FREEDOM OF EXPRESSION VS AUTHORITY OF JUDICIARY: BALANCING THE COMPETING INTERESTS, THEORY AND PRACTICE OF NATIONAL COURTS, THE EUROPEAN COURT OF HUMAN RIGHTS, THE SUPREME COURT OF THE UNITED STATES OF AMERICA AND THE UNITED NATIONS HUMAN RIGHTS COMMITTEE

Abstract

It is not uncommon for both national and international courts to impose limitations on the freedom of expression in order to protect the authority and impartiality of the judiciary. The Constitution of Georgia recognizes the protection of the independence and impartiality of judges as legitimate grounds to limit freedom of expression. A similar provision is provided by the European Convention on Human Rights.

Recent high-profile judicial proceedings in Georgia have sparked a fierce debate in society about the scope of freedom of expression. In certain cases, court decisions were followed by negative media campaigns against the judges. At a meeting with judges, aformer Secretary of High Council of Justice suggested that insulting statements and unfounded allegations against judges should be subjected to strict financial sanctions and, in this respect, legislative amendments were necessary. Former members of the High Council of Justice regarded the statements by politicians, the media and the non-governmental sector concerning the case of the broadcasting company “Rustavi 2”, which was pending before the Tbilisi City Court, as incompatible with freedom of expression. In their statement, they emphasized the protection of the authority of the judiciary as legitimate grounds to limit freedom of expression. Furthermore, in public and private discussions in the governing bodies of the judiciary, the idea of amending the law and making Georgian legislation more compatible with the standards of the European Court of Human Rights is gaining favour.

It is important to emphasize the fact that for the first time in recent years, a judge of the Tbilisi
City Court,Vladimer Kakabadze, won a lawsuit against a businessman, Fady Asly, for slander.5

In order to restore Kakabadze’s honour and dignity, Asly was ordered to release a statement about the court decision through the same media outlet he first accused the judge. Moreover, he was ordered to pay a fine – 3 000 GEL – to the claimant as a compensation for moral damages.

The abovementioned facts demonstrate the importance of this issue in society. Careful regulation is needed, however, since the conflicting interests of freedom of expression and the independence of the judiciary are two key principles of a democratic society. Therefore, it is essential to find a fair balance between these competing interests to prevent excessive, disproportionate restrictions on either of the rights.

To achieve this goal, it is imperative to review and analyse the best international practices as well as the local context and challenges to find the most optimal model for balancing the competing interests at stake.

Several factors are considered when definingthe scope of freedom of expression in the context of judicial independence. The first relates to the limits of permissible criticism of the judiciary in and outside of the court. The second important factor is public statements made in connection to the content of pending judicial proceedings, instances when a judge might not be the subject of criticism but the comments are related to the authority of the judiciary and the right to a fair trial for the parties to the lawsuit.

This article will review international standards regarding freedom of expression with a special focus on the legal standards set down by the European Court of Human Rights (ECtHR) and the US Supreme Court. The article will also analyse the national legislation of Georgia, court practice and local context as well as provide a critical comparative analysis to international standards.