Summary

While judges and prosecutors enjoy the fundamental rights and freedoms enshrined in human rights instruments, as public officials, they have special duties and responsibilities that justify the introduction of specific restrictions on their fundamental freedoms. The key is to strike an appropriate balance between the rights of judges and prosecutors and the legitimate interest of the national authorities in protecting the independence, impartiality and authority of their institutions.

Throughout the report, the Special Rapporteur documents various forms of interference with the exercise of fundamental freedoms by judges and prosecutors. Not all disciplinary measures adopted against judges and prosecutors in these cases can be regarded as being necessary in a democratic society to maintain public trust in the judiciary or the public prosecution. In some cases, these sanctions appear to be an expedient to punish the individual judge or prosecutor for the opinions expressed or the action taken in the exercise of his or her duties.

In others, the severity of the sanction also has a “chilling effect” on other members of the judiciary or public prosecution, who may be discouraged from expressing critical views out of fear of being subjected to punitive measures.

In the light of the existing international and regional standards and the jurisprudence of regional courts and mechanisms, the Special Rapporteur offers some recommendations to State authorities on how to strike a fair balance between the fundamental rights of individual judges and prosecutors and the legitimate interests of the State. The recommendations also provide guidance to individual judges and prosecutors on how to exercise their fundamental freedoms in a way that is consistent with the dignity of their profession and the independence and impartiality of their office.

In preparing this report, the Special Rapporteur called for contributions from States, international and regional human rights mechanisms, professional associations of judges and prosecutors, and civil society. The Special Rapporteur requested information on the legislation and practice existing at the national level on the exercise of these rights by judges and prosecutors, both offline and online.