CEU Electronic Theses and Dissertations, 2008
| Author | Kosar, David |
|---|---|
| Title | FREEDOM OF SPEECH AND PERMISSIBLE DEGREE OF CRITICISM OF JUDGES: In the Jurisprudence of the European Court of Human Rights and the U.S. courts |
| Summary | This thesis deals with question how much one can criticize the judiciary. It acknowledges that the whole topic of criticism of judges is permeated by a clear tension since criticism of the judiciary may endanger the impartiality and independence of the judiciary on the one hand, but, on the other hand, it is one of the few means (if not the only one) how to hold judges accountable and how the people can participate in the public discussion on judicial matters. It can also be rephrased as balancing of freedom of expression with the reputation of judges and broader administration of justice concerns. In order to address this tension, this paper analyzes the jurisprudence of the European Court of Human Rights (ECtHR) and the U.S. courts as examples of allegedly opposite views on the subject. The case law in both jurisdictions is rich and diverse, but shares some important common features, such as discrimination between speakers, and in particular discrimination of lawyers. This paper argues that this practice is problematic since it excludes the most informed part of the citizenry from the discussion on judicial matters and thus effectively prevents remedying the problems in the functioning of justice. The ECtHR’s decision-making practice is further criticized for employing too many variables, which results in substantial uncertainty and inconsistency. Similarly, while this paper acknowledges that the balance between protection of the judiciary and tolerance of freedom of expression in the ECtHR’s jurisprudence has shifted decisively in favour of the latter, the ECtHR is criticized for its reluctance to accept that criticizing judges is “political speech”. As a result of this reluctance, the ECtHR has failed to send a clear message that the judiciary must accept wider criticism than other public servants. And finally, this paper puts forth the argument that the ECtHR’s should refrain from deciding whether a particular expression amounts to insult and instead rely on the social norms in a particular society since the ECtHR’s ‘overprotection’ of the judiciary from “insults” has a serious chilling effect. This paper is organized as follows. First, it places the problem into a broader perspective and discusses pros and cons of criticism of judges. Afterwards, it provides an in-depth analysis of the approaches to criticism of judges adopted by the U.S. courts and the ECtHR. Subsequently, it draws on the comparison and evaluation of the two alternatives and identifies myths of criticism of the judiciary. Finally, Part 5.3 suggests solutions how to overcome these myths and how effectively respond to ill-founded criticism of judges. |
| Supervisor | Barak, Aharon |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2008/kosar_david.pdf |
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