The Coalition for Independent and Transparent Judiciary responds to media statements and calls by High Council of Justice (HCOJ) members that discussed the need for new regulations limiting the freedom of expression and called for improvement of self-regulatory mechanisms of the media, in order to protect the standing of the judiciary and reputation of judges. Importantly, the initiative of introducing sanctions to protect the reputation of the judiciary was also discussed in the Judicial System Strategy working group, causing strong criticism from international experts and local civil society organizations involved in the project.
We must underline that given the current systemic problems in the judicial system, it is vitally important for society to have an unhindered possibility for public discussion of the causes and ways for addressing them. Against this background, initiatives in the name of protecting judicial independence, which in reality attempt to limit public discourse, carry a tangible and real threat of keeping the critical part of society in imposed silence. This will further exacerbate the existing problems, rather than solving them.
The Coalition has expressed its strong position on the systemic problems in the judicial system on numerous occasions. It is particularly troubling that the judicial selection and appointment processes by the HCOJ have had complex problems for years and fail to ensure the objective selection of judges based on their competence and integrity. The ongoing competitions for judicial selection lack transparency, and the candidates participating in the selection processes are not informed regarding the term and procedures of their appointment. Additionally, there is no sound mechanism for judicial accountability. HCOJ makes its decisions behind closed doors and often there are no mechanisms for appealing those decisions. Individual judges are not adequately protected from influence within the system and undue pressures of high officials. There are substantiated doubts regarding potential influences in certain high profile cases and the deficit of dissenting voices within the judicial system. In this situation we believe any hindrance to public discourse, including in relation to specific cases attracting high public interest and highlighting the problems within the system, is intolerable and limiting possibilities for improvement.
We believe that the reputation of the judiciary can be defended and promoted not by silencing criticism through artificial or repressive mechanisms, but by timely reacting to systemic problems and implementing coherent reforms in the court system.
It is important to realize that judicial independence is not a privilege enjoyed by the courts but an obligation that is expected from the judiciary. Judicial independence is not endangered by public criticism. On the contrary, the latter can significantly contribute to judicial independence.
Under the rule of law, the judiciary is the major guarantor of freedom of expression. It should not engage in restricting criticism of the justice system, public discussion and assessment of important developments, and open debates over the public interest issues. Such restrictions undermine free societies and put the judiciary at risk of self-isolation.
It is not in doubt that the state is obliged to provide adequate protection for the judiciary and the court system. It is important to ensure that that legislative framework (Criminal Justice Code, Law on Communication with the Judges of Common Courts) provides multiple guarantees against interference with the work of judges. Similar to any other citizen, a judge has an opportunity to apply to the court to protect his/her reputation and honor in cases where he/she is defamed.
Despite the flaws of certain laws listed above, which require refinement, particularly to ensure greater foreseeability, the current legislative framework does include mechanisms necessary for the protection of judicial independence and impartiality.
Also, the reputation of the courts will be safeguarded if the judiciary proactively provides detailed information about topical issues of the court system to society to avoid a situation where certain groups mislead the public and unjustifiably create a negative public opinion about the courts. It is also important to strengthen self-regulatory systems in the media and increase awareness of issues related to the judiciary. However, this approach should not result in repressive sanctions.
We believe that the members of the High Council of Justice and high judicial officials should discuss the flaws of the court system and propose solutions to these problems to the public instead of supporting initiatives which endanger free and open public discussions about the problematic issues.
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