Introduction
Courts safeguard fundamental rights and the rule of law through formal procedures. Sadly, backsliding on the rule of law has shown that this is not enough. The deliberate undermining of checks on the elected branches of power and attempts to ‘capture’ the judiciary have pushed many judges to employ unconventional methods to defend the rule of law: they raised their voices and protested against harmful judicial ‘reforms’. In response, many have faced stringent sanctions. Probably the most emblematic Hungarian judge, former judge at the European Court of Human Rights, András Baka, was dismissed from the post of Supreme Court president.Footnote 1 One of the most visible figures of the Polish resistance against the capture of the judiciary, judge Żurek, was subjected to endless disciplinary proceedingsFootnote 2 and was dismissed from the Polish National Council of the Judiciary.Footnote 3 Many others have seen their judicial careers shattered. However, many more remained silent. The legal community has predominantly focused on a few vocal judges, whereas a large number of their silent colleagues were neglected. This article seeks to do the opposite, by exploring one of the likeliest reasons for their silence: the ‘chilling effect’ created by sanctions in response to judicial speech.
The ‘chilling effect’ has become a common feature of freedom of expression adjudication at the national, regional, and global level.Footnote 4 However, legal scholarship has paid very little attention to this legal metaphor.Footnote 5 Major contributions come from the United States.Footnote 6 The European scholarly debate has been very timid despite the prominent role of the ‘chilling effect’ in the jurisprudence of the European Court of Human Rights.Footnote 7 Recent events such as the rule of law crisis seem to have sparked interest in the ‘chilling effect’ in Europe,Footnote 8 but significant gaps remain. On the one hand, legal scholars who have written about the freedom of expression of judges have not addressed the ‘chilling effect’; rather, they have focused on legal and ethical standards concerning judicial speech or analysed supranational jurisprudence or national experiences with judicial free speech.Footnote 9 On the other hand, Fathaigh conducted a valuable analysis of the use of the ‘chilling effect’ in the Article 10 jurisprudence of the European Court of Human Rights. However, he examined it without a special focus on judges.Footnote 10 This article aims to fill this gap. It studies the ‘chilling effect’ in relation to the freedom of expression of judges. It seeks to shed new light on this invisible silencing force, which could prove particularly valuable in the current gloomy reality of some European countries.
In the first section, the article offers a theoretical account of the ‘chilling effect’. It then concentrates on the jurisprudence of the European Court of Human Rights concerning the freedom of expression of judges. It first underlines the general principles that the Court has developed over the last three decades. It then zooms in onto the ‘chilling effect’ argument in the Court’s Article 10 jurisprudence concerning judges. It provides a descriptive account of the ‘chilling effect’ in this line of jurisprudence. However, it aims to go beyond the mere description thereof: it critically analyses its application from the perspective of the ‘chilling effect’ theory; shows how the general principles applicable to judicial speech reflect the Court’s concern about the ‘chilling effect’; and how the ‘chilling effect’ doctrine can help to understand them in a new way. The paper concludes by underlining the importance of the ‘chilling effect’ on judicial speech for the current European reality.
A thoeretical account of the ‘chilling effect’
Courts and legal scholars claim that the ‘chilling effect’ – the fear of sanctions and other negative repercussions for expressing one’s opinion – may result in silence or the modification of speech.Footnote 11 Of course, the ‘chilling effect’ is not the only explanation for such behavioural reaction. It does not always result in self-censorship either. As social scientists know, human behaviour depends on an extremely complex cocktail of factors,Footnote 12 such as context, personal traits, individual assessment that the public expression of opinion would cause more harm than good,Footnote 13 one’s personal world-view, individual risk-aversion,Footnote 14 and inertia.Footnote 15 A person may decide to speak out even if he or she knows that a sanction will follow. However, only a few – some call them avant-gardeFootnote 16 – are willing to pay the price. Others are not. This is why the courts have rightly paid attention to the ‘chilling effect’ in their jurisprudence.
One could look at the ‘chilling effect’ in two different ways: as a behavioural phenomenon and as a legal doctrine designed to respond to this phenomenon.Footnote 17 When faced with (potential) sanctions, people are deterred from speaking about a certain topic at all (suppression of speech) or compelled to choose milder, more indirect, or subtle ways of communication (modification of speech). This is the ‘chilling effect’ understood as a behavioural phenomenon in a nutshell.Footnote 18 The French expressions – ‘effet inhibiteur’ and ‘effet dissuasif’ – catch the idea even better. The ‘chilling effect’ is in fact a common feature of law, which incentivises individuals to act in a prescribed way in order to avoid negative repercussions.Footnote 19 It is sometimes described as the sword of Damocles hanging over the heads of individuals.Footnote 20 Understood in this sense, the ‘chilling effect’ is based primarily on deterrence: fear of the negative consequences that speech or other behaviour could provoke. As such, it can be regarded as a general (and special) prevention mechanism. The strength of the ‘chilling effect’ varies depending on several factors, such as the type and intensity of the sanction, the probability that a sanction will actually be imposed, the ambiguity of the regulation of speech, unpleasant aspects linked to judicial proceedings arising from speech, the actual or perceived external effects of the sanction, the cost of obtaining legal advice prior to speaking, the risk of losing benefits, individual risk-aversion, and the perceived benefit arising from the contemplated speech.Footnote 21 When we understand the ‘chilling effect’ in this first sense – as a behavioural reaction – we have to admit that some ‘chilling effect’ is inevitable in any regulation, especially in relation to freedom of expression, where the regulation has to be drafted in general terms to satisfy the reality of life.Footnote 22 Furthermore, the ‘chilling effect’ may be desirable, in the sense that it only affects socially valueless speechFootnote 23 and does not spill over to valuable speech. Rare cases where a desirable ‘chilling effect’ occurs normally do not concern expression on matters of public interest.Footnote 24 A ‘chilling effect’ is therefore not necessarily negative, but can be positive – even desirable.Footnote 25 The ‘chilling effect’ is one of the factors the courts consider when they balance competing interests. If the legislation is carefully construed and it aims at regulating valueless speech, while it also supresses some valuable speech, the benefits of achieving this legitimate aim may outweigh the incidental ‘chilling effect’. In such case, despite encroaching upon valuable speech, the ‘chilling effect’ resulting from the regulation is acceptable Footnote 26 due to the high social value of the conflicting legitimate interest and the overall greater social value of the regulation compared with no regulation at all.Footnote 27 In a different scenario, when the social value of supressed speech is greater than the social value of the other interest at stake, such ‘chilling effect’ is unacceptable.Footnote 28 Henceforth, the courts may rely on a desirable or acceptable ‘chilling effect’ and find no violation of freedom of expression.Footnote 29
As we have seen in the previous paragraph, a regulation aiming to limit valueless speech (and thus intended to produce only a desirable ‘chilling effect’) may affect valuable speech as well. Our legal systems are not perfect. They cannot draw a clear line between protected and unprotected expression. They rely on judges, who are only human and make mistakes. Moreover, individuals are generally not experts in free speech law. As a result, they can only rarely be sure that their speech is protected and will be safeguarded in an eventual judicial proceeding. Consequently, they may decide not to speak even when the actual regulation does not cover their expression. In other words, due to the imperfections of the legal system and legal subjects, the regulation of unprotected speech deters people from expressing their otherwise protected opinions.Footnote 30
This argument has led the US Supreme Court to establish the ‘chilling effect’ as a legal doctrine, which is the second way in which one may refer to the ‘chilling effect’. What is the aim of the ‘chilling effect’ doctrine? In the words of the US Supreme Court, the pioneer courtFootnote 31 when it comes to the ‘chilling effect’,Footnote 32 this doctrine creates ‘breathing space’ for protected speech,Footnote 33 or in other words, a zone of ‘strategic protection’Footnote 34 for valuable speech.Footnote 35 It requires that some valueless speech be safeguarded, for the sake of the social value of protected speech, which may otherwise be supressed. As argued by Schauer, the leading scholar in this field, the ‘chilling effect’ doctrine is in fact a ‘principled distortion of ideal rules’. In an ideal world, the regulation would catch only unprotected speech and leave protected speech unrestricted. Nevertheless, this is far from reality. Therefore, the courts have come up with the ‘chilling effect’ doctrine to protect valuable speech, which would otherwise be ‘chilled’. The ‘chilling effect’ doctrine is thus underpinned by the idea that protected speech, which would be supressed without ‘the distortion of ideal rules’, is more valuable than unprotected (or even harmful) speech which is safeguarded as a result. This preference is a consequence of the social consensus that freedom of expression is of utmost importance for democratic society and that speech should be encouraged.Footnote 36 According to Schauer, the ‘chilling effect’ concept rests on the commonly accepted proposition that protecting some valueless speech is more socially advantageous than supressing some protected speech, similarly as the whole of criminal procedure rests on the social consensus that it is better to let ten guilty individuals escape justice than to condemn one innocent person. The ‘chilling effect’ is thus a fruit of the conviction that error is inevitable and that error to the detriment of speech is worse than error to the detriment of another constitutional value.Footnote 37 Yet, this principled preference is limited: it only holds until the harm of leaving speech unrestricted outweighs the benefits of such an approach.Footnote 38
The ‘chilling effect’ doctrine is concerned not only with a speaker who is sanctioned for publicly expressing his or her opinion, but it also seeks to address the dissuasive effect on other individuals in a similar position. The ‘chilling effect’s’ devil is that it deprives society as a whole of valuable expression.Footnote 39 The doctrine therefore responds by offering the overprotection of speech to remedy this harm.Footnote 40 The ‘chilling effect’ doctrine can be used outside the realm of freedom of expressionFootnote 41 and sometimes speech itself can have a ‘chilling effect’ on some other constitutionally protected behaviour.Footnote 42 For example, regulation leaning excessively towards protecting free speech deters plaintiffs from filing defamation suits and may thus turn out to be a heavy blow for one’s personal reputation. Such regulation can discourage respected people from entering public life, which has a negative impact on our democracy.Footnote 43 Why then are courts using the doctrine predominantly in the context of freedom of expression?Footnote 44 For most scholars, the answer again lies in the prominent place freedom of expression occupies in the Western constitutional tradition.Footnote 45 Giving other legitimate interests, such as personal reputation, the same benefit, especially when in conflict with freedom of expression, could, at least in some cases, counter the very idea of the ‘chilling effect’ doctrine.
Interestingly, legal scholars have been questioning the ‘chilling effect’ doctrine. They agree that it is an elusive notion, ‘a highly flexible metaphor’Footnote 46 that relies predominantly on intuitionFootnote 47 rather than on an actual empirically measured ‘chilling effect’ in the sense of a behavioural response to the regulation of speech. This lack of empirical support is understandable since the ‘chilling effect’ is extremely hard to measure empirically.Footnote 48 Kendrick, for example, argues that both the ‘chilling effect’ and the remedies to counter it rely on ‘predictions about the behaviour of speakers under counterfactual conditions’ and ‘involve intractable empirical difficulties’.Footnote 49 It is therefore not surprising that some scholars argue that the US Supreme Court ‘has founded the chilling effect [doctrine]Footnote 50 on nothing more than unpersuasive empirical guesswork’.Footnote 51 However, the scholarly community has recently moved away from questioning the very existence of the ‘chilling effect’.Footnote 52 What seems to remain uncertain is its strength in different contexts and under different circumstances. Therefore, the courts should continue to apply the doctrine, but with an awareness that their decisions necessarily rest on estimations and not on empirical proof.Footnote 53
How does the European Court of Human Rights apply the doctrine of ‘chilling effect’ in Article 10 cases? The ‘chilling effect’ is an important consideration that the Court generally takes into account in the phase of proportionality balancing.Footnote 54 However, it is not the only relevant factor. Before focusing on the central issue of the article – the analysis of the Court’s application of the ‘chilling effect argument in its jurisprudence concerning the freedom of expression of judges – we first need to have a closer look at the general principles that the Court has established in this field. Only then will we be able to understand and evaluate the role of the ‘chilling effect’ argument in the Court’s case law.
The freedom of expression of judges: key considerations arising from the jurisprudence of the European Court of Human Rights
Protection of freedom of expression before the European Court of Human Rights differs in relation to the role of right-holders in a democratic society.Footnote 55 The Court approaches cases concerning judges differently than cases concerning journalists, teachers, lawyers, or politicians. Such a functional approach has two important implications. First, the general principles guiding the determination of concrete cases should not be transferred uncritically from one group of applicants to another. Second, one does not need to study the whole body of the Court’s Article 10 jurisprudence to understand the Court’s case law concerning a specific group. One may meaningfully analyse only one category of speech, as this article does with the freedom of expression of judges. However, the analysis will also cover prosecutors, as the Court has consistently interpreted the freedom of expression of both groups of judicial professionals identically.
Judges enjoy the right to freedom of expression in the same manner as any other citizen.Footnote 56 However, their role in a democratic society imposes important limitations on their free speech. The society has to regard judges and courts as proper forums for the independent and impartial resolution of conflicts. The concern over public trust or, as the Convention puts it, the authority of the judiciary,Footnote 57 has important implications for their freedom of expression. In the words of the Court, judges have a duty of discretion and restraint. In principle, they should not comment on pending cases, respond to criticism, and should avoid the use of media, even when provoked. They should express themselves in a dignified manner.Footnote 58 They should also avoid political expression. However, the fact that their expression has political implications does not necessarily preclude them from expressing their opinion. The Court generally offers a high level of protection to expression that is in the public interest, for example opinions on the functioning of the judiciary.Footnote 59 It attaches particular importance to the position of the judge and the context of the statements.Footnote 60 National authorities have a certain margin of appreciation when striking a proper balance between the freedom of expression of judges and preserving the independent and impartial image of the judiciary.Footnote 61 However, the Court vigilantly monitors how such balance was struck in each concrete case, after taking into account the potential ‘chilling effect’Footnote 62 and all other relevant circumstances. If national authorities fail to conduct this balancing exercise in line with the Convention standards, a violation of Article 10 may follow.Footnote 63 Due to the increased concern over judicial independence, each interference with the freedom of expression of judges merits special attention from the Court.Footnote 64
In recent years, the rule of law crisis has arguably led the court to strengthen its protection of the freedom of expression of judges. Judges are now treated as a special category of civil servants that do not owe loyalty to their employer, but to the rule of law.Footnote 65 The Court was willing to narrow the margin of appreciation of states in certain cases.Footnote 66 It has extended the scope of the freedom of expression of judges to the category of ‘official speech’Footnote 67 and shifted the burden of proof in favour of applicant judges.Footnote 68 Nevertheless, the need to boost human rights standards to protect judges remains. The concept of ‘chilling effect’ has the potential to do just that.Footnote 69 That is why this argument is particularly worth exploring in these times of constitutional backsliding.
The court’s application of the ‘chilling effect’ argument in the judicial free speech case law
The article will now focus on the application of the ‘chilling effect’ argument in the Court’s case law concerning the freedom of expression of judges. The analysis will serve three purposes. First, it will map the characteristics of the ‘chilling effect’ argument arising from the jurisprudence. Second, it will seek to uncover the explanatory potential of the chilling effect by shedding new light on the Court’s general principles applicable to judicial speech. In other words, the article relies on the Court’s case law to argue that certain general principles reflect the Court’s concern for the ‘chilling effect’. Third, the analysis will critically evaluate the application of the ‘chilling effect’ argument from the perspective of the ‘chilling effect’ theory to determine whether and to what extent the Court’s understanding of the ‘chilling effect’ diverges from the theoretical account.
The freedom of expression of judges generally merits the full protection of the Court, even to the detriment of the authority of the judiciary
The analysis starts with Wille v Liechtenstein,Footnote 70 a case in which the Court heard an Article 10 complaint of a judge for the first time.Footnote 71 The Court embraced the ‘chilling effect’ argument without hesitation even though this was only the Court’s third and the Grand Chamber’s second judgment where the Court mentioned the ‘chilling effect’ doctrine.Footnote 72 The case revolved around a private letter that the Prince of Liechtenstein had sent to the applicant – the President of the Liechtenstein Administrative Court. In the letter, the prince criticised the applicant’s publicly expressed opinion about the interpretation of the constitution, and announced that, due to the applicants’ views, he would not reappoint him to the incumbent post. The Court ruled that:
The right of the applicant to exercise his freedom of expression was interfered with once the Prince, criticising the contents of the applicant’s speech, announced the intention to sanction the applicant because he had freely expressed his opinion. The announcement by the Prince of his intention not to reappoint the applicant to a public post constituted a reprimand for the previous exercise by the applicant of his right to freedom of expression and, moreover, had a ‘chilling effect’ on the exercise by the applicant of his freedom of expression, as it was likely to discourage him from making statements of that kind in the future.Footnote 73
Wille and the subsequent case law show that the Court has never had any doubts about using the ‘chilling effect’ argument in relation to judicial speech. For now, there is no elaborated view among either judges or academics that would counter the application of the ‘chilling effect’ doctrine in relation to judicial speech. Only in Kudeshkina v Russia Footnote 74 was the opinion voiced, by the dissenting judges Kovler and Steiner, that the Court’s reliance on the ‘chilling effect’ doctrine struck an improper balance between the freedom of expression of judges and the need to safeguard the authority of the judiciary.
The protection of the authority of the courts is indeed a valid concern. Why should the freedom of expression of judges merit special protection to the detriment of the authority of the courts, which can be regarded as the bedrock of public trust in and the social legitimacy of the judiciary – prerequisites for the independent functioning of the justice system and thus the protection of our fundamental rights? The answer is not straightforward. One of the premises upon which the ‘chilling effect’ theory rests is that speech is positive and should be encouraged. Does this apply equally to judicial speech? Should judicial speech be encouraged? In principle, we argue that the answer is yes. That is why the ‘chilling effect’ argument has found such a prominent place in the Court’s jurisprudence concerning judicial free speech in the first place. Judges are public intellectuals who possess unique knowledge about the functioning of the legal system. It would be a great loss for society if they always remained silent. However, to preserve their impartiality, independence and public trust in the judiciary, the Court has ruled many times that they should express their opinions with restraint, discretion, propriety, and moderation. In most cases, it is in principle not a question of whether judges are free to express their opinions; it is rather a question of how they should express such.Footnote 75 Arguably, the fact that the Court has been applying the ‘chilling effect’ doctrine without hesitation points to the conclusion that judicial opinion is valuable in the eyes of the Court and should be encouraged as long as it is expressed in a dignified manner. However, the ‘chilling effect’ is only one of the considerations in proportionality balancing and does not automatically lead to a violation of Article 10 of the Convention. There are cases where the Court ruled that the measure in question entailed a ‘chilling effect’, but it found no violation of Article 10.Footnote 76 In such cases, it was arguably the manner in which the judge expressed his or her opinion and not the substance thereof that tilted the scales in favour of the competing interests: judicial independence and impartiality and public trust in the judiciary. Such a conclusion is consistent with the ‘chilling effect’ theory. More speech is in principle positive, as long as it does not cause more harm than good to society. In cases where judicial speech is harmful, it should be limited. In such cases, the public good arising from the suppression of harmful speech is greater than the public harm stemming from the potential ‘chilling effect’ on valuable speech that such limitation would entail.
Sources of the ‘chilling effect’: regulation and different sanctions, even the lightest
Under the Convention, regulation alone is hardly ever enough to generate a ‘chilling effect’.Footnote 77 The Court considers the ambiguity of the legislation in the first step of the analysis, as one of the elements of the requirement that the interference be prescribed by law. Contracting states generally have no difficulty complying with this requirement, as the Court’s standard is relatively low. In Panioglu v Romania, a judge wrote an article in which she drew parallels between communist oppression and the rise of the President of the Supreme Court of Romania, who had served as a state prosecutor in the era of communism. Despite the fact that the targeted Supreme Court President had undergone a vetting procedure, Mrs Panioglu suggested that ‘Comrade Prosecutor’, as she called the President in her article, was a part of the ruling structure and questioned the President’s belief in democratic values, albeit without pointing to concrete facts proving inadequate behaviour. In response, the judges’ section of the High Council of the Magistracy opened a code of conduct procedure, in which the applicant was found to have overstepped the limits of freedom of expression in breach of her duty to respect the moral and professional integrity of her colleagues. The decision was permanently included in the applicant’s professional file and can thus be taken into consideration if she applies for promotion. Before the European Court of Human Rights, the applicant pleaded that the domestic legislation, which provided the legal basis for the decisions of domestic authorities, was ‘unclear and unforeseeable’. In 2019, a few years after Mrs Panioglu lodged her application with the Court, the Romanian Court of Cassation ruled in a similar case that the provision in question was unlawful because it was indeed unclear and lacked precision. Nevertheless, the European Court found that it ‘was formulated sufficiently clearly in order to fulfil the requirements of precision and foreseeability under Article 10 § 2 of the Convention’.Footnote 78 In Kozan v Turkey,Footnote 79 the applicant was reprimanded for sharing a press article critical of Turkish judicial authorities in a private Facebook group that brought together primarily judicial professionals, as well as academics, law graduates, and law students. He claimed that the provision, on which the reprimand was based, was too vague and too broad, something that the Venice Commission had already noted in its opinion of 28 March 2011.Footnote 80 Nevertheless, the Court ruled that the essential question was whether the measure was necessary in a democratic society and simply continued with an examination of the legitimate aim under the assumption that the interference was prescribed by law.Footnote 81 In the same vein, the Court avoided the question of foreseeability in Eminağaoğlu v Turkey.Footnote 82
The Court’s reserved attitude towards the vagueness of the national legislation should be understood through the prism of its institutional role. It is not a constitutional court. It primarily monitors whether states apply national law in line with the Convention in concrete cases. It is therefore for domestic courts, especially constitutional courts, to safeguard legal certainty and thus contain the ‘chilling effect’ by insisting on a reasonable level of precision. Nevertheless, even when looking at the ambiguity of a legal provision from a purely national perspective, it may not be the most important ‘chilling factor’.Footnote 83 Much depends on how the provision is applied in practice. If practice is scarce or nonexistent, one must also take into account the strictness of the more general judicial accountability culture in the country.Footnote 84 The Court’s approach, which pays little attention to legislative enactment, is therefore in line with the ‘chilling effect’ theory.
Even intuitively, the application of sanctions and other punitive measures seems to create a greater ‘chilling effect’ than the mere existence of legislation. The Court has therefore rightly put more emphasis on these other sources of the ‘chilling effect’. It has defined sanctions and other punitive measures in a very flexible manner. The Court does not understand sanctions merely as penalties that have a direct negative bearing on one’s judicial career, such as disciplinary penalties. In other words, it is not only sticks, but also the denial of carrots that may create the ‘chilling effect’. This is proven by Panioglu, where the potential sanction was non-promotion, and Wille, where it took the form of a threat of the refusal of reappointment.
In addition to the nature of the sanctions, a related question is their intensity. Here, the Court is not concerned with the actual subjective ‘chill’, but rather with the objective intensity that the measure has to attain to entail a ‘chilling effect’. The Court has already held that even the most lenient disciplinary penalty, namely a reprimand or a warning, can have a ‘chilling effect’.Footnote 85 In Panioglu v Romania, the Court came to the same conclusion, even though the case concerned ‘only’ a code-of-conduct procedure where no disciplinary sanction could be imposed. The intensity threshold therefore seems to be very low. This is yet another sign that the Court seems to be very sensitive towards the freedom of expression of judges.
Moreover, the threat of a sanction can create a ‘chilling effect’, even if no sanction is eventually imposed. As the previously quoted passage from Wille indicates, the Court did not find that the measure interfering with freedom of expression and having a ‘chilling effect’ was the fact that the applicant was not reappointed to the post of President of the Liechtenstein Administrative Court; rather it was the mere announcement that this would happen after the end of his four-year term. This case shows that the Court is willing to recognise that the measure constituting an interference with Article 10 of the Convention (in this case, a private letter) may not have any immediate legal consequences for the applicant. In this sense, Wille is telling as it forces our analysis of the ‘chilling effect’ to go beyond imminent repercussions for the professional career of the judge in question. In other words, a ‘chilling effect’ can result from a threat that has never been carried out. A similar conclusion can be drawn from Panioglu v Romania. The Court explicitly recognised ‘that [the code-of-conduct proceedings] did not entail any concrete and imminent loss of judicial office or any pecuniary penalty for her’. Nevertheless, it concluded that, due to the negative influence on the prospect of promotion, ‘the decision in the code-of-conduct proceedings may have had a certain “chilling effect” on the exercise of the applicant’s freedom of expression’.Footnote 86 In other words, the decision in the code of conduct proceedings, which threatens promotion, may entail a ‘chilling effect’. Even the eventual promotion of the applicant could not obviate ex post facto the ‘chilling effect’ of such a threat since the damage to freedom of expression had already been done. Accordingly, the lack of practical negative consequences for the applicant’s professional career is not decisive. Moreover, the applicant is not required to either prove such repercussions or substantiate the existence of the ‘chilling effect’.Footnote 87 This is consistent with the ‘chilling effect’ theory, which suggests that the ‘chilling effect’ is very difficult to prove.
In a similar vein, the mere initiation of a disciplinary or other judicial accountability procedure, even though no sanction is eventually imposed, may have a ‘chilling effect’,Footnote 88 as it essentially constitutes the threat of a sanction. In Harabin v Slovakia,Footnote 89 the European Court of Human Rights was willing to recognise that the government’s proposal to remove the applicant from office had a potential ‘chilling effect’, even though the ‘chilling effect’ was limited in duration, as the motion did not succeed in the Slovak parliament and the applicant remained President of the Supreme Court until the expiry of his five-year term.
However, a recent case seems to suggest that not every accountability procedure has the potential to chill judicial speech, at least to the legally relevant extent. In M.D. and others v Spain,Footnote 90 the Court heard a complaint of 20 judges from Catalonia, who prepared and signed a legal opinion in favour of the right of the Catalan people to exercise their right to self-determination under the Spanish constitution and international law. In response, the civil servants trade union filed a disciplinary complaint and a disciplinary procedure before the Spanish General Council of the Judiciary was initiated. The Court found no violation of Article 10 and no ‘chilling effect’. It relied on the specific circumstances of the case, namely that the Spanish legislation obliged the General Council to conduct disciplinary proceedings if the complaint comes from a legitimate third party; that no sanction was imposed; and that the General Council had closed all the disciplinary proceedings by concluding that the signing of the manifesto was a legitimate exercise of freedom of expression.Footnote 91
The Court’s approach in this case is problematic for three reasons. First, it suggests that no ‘chilling effect’ arises when the person who is behind the threat – in this case the disciplinary complaint – is a private party. As the theory warns,Footnote 92 and the Court has ruled in other contexts,Footnote 93 the ‘chilling effect’ may originate not only in state actions, but also in private actions. In cases of private actions, the state has a positive obligation to shield individuals against such ‘private’ ‘chilling effect’.Footnote 94 In M.D. and Others, the Court completely disregarded such obligation. Second, the case can have negative implications for future cases. States could invoke M.D. and Others to the detriment of applicant judges who suffered from a ‘private’ ‘chilling effect’. Finally, the decision sends a wrong signal to constitutionally backsliding states. It seems to suggest that the Court is willing to tolerate a system where the disciplinary machinery can be triggered by ‘legitimate third parties’. This may invite more harassment of judges by private parties. The Court’s decision should therefore be limited to the specific circumstances of the concrete case and the Spanish context.
As this subsection suggests, the sources of the ‘chilling effect’ may take various forms, and may have light or even no tangible consequences. The ‘chilling effect’ may originate in public or private actions. Such an approach reflects a well-established principle of the Court according to which an interference with freedom of expression does not need to take the form of a penalty, but should be defined broadly as any ‘formality’, ‘condition’, or ‘restriction’.Footnote 95
The personal scope of the ‘chilling effect’: the potential to affect not only the targeted judge, but also other judges, prosecutors, and civil servants
The ‘chilling effect’ affects both the person directly targeted as well as other individuals in a similar position. This is a recurring theme that is consistent with the ‘chilling effect’ theory, and permeates the ‘chilling effect’ argument throughout the Court’s case law, irrespective of whether the applicant is a journalist, activist, teacher, or judge. What is important and novel in the context of judicial speech is that the Court explicitly recognised that retaliation for the public expression of an opinion of a prosecutor may have a ‘chilling effect’ regarding both prosecutors and judges and vice versa.Footnote 96 In fact, the affected group may extend beyond the legal profession of the punished person. In Guja v Moldova, a case concerning a whistle-blowing prosecutor, the Court concluded that dismissing the applicant for leaking official documents to the press could create a ‘chilling effect’ not only on state prosecutors, but on all ‘employees from the Prosecutor’s Office’.Footnote 97 Moreover, the Court recognised that media coverage may extend the ‘chilling effect’ even further to other civil servants and employees.Footnote 98
The Court seems to have adopted a flexible characterisation of individuals in a similar position, who are victims of the ‘chilling effect’. This is laudable. However, the Court lacks consistency in this respect. If the Court wants to assign an accurate weight to the ‘chilling effect’, it should design an approach to better defining the personal scope of the ‘chilling effect’. As the case law currently stands, it seems that the Court has paid very little attention to this aspect. In some cases, the scope is limited to the applicant.Footnote 99 In other cases, it extends to other judges, Footnote 100 and in some to other judicial professions. The different personal scope of the ‘chilling effect’ is fine as long as cases are different. However, there are differences in scope even in cases that are arguably very similar.Footnote 101
Measures taken against prominent judges amplify the ‘chilling effect’
The position of the applicant within the judicial system is one of the circumstances that the Court regularly takes into consideration in Article 10 cases.Footnote 102 The higher the position of the judge, the more responsibility it entails – with greater power comes greater responsibility. On the one hand, this requires a heightened level of discretion in the public discourse of judges in higher positions,Footnote 103 as their reckless exercise of freedom of expression can compromise public trust in the judiciary more than an identical attitude in ‘ordinary’ judges. This could suggest less tolerance by the Court of the views of leading judges and thus lower protection under Article 10. On the other hand, the Court has been reiterating since Wille that an interference with the freedom of expression of a judge in a high position calls for close scrutiny,Footnote 104 which would suggest an elevated level of protection under Article 10. The question therefore arises whether a more prominent position of a judge heightens or diminishes the level of protection under Article 10. Recently, in Żurek, the Court seems to have answered this question. It held that prominent judges did indeed enjoy greater protection under Article 10.Footnote 105 Dissenting Judge Wojtyczek questioned this approach from the perspective of the principle of equality, a fundamental Convention value. The Court’s unequivocal wording in Żurek begs the question of the justification of such a privileged status of prominent judges.
One justification would be that high-ranking judges must be afforded greater protection as they assume powers over the careers of their colleagues. That is why in Poland and Hungary one of the first measures paving the way for the political capture of the judiciary was to dismiss court presidents. However, the Court seems to be willing to recognise greater protection not only to judges with extensive competence within the third branch of power, such as court presidents and members of the judicial self-governing bodies.Footnote 106 Miroslava Todorova, for example, was a first instance penal judge in Sofia, Bulgaria, and the head of the judicial association. She did not have any position of power in the self-governing structures. Nevertheless, the Court underlined the significance of her position as one of the elements of its review of proportionality throughout its reasoning.Footnote 107 Therefore, the higher protection of prominent judges must have a different justification. A more plausible explanation is that in cases involving prominent judges the Court is led by the concern that the ‘chilling effect’ is greater when a prominent judge is punished for expressing his or her views. This common-sense conclusion can also be drawn from Żurek, where the Court stressed that judge Żurek ‘is one of the most emblematic representatives of the judicial community’, before concluding that the measures taken against him ‘undoubtedly had a “chilling effect”’.Footnote 108 Greater protection of judges holding prominent positions is therefore not some kind of privilege of the judicial elite, but is profoundly justified due to such preventing the negative consequences of the ‘chilling effect’. The greater the visibility of the sanctioned judge, the greater the number of people that become familiar with the sanction and, thus, the greater the ‘chilling effect’.Footnote 109 Such an approach is consistent with the ‘chilling effect’ theory. According to Penney, the ‘chilling effect’ is greater in cases where people are exposed to a personalised threat, compared to cases where people are not aware of a threat or such threat seems distant.Footnote 110 The sanctioning of a well-known judge increases the perceived proximity of the threat and arguably works similarly to sending a personalised threat to all the judges in the given country.
The ‘chilling effect’ and the subsidiarity principle
The Court assigns a central role to the procedural aspect of Article 10 in determining whether the interference with freedom of expression was justified. In other words, the Court meticulously scrutinises whether the national authorities have reviewed the measure according to the Convention’s free speech standards. If not, this could be the sole reason for finding a violation of Article 10.Footnote 111 The central reason for such an approach is the subsidiarity principle, which has recently gained even more prominence within the Convention system.Footnote 112 However, in addition to subsidiarity, compliance with procedural obligations has important consequences for discourse on the ‘chilling effect’. According to theory, one of the factors determining the strength of the ‘chilling effect’ is the uncertainty of speakers as to whether their right to free speech will be protected in possible court proceeding. The procedural obligations imposed by the Court push national authorities to apply the Convention standards, and thus diminish the uncertainty and as a result the strength of the ‘chilling effect’. The Court’s emphasis on the procedural obligations thus has the potential to weaken the ‘chilling effect’. This is even more so since the Court obliges states to pay attention to the potential ‘chilling effect’ when limiting freedom of expression. As made clear in Miroslava Todorova v Bulgaria, ignoring the ‘chilling effect’ at the national level is itself a sign that national courts have failed to comply with the Court’s free speech standards. As such, it is an aggravating factor for the state regarding its procedural obligations.Footnote 113
While we absolutely welcome the Court’s approach on this point, we would like to point out the fact that the Court itself sometimes turns a blind eye to the ‘chilling effect’. We identified quite a few cases in which, for unknown reasons, the ‘chilling effect’ argument did not appear in the Court’s reasoning.Footnote 114 We therefore argue that more consistency on the part of the Court would increase the legitimacy of its requirement that national authorities pay attention to the ‘chilling effect’.
Another element connected to the subsidiarity principle concerns the implementation of the Court’s judgments. In Kudeshkina (No. 2) v Russia,Footnote 115 the Court held that without the proper implementation of its judgment in Kudeshkina v Russia,Footnote 116 where the Court found a violation of the freedom of expression of a judge who criticised the judicial structures in Russia, the ‘chilling effect’ would persist. The continued non-implementation of the judgments of the Court is therefore prolonging the ‘chilling effect’.
Conclusion
Despite the proliferation of the Court’s case law regarding the freedom of expression of judges in recent years, the Strasbourg jurisprudence still has to cover many scenarios. Therefore, this paper offered only a limited account of the characteristics of the ‘chilling effect’ on judicial speech. Nevertheless, the article sheds new light on one of the most important constitutional rights of judges. By linking the freedom of expression of judges and the ‘chilling effect’ doctrine, it offers valuable insights for the Court’s future work. Many cases concerning judicial free speech are currently pending before the Court.Footnote 117 It is therefore crucial that the Court recognises the ‘chilling effect’ on judicial speech in the first place. Then, in the process of balancing competing interests, the Court should assign proper weight to the ‘chilling effect’ argument. This is indeed a challenging task, but one that the Court may accomplish armed with a better understanding of the ‘chilling effect’ doctrine, which this article seeks to provide. The Court should avoid a narrow characterisation of the ‘chilling effect’, as occurred in M.D. and Others v Spain, where the Court seemed to have confined it to state actions. It should also be sensitive to the fact that the ‘chilling effect’ might not only affect judges, but also prosecutors and all those who oppose deleterious (judicial) reforms. Outside the context of deliberate constitutional backsliding, this article reminds domestic decision-makers to be alert to the ‘chilling effect’. This is important not only to avoid their decisions beingquashed or ultimately found to be contrary to the Convention by the Court, but also due to the value of judicial expression for ensuring a democratic society. Finally, yet importantly, this article can be regarded as the first step in a broader and deeper interdisciplinary research quest to determine whether and when judges or other individuals feel free to express their opinions, or if their speech is barred by fear, turning their constitutionally guaranteed freedom into actual feardom.Footnote 118
Acknowledgements
This research would not be possible without TRIIAL 2 (TRust, Independence, Impartiality and Accountability of Legal professionals under the EU Charter – part 2) Project that is founded by the EU under the Justice Programme (Grant agreement no. 101089737). This paper was also prepared within ARRS founded project Judicial Selection under Scrutiny: Judicial Independence, Lawfulness and Merit (No. J5-4583). We would like to thank Madalina Moraru for useful feedback on the first draft of the paper and the anonymous reviewers and editors for their insightful and constructive comments.
