Thursday, 5 February 2009

Judges Who Are Too Talkative

It happens around the world that politicians comment on ongoing court cases. Rightly so, this is very often condemned as being detrimental to good and fair judicial proceedings, especially in the public perception. A fortiori, one would say, judges themselves should not comment. Indeed, that may greatly endanger their impartiality. In a judgment released today by the European Court, a violation of Article 6 para. 1 (right to a fair trial) was found on exactly that point. In Olujić v. Croatia, the applicant was a former judge and even president of the Supreme Court. The core of the case is that he was dismissed from office in 1998 after having been found guilty of 'fraternising' in public with two well-known criminals. The problem was that three judges of the National Judicial Conucil, which they decided about the dismissal, had all publicly commented in the media before making their decision in a negative way about Olujić. One colleague called him lacking in experience and knowledge and as being a "corpus alienum" (foreign body) in the judiciary. Another had been himself been candidate for the presidency of the Supreme Court and revealed in the media that he had voted against Olujić initial appointment for that function. The outcome of the Strasbourg proceedings then should come as no surprise. Rather they are an clear reminder of the importance of judicial impartiality - all the more so in this peculiar context of judges judging other judges! It makes one consider that Lady Justice does not only need a blindfold in front of her eyes but sometimes also in front of her mouth, at least during the trial...

For a comment on press coverage and the relationship to ongoing trials, see this article by professor Martin Kuijer.

2 comments:

albert venn dicey said...

The "a fortiori" argument is very week.
Judges may not comment on pending cases, because they have the obligation to be fair and neutral.
The politicians do not. I see no reason why a politician's comments on pending cases may be treated as a violation of ECHR.
Indeed the comments are exersice of politician's right of free expression. If the government of the state - party to the ECHR want to curb that expression in the name of ensuring the interest of its justice, that's fine.
But it has nothing to do with the ECHR.

Antoine Buyse said...

Of course, there is a difference between politicians and judges. Certainly, I was not claiming that when politicians speak during a trial that that would be a violation of the ECHR, but I do think that some comments during trials are detrimental to good proceedings. Although not unlawful, it is often considered to be premature, to say the least.