JUDGES’ FREEDOM OF EXPRESSION: SEEKING A BALANCE BETWEEN CONSTITUTIONAL RIGHT AND REPUTATION OF THE JUDICIARY
A lot of reports and exchanges of views have taken place in the Slovene media and political space recently, referring to the Facebook posts of the Ljubljana County Court judge. Her harsh criticism of the present national authorities was published in the blog of Vinko Gorenak, the State Secretary in the Slovene Prime Minister’s Cabinet. According to numerous media reports the judge was consequently suspended from the office of chairwoman of the Flat Ownership Division of the Court. Also, disciplinary proceeding was initiated against her and the proceeding before the Ethics and Integrity Commission by the Judicial Council of the Republic of Slovenia.
The answer to the question if the judge, by posting her critical views on her private Facebook page, violated the Code of Judicial Ethics and provisions of the Judiciary Service Act or violated disciplinary rules or even committed a civil delict, is a complex one. This article will not focus on examining the relationship between the potentially injured and judges’ declarations, but on the analysis of a concrete example and the relationship between the freedom of expression of a person performing judicial function and his/her duty to behave (in his/her public as well as private activities) in a way that is appropriate to his/her position. One has to weigh the judge’s freedom of expression guaranteed already at constitutional level and for which the Constitution of the Republic of Slovenia does not determine cases where this right can be restricted, therefore it can only be limited by rights of others, against protection of reputation, independence and impartiality of the judicial authority.The Judiciary Service Act states (Article 2, Paragraph 1) that while exercising their rights, the judge always has to act in such a way as to protect impartiality, independence and reputation of the judiciary service when administrating justice. The same principles apply to the Code of Judicial Ethics, which states (Article 53, Paragraph 2 of the Judicial Council Act) that judges have to respect it when exercising their functions and outside the scope of these activities as well.
Private Facebook post of a judge
Therefore it seems at first sight that the person exercising a judicial function and due to his/her position in society, has to waive a certain part of his/her personal rights, privacy, as well as freedom of expression also in his/her private life. The question arises if such regulation is adequate or too rigid in view of the fact that interpersonal communication is nowadays mostly made through electronic devices, digital platforms and social media. In this concrete example of the Ljubljana County Court judge I think that to assess her conduct it is crucial first to understand her way of making those statements and then contextualize their content properly. It is apparent from the publicly available data that the judge posted her statements on her closed Facebook page, inaccessible to public, where she only had friends who became that with her express consent. Although Facebook is one of the most widely used social networks, it cannot be stated a priori that the user of this communication, enabled by the platform, cannot expect any privacy at all. Namely, Facebook has many privacy settings which make possible for a certain profile to become completely private, ‘closed’ or it enables (auto)regulation of personal data protection. In this way Facebook makes withdrawal of the user into their privacy sphere possible. By no means can we adopt the view that Facebook per se is a public space as possibilities of settings to ‘public’ and ‘private’ are then watered down. Unfortunately, one of the judge’s friends abused her trust and transferred her posts to Vinko Gorenak, who later made them public. In the judgement Von Hannover vs Germany the European Court of Human Rights emphasised that even absolutely public persons (and the judge cannot be counted among them) should be accorded the right of withdrawal into privacy or some private space where they will not be in the eyes of the public and where their behaviour can be different from that in the public. The pressure put on judges, wide interpretation of the rules of ethics and demands for being silent would mean interference with the fundemental essence of Man whose basic part of life is to think and express themselves freely at least in the private sphere and without excessive restraints. Silence in all the segments of an individual’s life means negation of this essence of human life.
Should the judge have expected her friend’s abuse of trust? My answer is negative as something similar could also have happened during a live debate within a close circle of people, celebrating one’s birthday or anywhere else. The view that everyone, when striking friendships, should expect abuse of their trust, seems exaggerated, regardless of whether it concerns a judge or someone else. According to the definition in The Dictionary of the Slovenian Standard Language a friend is someone who is in a sincere, confidential relationship with someone else and this relationship is based on affinity of thinking and feeling. If there is no such relationship we cannot speak of friends but only of acquaintances. In the concrete example it seems of key importance to know what the nature of the relationship between the judge and her Facebook friends was – were these persons actually her friends also in real and not only virtual life, or were they only acquaintances with whom the judge should not have shared her intimate, critical thoughts about the state functioning and current authorities?
What damage did the judiciary suffer?
A question should also be asked about what damage the judiciary suffered with the judge’s posts, if any, or if it only occured after having been made public by Vinko Gorenak. Protection of secrecy of correspondence (that should certainly include private posts on social networks that enable mutual communication and contents being shared only with certain people) is guaranteed at constitutional level. Article 37 of the Constitution of the Republic of Slovenia provides for protection of secrecy of letters and other media and it can only be prescribed by law that by virtue of a court decision protection of secrecy of letters and other media as well as inviolability of human privacy are not respected for a fixed term if this is necessary for the initiation or due course of criminal proceedings or for state security. The concrete example is not the case when the court, by its decision, would allow interference with the right to privacy and protection of secrecy of letters of the judge. Everyone has the right to communication privacy and protection of their interest so that the state or unauthorised third parties do not get acquainted with the message contents sent out via any means enabling information exchange, the social network Facebook undoubtedly being one of them. An issue here is also protection of an individual’s interest to be in control of who to, to what extent, in what way and under what conditions a certain message will be sent out. The judge’s words that Vinko Gorenak made publicly available represent a direct reflection of her mental privacy, her feeling of the current epidemiological and political situation. They disclose the very core of her personality, her views and beliefs that belong only to her and to no one else, therefore she was the only one to determine who could be acquainted with the post contents. Also the Supreme Court of the Republic of Slovenia (case No III Ips 344/2017 of 19 December 2018) took a stand that ‘closed’ FB profiles cannot be considered as ‘public’. Private writing that was made public by Vinko Gorenak without authorisation of the judge as its exclusive author and therefore the person authorised to submit such permission, had been posted on such very ‘closed’ judge’s profile, inaccessible to public. As key criteria concerning protection of secrecy of letters The Supreme Court of the Republic of Slovenia (case No II Ips 164/2006 of 22 January 2009) adopted a specifically defined circle of addressees and the author’s wish and grounded expectation that no third party will see the contents of the writing. Even if the view were taken that the judge’s posts were public, this does not mean that anyone active in social media actually saw them, but only those interested in this profile. And those, judging by likes and comments below the posts, were not many.
In her posts the judge labelled the Prime Minister of the Republic of Slovenia ‘the great dictator’, she stated that in Slovenia ‘the virus has given frustrated individuals with a criminal past new zeal’, ‘a wish to suppress everything that stands in their way’ and ‘an acute need for revenge’. She also expressed her hope that ‘some day the Janša era will only be a bitter memory’. Given the posts contents the judge undisputedly expressed criticism of (political) activities of the present-day authorities, mostly of the measures taken to fight the epidemic. But the question arises if, by doing so, she was offensive and consequently also affected the reputation of her institution. To assess the violation of professional code it is of key importance to determine if her criticism was abusive.
It is common knowledge that since 12 March 2020, with the exception of few months, a new Corona virus epidemic has been declared. The first day after this declaration, ie on 13 March 2020, Janez Janša was elected the new Prime Minister of the Republic of Slovenia. It is clear that the incumbent PM of the Republic of Slovenia has the key role in facing the epidemic challenges and preparing measures related to it. Not only this, Janez Janša is not the PM for the first time, he is undoubtedly an experienced politician and considering all of the above also an absolutely public person who, by settled case law and due to his social position, has to suffer an essentially bigger intrusion upon personality rights than ordinary citizens. His methods of government have been addressed by some public for quite a long time, they are seen as dubious and extreme, and they are dealt with in the media all the time. Related to this is also the use of the term janshism, which also figures in the Dictionary of the Slovene Literary Language. By definition ‘janshism’ is a ‘political orientation as developed and represented by the Slovene politician Janez Janša’. The term is completely value neutral, not used pejoratively, which is otherwise clearly indicated in the Dictionary and as such it cannot be objectively offensive. Although the term might be perceived as derogatory and offensive by the members or supporters of the Slovene Democratic Party (it is generally known that Vinko Gorenak belongs to them), a subjective feeling of being offended is not enough to conclude that it is also objectively offensive. The term janshism was widely used during anti-government protests in 2020 with slogans such as ‘No to policy of janshism’, ‘Death to janshism’, and ‘Death to janshism, freedom to nation’. The Public Prosecutor’s Office, despite the PM’s statement that the term ‘death to janshism’ means threat with death, took the position that the use of the slogan is not a criminal offence as, according to the public prosecutor, the phrase had a metaphorical meaning and as such it indicated the opposition of the protesters to the PM’s policies or his party. The media has dealt a lot with the term janshism and about what type of governing it means. In the Mladina article of 5 June 2020 with the heading What is janshism? Rastko Močnik, a sociologist, points out that the existence of janshism as a political orientation can be proved by exposing enough characteristics that distinguish Janez Janša’s policy from other policies. In my view the very suffix –ism cannot have a derogatory connotation related to totalitarian regimes (such as fascism, communism, stalinism, etc.) as this suffix is also used in words for other social systems and trends (eg liberalism, capitalism,feminism, socialism, expressionism, modernism, etc.). In the light of the above, the judge’s posts about janshism were value neutral and in view of the current situation in public interest as well since she only wanted to warn her FB friends about some dangers that may befall them because of the implementation of the PM’s policies.
In her statement the judge labelled the PM as a great dictator. By definition in the Dictionary a dictator is someone who has absolute political power when there already exist democratic and parliamentary systems, used expressively the term dictator refers to an authoritarian, arbitrary man and such meaning may have been used in the judge’s posts. In the Dictionary a pejorative use or meaning of the word is not indicated. In the public and media the way of the current PM’s governing has often been compared to a dictatorship, eg in a commentary on Radio Študent on 27 October 2020, entitled Janez Karantenski Janša, it was pointed out that the PM wants to monopolise the political space and tries to acquire as much leverage as possible. Based on these assumptions Janša can justifiably be called a dictator as dictatorship has since the ancient times meant the narrowing of political sphere to one person, dictator or tyrant. The author continues by presenting other PM’s acts as well which show that he corresponds to the basic charateristics of a dictator (pogroms of non-governmental organisations, repressive interventions into life of citizens, subordination of public discourse, etc.). Janez Janša is also labelled a dictator by his political colleagues. Marjan Šarec, for example, called the PM’s reaction to rallies of parents for opening of schools a classical manner of a dictator. Considering well-known comparisons of Janša’s way of governing with a dictatorship and his other actions (eg withdrawal of finances for the Slovene Press Agency, pressure on media and journalists, prohibition for medical experts to appear at press conferences etc.), the judge had more than enough grounds for naming the PM a great dictator, so in my opinion her posts should not be understood as offensive. Negative consequences result from the facts themselves and not from showing, expressing them. If someone is a dictator or not is in the concrete example a fact that can be proved and not a value judgement.
It is evident from the judge’s writing, saying that ‘the virus has given frustrated individuals with a criminal past new zeal and a wish to suppress everything that stands in the way. And … an acute need for revenge’ that it is a general criticism of some public persons’ acts in times of epidemic. Those who recognised themselves in this statement and might have felt subjectively hurt by it, obviously recognised themselves on the basis of facts cited by the judge, therefore that is because they really belong to the category of these people and not because they were labelled as such indeterminately. The Dictionary describes a frustrated one as someone ‘who feels a mental state of discomfort due to a contrast between wishes and possibilities offered by the environment and there is nothing offensive in it. A person’s certain mental state cannot be insulting and it does not represent a value judgement because of which someone would feel offended. Such a view would additionally contribute to already great stigmatisation of descriptions of mental states and mental disorders. On the other hand, if someone is claimed to have a criminal past is a provable fact and if it is true, it cannot be offensive, either. In my opinion the judge cannot be held responsible if a person recognised him/herself as such in her general writing to a non-defined circle of people. A pivotal decision issued by the Supreme Court of the Republic of Slovenia (case No II Ips 75/2019 of 6 February 2020, ie the case of a ‘worn-out prostitute’) must be mentioned here when the court took a stand that the freedom of (political) expression outweighs the right to dignity and reputation even when the statement is offensive and deeply affected the addressee; it stated that the social context must be taken into consideration and what message content the author wanted to convey. According to the court the freedom of expression must not be restri cted just because the author could have responded in a different, less abusive manner. At any rate it will be interesting to follow the outcome of the judge’s story and what the Ethics and Integrity Commission as well as the Disciplinary Board of the Judicial Council will decide.
Judges are allowed political activities
When assessing judges’ criticism of policies it is important to know that under the Slovene constitution judges are allowed political activities – it only explicitly states that the function of a judge (among other) is not compatible with the functions in bodies of political parties (Article 133 of the Constitution of the Republic of Slovenia), which does not mean that a judge must not have a certain political opinion or preference or that they must not be members of a political party. Judges can also stand as candidates in elections to the parliament, and during their parliamentary function their judicial function is suspended (provided by Article 40 of the Constitution of the Republic of Slovenia). It is clear that the judge whose function is suspended and who, for the time being, performs the ultimate function of political nature (MP, president of the state, PM, minister, state secretary) within the scope of this political function also expresses his/her political opinion that might also be critical of the system of government. When assessing the freedom of expression a distinction made between a judge whose function is suspended and who performs public political functions and will again, after the expiration of the term of office, be allowed to perform his judicial function, and the judge who criticises authorities in a completely private sphere, seems to be unfounded. The judge who served in the past as a political official and then resumes his judicial function is more likely to reveal which political option he/she belongs to; considering such a possibility in a statutory regulation it would be discriminatory towards other, ‘ordinary’ judges to restrict their freedom of expression when they comment two other branches of power. Under Slovene legislation judges who performed political functions in the past are obviously not considered to be politically oriented or partial and therefore such conclusion is not possible for other judges either, when, given the constitutional right to freedom of expression, they express their views on authorities, regardless of whether it is in public or privately.
In the end we have to ask ourselves what kind of judges we, as society, want to have. Do we want judges who draw our attention to anomalies in society, who are upright in expressing their views, using arguments in debates which are in public interest and who, with their professionalism significantly contribute to critical discussion and last, but not least to seeking solutions? Or do we want judges who, fearing sanctions, remain silent and submissive to demands and expectations of every authority? I agree that judges must absolutely care about their reputation in public as only in this way can public trust in judiciary as one of the bases of democratic society be consolidated. But in my view sanctioning critically thinking judges is not the only way – the first step should be a dignified and well-argumented defence against numerous reproaches and pressures put on the judiciary by the present authorities. I would like to conclude with a thought by Malala Yousafzai, the youngest Nobel Peace Prize winner: ‘When the whole world is silent, even one voice becomes powerful.’
Prepared by: Ula Tomaduz
 Compare eg articles from the Reporter: Affair of the judge who described Janša as a great dictator: a judge or Urška from the local hairdresser’s of 16 February 2021 and The judge Urška Klakočar Zupančič suspended from
the office of chairwoman of the Ljubljana Court Division because of her contemptuous posts of 11 January 2021 and the Dnevnik article of 18 January 2021 The minister’s letter followed by measures against the judge who described Janša as a dictator.
 Article 39 of the Constitution of the Republic of Slovenia, Gazette of the Republic of Slovenia, no. 33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 69/04 – UZ50, 68/06 – UZ121,140,143, 47/13 – UZ148, 47/13 – UZ90,97,99 in 75/16 – UZ70a.
 Article 15 of the Constitution of the Republic of Slovenia, see above.
 Judiciary Sevice Act, Gazette no. 94/07 – officially revised text, 91/09, 33/11, 46/13, 63/13, 69/13 – corr., 95/14 – ZUPPJS15, 17/15, 23/17 – ZSSve in 36/19 – ZDT-1C.
 Andraž Teršek: Freedom of expression and right to privacy, Analysis and comment of the European Court of Human Rights in the case Von Hannover vs Germany, Revus no. 4, 2005, p. 97–114.
 Great scientific comment on the special part of the Criminal Code (KZ-1) (edited by Katja Filipčič et al.), The Official Gazette of the Republic of Slovenia, 2019, p. 665. Resumed from Šturm, L., Commentary of the Constitution of the Republic of Slovenia, p. 391.
 See above, p. 667.
 See Higher Court in Koper, judgement No. Cpg 213/2017 of 22 February 2018.
 See eg Higher Court in Maribor, judgemenet No. II Kp 46615/2015 of 14 November 2018 and Higher Court in Ljubljana, judgement No. II Kp 45373/2013 of 20 April 2016.
 Judgement of the Supreme Court of the Republic of Slovenia No. II Ips 75/2019, 6 February 2020, item 32.
 PM Janez Janša: The judiciary in Slovenia should be able to seriously reflect on the situation and carry out self-correction, 13 October 2020, accessible here, Florjančič pointed out the inappropriate attitude towards the judiciary; Janša: “Reputation must be earned”, 13 October 2020, accessible here (5 March 2021).