Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle

Keywords: judicial independence, prosecutors, freedom of expression, rule of law, remedy

English abstract: The paper focuses on the protection of freedom of expression of judges and  prosecutors who exercise this freedom in their professional capacity to promote the rule of  law, but suffer negative consequences as a result. Starting with the ECtHR Kövesi v. Romania judgment, the issues of whether legal remedy, in this context, should necessarily be judicial  and what quality requirements it should meet are analysed. The paper finds that the ECtHR  requires effective remedies in this field, but does not clearly exclude a possibility of non judicial remedies. The EU law, on the other hand, requires judicial remedies unless there are  very limited EU law-based reasons (notably, constitutional identity arguments) that justify  a possibility of a non-judicial remedy. Theoretical arguments based on substantive conception  of the rule of law support the need for a judicial remedy. The study is an addition to the  research into judicial independence in the light of the rule of law. It connects the ECtHR, EU  law and theoretical perspectives.

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