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Global Partners in Education Journal – Special Edition  December 2022, Vol. 10, No. 2 
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Freedom of Expression of Judges in their Academic Research 

Valentina Díaz 

Universidad Mayor, Santiago, Chile 

Abstract 

Freedom of expression allows for the democratization of the judiciary. Judges have the 
right to freely express their thoughts, ideas, and opinions by any means of 
communication. Such freedom is a basis in academia, involving the ability to explain 
the conclusions of an investigation as a statement based on reasoning and evidence. 
Conclusions may be right or wrong, but they are freely expressed. However, the 
exercise of this freedom entails limitations: the maintenance of neutral, objective, and 
impeccable conduct of judges. These limitations guarantee the principles of impartiality 
and independence in the administration of justice-the principles that seek to preserve 
the dignity of the jurisdictional functions and the impartiality and independence of the 
judiciary. Judges may speak and write freely, as long as they do not promote ideas 
that may compromise impartiality and independence. Indeed, the freedom of 
expression of persons exercising jurisdictional functions is subject to greater 
restrictions. But the restriction to this right does not imply that any manifestation or 
expression issued by a judge may be restricted.   

Key words: freedom, independence, restrictions 

Introduction 

Judges can publish academic papers, write in newspapers, give their opinions on 
social networks, and pronounce their point of view in different media. This state of 
affairs is relatively new; in the past judges were more reserved when it came to giving 
public statements. Nowadays their participation and opinion on contentious issues is 
increasingly expected. On the other hand, when participating in academic work, which 
is the subject of this article, judges express their opinions openly, exchanging ideas 
and debating them without fear of reprisal or criticism. This increased public exposure 
raises new questions about judicial independence. Thus, divergent interests are at 
stake that must be weighed against freedom of expression. Now, when judges express 
their opinions in a context outside of academic work and express it in judicial decisions, 
their freedom of expression may be restricted, as they cannot take sides in any case, 
or their rulings may be perceived as impartial. So not all cases are clear regarding the 
expression of a judge's opinion, raising several questions: Can judges participate in 
academic work? Are they allowed to express their opinion without infringing on their 
freedom of expression? All these questions require a careful balance since judges, on 
the one hand, enjoy the right to freedom of expression like all other members of society, 
but on the other hand, their participation cannot be impartial. This paper aims to give 
a brief comparative overview of how national jurisdictions address the potential 
conflicts between freedom of expression and judicial independence. 

Comparative Overview 

 



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Judges are traditionally expected to exercise considerable restraint in the exercise of 
their freedom of expression in the interest of judicial independence since judges cannot 
disclose confidential information concerning litigation of which they are aware in 
exercising their judicial functions. In view of this, when communicating their views, they 
should do so with caution and refrain from responding to public criticism of their judicial 
activities. The case is different concerning legal issues that they comment on in legal 
journals, conferences, academic papers, newspapers, etc. In most countries, judges 
are allowed, and in some are even encouraged, to participate in public debates about 
the law, the legal system, and the functioning of the judiciary in general. This 
demonstrates that, despite the differences, there are several similarities in this respect 
as all countries seek to balance freedom of expression with the authority, impartiality, 
and independence of the judiciary. In Chile, judges are largely protected from any 
sanction unless their speech is directly related to the administration of justice. The 
opinions expressed publicly by judges are considered a private and personal matter; 
therefore, their freedom of expression is protected. However, it is necessary to 
question the freedom of expression if any violation of the prohibitive norms is at stake. 
The measures adopted to ensure that situations that transgress the norm do not occur 
are limited to repressive measures, such as a reprimand and dismissal, which 
represent the most serious reprisals against freedom of expression if the opinion of a 
judge is considered to be impartial or against the norm. This is reflected in the case of 
Urrutia Laubreaux vs. Chile in which in 2004 the Supreme Court of Justice of Chile 
authorized Judge Urrutia to attend the "Diploma on Human Rights and Democratization 
Processes". On November 30, 2004, Judge Urrutia informed the Supreme Court that 
he had passed the diploma course and submitted his final paper on the human rights 
violations that occurred during the Chilean military regime. The Supreme Court 
forwarded the work submitted to the competent body to discipline Mr. Urrutia and 
subsequently returned the academic work to him, informing him that the Supreme 
Court had considered that it contained "inadequate and unacceptable assessments" 
for the said court. On March 31, 2005, the Court of Appeals of La Serena decided to 
sanction Judge Urrutia with a disciplinary measure of "written censure". After an 
appeal, the Supreme Court upheld the challenged resolution and reduced the sentence 
to a "private reprimand", which lasted 13 years, affecting his judicial career. On May 
29, 2018, and in compliance with the recommendations of the Merits Report, the 
Supreme Court of Justice of Chile vacated the sanction imposed on the victim. In the 
judgment the Court found that it was not by the American Convention to sanction 
expressions made in an academic paper on a general topic and not a specific case, 
such as the one made by Judge Urrutia. The Court stated that in such a case the right 
to freedom of expression was violated and that Chile was responsible for the violation 
of Article 13 of the American Convention on Human Rights, about the obligation to 
respect and guarantee such rights, enshrined in Article 1.1 of the same, to the 
detriment of Judge Urrutia.  

Academic freedom about freedom of expression 

The relationship between academic freedom and freedom of expression has been 
demonstrated by United Nations bodies and by the Inter-American Human Rights 
system itself. However, there are certain aspects of academic freedom that go beyond 
the relationship with freedom of expression which has a direct impact on the rights to 
personal security, the rule of law, and democracy. Academic work or research carried 
out by a judge promotes the development of knowledge and its progress. This freedom 



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allows for the transmission of experience and knowledge. This implies that academic 
publications should be free, open, and safe spaces in which ideas should be 
exchanged and debated without fear of violence or reprisals. A judge, who elaborates 
on a given issue and does research, presenting the result of that research in the form 
of a monograph with the character of a thesis, has the freedom to choose the topic, 
without fear of transcending the limitations of the program that follows the lines of 
research and cannot avoid drawing the conclusions if they come from the research. 
One may disagree with the conclusions, the procedure, or the research, but the 
academic work should be evaluated from the point of view of academic standards. 
Therefore, any other kind of evaluation violates the academic freedom of research if it 
disagrees with the results or conclusions reached. Therefore, a judge who exposes his 
point of view in academic work has total freedom to express himself as any other 
person, without being compelled to impinge on the impartiality or being subject to 
sanctions established by the legal doctrine. 

Freedom of expression and its regulation in the law 

Freedom of expression, as already mentioned, is the right to perform actions that show 
the intention of a person to give a message or content that helps the democratic 
debate. Its main objective is to make possible a public discussion, useful for life and 
the community in which we live, contributing to the free development of one’s 
personality. This right can only be intervened for the protection of the rights of others 
when impartiality is affected, and for this purpose, it enjoys the following specific 
guarantees (Escobar 2006):  

1. Prior censorship is prohibited: prior intervention by the public authorities to prevent 
or modulate an academic work, a publication, a message, or opinion is not allowed, 
according to the Constitutional Court. 

2. Administrative sequestration is prohibited: The administrative authority may not 
remove from circulation or restrict the media in which an idea or content is 
expressed.  

This freedom of expression is protected in the international field of human rights, in 
articles 8 and 10 of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms. The American Convention on Human Rights in Latin 
American protects freedom of expression by prohibiting prior censorship, regardless of 
the cause, in Article 13 in relation to the obligation to respect and guarantee the rights 
indicated below: 

1. Everyone has the right to freedom of thought and expression. This right shall 
include freedom to seek, receive and impart information and ideas of all kinds, 
regardless of frontiers, either orally, in writing or in print, in the form of art, or through 
any other media of his choice. 

2. The exercise of the right provided for in the preceding paragraph shall not be 
subject to prior censorship but shall be subject to subsequent liability, which must 
be expressly established by law and be necessary to ensure: 

a. respect for the rights or reputation of others, or 
b. the protection of national security, public order, or public health or morals. 

3. The right of expression may not be restricted by indirect means, such as the abuse 
of official or private controls of newsprint, radio frequencies, or of schools and 



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apparatus used in the dissemination of information, or by any other means 
designed to impede the communication and circulation of ideas and opinions. 

4. Public spectacles may be subject by law to prior censorship for the exclusive 
purpose of regulating access thereto for the moral protection of children and 
adolescents, without prejudice to the provisions of subsection 2. 

Conclusion 

In conclusion, judges have recognized the right to freedom of expression. The exercise 
of this right is limited by the duties and responsibilities derived from their profession, 
such as the principles of independence and impartiality, which constitute an essential 
element of the rule of law. The judges’ right to freedom of expression cannot be limited 
by their status as such. In addition, it does not matter what means they use to exercise 
this right; they must abide by the consequences that their exercising of this right entails, 
because it can destroy the presumption of impartiality. An impartial legal process not 
only harms the citizen's right to judicial guarantees, but also harms the judiciary itself. 
But as far as the opinion refers to academic works, the expressions made by the judges 
on a general subject cannot be sanctioned, because it is not a specific case that affects 
the impartiality of the judge. 

References 

Climent Gallart, J. A. (2018). La jurisprudencia del Tedh sobre la libertad de 
expresión de los jueces. Iuris Tantum Revista Boliviana de Derecho, 25, 524-535. 
 
Corte IDH: Caso Urrutia Laubreaux vs. Chile, (Excepciones Preliminares, Fondo, 
Reparaciones y Costas), Sentencia de 27 de agosto de 2020. Serie C No. 409 
 
Dijkstra, S., (2017). The freedom of the judge to express his personal opinions and 
convictions under the ECHR.  Utrecht Law Review, 13(1), 1–17. DOI: 
http://doi.org/10.18352/ulr.371 
 
Escobar, Roca G. (2006). “Medios de comunicación”, en Materiales del Curso 
Derechos Humanos y Democracia, del Programa Regional de Apoyo a las 
Defensorías del Pueblo en Iberoamérica (AECI, Universidad de Alcalá),  Madrid.  
 
Rodríguez, A. R., Brand, J. L. E. M., & Eloy, J. L. (2012). La regulación del derecho a 
la libertad de expresión desde una perspectiva comparada: su protección en América 
Latina. Tribunal Electoral del Poder Judicial de la Federación. 
 
Seibert-Fohr, A., (2019, 19 April). The independence of judges and their freedom of 
expression: An ambivalent relationship. Available at 
SSRN:  https://ssrn.com/abstract=3375038 or http://dx.doi.org/10.2139/ssrn.3375038 
 
Trias, E. R. (2021). Libertad de expresión, independencia, imparcialidad: los jueces 
en las redes sociales. Un estudio de las decisiones del TEDH. Revista española de 
derecho constitucional, 41(122), 13-45. 
 
Venice Commission (2015). Report: on the freedom of expression of 
judges. Opinión, 806. 



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Author Notes 
 
Valentina Diaz Pizarro is a law student at Universidad Mayor de Chile. She works as 
a research assistant at the research center for society and health at the same 
university. She is enthusiastic about research work based on the protection of human 
rights and research related to international law. Her participation in the 7th Global 
Issues Conference on freedom of expression of judges in academic work boosted her 
assertiveness and determination to present her point of view in an international forum. 

 

Email: valentina.diazp@mayor.cl  

ORCID: 0000-0003-1883-6968 

 


