The Independence of Judges and their Freedom of Expression: An Ambivalent Relationship

Abstract

Judges posting tweets on Twitter, writing columns in newspapers and pronouncing their views in public lectures - all this is a relatively new phenomenon. Whereas judges have traditionally exercised restraint in public pronouncements, there is an increasing expectation nowadays that they explain their decision-making to the broader public. Moreover, judges, at times, participate in political debate; they express their views on legislative reforms and take a stance on issues related to the judiciary. This increased visibility and public exposure raise new issues about judicial independence. For example, public pronouncement of personal views may give rise to concerns about a judge’s impartiality and the authority of the judiciary more generally. Thus, divergent interests are at stake here and need to be weighed against the freedom of expression. How to balance the competing principles is the subject of this article. Before analyzing this issue under the European Convention of Human Rights, I will give a short comparative overview of how national jurisdictions deal with potential conflicts of freedom of speech and judicial independence in order to contextualize the European Court of Human Right’s jurisprudence.