Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Expands Expression
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Against a backdrop of heightened political rivalry between the judiciary and the provincial executive power, three judges in the Province of San Luis, Argentina, were dismissed from their posts. One of the reasons for their removal, was they signed a note that expressed critical opinions about the institutional crisis that was affecting them. The Inter-American Human Rights Commission heard the case and concluded the ambiguity and broadness of the law used to sanction them did not fulfill the strict legality requirement. Additionally, it found the application of that law, in this instance, was neither suitable nor necessary to reach the objectives it was formally trying to protect. It stated, also, that the judges exercised their power in a legitimate way.
Against a backdrop of heightened political rivalry between the judiciary and the provincial executive power in San Luis, Argentina, the Bar Association of Villa Mercedes issued a “Resolution in the form of a complaint.” Among other things, this resolution asked the federal authorities to intervene the three branches of power in San Luis Province. It stated, among other things, “[…] [t]hat in recent months the Judiciary, essentially the Superior Court of the province has been subjected to merciless and unusual attack by the whole political-economic structure of the head of the provincial executive branch. […] That the judiciary, which is undergoing a crisis triggered by the provincial Executive’s attempt to destroy its independence, is powerless to solve the institutional deficiencies of this province. That this situation of the judiciary’s lack of independence can be observed in other parts of the national territory.” [para. 44].
At a later date, several judges in the Province of San Luis signed, together with other judicial officers, a note addressed to the President of the Bar Association in which they expressed ““[they] shared the interpretation of provincial issues, set forth in the preambular paragraphs of the Resolution of that Bar Association” and that “[b]earing in mind the political and institutional circumstances being experienced by the province of San Luis, that were accurately analyzed in said document, [it was] their duty to adhere to it as members of the provincial judiciary.”” [Par. 45].
As a result of this declaration, the judges were removed from their posts. A Jurado de Enjuiciamiento (Tribunal to try a judge’s misdemeanors) found the judges’ conduct violated the prohibition to engage in “[p]ublic or concealed intervention in politics or the carrying out of acts of that nature,” established in article 193 of the San Luis Constitution and article 21.j) of Law No. 5124 that develops that prohibition [para. 201].
The Inter-American Commission on Human Rights heard the case, and concluded the ambiguity and broadness of the law used to sanction the judges did not fulfill the strict legality requirement. Further, the Commission considered their dismissal “was not a suitable or necessary measure for protecting the guarantees of independence and impartiality that are required to govern judicial functions.” Finally, it declared the judges exercised their freedom of expression in a legitimate way.
The Inter-American Commission on Human Rights (IACHR) had to analyze whether the sanctions imposed on the three judges as a consequence of a critical statement involving the provincial authorities constituted a violation of the judges’ freedom of expression.
The IACHR recalled that freedom of expression has both an individual and a social dimension and both are essential to democracy. It emphasized that a democratic society can only function properly if it is possible to discuss, debate and circulate ideas on public interest matters without any inhibitions. As a consequence, expressions about matters of public interest enjoy a higher degree of protection [para. 210].
The IACHR reiterated the American Convention enshrines freedom of expression as a right of all people. In this sense, all State authorities, including judges, are protected by the guarantees established in the Convention. Regarding judicial officers, the Commission reaffirmed “they enjoy broad rights of free expression, like other citizens, with a number of strict exceptions related to the dignity of their positions and the protection of the principles of independence and impartiality” [para. 220]. It further recalled that principle 4.6 of the Bangalore Principles of Judicial Conduct, approved by the United Nations Economic and Social Council, establishes “[a] judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary”. In this sense, the Commission recalled that in Kudeshkina v. Russia, the European Court of Human Rights declared “guaranteeing the authority and impartiality of the judiciary” is one of the legitimate objectives for restricting freedom of expression [para. 243].
According to the IACHR, judicial independence refers to the separation of powers that characterizes a democratic system [para. 222]. The Commission considers there should be an appropriate balance between free expression and the “duty of reserve and prudence, whereby judges cannot be expected to remain silent about all matters of public importance. In all cases alleging a violation of the duty of prudence through a judge’s participation in a matter of national interest that is not the subject of proceedings before his court, there is a need to carefully assess whether the expression of his opinion harmed independence and impartiality to such an extent as to warrant the imposition of a sanction.” [Par. 248]. Additionally, it indicated that in Kudeshkina v. Russia the European Court declared, “issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 [of the European Convention on Human Rights]” [para. 246].
In this case, the Commission argued that administrative sanctions, the same as criminal sanctions, “constitute an expression of the State’s punitive power”. It further argued, dismissal is one of the most severe sanctions and as a consequence should be subjected to a strict legality analysis. Additionally, it concluded the ban on “public or concealed involvement in politics, or actions of that nature” was drafted in “too generic terms.” In this sense, it indicate the breadth and vagueness of the legal statute gave the interpreter a large degree of discretion and offered little legal certainty to the judges to whom the statute was directed.
Furthermore, the Commission considered the judges’ “limited participation in a matter of high public interest regarding which they were particularly qualified to speak, in order to protect the independence and impartiality of the judiciary”[para. 279] was a legitimate exercise of freedom of expression. It additionally considered removing the judges was not an appropriate or necessary measure for accomplishing the objective of protecting judicial independence and impartiality. Finally, it considered the measure was “completely disproportionate”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Inter-American Commission reiterated the criteria for establishing restrictions that are in accordance with the American Convention on Human Rights. It also highlighted the duties and obligations that officials from the executive and judiciary branches have when they exercise their freedom of expression.
The Commission, when referring to the right to freedom of expression of members of the judiciary, determines that judges have the right to criticize the institutions, so long as that criticism does not affect their independence or impartiality.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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