Strasbourg, 18 February 2002
CCJE (2002) 21
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Lichtenstein
Questionnaire on the conduct, ethics and responsibility of judges
Liechtenstein’s judicial system is based on the Constitution of 1921 and the Court Organisation Act (Gerichtsorganisationsgesetz) of 1922. There has never been any law governing judges. This may be explained by the fact that – up to the 1960s – there has only been one single first instance judge ; in the successive stages of appeal (second and third intance) the courts had to rely exclusively on part-time judges, normally active elsewhere. As a consequence of economic development and Liechtenstein’s growing international involvment the judicial system has undergone substantial expansion during the last few years. At present there are 13 first instance judges. The Government is aware of the need for modernising the court system and plans relevant legislation, ie drafting and adoption of a Judges Act (Richterdienstgesetz) defining the requirements for the training, appointment and promotion of judges a well as their rights and duties and setting up disciplinary courts.
Concerning question 1
Since there is no Judges Act the duties of judges are not defined by law. However, judges are civil servants and therefore have the same duties as all other civil servants. These duties are laid down in the Civil Servants Act (Beamtengesetz) of 1938.
Concerning question 2
There is no catalogue enumerating rules for the conduct of judges.
Concerning question 3
Under Article 6 of the Civil Servants Act of 1938 civil servants have to devote all their activity to serving the State. Unless authorised by the Government, they may not occupy any other post for which a salary is paid nor accept any other part-time job or time-consuming extra activity. In case a judge wants to accept some additional job he or she will therefore have to obtain Government permission. The Government will then examine whether the activity is compatible with the professional duties of the judge. Part-time activities in science and research or in educational institutions and training programmes for future judges may be considered compatible with the work of a judge.
Concerning question 4
In the following cases judges are excluded from acting as judges :
(a) In civil proceedings
1) In cases in which he himself or she herself is party or shares rights and/or duties with one of the parties involved or may be subject of a party’s claim for recourse ;
2) In cases where his fiancée or wife / her fiancé or husband or a person related by blood or marriage in direct or – up to the 4th degree – in collateral line is involved.
3) In cases where his/her adopted or foster parents, adopted or foster children, wards or protected persons are involved ;
4) In cases where he or she had been appointed as authorised agent, administrator or manager or is still active in this function ;
5) In cases where he or she had taken part in the decision-making of the lower instance court or had been involved as witness or expert.
(b) In criminal proceedings
1) In cases where
- he himself / she herself has been victim of or injured by the criminal act in question ;
- the victim or the accused (this term covers also the person charged of a criminal act before the formal trial is opened) is his fiancée or wife / her fiancé or husband ;
- the victim, the accused, the official or private prosecutor or the defence counsel are related to him/her in ascendant or descendent line by blood or marriage ;
- the victim, the accused, the official or private prosecutor or the defence counsel is the child of his/her sister or brother or is even closer to him/her by blood or marriage or is related to him/her in the way of adopted or foster parents or child, ward or protected person.
2) In cases where
- he or she has witnessed the criminal act in question outside the scope of his/her function as judge or has been heard in the matter as a witness or expert ;
- he or she has been called in as the court’s witness in the matter ;
- he or she has reported the criminal act or has been involved as accuser, representative of the private party or the private prosecutor or as defence counsel or prosecutor ;
3) In cases where the conviction or acquittal of the accused may be of advantage or disadvantage to him/her.
4) Judges members of higher instance courts are excluded
- from the deliberation in all criminal matters in which they have acted as investigating
- from the deliberation about an appeal against a decision in which they have been
involved in the lower instance ;
- from the responsibility as Head of the relevant Court Section or from the Chairmanship when it comes to the deliberation of criminal matters in which a person of the type described under para. (b) 1) has been involved as investigating magistrate or rapporteur.
Any judge will have to discover for himself / herself in any civil or criminal proceeding whether he or she is excluded. The parties to the case may also claim exclusion of a judge for the above-mentioned reasons at any stage of the proceedings. Proceedings carried through in spite of this are null and void.
In addition to these cases any party may challenge any judge on a suspicion of prejudice, if there is sufficient reason for having doubts about his / her objectivity This applies in particular if the judge is involved in a legal dispute with one of the parties or seems biassed because of close friendship or strong animosity with regard to one of the parties, thus when there are reasons for assuming that the judge who has been challenged will not be absolutely neutral. The president of the superior court will decide on the challenging motion.
Concerning question 5
(a) Criminal law
Like any other citizen judges are subject to ordinary criminal jurisdiction in case of criminal offences committed on duty. Like in the case of other civil servants there are also certain special offences for which judges may be blamed, for example abuse of official functions, accepting presents while on duty and similar cases. There are no extra courts or sections of courts nor extra procedural rules for criminal matters concerning a judge. The normal sanctions of the Criminal Code apply in such cases. In case a civil servant – thus also a judge – has been sentenced to imprisonment for more than one year, he or she will loose his / her function.
(b) Civil law
The general civil law rules about compensation for damage also apply to acts of a civil servant, thus also a judge. If his / her official acts have caused damage the State is liable to the injured or aggrieved party and not the civil servant (the judge) himself / herself. (Official Liability Act). If someone has suffered damage from the official act of a judge he or she will therefore have to claim compensation from the State of Liechtenstein. In the first instance responsibility lies with the Superior Court (Obergericht), in the second instance with the Supreme Court (Oberster Gerichtshof). Whether compensation of damage will be granted depends on the general rules for compensation of damage.
The State may of course take recourse to the civil servant, thus also to the judge in question, having caused the damage, in case he or she has acted on purpose or in a highly negligent way.
Concerning question 6
In case of violation of duties disciplinary action may be taken against a judge. As mentioned above, the Civil Servants Act only vaguely describes the duties of civil servants. Examples of violation of duties are violation of the obligation of secrecy, unjustified delay in dealing with a case, conviction for having committed a criminal offence, engagement in some forbidden extra activity or similar cases.
Since there are no special rules about disciplinary proceedings they have to follow more or less the rules for criminal proceedings.
Responsibilioty for disciplinary action against first instance judges lies with the Superior Court (Obergericht) and for disciplinary action against Superior Court judges with the Supreme Court (Oberster Gerichtshof).
Disciplinary sanctions reach from reprimand over penalties, temporary salary reduction up to dismissal in heavy cases.