In defence of the public prosecutors’ right to professional association, their freedom of expression and freedom of action within the public sphere
The Sindicato dos Magistrados do Ministério Público (SMMP) [Portuguese Professional Association of Public Prosecutors], through the public statements of its President António Ventinhas, a public prosecutor, has vigorously and angrily reacted in defence of the public prosecutors.
Such statements were made after a TV interview given by a former Prime Minister who is a defendant in pending criminal proceedings.
During that interview, both the public prosecutors conducting the investigation and the Public Prosecution Service itself were the subject of much comment capable of undermining their impartiality, integrity, probity and legitimacy.
SMMP’s President was subsequently object of a complaint submitted by that same former Prime Minister to the Conselho Superior do Ministério Público (CSMP) [High Council of the Portuguese Public Prosecution Service] which decided by the majority of its members to conduct an inquiry intended to determine if the declarations of SMMP’s President could be matter of disciplinary liability.
- Considering that in a democratic Europe, unions and judicial professional associations have the right to intervene within the public sphere to safeguard the interests they represent in general, and the professional dignity of public prosecutors as well as the independence of the bodies in the justice system in particular.
- Considering that this legitimate intervention, essential for a democratic rule of law, cannot – and nor should it – be subject to restrictions or constraints that are only imposed on the scope of exercise of judicial functions in a specific case.
- Considering that the freedom of expression, which judicial professional associations can never renounce, is one of the most important values of a democratic rule of law, and that opposing that freedom as well as the public prosecutors’ democratic right to professional association is tantamount to denying the democratic rule of law itself.
- Considering that the attacks on the public prosecutors’ dignity and impartiality and on their right to professional association do not call for neutral responses, but rather for firm reactions carrying much conviction, as well as compulsory and legitimate, opportune and necessary reactions, against all forms of manipulation and of democratic regression, as well as against all types of threat to the independence of justice.
- Considering that legitimate and necessary reactions are above all required by moral indignation and public prosecutors’ courage to denounce manipulation, vilification and unacceptable disqualifications insidiously increased by haughtiness through the media.
- Considering that the right to indignation is a compromise with the democratic rule of law and its citizens and that the public prosecutors’ reputation and the social recognition for their work are vital for a pluralistic democracy, social peace and the defence of fundamental rights and freedoms.
- Recalling the case-law established by the ECtHR in the cases of Guja v. Moldova, 12 February 2008; Kudeshkina v. Russia, 26 February 2009; Heinisch v. Germany, 21 July 2011;VELLUTINI and MICHEL v. France, 6 October 2011; Aguilera Jiménez and Others v. Spain, 8 December 2008;MedžlisIslamskeZajedniceBrčko and Others v. Bosnia and Herzegovina, 13 October 2015; Ionită Romania (no. 30655/09); Keller v. Hungary, 4 April 2006; White v. Sweden, 19 September 2006;
- Recalling that on those many occasions the ECtHR has highlighted the judiciary’s special role in society, but that as the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties. It may be necessary therefore to protect that trust and confidence against destructive attacks; and first and foremost, those that are essentially unfounded, particularly if we take into account the fact that the judges who have been criticized are subject to a duty of professionalsecrecy and confidentiality that prevents them from replying or limits their ability to respond.
- Recalling the recommendations of the Council of Europe: Recommendation CM/Rec (2014)7; Report on the freedom of expression of Judges, adopted by the Venice Commission, at its 103rd Plenary Session (Venice, 19-20 June 2015).
- RECALLING that the value of the public prosecutors’ freedom of expression is governed by some important international instruments on the independence of justice, such as Articles 8 and 9 of the Basic Principles on the independence of the Judiciary (UN, 1985) and Article 4 of the Recommendation Rec(94) 12 of the Committee of Ministers on the independence, efficiency and role of judges (Council of Europe) and this value must be defended against attacks from inside the judiciary just as much as against attacks from the outside.
- RECALLING the decision of the CORTE INTERAMERICANA DE DERECHOS HUMANOS (Inter-American Court of Human Rights) in the case LÓPEZ LONE Y OTROS VS. HONDURAS JUDGMENT OF 5 OCTOBER 2015.
MEDEL, gathered in Pisa on 12 March 2016, having been alerted of the facts above mentioned, adopts the following motion:
- MEDEL reaffirms the freedom of expression and the public prosecutors’ freedom to form, join and take part in professional associations, as well as the freedom of their representatives in those associations.
- MEDEL declares that having the representatives of judicial professional associations being intimidated, silenced or punished for exercising legitimately their freedom of expression and freedom of action within the public sphere to defend the independence of justice and the dignity of public prosecutors is unacceptable.
- MEDEL declares that will follow with concern the result of the inquiry into the allegations made against SMMP’s President, hoping it is conducted in a way that respects the ECtHRcase-law above mentioned.