The Right to Freedom of Expression as a “Screen” for Interference with the Judiciary

Abstract

The article analyzes the criminal law limits of the right to freedom of expression with regard to the activities of the judiciary in the media, and this should serve to develop an understanding of which statements in the media can be considered as interference with the activities of the judiciary (Article 376 of the Criminal Code of Ukraine), in the presence of other mandatory elements of a criminal offense.
The empirical basis was the data from the Register of Judges’ Reports of Interference with Activities posted on the official website of the High Council of Justice; the Unified Report on Criminal Offenses for 2023 posted on the website of the Prosecutor General’s Office as well as the Generalization of the Practice of Consideration by the High Council of Justice of Judges’ Reports of Interference in Their Activities as Judges in the Administration of Justice and Other Decisions of the High Council of Justice on Measures to Ensure the Independence of Judges and the Authority of Justice in 2021. This analysis showed a large statistical gap between the reports of judges to the High Council of Justice, positive conclusions of the High Council of Justice on measures taken to ensure the independence of judges and the authority of justice, and, finally, the number of proceedings under Article 376 of the Criminal Code of Ukraine that were referred to court with an indictment. This apparently indicates, in particular, the absence of a unified interpretation of the concept of “interference in the activities of the judiciary” by law enforcement agencies.
On the basis of the analysis of the legislation and case law of the European Court of Human Rights, the following conclusions have been formed with regard to the right to freedom of expression by media representatives concerning the activities of the judiciary, going beyond which, if there are other mandatory features, may indicate the presence of the analyzed criminal offense
- criticism of a judge in the media may be a way of interfering with the activities of the judiciary (may take place before the case is resolved);
- the limits of permissible criticism in the media for judges are wider than for a private person;
- the information disseminated may be unacceptable and offensive to the subject concerned;
- freedom of expression implies the use of facts (only true ones), as well as value judgments, which do not violate the restrictions established in part 2 of Article 10 of the European Convention on Human Rights in terms of, in particular, the protection of the reputation or rights of others;
- the right to freedom of expression (Article 10 of the European Convention on Human Rights) should not violate the right to respect for private life (Article 8 of the European Convention on Human Rights);
- information in the mass media may be only related to activities related to the exercise of judicial powers.