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Judicial Ethics Committee Judicial Ethics Committee REPORT (CONSULTATION 21/19 ), OF 10 FEBRUARY 2020 FREEDOM OF EXPRESSION OF JUDGES: PERMISSIBILITY OF CRITICISING THE DOCTRINE OF A RULING OF THE CONSTITUTIONAL COURT OR OTHER COURTS. I. CONSULTATION […] II. OBJECTIVE OF THE CONSULTATION 1. The consultation asks whether passing comment on pronouncements of the Constitutional Court in areas in which the consultor has acquired specialist academic training in specialist legal journals, law books or in conferences contravenes the Principles of Judicial Ethics cited by the consultor. 2. The consultor expressly invokes principles 3 and 9 (on independence) and 19 (on impartiality). We consider that principles 20 and 31 (on integrity) are also applicable. Principle 3: Members of the judiciary must be actively committed towards the good functioning of the judicial system, and promoting an attitude of respect and trust in the Judiciary throughout society, and exercise the jurisdictional function in a manner that is prudent, moderated and respectful to the other powers of the State. Principle 9: Judges must behave, and undertake their rights in all activity in which they are recognisable as such, in a way that they do not compromise or prejudice the perception held by society on the independence of the judiciary in a democratic, lawful state. Principle 19: In their social lives and in their relationship with the communications media judges may contribute reflections and opinions, but at the same time they must be prudent in order to ensure their appearance of impartiality is not affected by their public statements, and they must show, in any event, discretionary respect for the information that could prejudice the parties or the development of the proceedings. Report Consultation 21/2019 1 Judicial Ethics Committee Principle 20: In their relationships with the communications media, judges may carry out a valuable educational function in terms of explaining the law and the way in which fundamental rights operate at the core of the process. Principle 31: Judges, as citizens, have the right to freedom of expression, which they will exercise with prudence and moderation with the objective of preserving their independence and appearance of impartiality, and maintain social trust in the judicial system and jurisdictional bodies. III. ANALYSIS OF THE QUESTION 3. The consulted case does not refer to the possibility of passing legal comment on a matter that the consulting judge has heard, but on a judgment of the Constitutional Court of the type that, in academic practice, he usually classifies as controversial due to expressing a majority position and various individual dissenting votes. The consultor states his agreement, already previously expressed, with the individual votes and is concerned that setting forth such a position, which is contrary to the final decision of the Constitutional Court, in a legal article and in a conference/debate may affect the principles of judicial ethics. He does not invoke the principles on integrity that we believe the question concerns. 4. Our procedural law establishes that any magistrate-judge who participates in voting on a resolution, ruling or judgment, will sign in the agreed form, “despite dissenting from the majority” (article 156 of the Law of Criminal Procedure, article 260 of the Organic Law on the Judiciary and article 205 of the Law of Civil Procedure). And the way to express this disagreement is by issuing an individual vote of which a written record is made, in addition to the alternative judgment that, in its place, would have issued by that magistrate-judge. In the same vein, article 90.2 of the Law on the Constitutional Court allows the president and the magistrate-judges of the Constitutional Court “to reflect their dissenting opinion in an individual vote, always provided that it has been defended in the deliberation, in terms of both what is referred to in the decision and in the grounds.” In this context, it is logical for a judgment of the Constitutional Court that decides a controversial case and which, in addition, contains several individual votes, to provoke debate within the legal community. In this legal debate, for a magistrate-judge in an Report Consultation 21/2019 2 Judicial Ethics Committee academic discussion forum to accept the dissenting opinion in the Constitutional Court ruling is something that fits within freedom of speech, in this case, academic. 5. This Commission, in its Report of 8 April 2019 (Consultation 6/19) indirectly pronounced on the matter being consulted, in the following sense: “3. Publications of articles by judges in communications media, in general, and legal journals, in particular, is compatible with the pedagogical function of explaining the law, and in the way in which fundamental rights operate at the core of the process alluded to in Principle 20. Knowledge of the Law on the part of judges is nourished not just be studying existing doctrine and jurisprudence on specific matters; it is also fed by experience gained during the carrying out of their jurisdictional function, and by the practical knowledge of legal matters acquired via the cases in which they have intervened as a result of their profession. Thus, the utilisation by judges of their knowledge on topics that have been the object of judgments pass by them for their dissemination in specialised law publications does not contravene the Principles of Judicial Ethics.” Moreover, in the Report of 8 April (Consultation 5/19) on the publication of a work of fiction, we declared: “6. Artistic and literary production and creation, as is the case for science and technology, are activities permitted to judges and magistrates, as expressed by Article 389.5 LOPJ, although they must avoid dealing with matters directly or indirectly related to their own judicial activity.” 6. In a case such as this one, participating in presentations may serve to encourage the pedagogical work that the Principles of Judicial Ethics attribute to judges and magistrate-judges provided that the same conforms to the limits of healthy criticism that, under no circumstances, protects attacking judicial resolutions for the simple fact of dissenting from the opinion expressed by the majority. IV. CONCLUSION In view of the foregoing, we issue the following opinion: i) Publications of articles by judges in communications media, in general, and legal journals, in particular, as well as giving conferences or courses related to legal training Report Consultation 21/2019 3 Judicial Ethics Committee or dissemination in respect of legal questions, is compatible with the pedagogical function of explaining the law, and in the way in which fundamental rights operate at the core of the process. ii) The utilisation by judges of their knowledge on topics that have been the object of judgments passed by them for their dissemination in specialised law publications does not contravene the Principles of Judicial Ethics. This is the case whether the opinion expressed is in agreement or disagreement with the arguments upheld by that Court. Report Consultation 21/2019 4 .
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