When and how judges can speak about core rule of law areas has become a subject of major debate as judicial independence is experiencing extraordinary pressures globally. With the support of the Swiss government, the CEELI Institute has made judicial communications a central subject of the Institute’s work this year. This focus has included publishing the Guidelines on Judicial Communication with the Public and the Media, organizing a major conference on judicial communication at the Institute in February, and, most recently, highlighting the rapidly evolving practice during the Institute’s Annual Conference of the CEE Judicial Exchange Network held in Prague this May.
A central theme of the Annual Conference was the transition from the traditional view that judges should speak only through their judgments toward a growing recognition that judges may also have an important, and sometimes necessary, role in public debate. Judge Mykola Gnatovskyy of the European Court of Human Rights highlighted the Court’s developing jurisprudence on judicial freedom of expression in his keynote speech.
He observed that the significance of the recent judgment of the ECtHR’s Grand Chamber in Danileţ v. Romania was not only in concluding that a specific judge’s freedom of expression had been violated, but also in the development of a structured legal framework for assessing when disciplinary measures against judges for public expression, particularly on social media, are compatible with Article 10 of the Convention on Human Rights.
At the centre of the Court’s reasoning is a familiar tension: judges, as citizens, enjoy freedom of expression, yet as holders of judicial office, they are bound by duties of restraint aimed at preserving the court’s authority and impartiality. As Judge Gnatovskyy explained, the central issue is not whether judges have freedom of expression, but how that right should be balanced against the need to maintain public confidence in the judiciary.
To guide that assessment, the Court articulated a five-point proportionality test for national authorities:
1. Content and form of the expression
Whether the judge’s statement concerns a matter of public interest and whether the language used is clear, measured, and consistent with judicial dignity.
2. Context and capacity in which the judge spoke
Whether the judge acted in their private capacity or in an institutional role, and the broader legal and societal context in which the statement was made.
3. Repercussions of the expression
Whether the statement caused, or was likely to cause, actual harm to the authority or impartiality of the judiciary. The Court stresses that harm must be demonstrated, not merely presumed.
4. Severity of the sanction imposed
Even relatively minor disciplinary measures may produce a chilling effect, discouraging both the individual judge and others from engaging in legitimate public debate.
5. Procedural safeguards in disciplinary proceedings
Whether the process ensured independence, fairness, and sufficient reasoning, thereby protecting judges from arbitrary interference with their rights.
This structured approach clarified earlier cases, such as Kudeshkina v. Russia and Baka v. Hungary, by making the assessment more predictable and operational for domestic authorities.
As Judge Gnatovskyy observed, public debate no longer takes place solely in traditional formats such as academic journals or conferences, but increasingly occurs online. While this creates risks, such as amplification, misinterpretation, and permanence, it also means that judges are not excluded from this space, provided they exercise particular prudence in tone, clarity, and context.
The conference discussion that followed focused on practical concerns raised by participants from different jurisdictions, including judges from Europe, Africa, and South America. They noted the growing risk that judicial statements may be manipulated, selectively edited, or taken out of context, particularly through social media or AI-generated content, in ways that make the judges appear politically aligned. Such situations often expose judges to intense public criticism, external pressure, and even online hostility, creating a chilling effect and pressure toward silence.
Judge Gnatovskyy underscored that judicial restraint remains essential, requiring judges to exercise particular caution regarding how their statements may be perceived and interpreted in politically sensitive environments. While reaffirming that judges must avoid expressions that could compromise impartiality, recent jurisprudence is increasingly making clear that restraint cannot be equated with silence, especially on fundamental matters concerning the rule of law, judicial independence, or the functioning of the justice system.
