PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the majority’s view that Article 6 is applicable in the instant case and that it has been violated. At the same time, I have reservations concerning the approach adopted under Article 10.

2. In my view, the applicant’s claim that he had a subjective right does not reach the threshold of arguability for the purposes of Article 6. I have explained in detail the content of the domestic law on this question in my dissenting opinion appended to the judgment in the case of Grzęda v. Poland [GC], no. 43572/18, 15 March 2022.

3. My reservations in respect of the reasoning under Article 10 concern the following points: (i) the scope of applicability of Article 10, (ii) the precise nature of the interference with the applicant’s freedom of expression, (iii) the way the reasoning articulates the questions of legitimate aim and proportionality, as well as (iv) the differentiation of protection under Article 10 for different categories of persons and views.

3.1. The judgment expresses the following view in paragraph 220 (emphasis added):

“[The Court] observes in this regard that the applicant expressed his views on the legislative reforms in issue in his professional capacity as a judicial member of the NCJ and the spokesperson of this body [see also paragraph 206].”

I have explained my position concerning the correct interpretation of Article 10 in the separate opinions appended to the cases of Baka v. Hungary [GC], no. 20261/12, 23 June 2016, and Szanyi v. Hungary , no. 35493/13, 8 November 2016. In my view, Article 10 does not apply to official speech of public office holders, it applies to utterances expressing the personal views of individuals. Official speech may be a matter of very broad discretionary power but does not constitute an exercise of a fundamental freedom.

The reasoning refers to “ his [i.e. the applicant’s] views ... in his professional capacity as a judicial member of the NCJ and the spokesperson of this body ”. I see here a contradiction. The applicant could either express his personal views (while speaking in his private capacity) or – when speaking in his professional capacity as spokesperson of the NCJ – had the obligation to present not his views but the position of this State organ on the legislative reforms in issue.

The judgment lists a certain number of the applicant’s utterances in paragraphs 40-47. In my view, some of these utterances belong to the category of official speech (presenting the position of the NCJ) and are not covered by Article 10, some belong to the category of non-official speech (expressing the applicant’s personal views), clearly protected by Article 10, whereas the status of some utterances may be debated. Drawing a precise line of demarcation between the two types of utterances is not always an easy task. In any event, the application concerns in particular a set of utterances presenting the applicant’s personal views, expressed in his capacity as citizen, so I have no doubt that Article 10 applies nonetheless in the instant case.

I further note, in this context, another contradiction. On the one hand, the reasoning considers that the applicant exercised his freedom of expression (see, in particular, paragraph 220 in principio ), while on the other, it emphasises the judges’ obligation to speak on certain issues and to express certain views (see paragraph 222). Freedom of speech means inter alia freedom from any obligation to speak. Where an obligation to speak and to express certain views begins, the freedom of speech ends (see my separate opinion in Baka v. Hungary , cited above, point 7).

3.2. The judgment lists, in paragraph 208, a certain number of measures which – taken together – constitute an interference with the applicant’s freedom of speech (see also paragraph 209 in fine ). The reasoning further states the following in paragraph 208 in fine :

“The Court notes at this juncture that the fact of being dismissed from the position of court spokesperson does not in itself entail an interference with freedom of expression as there is no right to hold such a position. However, this fact is part of the sequence of events and needs to be seen in the context of the accumulation of all the above ‑ mentioned measures taken in respect of the applicant (see paragraph 211 below).”

In my view, the precise perimeter of the relevant interference with freedom of speech in the instant case should be delineated in a somewhat narrower manner. I note that, under the Polish law, contacts with the press belong to the duties of court presidents, but a president of a court of appeal or a president of a regional court may decide to appoint a spokesman, who acts under the supervision of the court president. The appointment as court spokesman may be revoked at any time, provided that the board of the court expresses its (non-binding) opinion. Revocation from the function of court spokesman is a discretionary power of the court president and, in my view, should not be seen as an element of the interference with the spokesman’s freedom of speech (compare my dissenting opinion appended to the judgment in the case of Baka v. Hungary , cited above).

Under these circumstances, in the instant case, the interference with the applicant’s freedom of speech consists in the following three elements: the audit of his financial declaration, the inspection of his work and the declassification of his financial declaration.

3.3. The judgment states the following in paragraph 217:

“Having regard to the overall context of the present case, the Court has serious doubts as to whether the interference complained of pursued any of the legitimate aims provided for in Article 10 § 2. However, it is not required to reach a final conclusion on this question since, in view of the reasons stated below (see paragraphs 220-228 below), the impugned interference cannot in any event be considered to have been “necessary in a democratic society” for the purposes of this provision (see Döner and Others v. Turkey , no. 29994/02, § 95, 7 March 2017).”

The necessity or proportionality test requires a balancing of the values protected and the values which are sacrificed. It presupposes a clear identification of the aim pursued and of the values protected. An analysis of necessity in a democratic society or proportionality does not make sense if it has not been ascertained that the measure in question actually pursues a legitimate aim (compare my dissenting opinion in the case of Baka v. Hungary , cited above, point 11). In my view, the arguments developed in the reasoning (see, in particular, paragraph 227) constitute a sufficient basis on which to conclude that the existence of the legitimate aim has not been shown, by the respondent, and to stop the analysis already at this stage.

3.4. The reasoning states the following in paragraph 222:

“In the present case, the Court is assessing the situation of an applicant who was not only a judge, but also a member of a judicial council and its spokesperson . However, the Court would note that a similar approach would be applicable to any judge who exercises his freedom of expression – in conformity with the principles referred to in paragraph 219 above – with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest. When a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened.”

The reasoning expressly differentiates the level of protection for different categories of persons. I have already expressed doubts about the idea that some categories of public persons should enjoy a better protected freedom of speech than other citizens (see, in particular, my separate opinions in the cases of Makraduli v. the former Yugoslav Republic of Macedonia , nos. 64659/11 and 24133/13, 19 July 2018, points 8 and 9, and Monica Macovei v. Romania , no. 53028/14, 28 July 2020, point 4). In my view, “a similar approach” to the one in the instant case would be applicable to any person who exercises his freedom expression, presenting views on any issues of general interest. Equality vis-à-vis freedom of speech is a fundamental Convention value.

The judgment further differentiates protection according to the content of the speech. The reasoning suggests that the protection of judicial speech should focus on speech “defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest”. Apparently, judges’ speech expressing different views would not enjoy the same level of protection. Thus there are views which deserve a stronger protection and views which call for a lower level of protection. Once again, the approach adopted is problematic.

4. Finally, I have to concede here that the reasoning – when addressing the key issue of causal link between speech and the impugned interference – relies upon the principle of formal truth, which weakens the impact of the judgment. The Court applies a presumption in favour of the applicant (see paragraphs 204 and 212) and relies on the fact that this presumption has not been rebutted by the respondent Government (paragraphs 212 and 227). In my view, in the instant case, the Court had no choice under Article 10 and had to rely on formal truth. At the same time, I note that this problem could have been partly avoided had the case been approached under Article 8, taking into account the fact that the audit of the applicant’s financial declaration and the declassification of that declaration also constituted an interference with his private life.

5. To sum up: the extension of the scope of applicability of Article 10 to official speech of public power holders entails certain contradictions. Moreover, the approach adopted, suggesting the need for a special protection under Article 10 for judges, and an even stronger protection for judges belonging to judicial councils or professional associations, may trigger criticism from the perspective of the principle of equality.

That being said, I agree that Article 10 has been violated in the instant case.

[1] Section 11(3) and (4) in conjunction with section 13(1) and (2) as well as section 11(2) in conjunction with section 12(1) of the 2011 Act on the NCJ.