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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