Strasbourg, 19 February 2002
CCJE (2002) 23
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Germany
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
Most relevant regulations are provided by the German Judiciary Act (a federal statute). The Fifth Chapter of this Act (sections 38 et seqq) provides special obligations of judges in federal and Land service (for sanctions in case of violation see below 6.). These obligations follow from judicial independence. According to section 39 a judge shall conduct himself in and outside office, in relation also to political activity, in such a manner that confidence in his independence will not be endangered.
This principle of moderation ("Mäßigungsgebot") is in practice mainly relevant with respect to conduct outside office. Public political statements are not ruled out. The restrictions of sec. 39 have to be observed, however. In principle, a judge should not mention his office when he expresses political opinions in public. The consequence of public protest of "35 judges and prosecutors of the District Court of Lübeck against stationing of missiles" (in a newspaper advertisement stating their names) was an admonition ("Ermahnung"; no disciplinary measure) which was upheld by the Federal Administrative Court. However, a judge may mention his office when he expresses his view with respect to a legal question in public (e.g. lecture, law review article).
A judge may belong to a political party and may stay as a candidate for Parliament. If he is elected and accepts such election, the right and the duty to hold judicial office are suspended (see below 3.). Judges may be members of associations (including trade unions).
A judge shall preserve secrecy regarding the course of deliberations and voting also after his service has ended (sec. 43 German Judiciary Act).
Certain provisions applying to federal civil servants apply mutatis mutandis to legal relations of judges in federal service (see sec. 46 German Judiciary Act; e.g. relating to additional activities). A judge is not obliged to work during certain working hours.
2. Is there a judge’s code of conduct?
The rules concerning the conduct of judges are provided by statute (see 1. and 3.).
3. What incompatibilities are there between the duties of judge and other functions or professions?
Section 4 of the German Judiciary Act puts the constitutional principle of separation of powers in concrete terms:
(1) A judge shall not simultaneously perform duties of adjudicative and legislative or executive duties.
(2) Besides duties of adjudication a judge may, however,
1. perform duties involving court administration,
2. perform other duties assigned by statute to the courts or judges,
3. undertake research and give instruction at a scientific institution of higher education, at a public teaching institution, or at an official teaching institution,
4. perform duties in matters concerned with examination,
5. act as chairman in conciliation agencies and in corresponding independent agencies within the meaning of section 104 sentence 2 of the Federal Personnel Representation Act.
In this context it should be mentioned that a judge can be obliged to an additional activity only in the administration of justice and in court administration (sec. 42 German Judiciary Act).
Where a judge accepts election to the German Federal Parliament (Bundestag) or the legislative body of a Land or where the judge is appointed, with his own consent, as a member of the federal Government or of the Government of a Land, the right and the duty to hold judicial office ceases without a court decision and in accordance with specific statutory provision (sec. 36 German Judiciary Act). It is the prevailing view that the exercise of a communal mandate (membership in a communal council) by a judge is not excluded.
According to sec. 40 of this Act a judge may only be granted permission to act additionally as an arbitrator or give an expert opinion in arbitration proceedings where the parties to the arbitration agreement commission him jointly or where he is nominated by an agency that is not a party to the proceedings. Permission shall be refused where at the time of the decision regarding the granting of permission the judge is seized of the case or can be seized thereof in the allocation of court business.
A judge shall not draw up expert legal opinions, nor shall he give legal advice for remuneration outside the course of his official duties (sec. 40 of the mentioned Act). This does not exclude every consultative function (for example as a member of an independent commission). Legal advice without remuneration for example to friends and relatives is permitted.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
Under certain conditions a judge is excluded from the exercise of his office on statutory grounds: For example in cases, where he or a family member or close relative is a party to the case, in cases where he has testified as a witness or expert and in cases where he has played a part in the decision of the lower instance (sec. 41 Code of Civil Procedure).
A judge may be challenged by a party on grounds of fear of bias (prejudice), if there is sufficient reason to justify doubts concerning his impartiality (sec. 42 Code of Civil Procedure). There must be an objective reason for the fear of bias from the viewpoint of the party. Case law exists for numerous situations. Sufficient reasons for doubts concerning the impartiality have for example been assumed if the judge's or a relative's financial interests are touched by the case, if the judge's behaviour can under no conditions be seen as objective, if he or a possible witness has a special relation with a party or if the judge shows unfair preference for one party. A preliminary evaluation of the legal problems of the case by the judge during the public hearing does not justify such doubts.
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties?
5.1 If so, in what circumstances?
The criminal liability of judges for the content of judicial decisions is restricted to cases of wilful perversion of justice (sec. 336 Penal Code ("Strafgesetzbuch"). Apart from that judges can incur criminal liability committed in the performance of their duties mainly according to other special provisions of the Penal Code (e.g. corruptibility, sec. 332 para. 2 Penal code).
Judges can also incur civil liability for acts committed in the performance of their duties. The so-called "judge privilege" (sec. 839 para. 2 Civil Code) limits civil liability, however: If a judge violates an official duty when making a judgement or similar decision, he is only liable for the thereby caused damage, if the violation of the official duty constitutes a criminal offence.
According to Art. 34 Basic Law (Constitution) civil liability for violation of official duties to a third party rests principally with the state. That means that the state is liable to the third party instead of the judge. The right of recourse by the state against the judge is preserved, however. In any case the liability of the judge is limited by the "judge privilege".
5.2 What is the procedure involved?
5.3 What is the competent institution or authority?
5.3 What sanctions or compensatory measures can be applied?
In principle, general rules concerning procedure, courts and sanctions or compensatory measures apply.
6. Can judges be subject to disciplinary proceedings?
6.1 In what circumstances?
In case of a culpable violation of an official duty (especially duties according
to the German Judiciary Act (see above 1. and 3.). Disciplinary proceedings
concerning a judge are in practice very rare.
6.2 What is the procedure involved?
Upon application made by the highest service authority the Service Court (“Dienstgericht”) gives a ruling on the commencement or the termination of formal disciplinary proceedings, on a provisional discharge from office, on the withholding of remuneration for service or the revocation of any of these measures (cf. sec. 63 German Judicairy Act).
6.3 What is the competent institution or authority?
The Service Court (see above). The Federal Service Court is a division of the Federal Court of Justice (“Bundesgerichtshof”). This court decides in disciplinary matters relating to judges in federal service. Details are provided by sec. 61 and 62 of the German Judiciary Act.
Most judges are in the service of a Land. For disciplinary matters relating to them Service Courts have been established by the Laender. These courts give their decisions sitting with a presiding judge and an equal number of permanent associate judges and non-permanent associate judges. All members shall be judges appointed for life. The non-permanent members shall be judges of the jurisdiction to which the person concerned belongs. The members of a Service Court shall be appointed by the presidium of the court (the presidium is elected by the judges of the court) at which the Service Court has been established. Land legislation can bind the presidium to follow the list of nominations drawn up by the presidiums of other courts. The president of a court or his permanent deputy may not be members of a Service Court (sec. 77 German Judiciary Act).
A reprimand (no other measure) can according to sec. 64 German Judiciary Act be given in a disciplinary ruling (depending on regulations concerning jurisdiction for example by the president of the court). The concerned judge has recourse to the Service Court.
6.4 What disciplinary sanctions can be imposed?
Reprimand, regulatory fine, reduction in remuneration for service, transfer to a position with lower final basic remuneration (“Endgrundgehalt”), removal from office.