Strasbourg, 14 February 2002
CCJE (2002) 12
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Lithuania
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
Article 43 of Law on Courts (2002) states that a judge must obey the Constitution and other laws of the Republic of Lithuania, as well as satisfy the requirements of the judicial ethics, set forth in the Rules of Ethics of judges. Besides the administration of justice, a judge must also fulfil other duties, assigned to bylaws of the court in which he/she works. A judge must notify the chairperson of court in written about the case to which his/her spouse, children (adopted children), parents (stepparents), brothers, sisters (stepbrothers, stepsisters) are the parties, if this case falls under the jurisdiction of the court in which the judge works.
Procedural obligations of judges are set forth in the Code of Civil procedure, Code of Criminal procedure and Law on Administrative proceedings. The main obligations are to ensure an impartial hearing within the reasonable time pursuant to the procedural terms, to standoff from the case if there are legal grounds to misdoubt the impartiality of a judge, to help the parties to a case to exercise their procedural rights and duties.
2. Is there a judge’s code of conduct? If so, who drafted it and who adopted it? What are the obligations imposed upon judges? Is there a provision for sanctions in the event of violation by judges?
The Rules of Ethics of Judges were adopted by the General meeting of judges on 18th of December 1998. This document contains three sections: 1) the security of judicial independence, 2) the conduct of a judge related to his direct duties, and 3) the conduct of a judge does not related to his direct duties.
Section 1 contains the following obligations of a judge: to respect the independence of judges, to respect the law and to act in a manner that does not violate the principles of justice, to avoid and resist the improper influence of governmental institutions, officials, mass-media, society or individuals while administering justice, to preserve the honour and dignity of the judicial profession, to keep solidarity while defending colleagues from the unjustified critics.
This section also prohibits the chairmen of courts to give for judges any instructions related to certain cases and demands the court decisions to be independent from any opinions of other judges, except for opinions declared in a manner prescribed by law.
Section 2 contains the obligations of a judge to raise the professional qualifications, to keep in secret the confidential information, gained while hearing the cases, to investigate cases within the reasonable time, ensuring thoroughness, avoiding the hastiness and superficiality, to pay attention to the procedural culture, to be punctual and definite, official, patient and polite, to avoid irritation, anger or anything that may make an impression that a judge is partial during the trial, to be equally attentive to the parties and demanding in case of violation of procedural rules, to avoid any discussions with the parties about the pending case outside the courtroom, to react in case of procedural violations or violations of professional ethics made by other judges, advocates or prosecutors, do not violate human rights or dignity, do not demonstrate his views related to the racial, religious, national, sexual, social or other differences, to act in a way that may be a proper example for the staff of court.
Section 3 declares that even during his leisure time a judge must act in a manner that does not degrade the name of a judge. This section also prohibits a judge to give legal consultations, requires to avoid public speeches about cases heard by him/her or his/her colleagues, to avoid any comments relating to the matter of a case while communicating with society and journalists, do not publicly declare his/her political views, to avoid any activity that may make an impression that a judge is influenced by any political ideology. Other activity of a judge may not interfere his judicial activity. Family, social or other interests of a judge may not interfere with his/her duties. A judge may not defend his/her interests pulling his/her rank; he/she may not represent himself/herself or his/her family members in a court where he/she works as a judge. A judge may not accept any gifts or other signs of amiability, to gain credits or services if it is done aiming to influence the decision in a particular case. A judge may not abuse the alcohol, to use narcotics or psychotropic substances except for the medical treatment.
No sanctions are foreseen in the Rules of Judicial Ethics, but in the event of violation of those rules the disciplinary proceedings against a judge may be started according to the Law on courts and the Rules of Court of Honour of Judges.
3. What incompatibilities are there between the duties of judge and other functions or professions?
According to Article 48 of Law on Courts (2002), a judge may not hold any other elected or appointed post, be employed in business, commercial or any other private organisations or enterprises. He may receive no other salary except the salary of a judge and a compensation for educational or research activities.
A judge may freely participate in the activity of self-government judicial institutions. During such participation, the caseload of judge must be reduced accordingly. Judges may belong to any kind of associations what do not affect their independence.
A judge may participate in the working groups for the preparation of draft laws, without hindrance to his judicial duties. About such participation a judge must inform the chairperson of court. A judge may also represent the state in the international organisations.
A judge may not take part in the activities of political parties and other political organisations. A judge may not be called into a military service.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case law?
Article 19 of Code of Civil procedure states the following grounds for the challenge of a judge:
1) if a judge has previously been involved in the same case as a witness, expert, interpreter, representative, prosecutor, court clerk;
2) if he/she is relative of the parties to the case;
3) if he/she or his/her relatives have direct or indirect interest in the ending of the case or
4) if there are any other circumstances that may call the impartiality of a judge into question.
Similar grounds are stated in the Code of Criminal procedure and Law on Administrative Proceedings.
As it might be seen, no finite list of legal grounds is given. In practise, the Supreme Court of the Republic of Lithuania keeps very strict position related to the impartiality of judges. For example, in one of the cases the Supreme Court stated that a judge of the appeal instance had to standoff from the case because of the conflict of the judge with the parties to the case in other of previous cases. The parties had called the impartiality of that judge into question and submitted the challenge plea, but the judge has refused to standoff from a case, as in his opinion there were no legal grounds for it. The college of judges has reached the same decision and challenge plea was dismissed. The Supreme Court stated that the conflict between the parties and a judge was sufficient ground to call the impartiality of a judge into question and therefore the decision of the appeal instance was cancelled.
5. Can judges incur criminal or civil liability for acts committed in performance of their duties?
Judges may not have criminal actions instituted against them, nor may they be arrested or restricted of personal freedom without the consent of the Seimas, or in the period between sessions of the Seimas, of the President, except the cases when a judge is found in flagranti.
Only the Prosecutor General may institute criminal proceedings against a judge. If criminal proceedings are instituted against a judge, his/her powers are suspended by the Seimas, and between the Seimas sessions - by the President. The powers of a judge are suspended until the final judgement is passed in a criminal case.
Administrative action may not be brought against a judge either. When a judge has committed an administrative violation of law, the material is supposed to be transferred to the Commission of the Judicial Ethics and Discipline in order to bring a disciplinary action against a judge.
A judge is not be liable for the material damage caused to a party to the proceedings or a person who is a party to the case, resulting from an erroneous decision made. This damage must be reimbursed by the State in cases and according to the procedure provided by laws. The State has the right to recover the material damage with recourse to the judge if damage was caused to a person through criminal actions of a judge and was compensated by the State.
6. Can judges be subject to disciplinary proceedings? If so, in what circumstances? What is the procedure involved? What is the competent institution or authority? What disciplinary sanctions can be imposed?
A disciplinary action may be instituted against a judge when the following causes accrue: 1) behaviour discrediting the title of a judge; 2) commitment of an administrative violation of law; 3) nonconformity with the legal limitations of professional or political activities of a judge (Article 83 of Law on Courts (2002).
Behaviour discrediting the title of a judge is any action that is incompatible with a status of a judge and not in compliance with the requirements of the Rules of Professional Ethics of Judges that discredits the title of a judge and the authority of a court. Negligence at work (obviously negligent fulfilment of a duty or unfulfilment of a duty without a justifiable reason) is also recognized as behaviour discrediting the title of a judge
The Judicial Council, chairperson of the court in which the judge works, or chairpersons of courts of higher instance may initiate disciplinary action against the judge. A proposal must be brought before the Commission of the Judicial Ethics and Discipline.
Judicial Council is self-governing institution of courts and consists of 24 members: chairperson of the Supreme Court, chairperson of the Court of appeal, chairperson of the Highest administrative court, 1 delegate of the President, 1 delegate of the Chairperson of Seimas, chairperson or deputy chairperson of the Committee of Law of Seimas, chairperson or deputy chairperson of the Committee of Budget and Finances of Seimas, Minister or vice minister of Justice and Minister or vice minister of Finances ex officio, 1 judge appointed by the Association of judges and 14 judges selected by the General Meeting of Judges (one from the Supreme Court, 1 – from the Court of appeal, 1 – from the Highest administrative court, 5 from regional courts, 5 from local courts, and 1 from district administrative courts).
Commission of the Judicial Ethics and Discipline consists of 5 members, appointed by Judicial Council for 4 years. 2 candidates are proposed by the Judicial Council, one – by the chairperson of the Supreme Court of Lithuania, one – by the chairperson of the Court of appeal of Lithuania and one by the chairperson of the Highest administrative court.
Disciplinary action may be instituted by the Commission of the Judicial Ethics and Discipline immediately after the leakage of violation, but not later than in 3 months after the Commission of the Judicial Ethics and Discipline was informed about it. Disciplinary action may not be started if more than 3 years have passed since the violation.
Instituted disciplinary action has to be brought before the Court of Honour of Judges. 7 members constitute the Court of Honour of Judges, for the period of 4 years. Disciplinary actions are investigated by penal of 3 judges.
All members of the Court of Honour of Judges are appointed by the Judicial Council: 1 member from among judges of the Supreme Court, 2 members from among judges of the Court of appeal, 1 member from among judges of the Highest administrative court, 2 members from among judges of regional courts and 1 member from among judges of local courts. The Court of Honour of Judges hears disciplinary actions brought against the judges pursuant to the Law on Courts and the procedural rules approved by the Court of Honour of Judges.
The Regulations of the Court of Honour of Judges inter alia secures the right to be heard by proving an opportunity for a judge against whom disciplinary actions are brought, to participate in the court session. The right of defence is ensured by allowing a possibility for representative of the judge to participate in court session as well.
The Court of Honour of Judges, upon hearing and determining disciplinary action applies disciplinary sanctions. It may: 1) reprove a judge; 2) issue a reprimand; 3) issue a severe reprimand.
The Court of Honour of Judges may also propose for the President or Seimas to dismiss a judge from office, to transfer a judge to the court of the lower level, or to initiate impeachment proceedings against a judge of the Supreme Court, as well as the chairperson and a judge of the Court of appeal.
The decision of the Court of Honour of Judges may be appealed to the Supreme Court within 10 days from its delivery.
The disciplinary sanction comes into force within 10 days from imposition and is valid for the period of 1 year.