A judge described his inspection report as biased. His disciplinary conviction violated his freedom of expression. Right to be criticized by those audited in the reports of the higher courts

JUDGMENT

Guz v. Poland 15.10.2020 (app. no. 965/12)

see here 

SUMMARY

Criticism of his inspection report by a judge. Disciplinary condemnation for the applicant’s expressions. His disciplinary conviction is a Violation of the judge’s freedom of expression.

The applicant, a judge, was not promoted following the negative inspection report prepared by the Inspector Judge and described him as non-adaptive. The applicant described the petition as superficial, unfair and discriminatory. He was punished with the disciplinary penalty of the recommendation. The domestic courts ruled that his criticism undermined not only the inspector’s reputation but also the administration of justice as a whole.

Strasbourg reiterated that issues relating to the functioning of the justice system are in the public interest. In the present case, however, the applicant ‘s observations in the inspection report did not concern the exercise of judicial power, but concerned an internal stage of the promotion process. In addition, the Court found that the specific value judgments fall within the applicant’s right to freedom of expression. ΄

Given that disciplinary action may impede the applicant’s career development, the ECtHR held that the domestic courts did not strike a fair balance between the need to protect the judiciary and the need to protect the applicant’s right to freedom of expression.

The ECtHR ruled that the judge’s freedom of expression had been violated and awarded € 6,000 in respect of non-pecuniary damage.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Remigiusz Guz, is a Polish national who was born in 1973 and lives in Łaziska (Poland).
The case concerned the applicant’s complaint that he had been found guilty in disciplinary
proceedings of undermining the dignity of the office of a judge, following his criticism of a report on
his work by another more senior judge.

At the beginning of 2009 the applicant, a district court judge, applied for the post of a judge at the
Gliwice Regional Court.

As part of the promotion procedure, a judge inspector prepared a report on the applicant’s work
finding, among other things, that he had a difficult relationship with his superiors as he failed to
comply with their instructions.

Writing to the President of the Gliwice Regional Court, he responded to the assessment of his work,
alleging that it was “superficial, unfair and tendentious”. He maintained these remarks during a
meeting of the general assembly of regional court judges, which voted against the applicant’s
promotion.

He criticised the report again when appealing against the National Council of the Judiciary’s
subsequent decision not to forward his candidature to the President of the Republic. The Supreme
Court dismissed his appeal in November 2009.

A disciplinary case was then brought against the applicant, and in March 2011 he was found guilty of
undermining the dignity of the office of a judge and issued with a warning. His appeal against this
decision and subsequent constitutional complaint were all unsuccessful. The courts essentially found
that the applicant’s criticism had violated the standards of judicial decency, undermining not only
the judge inspector’s reputation in particular but also the administration of justice as a whole.

Relying on Article 10 (freedom of expression), the applicant complained that his conviction of a
disciplinary offence had breached his right to express his opinion on a report on his work which he
had considered inaccurate. He submitted in particular that his comments had not been offensive,
had only been raised internally and that it had been in the public interest to defend the rules on the
promotion of judges.

THE DECISION OF THE COURT…

In respect of the present case, the Court notes that the applicant made the impugned remarks in his reply to the assessment report prepared in connection with the procedure in which he sought promotion to the post of judge at the Gliwice Regional Court. Those remarks were addressed to the President of the Gliwice Regional Court, and the applicant maintained them during a meeting of the general assembly of the judges of that court. Thus, the impugned remarks were essentially expressed within the context of internal exchanges between judges. 

The Court reiterates that questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it must enjoy public confidence if it is to be successful in carrying out its duties. The Court also takes note of the applicants assertion that his actions were motivated by the public interest in ensuring the fairness of the promotion procedure.

With regard to the nature of the impugned remarks, the Court notes as follows. In his written remarks on the report of the judge inspector, the applicant stated that the assessment of his work had been conducted “superficially, unfairly and tendentiously”.

The Court notes that the domestic courts examined those remarks in the light of the attributes necessary to hold the office of judgeThey referred, in particular, to the duty of a judge to act with propriety and to avoid anything that could bring disrepute to the dignity of a judge. The courts furthermore referred to the relevant domestic case-law, indicating that criticism addressed by a judge to another judge should be made in a tactful, moderate and dispassionate manner. In the light of the abovementioned obligations, the domestic courts found that the applicant had exceeded the limits of his right to impart opinions and had not adhered to the standards of judicial propriety, and by doing so he had undermined the administration of justice. In addition, he had undermined the reputation of the judge inspector and her professional standing. In this regard, the Court of Appeal found that the applicants comments had constituted excessive value judgments, since they had lacked a sufficient factual basis. 

The Court has recognised that judges should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question. However, in the present case the applicants remarks did not concern the exercise of his adjudicatory function, but were related to an internal stage of the procedure for promotion in which a more senior judge assessed the applicants work. While it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, this cannot have the effect of prohibiting other judges from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter. In the present case, the judge inspector prepared her assessment report while acting in an official capacity and she may, as such, be subject to criticism within the permissible limits, and not only in a theoretical and general manner.

In addition, the Court reiterates that a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult a court, or members of that court, an appropriate punishment would not, in principle, constitute a violation of Article 10 § 2 of the Convention . Given the circumstances of the case, the Court cannot discern in the applicants remarks any intent to insult the judge inspector.

The Court agrees with the domestic courts that the first three impugned remarks (“unfair”, “tendentious”, and “superficial”) were value judgments. It remains to be examined whether the “factual basis” for those value judgments was sufficient.

The Court notes that the Court of Appeal found that it did not have the authority to determine the correctness of the assessment report, but confirmed that the report contained certain minor inaccuracies. The Court furthermore notes that for the Supreme Court, the question of accuracy of the report was not a relevant consideration for the assessment of the applicants behavior. From that perspective, it is difficult to see how the applicant could have demonstrated that his value judgments had a sufficient factual basis. The Court notes the applicants argument that he had the right to comment on the report because the report, in his view, contained an inaccurate assessment of his work. He submitted, inter alia, that the judge inspector had criticised him for his failure to comply with his superiors instructions, without having offered him the opportunity to respond to those allegations. Given the circumstances of the case, the Court finds that the impugned remarks, which constituted value judgments, could be regarded as having a certain factual basis and thus remained within the acceptable limits.

It should also be stressed that the applicant exercised his freedom of expression with the aim of defending his interests in the context of promotion procedure by presenting submissions to competent bodies.

As to the sanction imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account. In the present case, the applicant was found guilty of the disciplinary offence of undermining the dignity of the office of judge and the penalty of a warning, the most lenient available, was imposed on him. The information regarding his conviction in disciplinary proceedings was placed in his personal file for a period of five years.

The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom. In the applicants case, his disciplinary conviction may have had repercussions on his future career prospects.

In view of the foregoing, the Court finds that, on the one hand, the domestic courts failed to strike the right balance between the need to protect the authority of the judiciary and the protection of the reputation or rights of others, and, on the other hand, the need to protect the applicants right to freedom of expression. It follows that the interference complained of was not “necessary in a democratic society”.

There has accordingly been a violation of Article 10 of the Convention.

Just satisfaction: EUR 6,000 (non-pecuniary damage) and EUR 853 (costs and expenses)


ECHRCaseLaw

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