by analogy, the judgment of the Grand Chamber in the case of Wille v.
Liechtenstein, Section 67, in which the ECtHR examined whether it was not an
untenable proposition]. The Constitutional Court notes that this distinction is applied in
the assessment of speeches in general [see e.g. the judgment, file No. I. ÚS 453/03, of
11 November 2005 (N 209/39 of the Collection of Judgments of the Constitutional
Court 215); the judgment, file No. II. ÚS 2051/14, of 3 February 2015, Item 26; the
judgment I. ÚS 750/15, Items 24 to 25], and does not see why the criterion should not
be applied to assessing the speeches of judges. In this context, however, the
19
Constitutional Court notes that due to the specific role of a judge in a democratic rule of
law and the principle of separation of powers, this criterion is secondary for certain
judges’ speeches (especially the speeches made in the context of political competition
and election campaign). This means that some political value judgments made by a
judge (as for which, other speakers would enjoy constitutional protection) may be
limited because of the special status of judges in the Czech constitutional order, because
it is necessary in a democratic society within the meaning of Article 17 (4) of the
Charter and Article 10 (2) of the Convention (cf. also Item 79 of this judgment).
83. It is also necessary to deal with the extent to which the judge in his or her speech
complied with the duty of loyalty and discretion.
84. Firstly, it assesses whether or not the speech of a judge is contrary to the
fundamental values of the democratic rule of law (as for the duty of loyalty, cf. Items 67
to 68 of this judgment).
85. Secondly, it is necessary to examine whether a judge by his or her speech has not
undermined the public confidence in the independence and impartiality of the judiciary
and whether that speech was not excessively involved in political competition (cf. the
duty of discretion, Item 69 et seq. of this judgment). A judge must maintain distance
from the remaining branches of government and self-government, especially at a time
when an election campaign culminates, i.e. before the elections and immediately after
them.
86. The duty of loyalty and discretion is binding on a person starting from the
moment when such person assumes the office of judge (cf. Item 78 of this judgment),
even in private life. The circumstances under which a speech is made, however, have an
impact on the extent of that duty.
87. A speech in which a person expressly refers to his or her office of judge should be
considered more strictly. It is because such speech will increasingly be associated with
how the person in question performs his or her office. By analogy, it is necessary to
perceive a situation where the person focuses in his or her public speech on the circle of
persons who are aware of that he or she serves as a judge (i.e. the circle of persons with
whom the person previously communicated following the assumption of the office of
judge). Such speech will also be associated with the performance of duties of a judge
and increased demands can be placed on the person making such speech. Any speech in
this situation should then also be considered more strictly. If it cannot be objectively
established that a speech has been made by a judge, an increased protection and
tolerance towards that speech should be applied. Such speech reduces the extent to
which the speech will be associated with the office of judge.
88. On the contrary, a high level of protection shall be enjoyed by the speeches of
judges, especially the representatives of the judiciary, which cover the issues related to
the management and organisation of the judiciary and judicial reforms, even though
such speeches intervenes in the politics (the judgment of the Grand Chamber in the case
of Wille v. Liechtenstein, Section 67; cf. identically the judgment of the Grand
Chamber in the case of Baka v. Hungary of 23 June 2016, No. 20261/12, Sections 165
to 167 and 170 to 171). Even in such cases, however, the judge must observe prudence
and caution in his speeches and engage in a political struggle only to the necessary
extent.
20
89. The Constitutional Court notes that the above-mentioned criteria give an outline,
not an exhaustive list of factors that must be taken into account when evaluating the
speech the judge in question. When evaluating speeches of judges, it is possible to apply
adequately the criteria applied by the Constitutional Court to evaluate speeches in
general, e.g. in defamation cases (e.g., the judgment, file No. I. ÚS 453/03, of 11
November 2005 (N 209/39 of the Collection of Judgments of the Constitutional Court
215); the judgment, file No. II. ÚS 2296/14, of 14 March 2015, Item 20). Given the
limited scope of the case-law relating to the limits of the freedom of speech of a judge,
first and foremost, it is upon the Disciplinary Court to substantiate its considerations
taking into account the particular circumstances of the case.
90. The Constitutional Court also stresses that each test step must define the speech
sufficiently and precisely; if necessary, also by referring specifically to the assessed
statements. It is always necessary in the event that certain statements are assessed by the
court as excessive (cf., by analogy, the judgment, file No. I. ÚS 750/15, of 19 January
2016, Item 46 in fine).
91. Finally, it must be determined whether the nature and severity of any sanction are
adequate in relation to the misconduct established (the judgment of the Grand Chamber
of the ECtHR in the case of Cumpănă and Mazăre v. Romania, of 17 December 2004,
complaint No. 33348/96, Section 111; the judgment of the Grand Chamber of the
ECtHR in the case of Morice v. France, Section 127) and whether or not the sanction
has a chilling effect on the freedom of speech of other judges, especially on their
involvement in discussions concerning the administration of the judiciary (cf. the
judgment in the case of Kudeshkina v. Russia, of 26 February 2009, No. 29492/05,
Sections 99 to 100, and the judgment of the Grand Chamber in the case of Baka v.
Hungary, of 23 June 2016, No. 20261/12, Section 167).
E. Freedom of speech - as applied to the present case
92. The Constitutional Court considered also the present case in the manner described
above. The facts of the case and the content of the contested decision may be
summarised as follows.
93. According to the contested decision of the Disciplinary Court, the complainant
had committed a disciplinary offence by two of his speeches - in a leaflet which was
disseminated in the municipality of Mnichovice and in the article published in the local
magazine. Both speeches were related to the municipal elections and to the political
situation in Mnichovice. The complainant does not have a permanent residence or the
right to vote in the municipality but he owns there a cottage where he stays regularly.
According to the Disciplinary Court, it is a common knowledge in Mnichovice that the
complainant is a judge.
94. The complainant commented on the campaign of political parties in the leaflet. He
stated there that he had not found any objectionable conduct of the party “Volba pro
město – Volba pro Mnichovice” during the campaign; on the other hand, he evaluated
the campaign of other three parties negatively. The complainant is also regarded as the
author of that part of the leaflet mentioning him as a judge and is also deemed
responsible for the fact that the leaflet was distributed in Mnichovice before the
elections (cf. Items 51 and 54 of this judgment).
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95. In an article published after the elections in the local magazine, the complainant
discusses possible coalitions in the municipal council. He appealed in the article to the
councillors to bear in mind that the party “Volba pro město - Volba pro Mnichovice”
led by Mr Ing. Peter Schneider had won the elections. The complainant expressed his
opinion in the article that the named leader was better suited to lead the municipality
than the candidates of other parties, due to his technical education. The complainant
also expressed his concern in the article that otherwise the municipality faces a
“disaster”. The article does not mention that the applicant is a judge; the complainant
only identified himself as a “cottager”.
96. According to the Disciplinary Court, both speeches were made with the intention
to favour the party “Volba pro město - Volba pro Mnichovice” led by Mr Ing. Peter
Schneider. Because it is a common knowledge in Mnichovice that the complainant is a
judge, it does not matter whether the complainant mentioned it expressly. According to
the Disciplinary Court, however, the complainant allowed the leaflet to be distributed
including the information that the complainant serves as a judge. In both his speeches,
in view of the Disciplinary Court, the complainant did not act with sufficient discretion
and allowed that his office of judge was “misused to promote private interests”.
According to the Disciplinary Court, the speeches by the complainant further showed
confrontational elements and contained statements that could harm the honour of the
representatives of criticised political parties. According to the Disciplinary Court, the
complainant, therefore, failed to comply with the duty to refrain from anything that
would compromise the dignity of the judicial office and committed a disciplinary
offence.
97. The Constitutional Court has reached the following evaluation.
98. The speeches in both the leaflet and the article are hybrid in nature. Although both
speeches have a factual basis (e.g. a statement about the content of election programs or
the education of candidates), the element of evaluation is entirely predominant - in its
leaflet, the complainant primarily evaluated the campaign of four political parties; in the
article, he commented on possible coalitions in the municipal council and assessed the
quality of various representatives of political parties. In the present case, the essential
question is not whether this evaluation had a sufficient factual basis, but whether the
complainant did not breach any of his specific duties as a judge by his evaluation.
99. It is therefore necessary to examine whether the complainant did not breach by his
speeches the duty of duty of loyalty and discretion he has as a judge.
100. Regarding the duty of loyalty, neither of the complainant’s speeches relate to the
matters relating to the fundamental principles of the democratic rule of law. However,
the complainant did not breach this duty by his speeches.
101. It is also necessary to examine whether the complainant complied with the duty of
discretion. The Constitutional Court notes that this duty of the complainant arose upon
his assumption of his judicial office and the complainant shall abide by the duty even in
his private life (cf. Item 86 of this judgment).
102. In its leaflet, the complainant evaluated the campaign of all four political parties.
He had no objections against the campaign run by the party “Volba pro město - Volba
pro Mnichovice”; on the other hand, he commented on the campaign of other three
22
parties in a negative manner. From an objective point of view, the purpose of this
speech was supporting the party “Volba pro město - Volba pro Mnichovice” in the
elections and disadvantaging the remaining three parties.
103. This leaflet was distributed in Mnichovice before the elections (and the
complainant is deemed responsible for that kind of publication, cf. Item 94 of this
judgment). The mass distribution of the leaflet in the municipality represents a
significant entry into the local public debate with the aim to influence as many people as
possible. In the present case, the leaflet was to persuade voters to vote for the party
“Volba pro město - Volba pro Mnichovice” and discourage them from voting for the
remaining three parties. The complainant thus participated by his speech in the leaflet in
the election campaign of the party “Volba pro město - Volba pro Mnichovice”.
104. The leaflet mentions that the complainant is a judge (while he is deemed
responsible for this fact, cf. Item 94 of this judgment). The office of judge was thus
specifically used in the campaign in favour of a particular party.
105. The Constitutional Court notes that it is essential for maintaining the public
confidence in the judiciary that judges keep their distance from political competition, at
any level, including the local one (cf. Items 74 and 85 of this judgment). The
complainant, however, by his speech in the leaflet, actively participated in the election
campaign of one of the parties in the local elections, and he did so while expressly
mentioning his office of judge. By this step, the complainant became openly involved in
the election struggle with the aim to influence its outcome, and he did so in the most
sensitive period, i.e. before the elections (cf. Item 85 of this judgment). Such a speech
based on the partisan politics or “political politics” (cf. Item 72 of this judgment)
undermines the public confidence in that the courts and the judges will decide according
to the law and not according to political interests. The complainant thus in this speech
breached his duty of discretion he has as a judge since he became actively, openly, and
with excessive intensity involved in political competition by his speech made by
himself and on its own initiative.
106. After the elections, the complainant published an article in the local magazine,
analysing possible coalitions. He stated that the winner of the elections was the party
“Volba pro město - Volba pro Mnichovice” led by Ing. Peter Schneider who was better
suited to serve as mayor than candidates of other parties. By making his speech, the
complainant supported the mentioned party in coalition negotiations, as well as a
particular politician in negotiations on who will occupy the office of mayor. In other
words, the complainant wanted to influence the form of the coalition and who will hold
public offices in the local self-government.
107. Publishing an article in a local magazine also presents a significant entry into the
public debate, though not as pronounced as the distribution of leaflets. The complainant
in this article did not mention that he is a judge; in addition to his name, the
complainant only identified himself as a “cottager”. It is true that in general it would be
indicative of an increased protection of the complainant’s speech as the complainant
does not refer to his office of judge but to his connection to the community. Before
publishing the article, however, the complainant had already entered the public debate
concerning the elections in Mnichovice by his leaflet, where he identified himself
specifically as a judge. Therefore, the complainant must have been aware of that his
later speeches in this debate would also be connected to his office of judge. It is to the
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complainant’s credit then that he did not refer to his office of judge in the article
expressly. Yet, even this speech must be assessed severely because there was a reason to
make this speech associated with the complainant as a judge. For completeness, the
Constitutional Court notes that neither this speech may be classified under a category of
judicial speech enjoying an increased protection (cf. Item 88 of this judgment).
108. The Constitutional Court notes that it is inconsistent with the Czech constitutional
order if any judge in his or her public speeches attempts to influence the form of
coalitions in a municipal council or who will hold the office of mayor. The complainant,
however, did so in his article, and in addition in a situation where he must have known
that his speech would be associated by the public with his office of judge, and shortly
after the elections when the political struggle is particularly fierce (cf. Item 85 of this
judgment). By making this speech, the complainant also became engaged in the
“political politics” (cf. Item 105 of this judgment), in which a judge may not participate.
The public confidence in the fact that the complainant as a judge keeps his distance
from political competition has thus been compromised by the complainant’s article. By
making this speech, the complainant also breached the duty of discretion, though less
severely than in the case of his leaflet.
109. The Constitutional Court therefore notes that the complainant had breached his
duty of discretion by both of his speeches.
110. In addition, according to the Disciplinary Court, the complainant’s speeches show
confrontational elements and contain statements that could harm the honour of the
representatives of criticised political parties.
111. However, the Constitutional Court disagrees with this assessment. The
Disciplinary Court failed to mention which particular complainant’s statements are
confrontational in nature and are liable to harm the honour of criticised politicians. The
Constitutional Court reiterates that if any speech or any part of such speech is assessed
by a judge as deviating from the protected limitations, it is the responsibility of the court
to mention such statements expressly in the decision (cf. Item 90 of this judgment) and
to interpret its considerations in relation to specific statements and the circumstances
under which they were made. This Disciplinary Court did not comply with this
responsibility.
112. The purpose of disciplinary proceedings is not to provide the protection of moral
rights of the persons who feel affected by the statements of judges. The task of the
disciplinary court in the disciplinary proceedings is merely to examine whether the
particular complainant’s statements were capable of undermining the public confidence
in the judiciary. Any action to protect personality and disciplinary action are two
different proceedings pursuing a different purpose and requiring different criteria for
assessing the admissibility of a certain speech and its implications. Considering whether
a judge has interfered by making his speeches with the protected personal sphere of
other persons has thus only a supporting role in the disciplinary proceedings and the
outcome of these reflections cannot by itself justify the imposition (or the absence
thereof) of a disciplinary sanction.
113. For these reasons, the Constitutional Court cannot accept the opinion of the
Disciplinary Court that the complainant’s speech showed unacceptable confrontational
elements and was liable to harm the honour of criticised politicians.
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114. These considerations, however, cannot alter the conclusion that the complainant
made his speeches himself and on its own initiative, and became actively, openly, and
with excessive intensity involved in political competition, and thereby breached the
duty of discretion. The Constitutional Court summarises that it is essential for
maintaining the public confidence in the judiciary that judges keep their distance from
political competition in their speeches, at any level, including the local one. Judges may
not participate in the campaign of political parties, political movements or election
groups or individual politicians. By analogy, it is not fitting that judges attempt to
influence, by their public speeches, the form of coalitions in a municipal council or who
will hold the office of mayor. Such speeches undermine the public confidence in that
judges will decide disputes according to law and not according to political interests. The
complainant, however, had breached its duty to refrain from such statements, and
therefore it was possible to intervene in his freedom of speech.
115. Finally, the Constitutional Court dealt with the question of whether the sanction
imposed upon the complainant by the Disciplinary Court is adequate.
116. The Disciplinary Court concluded in the contested decision that the complainant
had committed by making his speeches a disciplinary offence, but no disciplinary
measure has been imposed upon the complainant by that court. The Constitutional Court
notes that such sanction should be seen as a separate decision that the complainant is
guilty of a disciplinary offence. Such decision may lead to the fact that with any
subsequent disciplinary offence a harsher penalty will be imposed. Above all, however,
it should discourage the complainant and other judges from similar conduct in the
future. On the other hand, it is the mildest possible sanction. Based on these facts, the
Constitutional Court notes that the sanction imposed upon the complainant is not
inadequate in relation to the nature of the disciplinary offence and has no significant
chilling effect on the freedom of speech of other judges.
117. The Constitutional Court, therefore, concludes that the contested decision has not
infringed upon the complainant’s right to the freedom of speech.
F. Conclusion
118. The Constitutional Court concluded that none of the objections of the complainant
were successful. First, the complainant’s right of appeal in criminal matters under
Article 2 (1) of Protocol No. 7 to the Convention was not infringed upon because the
disciplinary proceedings conducted against the complainant could not be regarded as
proceedings in a criminal case within the meaning of Article 2 (1) of Protocol No. 7 to
the Convention. Secondly, the contested decision did not infringe upon the
complainant’s freedom of thought within the meaning of Article 15 (1) of the Charter
either because the Disciplinary Court did not find the complainant guilty of ideas that he
held but of the views that he publicly expressed. Third, the Disciplinary Court did not
infringe upon the complainant’s freedom of speech as the complainant himself, from his
own initiative, actively, openly, and with excessive intensity had become engaged in
political competition and thereby breached the duty of discretion. Fourth, the
Constitutional Court has not found any infringement upon the complainant’s right to a
fair trial, which would have constitutional intensity.
119. For the above-mentioned reasons, the Constitutional Court, under Section 82 (1)
of Act on the Constitutional Court, dismisses the constitutional complaint since the
25
contested decision did not infringe upon the constitutionally guaranteed rights of the
complainant.
Appeal: No appeal is admissible against the judgment of the Constitutional Court.
In Brno, 5 September 2016
David Uhlíř, m.p.
Presiding Judge