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13 Utrecht L. Rev. 1 (2017)

handle is hein.journals/utrecht13 and id is 1 raw text is: Utrechtav This article is published in a peer-reviewed section of the Utrecht Law Review The Freedom Judge to Express his Personal Opinions and Convictions underthe ECH Sietske Dijkstra* 1. Introduction Judicial speech is a complex and important subject. The expression of opinions and convictions by judges stands out from the expression of opinions and convictions by other people. The judge is an official of the State and represents ideas of the rule of law and justice. In addition, judges are generally attributed special characteristics, such as honesty, integrity and wisdom. As a result, expressions by individual judges are easily understood by the public as coming from the judicial authorities and are often considered as having special weight and meaning. In the Western world there is a strong view that judges are in principle free to write, speak and otherwise express their personal opinions about political, religious, or other matters. The European Court of Human Rights (ECtHR), judges' organisations and several authors have adopted this line of thinking.' The freedom of the judge is a topical question in Europe. In the Netherlands, for instance, it has come to light after protests by judges in 2015 against efficiency measures and a further geographical concentration of the judicial organisation. Judges have protested against these developments in an unprecedented way: they have demonstrated in the streets in their robes, called for a short strike, talked to the press and sent critical messages through Twitter.2 In recent years the question has also surfaced in Hungary, but in a completely different form, when the President of the Supreme Court found himself derived of his Presidency after he had criticised legislative reforms by the government coalition concerning the judiciary.' The question that will be answered in this article is how the limits of judicial freedom are defined in the case law of the most prominent human rights protector in Europe, the ECtHR, and where these limits lie. An understanding of these limits is important not only for the individual judge, since it concerns his human rights, but also for society since restrictions of this freedom have the potential to negatively affect the efficacy of the judiciary and, with that, the rule of law. The freedom that will be studied can be defined * Judge at the Rechtbank Noord-Nederland (the Netherlands). Email: s.dijkstra@rechtspraak.nl. This article is based on a chapter from a PhD thesis on the judge's freedom to express his opinions and convictions: S. Dijkstra, De rechter als evenwichtskunstenaar. De vrijheid van de rechter om zijn persoonlijke meningen en overtuigingen te uiten (2016). 1 The ECtHR takes as a starting point in its case law, as will be described in this article, that the judge is entitled to the protection of his freedom of conscience, thought and religion (Article 9 ECHR), his freedom of expression (Article 10 ECHR) and his freedom of assembly and association (Article 11 ECHR). See also Principle 8of the UN Basic Principles on the Independence of the Judiciary and Application 4.6 of the UN Bangalore Principles of Judicial Conduct which explicitly recognise the freedom of expression (and association) of the judge. See also M. Kuijer, The blindfold of Lady Justice. Judicial independence and Impartiality in Light of the Requirements of Article 6 ECHR (2004), in which the freedom of the judge is approached through Article 6 ECHR. Kuijer writes, p. 315: 'a judge is of course entitled to freedom of expression'. 2 See L. Holvast & N. Doornbos, 'Exit, Voice, and Loyalty within the Judiciary: Judges' Responses to New Managerialism in the Netherlands', (2015) 11 Utrecht Law Review, no. 2, <http://doi.org/10.18352/ulr.317>, pp. 49-63. 3 Second Section of the ECtHR 27 May 2014, 20261/12 (Baka v. Hungary), EHRC 2014/177, with a note by J.J.J. Sillen, NJ 2015, 66, with a note by B. Meyer, and NJCM-Bulletin with a note by S. Dijkstra; Grand Chamber of the ECtHR 23 June 2016, 20261/12 (Baka v. Hungary). www.utrechtlawreview.org Volume 13, Issue 1, 2017 http://doi.org/10.18352/ulr.371

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