Freedom of speech remains a fundamental value for Ukraine - Supreme Court President Stanislav Kravchenko

The worthy Ukrainian response to full-scale Russian aggression is in progress. Crimes of aggression and war crimes are recorded wherever the occupier sets his foot. The information war is also ongoing. Along with this comes the question of liability for the dissemination of false information. In view of this, the Ukrainian parliament took drastic measures to protect the information field back in March 2022. For the first time in the history of independent Ukraine, the Criminal Code of Ukraine introduced provisions that provide for liability for the dissemination of certain information, such as Art. 111-1 "Collaboration Activities" and Art. 436-2 "Justification, Recognition of the Legitimacy, Denial of the Armed Aggression of the Russian Federation against Ukraine, Glorification of its Participants". This was stated by President of the Supreme Court Stanislav Kravchenko in his address to the conference "Freedom of Speech for Judges and the Role of Judicial Associations in a Democratic State Governed by the Rule of Law".

The Chief Justice stressed the importance of freedom of speech and information. He also said that since information permeates human life all the time, this should encourage us to be careful in both its reception and transmission. It is important to have in mind the measure, the hygiene and the source of information.

It should be noted that in Ukraine, despite the war, freedom of speech remains a fundamental value. Even the restrictions we have today are applied in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

"Long gone are the days when judges were afraid to speak out about certain things. Today, judges communicate with journalists and actively participate in events. Sometimes, however, certain statements damage the credibility of justice. In particular, this concerns cases where judges published information on social media and initiated discussions about pending decisions. That is why we all need to follow certain rules of communication and information exchange," added Stanislav Kravchenko.

Are judges allowed to comment on cases? Yehor Krasnov, a judge at the Commercial Cassation Court within the Supreme Court, focused on this issue. He explained that there was a provision in the Code of Judicial Ethics that did not allow judges to comment on cases. "In my opinion, we should be very careful when discussing the decisions of our colleagues, especially if these decisions have not yet been reviewed in appeal and cassation. According to CCJE Opinion No. 25 (2022) on Freedom of Expression of Judges, which provides guidance to judges on the parameters to be taken into account when exercising their right to freedom of expression, even the tone and context of a statement on a particular case may be perceived by the parties as bias on the part of the judge. Judges can only discuss decisions in the context of a scientific discussion or, for example, to explain the position of the cassation court," the speaker said.

Yehor Krasnov also noted that judges should refrain from participating in public debates if they are of a political nature. It is essential to strike a reasonable balance between the extent to which judges participate in public debate and the need for judges to be independent and impartial in the performance of their duties.

Olena Kibenko, a judge at the Commercial Cassation Court within the Supreme Court, spoke about the limits of judges' activity in public and on social media. According to her, there is no prohibition on judges using social media, and in certain circumstances judges are even obliged to communicate with the public through the media and social media, in particular when there is a threat to democracy and the rule of law. However, effective social media communication requires an assessment of all possible risks, including those caused by inadvertent actions due to a social media user's inexperience. "Anything that appears on a judge's Facebook page, for example, is automatically associated by the public with the court as a whole. Therefore, any action, post or comment by a judge on social media should be balanced so as not to undermine the reputation of the judicial system," said Olena Kibenko. A judge's posts on social media may be grounds for disqualification or have a negative impact on the judge's professional career. 

At the same time, the speaker noted that social media is a powerful platform for receiving feedback from society, as it allows to find out how the legal community, the business community, the public and ordinary citizens react to certain court decisions and how they perceive the courts, including the Supreme Court.

Mykhailo Smokovych, President of the Administrative Cassation Court within the Supreme Court, stressed that the CCJE Opinion No. 25 (2022) is extremely important for the judicial community in the context of the freedom of expression of judges. "From my own experience, I know that when it comes to freedom of speech, it is very difficult for judges to determine the boundaries when a judge can comment on something and when he or she cannot. Therefore, events discussing issues such as freedom of speech for judges and the role of judicial associations in a democratic state are always relevant to the judiciary. I also sincerely hope that the creation of new associations of judges will help to protect the rights, freedoms and guarantees of judges, which is a prerequisite for the establishment of the rule of law," said Mykhailo Smokovych.

Nataliia Blazhivska, a judge at the Administrative Cassation Court within the Supreme Court, spoke about the role of professional associations of judges in a democratic state. As the speaker pointed out, European standards and the statutes of judges' associations define the establishment and protection of the independence of the judiciary and the strengthening of the rule of law as fundamental objectives. These two objectives contribute to the effective exercise of the fundamental right to a fair trial by an independent and impartial tribunal.

"According to CCJE Opinion No. 23 (2020) on the role of the Associations of Judges in supporting the judicial independence, the main objectives of judges' associations are, of course, to promote and protect the independence of the judiciary and human rights, as well as to preserve the status and proper working conditions of judges. We need to understand that an important aspect of the work of judicial associations is dialogue with colleagues and proper communication with society in order to increase legal certainty. In this context, the implementation of the Dutch-Ukrainian project 'Judiciary and Society in Ukraine', in which the All-Ukrainian Association of Administrative Judges is a partner, is particularly valuable for Ukraine," said Nataliia Blazhivska. Another unique project of the Association is a joint annual training course with the Organisation for Economic Co-operation and Development (OECD) on International Tax Standards: Implementation and Application in Ukraine.

The conference participants also discussed the idea of creating a platform for exchanging views on freedom of expression of judges, including in the context of the CCJE Opinion No. 25 (2022), concrete steps to implement the recommendations of this Opinion and the role of judicial associations in a democratic state governed by the rule of law in terms of strengthening the independence of the judiciary and promoting the highest professional and ethical standards of judges. International experts stressed that it is the duty of judges to communicate with civil society, especially when the rule of law is under threat.­ This duty also carries with it a great responsibility to restore and maintain public confidence in the judiciary.

The event was jointly organised by the EU project Pravo-Justice, the Council of Europe Cooperation Programmes Department within the project "Ensuring the Effective Implementation of the Right to a Fair Trial in Ukraine (Article 6 ECHR)" and the Council of Judges of Ukraine.