Strasbourg, 4 October 2002
CCJE (2002) 17 rev.
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Sweden
Questionnaire on the conduct, ethics and responsibility of judges
1. Statutory obligations by which the judges are bound are mainly to be found in the Swedish constitution – the Instrument of Governing (Regeringsformen) – and in Swedish codes of judicial procedure for general and administrative courts. There are also certain regulations in labour laws that are applied on judges in the Public Employment Act. There is a special Act on Public Employment for certain appointed officials, which deals with the conditions for ordinary judges and a few other high-ranked officials. There are also general provisions in criminal law and tort law which are applicable on judges (see question 5). In the Code of Procedure there is a provision with the wording of the oath that very judge has to take before assuming the duties of office:
I (name) promise and affirm on my honour and conscience that I will and shall impartially, as to the rich as well as to the poor, administer justice in all matters to the best of my ability and conscience, and judge according to the law of the Realm of Sweden; that I will never manipulate the law or further injustice for kinship, relation by marriage, friendship, envy, ill-will, or fear, nor for bribes or gifts, or any other cause in whatever guise it may appear; nor will I declare guilty one who is innocent, or innocent one who is guilty. Neither before nor after the pronouncement of the judgement of the court shall I disclose to the litigants or to other persons the in camera deliberations of the court. All this, as a honest and righteous judge, I will and shall faithfully observe.
The disciplinary system concerning judges is regulated in the above-mentioned Public Employment acts. Detailed instructions on day-to-day routines in the courts is to be found in certain regulations decided by the Government (in Cabinet), by the National Courts Board or by the single court itself.
2. There is no specific code of conduct for judges adopted in Sweden. The general code of law from 1734, which is still the Swedish code of law, has ever since 1734 had the code of conduct for judges worked out about 1540 by Olaus Petri attached to it. Olaus Petris code of conduct ha its background in corresponding codes of conduct in other countries in Europe. This code is not in anyway binding but is to some extent anyhow seen as guidelines for judges. A couple of years ago the Judge's association initiated a general discussion among the Swedish judges on a proposal for a code of conduct. This proposal was however met with a certain criticism and it was not adopted. Even if there is no code of conduct in Sweden there are other systems dealing with matters of the conduct of judges. The Parliamentary Ombudsman and the Chancellor of Justice have according to provisions in law the competence to supervise all civil servants, including judges. They may act as prosecutors in cases of malpractice and are by tradition vested with the power to criticise a civil servant in public for his behaviour. Occasionally a judge could be criticised in such a way. However the Ombudsman and the Chancellor are not permitted to supervise the judge in his administration of justice concerning a specific case.
3. Types of incompatibility and exceptions
Supreme Court judges are subject to specific provisions prohibiting them from having other appointments or office. Generally speaking however they and other judges are dealt with in the same way. Judge have are not permitted to have no- or extra-judicial activities that could endanger the confidence in the judges impartiality or in any other way hinder the proper performance of his or her official duties as a judge. All judges have a duty to report to the chief judge of the court all their non-judicial or extra-judicial engagements and activities, in principle but not in details. For example a judge has to report that he occupies himself with matters of arbitration but he must not report more in detail about a single case of arbitration. This list is presented in public as a document under the Freedom of Information Act so that every citizen has the right to read it or get a copy of it. The chief judge has the competence to forbid an activity. The judge may appeal against such a decision to the Labour Court. Certain activities are usually accepted. To have a part-time appointment as a judge in another specialised court or in certain boards or commissions, to be a single arbitrator or a chairman of a board of arbitrators or to be a member of a law-drafting-committee is generally accepted. A judge is free to join non-profit-making-organisations. The right to publish is guaranteed for all citizens, including judges, in the constitution. Judges teach research and publish on legal or non-legal issues. They have the right to accept payment for such activities. Commercial activities such as being a board-member of company is usually not permitted except for family owned companies etc. A judge may not practise as an advocate or be occupied with legal aid-activities. A judge has the right to join a political party. He or she may also be a member of Parliament or local political assemblies.
Code on Procedures
Civil Servants Act
State Basic Agreement
4. The parties or the judge can call the impartiality of a judge into question according to rules set out in Swedish codes of judicial procedure for general and administrative courts. In Chap. 4 of the Code of judicial procedure there are the following provisions.
Those who are or have been married to each other, or who are related by blood or marriage in lineal ascent or descent, or who are siblings, or who are so related by marriage that one of them is or has been married to a sibling of the other, or who are similarly related, may not sit together as judges on the bench.
A judge shall be disqualified from hearing a case:
1. if he is a party therein, or otherwise has an interest in the matter at issue, or can expect extraordinary. Advantage or injury from the outcome of the case;
2. if he and one of the parties are, or have been, married or are related by blood or marriage in lineal ascent or descent, or are siblings, or are so related by marriage that one of them is, or has been, married to a sibling of the other, or if he is similarly related to one of the parties;
3. if he is related as specified in 2 to anyone who has an interest in the matter at issue or can expect extraordinary advantage or injury from the outcome of the case;
4. if he, or an y relation as specified in 2, is a guardian, custodian or administrator or otherwise serves as legal representative of a party, or is a member of the board of a corporation, partnership, association or similar society, foundation or similar institution which is a party, or, when a municipality or similar community is a party, if he is a member of the board in charge of the pub1ic administration of the function affected by the case;
5. if he or any relation as specified in 2, is related in the way stated in 4 to anyone who has an interest in the matter at issue or can expect extraordinary advantage or injury from the outcome of the case;
6. if he is the adversary of a party, though not if the party has sought issue in order to disqualify him;
7. if he, acting in another court as a judge or officer, has rendered a decision concerning the matter at issue, or if he, for an authority other than a court, or as an arbitrator, has dealt with the matter;
8. if he, in the case of a main hearing of a criminal case, has prior to this main hearing determined the issue of whether the defendant has committed the act;
9. if he has served in the case as an attorney for, or counselled, one of the parties, or has been a witness or an expert therein; or
10. if some other special circumstance exists that is likely to undermine confidence in his impartiality in the case.
If a judge knows of any circumstance that can be considered to warrant disqualification, he is obliged to disclose it on his own accord.
If a party desires to assent to the disqualification of a judge, he shall raise the objection on his first appearance in court or in his first written submission in the case after learning that the judge serves in the court or is otherwise handling the case or, if at that time the disqualifying circumstance was not known to the party, after learning of the circumstance. If a party fails to observe this requirement the right to raise the objection lapses.
The question of disqualification of a judge in a lower court may not be entertained in a superior court unless the objection is made in the superior court by a party who, in accordance with the provisions of the second paragraph, is entitled to raise the question, or an appeal is brought against the decision that rejected the objection.
After the issue of disqualifying a judge has been raised, the judge may act in the case only as regards matters that cannot be postponed without extraordinary inconvenience and that do not involve determination of the case. Measures of the kind just mentioned may be taken by a judge even if he is declared disqualified.
If a party has assented to the disqualification of a judge in good time, the court shall decide the issue separately as soon as possible.
The judge may not take part in the determination of the disqualification issue, unless his presence is essential for a quorum and another judge cannot be substituted without delay.
5. Crime committed by a judge while performing his duties as a judge can incur him criminal and civil liability.
In the Criminal code there are provisions about certain crimes that are committed by a civil servant or a judge while performing his duties: Breach of duty (or malpractice/malfeasance), corruption, breach against professional secrecy.
If the judge is a member of one of the two the supreme courts the Supreme Court (Högsta domstolen) deals with the case. Only the Ombudsman or the Chancellor has the competence to prosecute in such a case.
Concerning other judges the case is dealt with by one of the general appeal courts.
The sanctions are the usual prison, fines etc. If a judge is sentenced for a crime there is also a possibility to discharge him from his office, see under 6.
In tort-cases the State is responsible even for pure financial loss, when damage is caused negligently by a public agency, a court or a judge in its exercise of power. The civil servant or the judge himself is liable only under particularly aggravating circumstances.
6. A judge who has committed a crime or otherwise showed himself manifestly incapable of being a judge can be discharged from office. – If the judge is a supreme court judge the case is dealt with by the Supreme Court otherwise by a special disciplinary body – Statens ansvarsnämnd – who's decision could be re-examined by the Labour Court. The Government (in Cabinet) appoints the members of the disciplinary body, Statens ansvarsnämnd. The body consists at the moment of a president of a court of appeal as chairman, a supreme administrative court judge as vice chairman, two parliamentarians, one member nominated by the labour union for personnel of the legal profession. The reporting clerk is an ordinary judge. The body deals with disciplinary cases concerning judges and a group of high-ranked civil servants. Besides discharge there are two other disciplinary sanctions warning and deduction from salary.