CONSEIL CONSULTATIF DE JUGES EUROPÉENS (CCJE)

Transcription

1 Strasbourg, 8 octobre 2014 CONSEIL CONSULTATIF DE JUGES EUROPÉENS (CCJE) Les réponses des membres du CCJE à les questions suivants: Existe-t-il dans votre État une législation ou une jurisprudence assurant une protection particulière des juges contre les déclarations publiques d'un membre d'une assemblée parlementaire (ou plus généralement d'un homme politique) mettant en cause le travail de ce juge? Le juge est-il au contraire soumis au "droit commun" applicable à tous citoyens, contre les attaques, diffamatoires ou injurieuses? Le Conseil supérieur de justice, ou tout organe équivalent, joue-t-il un rôle particulier pour la protection des juges contre les attaques publiques des hommes politiques? En cas d'action en justice envisagée par le juge contre l'auteur des attaques, existent-ils des règles particulières gouvernant cette action? Les frais de procédure du juge sont-ils pris en charge par un organe de l'état ou du pouvoir judiciaire? Si les critiques publiques du juge émanent d'un membre d'une assemblée parlementaire et si ces critiques dépassent les limites de la liberté d'expression, l'assemblée parlementaire a-t-elle un pouvoir de sanction contre l'auteur des attaques?

2 Table des matières Albanie...3 Allemagne...4 Autriche...5 Belgique...5 Bosnie-Herzégovine...6 Bulgarie...7 Chypre...8 Croatie...9 Danemark...9 Estonie...10 Finlande...10 Géorgie...11 Grèce...12 Irlande...12 Islande...13 Lettonie...13 "L'ex-République yougoslave de Macédoine"...13 Liechtenstein...14 Luxembourg...15 Malte...15 Monaco...15 Monténégro...16 Norvège...16 Pays-Bas...17 Pologne...17 République tchèque...19 Royaume-Uni...20 Slovaquie...20 Slovénie...21 Suède...21 Suisse...21 Ukraine

3 Albanie Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No, there is not any special legal provision or case law to ensure protection of judges by the public statement of a member of the Parliament. Actually, in Albania there is a decriminalization of the defamation cases for all citizens. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, judges are subject to the general law as well as the citizens. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? According to Albania legislation there are two bodies which are in charged to play a significant role in protection of judges against public attacks by politicians: (i) The High Council of Justice, which is responsible for protection of judges ( art 1 of the Law no 8811/2001 On organisation and functioning of HCJ as amended) (ii) the National Judicial Conference, a public legal entity established by the meeting of all judges, shall protect and promote the independence of the judiciary ( art.1 of the Law no 77/2012 On organization and functioning of NJC) and also (iii) the judges associations. Recently, the HCJ as well the NCJ have reacted on statements and attacks against judges made by the executive and legislative representative, through the public statement published in their official website. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No, there are no specific rules for judges. Are the costs of the proceedings for the judge covered by a state body or the No. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? Taking in consideration the regulation of Albanian Parliament, there is no specific legal provision about the criticism of a judge by a Member of Parliament. As a general rule, a member of Albania Parliament should not use inappropriate and non-parliamentary language; as well should not disseminate information that may infringe the private life of everyone. (art.62). All member are required to respect the rules, otherwise disciplinary measures can be taken against them by the speaker of the Parliament such as: (a) withdrawal of attention; b) observations; c) exclusion from the plenary sessions; d) exclusion from participation in committees and in plenary session to 10 days ( art.64). 3

4 Allemagne Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No such specific legislation exists. On the contrary, article 46 para. 1 of the German constitution (Grundgesetz) states a case of indemnity. It provides that a member of parliament, at no time, may be persecuted or held liable in any way whatsoever for statements made in parliament or in parliamentary committees. This does not apply to libel and slander. Indemnity includes criminal prosecution but also civil liability. The exception does not apply to statements made outside of parliamentary debates. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, there is not additional or further reaching protection for judges. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? In Germany, in practice, it is the duty of court presidents to protect judges. In cases other than indemnity (above), both the judges themselves but also court presidents (as victims or in lieu of victims) may apply for criminal investigation against persons (including politicians) who have committed offences against judges (section 77 and 77a, Criminal Code). In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No, the general rules apply. Are the costs of the proceedings for the judge covered by a state body or the In grave cases, the employer s (i.e. the states) duty of care is interpreted as including a duty to either seek redress for the judge by on behalf of the judge applying for prosecution of offences against the judge or to support the judge financially in case, e.g. of a civil action for libel or slander by covering the costs. The decision whether costs will be taken over by the state or not is a decision of discretion which, however, is subject to judicial review before the administrative courts. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? There may be a reprimand of sort, but only in cases which are not covered by the indemnity clause of article 46 para 1 of the Constitution. 4

5 Autriche Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No there is no special legislation. The other way around deputies have immunity and especially what they say in exercising their political mandate never could be put under criminal investigation or procedure. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? There is the same privilege for judges as for civil servants and other public authorities: if there is a defamation etc. against judges, it is up to the prosecution service to initiate a criminal procedure, whilst if such a defamation is against other ("normal") people, they have to start such a procedure by themselves and on their risk to bear the costs of such a procedure if they don t win the case. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? There is no such body in Austria. Sometimes the Association of Austrian Judges issues public statements in such cases to defend the respective judge. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? See the answers above. Are the costs of the proceedings for the judge covered by a state body or the No, this is not the case. The Association of Judges recently started an initiative in this direction to draft an amendment to the procedural codes. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No, the only "sanction" may be that during the debate the president of the assembly chairing it can call him/her to order, but without further consequences. Belgique Il n existe pas de législation spécifique protégeant les juges contre des propos d un membre d une assemblée parlementaire mettant en cause le travail du juge ; le parlementaire est couvert par son immunité pour les propos diffamatoire qu il profère dans l hémicycle parlementaire ; en dehors de l hémicycle, l immunité n existe pas ; 5

6 Il n y a pas de jurisprudence spécifique d une juridiction de l ordre judiciaire concernant la mise en cause d un membre du parlement pour des propos diffamatoire ou injurieux à l encontre d un juge. Il y a bien eu, dans un lointain passé, c.-à-d. en 1854, la plainte d un procureur général déposée devant le procureur du Roi contre un député de la chambre des représentants qui l avait accusé d avoir méconnu la législation sur la détention préventive ; toutefois, cette plainte n a pas abouti sans doute en raison de l immunité dont bénéficiait le député, et n a donc pas été suivie de poursuites. Pour les propos prononcés en dehors de l hémicycle parlementaire, le juge est soumis au droit commun ; Dans le cas de propos injurieux ou diffamatoire proférés par un membre du parlement à l encontre d un magistrat (juge ou procureur), le Conseil supérieur de la Justice n a pas de compétence particulière. Il peut, certes, intervenir pour prendre la défense du magistrat. Mais cette défense sera plus de nature morale et sera orientée vers la défense de l institution de la Justice et des principes qui la régissent, plutôt que sur celle de l individu. Elle ne visera pas à faire accorder des dommages et intérêts au magistrat. Le juge qui agit en justice, le fait à titre personnel. En matière civile, il n est pas soumis à des règles particulières. Normalement, ses frais de procédure ne sont pas supportés par un organe de l Etat. Le Code déontologique du Sénat prévoit en son article 11 que tout membre doit, en tout temps, veiller à ce que ses interventions respectent la séparation des pouvoirs, l autonomie de l administration, l objectivité des procédures et l égalité des citoyens ; il doit éviter tout excès de langage qui mette l ordre public en péril ; le Code déontologique de la Chambre des représentants contient des dispositions similaires. Les sanctions peuvent être la censure avec inscription de celle-ci dans les Documents parlementaires voire même l interdiction temporaire d accès au Palais de la Nation, prononcées par la Chambre des Représentants, sur proposition de son président. Le président peut également faire biffer les propos diffamatoires ou injurieux des rapports et autres documents. Il n y a pas d exemple de l application de ces sanctions pour des propos diffamatoires ou injurieux à l encontre d un magistrat. Bosnie-Herzégovine Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No, there is no such law or any regulation or mechanism that provides for the protection of judges from public attacks by Parliament members. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, judges are subject to such laws just like other citizens. 6

7 Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? Theoretically yes, but in practice there is no mechanism or example where judges were protected by the HJPC, except for declarative statements condemning such attacks. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No Are the costs of the proceedings for the judge covered by a state body or the No If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No Bulgarie Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? There is no such body in Bulgaria. The associations of judges sometimes intervene issuing a public statement or a declaration defending the respective judge. The presidents of courts might also give certain clarifications on the case as far as the proper functioning of the court is concerned/a press release to that respect might be issued by the public relation officer of the relevant court. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No 7

8 Are the costs of the proceedings for the judge covered by a state body or the No If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No Chypre Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? Answer: No. The parliamentarian, if the statement or opinion is made in parliament during a debate or indeed in the premises of Parliament is not subject to civil or criminal liability. Moreover a member of Parliament cannot be prosecuted, arrested or jailed while he is a member except with leave from the Supreme Court. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Answer: Yes, he may as a citizen file an action for defamatory statement, subject to the previous answer. If the attack on the judge is made by a politician outside Parliament then he is liable under ordinary defamation law. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? Answer: No. But the High Council may in very exceptional cases issue a public statement on the issue, protecting the judge in that all complaints against judges are properly dealt with by the High Council in possible disciplinary proceedings. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No. The general law applies to the judge as well. The only difference is that the judge must notify the High Council of any action filed in Court by or against the judge. Are the costs of the proceedings for the judge covered by a state body or the Answer: No If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? 8

9 Answer: No, except possibly to admonish the attacker. Croatie 1. Unfortunately NO. Judges are in position to protect themselves from defamatory allegations as any other citizen. Regarding members on the parliament as they are eyeing immunity from criminal charges criminal action against MP-is is useless because Parliament never in its history lift immunity protection if criminal case was brought against MP by natural person. Only option for a judge would be to initiate civil case against MP or the media distributed such statements but under very strict conditions. which 2. Yes. See answer under In Croatia unfortunately not even they should. The only organization which is protecting judges is Association of judges, and sometimes presidents of courts in a form of statements, press conferences etc. 4. No. rules for such legal action are the same. Different approach would be considered unconstitutional. 5. No. By a judge himself. 6. If such defamatory statements would take place in the parliament presiding person have right to impose some sanctions, but that would not be a case if such statements are done outside of the Parliament arena. 7. Unfortunately, public view of judges is rather poor, such feelings and picture of the judges is supported by the media because MP-is and politicians are using attacks on judges and courts to gain some popularity among their voters. Danemark 1. There is no such legislation or case law in this area in Denmark 2. Yes 3. In general Danish politicians do not critize individual judges. Support for a Danish judge who had suffered a public attack by a politician could be offered by either The Danish Court Administration, or by The Danish Association of Judges, or by the president of the court in which the relevant judge holds his office. If such an attack is sufficiently grave the public prosecution might consider bringing a charge against the politician. In this case there would be no cost to be paid by the judge for the proceedings. Reference to a Danish case law: Ugeskrift for Retsvæsen, 2013, 1067H. 4. No 9

10 5. If the judge files a civil case against the politician the costs of the proceedings would not be covered by a state body or the judiciary. 6. No Estonie Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? No, but High Judicial Council and the Association of Judges may be concerned by the attack. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No Are the costs of the proceedings for the judge covered by a state body or the No If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No. Finlande Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No, there is no such legislation or case law. To my recollection, there has not been any case comparable to the present French one in the history of Finland. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, he/she is. 10

11 Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? In Finland, we do not have a High Council of the Judiciary, although the establishment of a Council is under way and strongly supported by the Judiciary. For present, there is no public body playing a particular role in the protection of judges. Of course, the Judges Union would strongly react in such a case. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No, there are no such specific rules. Are the costs of the proceedings for the judge covered by a state body or the If the judge wins his case, the State will compensate his costs resulting from the proceedings. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? According to the Rules of the Parliament, the chairman of the Assembly would intervene in the behavior of the member. Géorgie 1. There is no such legislation or case-law in Georgia. 2. Yes, general rules are applicable to judges. There is no special regulation in respect of judges. 3. The rules concerning the High Council of Justice of Georgia are very general and there is no specification which actions should be carried out in order to protect judicial independence or judicial "honor" in case of offensive and defamatory attack by politicians or any other person. However, according to the civil and criminal procedure code, if defamatory or offensive attacks occur within the court room or during the trial judge have the authority to impose fine to the perpetrator or order his or her arrest for maximum 60 days. This rule applies to any person, including politicians. 4. No. Judge can bring an action before the court in case of offensive and defamatory attack against him or her. There is no restriction in this respect. However, general rules are applicable to the action filed by the judge. 5. No. Judges should cover court fee on their own. 6. No. There is no such regulation. 11

12 Grèce Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No, there is not. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, he/she is. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? The High Council does not play such a role. The Union of Judges and Prosecutors can take a stand against public attacks by politicians. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? Only if the behaviour constitutes a criminal offense, i.e. defamation, can legal proceedings be pursued. Are the costs of the proceedings for the judge covered by a state body or the No, they are not. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? The parliamentary assembly has the authority to impose sanctions against the perpetrator of the attacks in case of inappropriate behaviour, theoretically speaking. To my knowledge, there has been no circumstance of such a case until now. Irlande 1. There is no specific law in this area. 2. Yes, it is the general law that applies. 3. The Association of Judges (AJI) keeps an eye on the situation and might, in an appropriate case, intervene by way of statement. 4. No, it is the general law and procedures that would apply. 5. No. In the past there have been one or two occasions when very senior public officials were supported in bringing an action, this in a situation where accusations made their position untenable unless they were vindicated through a court decision.it is possible that a similar request might be made but I think the government would be very reluctant to get 12

13 involved lest doing so would give rise to an inequality of arms.it is also possible the AJI might support a member but resources are very limited. 6. The standing orders, conventions and previous rulings of the Chair make it unlikely such a comment would be made on the floor of either House. If such a remark was made and was seen as reckless or irresponsible it would be regarded as a breach of privilege dealt with. If the comment was outside Parliament the situation would be left to be dealt with by judge and politician in accordance with the ordinary law. Islande The situation in Iceland is the same as in Denmark with the exception that a support for an Icelandic judge who has suffered a public attack by a politician could be offered only by the Icelandic Association of Judges. Lettonie 1. No. 2. Yes. 3. The rules concerning actions of the Council of the Judiciary, Judges Association and Conference of Judges are very general in that kind of situations. Those bodies may make statements and publish them. 4. No. There are no specific rules for judges. 5. No. 6. No. The Speaker of the Parliament shall maintain order during the sittings and if it is necessary to stop the deputy who makes that kind of statements. According with the Ethical Code of Parliamentary Deputies a member of Parliament avoids using words than can be insulting and does not use offensive or otherwise inappropriate statements that may dishonours the Parliament. "L'ex-République yougoslave de Macédoine" Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No, there is no any special legal protection, the judges are considered as the other citizens as regard their right to suit a civil case against a defamatory public statements of anyone (in our country we have decriminalized the defamation cases) Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? 13

14 No, they are not legally obliged to react in these cases. The Council (both Judicial and Prosecutorial), are very cautious, when public statements are published against judges and prosecutors, and they do not give any comments in the public. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No, there are not. Also in this situations, the judges in Macedonia, are very reserved as regard initiation of a civil suit, against the defamotor, taking into consideration the practice of the ECHR, (Nikula v. Finland; Steur v. Netherland they are both cited in the Opinion 16), where it is stated.the court should take into account whether the defamation statement have been made, addressing the professional capacities of the judge/prosecutor and his/her capacities, as a judge or a prosecutor, or it has been addressed to the judge/ prosecutor, as a personal insult. In the practice, we had a case, in which the convicted person has published a defamation, against the trial judge, who have convicted him, after that, the judge has suit a file against the defamator, but in this case, the judge has been excluded from the criminal case (so, we need to know the motives behind, whether these statements were aimed at removing the judge from the case??).that is why, the judges and prosecutors very rarely initiate civil procedures for defamation. Are the costs of the proceedings for the judge covered by a state body or the No, they are the same as for the other citizens. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No. In one case, recently, the Association of judges has reacted on strong defamatory statements and attacks against a judge in a criminal case for Terrorism, published by the opposition party, the international community and few media. But the Association has never reacted on the public statements published by the other powers in the state against a judge or his/her decision. Liechtenstein 1.- No 2.- Yes 3.- No 4.- No. 5.- Yes, there is a specific rule in Art. 29 of the state employee Act. In German it reads as follows. Schutz vor ungerechtfertigten Angriffen und Ansprüchen 14

15 1) Der Staat schützt seine Angestellten vor ungerechtfertigen Angriffen und Ansprüchen, wenn diese im Zusammenhang mit der Ausübung ihrer dienstlichen Tätigkeit stehen. 2) Die Regierung regelt mit Verordnung die volle oder teilweise Übernahme der Kosten für den Rechtsschutz der Angestellten. That means, that the state pays the costs for proceedings in the case of illegal and unjustified attacks against an employee in connection with his/her work. 6.- No. Luxembourg - Il n existe ni texte ni jurisprudence concernant l hypothèse envisagée dans la question - La question d une demande en justice ne s est pas encore présentée dans une telle hypothèse, mais il est probable que le juge sera soumis au droit commun (à défaut de toute autre action prévue) - Au Luxembourg il n existe pas (encore) de Conseil de la Justice. Mais, dans un projet de loi présenté il y a quelque temps déjà, que j ai d ailleurs mentionné à l AG du CCJE, il est prévu de confier de telles compétences au Conseil. - Tel qu indiqué ci-dessus, il n existe pas de règles particulières en la matière - Cela vaut également pour les questions des frais de procédure - La question ne s est pas encore posée Malte As far as Malta is concerned, all Members of Parliament are protected by parliamentary privilege with respect to anything they might say in Parliament. They are not liable to defamation action and are free to say anything on anybody. In respect of anything said in Parliament, members can only be chastised by Parliament, but a Judge, like any individual, can only rebut what has been said by a statement to the press. It is argued in Malta that Members of Parliament should be free to openly say what they want without fear of being sued in the courts. It is only if the member of Parliament concerned repeats the allegation outside the House, that he may be sued for defamation or libel. The judge is subject to the general law, and no special protection is afforded to him; even if the attack is made outside the House and the Judge decides to sue, it is a private matter, he has to fork out the necessary expenses and must choose his own counsel at his own expense. Monaco -il n'existe aucune législation spécifique en la matière; 15

16 -l'article 18 de la Loi portant statut de la magistrature en date du 16 Novembre 2009 dispose que l'etat représenté par le directeur des services judiciaires est tenu de protéger les magistrats contre les menaces, outrages, injures diffamations ou attaques de toute nature dont ils seraient l'objet dans l'exercice ou à l'occasion de l'exercice de leurs fonctions et de réparer le cas echéant le préjudice subi; -Non le Haut Conseil de la Magistrature n'a aucune compétence particulière dans le cas de propos injurieux ou diffamatoires émanant d'un membre du Parlement (Conseil National) à l'encontre d'un magistrat. -le magistrat est soumis au droit commun. -les frais de procédure et d'avocat seraient pris en charge par l'etat, -Non l'assemblée Parlementaire ne dispose d'aucun pouvoir de sanction dans cette hypothèse. Monténégro (1) No, ( 2) Yes ( 3) No. Judges are elected by Judicial councel and We have organization Association of judges which protecting judges but not always,sometimes presidents of courts in a form of statements, said something but only on web site of courts. (4) No. (5) No. (6) No. Norvège 1. No such legislation exists in Norway, nor any relevant case law. 2. Yes. There are no special regulations in this respect. 3. The body in question is the National Courts Administration, a body being independent both from the executive and the legislative branch. The National Courts Administration has no obligation according to law to protect the individual judge in this respect. In general, Norwegian politicians are cautious about criticizing individual judges, and the question has so far hardly been relevant for the Courts Administration do consider. 4. No. 5. No. 6. No 16

17 Pays-Bas Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? No Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? Yes, in principle the Council for the Judiciary will take the defence, but such a situation has never occurred in practice. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No specific rules. Are the costs of the proceedings for the judge covered by a state body or the It has not occurred, but in principle it is likely that the costs of the judge are covered by the Council for the Judiciary. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? No. Pologne Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? Judges are subject to criticism as well as other representatives of the public authorities. Cases when judges (or the courts) are criticised for their work are relatively common - both by politicians (including the Minister of Justice, although in this case, fortunately, rarely), and the media (journalists). In Poland, there is no special legislation giving the judges as a professional group a special (separate) protection against public statements of members of parliament (politicians). The judge is a public official and subject to the same protection as other public officials (the definition of a public official is provided for by the Art of the Penal Code, and it also encompasses a judge). 17

18 In the special part of the Polish Criminal Code there is a chapter entitled "Offences against the activities of state institutions and local self-government." It contains no specific provisions relating to offenses against the judges, however, there are the provisions relating to the protection of public officials, which can be used in the event of offensive and defamatory attacks on judges. In particular, insulting a public official during and in connection with his/her official duties (Article 226 of the Criminal Code) is treated as a crime. The chapter of the Penal Code entitled "Offences against the administration of justice" exemplifies the crime of exerting violence or threat of unlawful influence on the activities of the court (Article 232 of the Criminal Code). Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Yes, he is. Any judge who feels offended by another person (including the politicians), may take a civil action for protection of individual rights (usually demanding an apology and compensation on the basis of Art. 23 and 24 of the Civil Code; according to those rules, the aforementioned rights include: good personal honor, dignity, the good reputation of a man) or a private prosecution for the punishment of the perpetrator of libel (Article 212 of the Penal Code, according to which whoever imputes to another person, a group of persons, an institution or organisational unit, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity - shall be subject to a fine, the penalty of restriction of liberty) or the perpetrator of insult (Article 216 of the Criminal Code). Quoted general provisions are applicable to all people (citizens), and they also apply without restriction to the judges (without exclusions). The judge may bring an action for protection of individual rights against a politician or act against him with a private prosecution for punishment for a crime of slander or insult. Lawsuits for defamation or insulting the judge (initiated by private prosecution) are extremely rare. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? The National Council of the Judiciary expresses its position in particularly drastic cases of criticising judges by the politicians (and the media), recognizing that such statements may jeopardize the independence of judges and the independence of the courts and undermine public confidence in the system of justice. Both the entire Council (presenting the appropriate position in the resolution made public) and President of the Council or its spokesman may take floor. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? The judge is obliged to inform the President of his court immediately about every court case in which he/she is a party or participant in proceedings (Article 90 of Law on Common Courts). As parliamentarians (MPs and senators) have immunity from legal proceedings (cannot be put under the charges without the consent of the Sejm or Senate), before bringing the charges against them and before the indictment, a prosecutor (in the case of an offence 18

19 prosecuted by indictment) or a private prosecutor (in the case initiated by a private prosecution) must apply for the waiver of parliamentary immunity. Are the costs of the proceedings for the judge covered by a state body or the If the judge decides to take action for the protection of personal rights, or to the private prosecution for the punishment of the offender for slander or insult, he covers the costs of such (civil or criminal) proceedings, which includes both legal costs and salary costs of professional attorney. State (in particular, the court in which the judge is serving) does not cover these costs for the judge. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? Yes, it does. In parliament, there exists a Parliamentary Ethics Committee, which may impose sanctions on member of parliament (punish him) for breach of ethics rules of deputy or senator. In accordance with the Rules of Parliamentary Ethics Committee, as soon as the case has been reviewed and infringement of "Principles of Deputies' Ethics" by a Member of Parliament has been found, the Commission shall, by resolution: 1) rebuke, 2) admonish, 3) give a reprimand - indicating the rule of parliamentary ethics that has been breached. Resolutions like that shall be published immediately in Chronicle of Sejm an Information System of Sejm. République tchèque Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? There does not exist any special legislation and I have no information about such a case. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? The judge, when diciding, is representing state. The general law can be used like in other offenses against state authorities. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? There is no such a Council or other similar body in the Czech republik. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? 19

20 No, there are not specific rules. But I dont know any case of such legal action. Are the costs of the proceedings for the judge covered by a state body or the No, there is not such a special provision in the czech law. The cost are not covered by a state. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? Such a member of parliament can be sanctioned after disciplinary hearing, but I have no information about any such case. Royaume-Uni (1) No (2) Yes (3) The Judicial Office which takes care of the interests of judges, would be concerned rather than the Judges Council. (4) No (5) As far as I am aware this has never happened so I don t know the answer. It may depend on the level of judge concerned because there are representative bodies of the more junior judges (district judges, circuit judges and High Court Judges) who would doubtless support a member who wished to bring an action but there are no such representative bodies for the Court of Appeal or the Supreme Court. (6) Yes, but I very much doubt that it would be invoked. Slovaquie Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? NO Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? YES Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? NO In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? NO Are the costs of the proceedings for the judge covered by a state body or the NO 20

21 If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? NO Slovénie 1. No. Judges are in exactly the same position to protect themselves from defamatory allegations as any other citizen. The only option for a judge is to initiate a civil case against MP or the media which distributed such statements. My perception is that judges are too tolerant - they should bring an action to court more often. 2. Yes. His/her position does not differ from the position of "ordinary" citizens. 3. In Slovenia, this role should be exercised by the Judicial Council; unfortunately judges often feel that they are left alone. The only organization which protects judges is the Association of Judges (sometimes presidents of courts in a form of statements, press conferences...). 4. No. The same rules apply. 5. No. 6. No, the only sanction would be political, but it often appears that political parties join their forces against a common enemy - the judiciary. Suède 1) No, there is no such legislation or case law in Sweden. 2) Yes. 3) No. If there should be any attacks by politicians on judges, the Court, the National Courts Administration or the Judges Association and the judges union would surely speak up for the judge. Still there is no particular body that plays a particular role in the protection of judges against such attacks. 4) No, general rules apply. 5) No. 6) General rules of defamation apply. Suisse 1.- No 2.- Yes 3.- No. Judges are elected - and reelected - by Parliament. To avoid public discussions about merits and personalities of candidates, Parliament prepares these elections by a special body (committee for the judiciary). 4.- No. 5.- No 6.- No. 21

22 Ukraine Is there a legislation or case law in your country providing special protection to judges against the public statements of a member of a parliamentary assembly (or more generally of a politician) putting into question the work of the judge? Ukrainian legislation provides protection of a right for respect of honour and dignity, eputation to all persons in the framework of civil proceedings. There are no special procedures for senior officials of executive, political powers or judiciary. Although, the Criminal Code of Ukraine contains a description of offence Interference with work of the judiciary. Undue directives, mass protests, critics in mass media concerning the concrete case a judge considering can be regarded as interference with the judicial work. But on practice these provisions of the Criminal Code have almost never been used. Is the judge subject to the "general law" applicable to all citizens against defamatory or offensive attacks? Except for the mentioned offence, in which only judges can be victims, judges are subject to the general law against offensive attacks. Does the High Council for the Judiciary, or an equivalent body, play a particular role in the protection of judges against public attacks by politicians? No, High Council of Justice in Ukraine has no such powers. In the case of legal action being considered by the judge against the perpetrator of the attacks, are there specific rules governing this action? No. Are the costs of the proceedings for the judge covered by a state body or the No. If the public criticism of a judge comes from a member of a parliamentary assembly and if this criticism is beyond the limits of freedom of expression, does the parliamentary assembly have the authority to impose sanctions against the perpetrator of the attacks? At the plenary meeting the chairman can call a speaker to order for breaking the rules of conduct (use of offensive expressions, swearwords, etc.). If the speaker breaks these rules again, he can be abandoned to make speeches during the meeting. Also, with support of the one third of the Parliament MP s who broke rules of conduct are obliges to leave the meeting. 22