Strasbourg, 11 March 2002                                                                                 CCJE (2002) 25

[ccje/docs2002/CCJE(2002)25]                                                                                                                    English only

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

QUESTIONNAIRE ON THE CONDUCT,

ETHICS AND RESPONSIBILITY OF JUDGES

Reply submitted

by the

delegation of Slovenia

Questionnaire on the conduct, ethics and responsibility of judges

1.       What are the statutory obligations by which judges are bound?

Judicial Service Act (OG No. 19/94, 8/96 and 24/98) stipulates as follows:

Article 2

In exercising his/her rights and liberties[1], a judge shall always act in such a way as to protect the impartiality and independence of judging as well as the good reputation of the judicial service.[2]

Article 3

A judge shall not perform functions or activities incompatible with the office of a judge under the provisions of the Constitution or of this statute.

Article 37

A judge shall always behave in such a way as to protect his/her impartiality and independence, the good reputation of the judiciary and the independence of the judiciary.

A judge may not hinder the work of the court by asserting his rights.

Article 38

A judge shall keep to himself/herself everything he/she has learnt of the parties to the case and their legal and actual relationships during the performance of his/her work and shall protect the secrecy of all information to which the general public has no access.

A judge may not publicly express himself/herself in advance on such questions of fact and of law that are the subject of a case and on which no legal decision has yet been made or a case in which a last appeal had been filed.

2.       Is there a judge’s code of conduct?

2.1. If so, who drafted it and who adopted it?

The Slovenian Association of Judges adopted a Code of Judicial Ethics in June 2001, thereby replacing such a code of professional responsibilities, dating back to 1972. A working group composed exclusively of judges, members of the association, drafted the present Code.

2.2. What are the obligations imposed upon judges?

The rules of conduct set down in the Code of Judicial Ethics are the following:

I. INDEPENDENCE

A judge shall maintain and protect his/her personal independence and the independence of the judiciary and shall not allow any interventions that could possibly jeopardise independent performance of judge’s function.

II. IMPARTIALITY (NEUTRALITY)

A judge shall perform his/her function impartially and shall not allow his/her judgement to be influenced by his/her personal inclinations, prejudices or aprioristic convictions, by political, economic or other interests, by his/her private knowledge of facts under dispute, by demands or criticism expressed by the general public nor by any other circumstances that could influence his/her decision in a given case or that could leave an impression of such inappropriate influence.

 

III. CAPACITY

A judge shall permanently take care of maintaining and improving his/her professional skills.

IV. DEDICATION

A judge shall at all times demonstrate his/her dedication to performing the judicial function.

V. COMPATIBILITY

A judge may take part in activities that strengthen the functioning of the judiciary, assure legal progress and development as well as contribute to the improvement of the legal system, if such activities do not cast doubt on his/her impartiality in the process of decision making.

VI. INCOMPATIBILITY

A judge shall regulate his/her private or public, paid or unpaid (“pro bono”) activities outside his/her performance of judicial service in such a way that shall not be in conflict with his/her professional duties as a judge or his/her reputation and the dignity of judicial profession.

VII. DISCRETION

A judge shall respect the principle of professional confidentiality regarding personal, business and other information, which were revealed to him/her during the performance of his/her function.

VIII. COMMUNICATION

A judge shall establish and maintain a correct and respectful manner in communicating with his/her colleagues and with all persons participating in court proceedings.

IX. REPUTATION

A judge shall at all times give an example in preserving the good reputation of the judiciary and shall in all activities avoid inappropriate actions or conduct.

2.3. Is there a provision for sanctions in the event of violation by judges?

There is no such provision in the code itself but there is a Court of Honour in the Slovenian Association of Judges, which may, according to the rules of the Association, deal with a case of a violation of the Code by a judge.

3.   What incompatibilities are there between the duties of judge and other functions or professions?

The Constitution of the Republic of Slovenia stipulates as follows:

Article 133

The office of a judge shall be incompatible with office in any other State body, local government body and any organ of any political party and with such other offices and activities as may be specified by statute.

The Judicial Service Act stipulates as follows:

Article 41

A judge may not perform the work of a lawyer or notary or any commercial or other profit-making activity.

A judge may not hold a management position and cannot be a member of an administrative or supervisory board in a commercial company or any other legal person engaged in profit-making activity.

Article 42

A judge may not accept any employment or work as would obstruct his/her performance as a judge harm the reputation of the judicial service or create the impression that he/she is not impartial in his/her performance as a judge.

A judge may engage in teaching, scientific, publishing, research or other similar work within the legal profession, provided such activity does not interfere with his/her performance of judicial service.

A judge may not be employed to perform work from the preceding paragraph or other work which, in addition to the judicial service, a judge is entitled to engage in.

4.       In what circumstances can impartiality or apparent impartiality of judges be called into question in accordance with the law or case law?

According to the civil and criminal procedural rules a judge shall not perform judicial service in case:

·         he is a party to the case, its legal representative or councillor or he/she is in any relevant personal or business relationship with them;

·         he/she testified as a witness or an expert in the case;

·         he/she has taken part in the decision making process in the case at the court of lower instance;

·         there is any other circumstance that can rise doubts about his/her impartiality.

Case law admits the relevance of appearance of impartiality referring to the case law of the European Court of Human Rights by applying the test of objectively justified circumstances.

5.       Can judges incur criminal or civil liability for acts committed in the performance of their duties?

There are no specific statutory provisions dealing with the possibility of a judge’s civil liability for acts committed in the performance of his/her duties. As far as criminal liability of a judge, regarding his/her performance of judicial service, is concerned, there are specific provisions in the Constitution and in the Judicial Act as well.

The Constitution of the Republic of Slovenia stipulates as follows:

Article 134

No person who takes part in the making of any judicial decision may be called to account for any opinion he has expressed in court in the course of reaching that decision.

Where a judge is suspected of criminal activity in the discharge of his judicial duties and functions, he may not be detained, nor may any proceeding be instituted against him, save with the permission of the National Assembly. 

Article 132, paragraph 3

Where a judge is found by a duly constituted court to have intentionally committed a criminal offence in the discharge of the duties and functions of his office, and thereby to have abused that office, he shall be dismissed from such office by the National Assembly.

The Judicial Service Act stipulates as follows:

Article 77

If a judge intentionally commits criminal offence involving the abuse of the office of judge, the court shall send a judgement to the Judicial Council. In cases from the preceding paragraph, the Judicial Council shall immediately notify the National Assembly, which shall dismisses the judge.

Article 78

If a judge is sentenced for a prison term for a criminal offence, the court must send its verdict to the Judicial Council.

If a judge is sentenced to a prison term longer than six months[3], the Judicial Council shall propose to the National Assembly the dismissal of the judge and shall inform the National Assembly of the judgements with which the judge is sentenced for a criminal offence.

If the judge is sentenced to a prison term of less than six months or given a non-custodial sentence for a criminal offence, the Judicial Council shall propose to the National Assembly the dismissal of the judge, if the criminal offence was such that it renders the judge unsuitable for performing the function of judge.

6.       Can judges be subject to disciplinary proceedings?

Judges can be subject to disciplinary proceedings but only under strict conditions stipulated in the Judicial Service Act.[4]

6.1. In what circumstances?

Disciplinary action shall be taken against a judge accused of breaching his judicial obligations or of irregularity in the performance of the judicial service (article 81 of the Judicial Service Act).

6.2. What is the procedure involved?

The provisions of the Judicial Service Act, regarding disciplinary proceedings were found unsatisfactory and are going to be substantially amended. Only the most important or characteristic provisions will be cited here.

Article 80

The president of court shall have the right to demand disciplinary action against the judge. On the basis of the demand, the disciplinary prosecutor is obliged to initiate disciplinary proceedings.

The Minister of Justice may propose the initiation of disciplinary proceedings if in the conduct of supervision over the work of judges, irregularities are established for which disciplinary proceedings against the judge in question may be initiated.[5]

Article 90

Unless otherwise stipulated in the Judicial Service Act, the provisions of the Criminal Procedure Act shall be applied mutatis mutandis to disciplinary proceedings.

Article 91

Disciplinary proceedings shall not be public until the decision becomes final, unless the accused judge explicitly protests against the exclusion of the general public.[6]

Article 92

The decision to initiate investigations of a judge shall be made by the panel of the first instance disciplinary court.

A disciplinary court judge appointed by the court panel from the previous paragraph shall carry out the investigation.[7]

Article 93

When the Disciplinary Court agrees to hear an indictment against a judge it shall send such indictment to the judge, who shall have the right to appeal against the indictment either in writing or verbally on the record within eight days of its receipt.[8]

6.3. What is the competent institution or authority?

The Judicial Service Act stipulates as follows:

Article 86

Decisions in first instance disciplinary proceedings shall be made by the disciplinary court, composed of a Supreme Court judge as chairman of the court, two high court judges, a district court judge and a circuit court judge.[9]

The court from the previous paragraph shall decide an individual case in a panel of three judges, one of which must be of the same position in the judicial service as the judge who is the subject of disciplinary proceedings.[10]

Article 87

Appeals against decisions of the first instance disciplinary court shall be decided upon by the second instance disciplinary court, composed of seven Supreme Court judges.

The disciplinary court from the preceding paragraph shall decide an individual case in a panel of five judges.[11]

Article 88

The composition of the first instance disciplinary court shall be defined at a plenary session of the Supreme Court on the proposal of the Judicial Council. The composition of the second instance disciplinary court shall be defined at a plenary session of the Supreme Court on the proposal of the president of the Supreme Court.[12]

The composition of the disciplinary court shall be set for a period of two years.

Article 89

One of Supreme Court judges, determined by the annual work rota, shall perform the function of disciplinary prosecutor.[13]

6.4. What disciplinary sanctions can be imposed?

The Judicial Service Act stipulates as follows:

Article 82

Disciplinary sanctions as determined by this statute shall be:

1.       transfer to a different court;

2.       suspension of promotion;

3.       salary reduction.

Transfer to a different court may be for a period of between six months and three years.

Promotion shall be suspended for three years. The salary reduction shall be set at 20% for a period of up to one year.[14]

Article 83

If a judge violates the Constitution or severely infringes the law, and the National Assembly at the proposal of the Judicial Council does not dismiss the judge (Article 78), the disciplinary court shall take one of the disciplinary measures from the first paragraph of the preceding article.

If the disciplinary court establishes that the judge infringed his obligations as a judge or performed judicial service in an irregular manner, it shall take one of the disciplinary measures from the first paragraph of the preceding article, depending on the seriousness of the infringement.

If the case from the preceding paragraph involves a minor disciplinary infringement, and if the judge has not previously been disciplined, the court may reprimand the judge instead of taking disciplinary action.[15]