Strasbourg, 11 March 2002

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 liberties1, 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 months3, 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

1 According to the Draft Act of 18 February 2002, amending the Judicial Service Act (Bulletin of the National Assembly, No. 15/2002) the words “and liberties” are going to be omitted.
2 According to the same Draft Act a second paragraph shall be added to Article 2: “A judge shall be fully dedicated to judicial service and shall perform his duties in accordance to the best of his/her abilities.”
3 The words »for a premeditated criminal offence« are going to be inserted here, according to the Draft Act of 18 February 2002, amending the Judicial Service Act (Bulletin of the National Assembly, No. 15/2002)
4 q. v. the text of the amended Article 80, quoted in footnote no. 5
5 The amended Articles 80, 81 and 88, according to the Draft Act of 18 February 2002 (q. v. supra) are going to read as follows: Article 80 »No disciplinary measure can be taken against a judge, save under conditions and upon procedure stipulated by this statute. Disciplinary proceedings shall be speedy. Criminal liability of a judge does not exclude his/her disciplinary liability.« Article 81 »A judge who has, in the discharge of judicial service, whether upon intent or out of negligence, breached the duties stipulated by statute or by Court Rules, or has neglected performing his/her office of a judge, can be sentenced to a disciplinary sanction. In case the proposal of the Judicial Council to dismiss from office a judge on grounds of Article 78, paragraphs two or three, has not been followed by the National Assembly, the Judicial Council can demand that disciplinary proceedings be initiated.« Article 88 »A motion for disciplinary proceedings against a judge shall be filed and the case for the prosecution shall be represented by the disciplinary prosecutor or by his/her deputy, both of them being judges of the Supreme Court.«
6 Articles 90 and 91 are going to be replaced, according to the Draft Act of 18 February 2002, by the following provision: Article 90 »Unless otherwise stipulated in the Judicial Service Act, those provisions of the Act on Criminal Procedure, which rule summary proceedings in district courts shall be applied mutatis mutandis to disciplinary proceedings, with the exception of rules regarding the procedural rights of the victim, the announcement of the intention to appeal, the demand for protection of legality and the exceptional mitigation of the sentence. Disciplinary proceedings shall not be public until the legal decision becomes binding, unless the accused judge explicitly protests against the exclusion of the general public.«
7 Article 92 is going to be replaced, according to the Draft Act of 18 February 2002, by the following provisions (which have to be seen in connection to the new Article 88, q. v. footnote no. 5: Article 91 »Disciplinary proceedings can be demanded in the form of a motion for disciplinary investigation or in the form of an elaborated direct disciplinary indictment, demanding the pronouncement of a disciplinary sanction. The president of the court at which the judge discharges his/her judicial office, the president of the court of the next degree, the Judicial Council and the Minister of Justice are entitled to demand that disciplinary proceedings be initiated. In case the disciplinary prosecutor does not follow the demand to initiate disciplinary proceedings against a judge, he/she is bound to explain the reasons of such a decision. In case of a direct disciplinary indictment, demanding the pronouncement of a disciplinary sanction, the President of the Supreme Court is entitled, taking into account the nature and severity of the alleged disciplinary offence, to remove the judge temporarily from office, following the provisions of Articles 95 to 100 of this statute.« Article 92 »In case a motion for disciplinary investigation was filed, a disciplinary court judge appointed by the chairman of the disciplinary court shall carry out the investigation.«
8 The amended Article 93, according to the Draft Act of 18 February 2002 (q. v. supra) is going to read as follows: Article 93 »In disciplinary proceedings the case for the defence can be represented also by a judge, who in such case is entitled to claim the remuneration of expenses.«As to the rest of the present text of Article 93, q. v. the amended Article 90, paragraph 1, supra at footnote no. 6!
9 The amended Article 86, paragraph 1, according to the Draft Act of 18 February 2002 (q. v. supra) is going to read as follows: »A first instance disciplinary court and a second instance disciplinary court shall decide in disciplinary proceedings. The first instance disciplinary court shall be composed of eight judges, two of them being supreme court judges, two of them high court judges, two of them circuit court judges and two of them district court judges. One of the supreme court judges shall be the chairperson of the first instance disciplinary court, the other one the vice-chair, chairing the court in case of absence of the chairperson.«
10 The amended Article 86, paragraph 2, according to the Draft Act of 18 February 2002 (q. v. supra) is going to have the following text added: »The chairperson of the disciplinary court shall determine the composition of the panel«
11 The amended Article 87, according to the Draft Act of 18 February 2002 (q. v. supra) is going to read as follows: Article 87 »The second instance disciplinary court shall be composed of five Supreme Court judges. The second instance disciplinary court shall have a chairperson and a vice-chair, chairing the court in case of absence of the chairperson. Appeals against decisions of the first instance disciplinary court shall be decided upon by a panel of three judges, one of them chairing the panel. The composition of the panel shall be determined by the chairperson of the second instance disciplinary court.«
12 Article 88, according to the Draft Act of 18 February 2002 (q. v. supra), is going to be amended; the new text was already quoted, q. v. footnote no. 5.
13 The amended Article 89, paragraph 1, according to the Draft Act of 18 February 2002 (q. v. supra) is going to read as follows: Article 89»Members of disciplinary courts and disciplinary prosecutors shall be nominated and dismissed by the plenary session of the Supreme Court, upon proposal by the Judicial Council. They shall be nominated for a period of two years with the possibility of re-nomination. «There are going to be three more paragraphs to this article, but they are of lesser interest in the context of the present questionnaire.
14 The amended Articles 82 and 83, according to the Draft Act of 18 February 2002 (q. v. supra) are going to replace the present Article 82 and are going to read as follows: Article 82 »Disciplinary sanctions as determined by this statute shall be: 1. written reprimand; 2. suspension of promotion; 3. salary reduction; 4. transfer to a different court; 5. dismissal from judicial office.«Article 83»The disciplinary court shall issue a written reprimand to a judge when his/her disciplinary offence has been apprised as not being a grave one and the judge had not been previously sentenced in disciplinary proceedings. Suspension of promotion shall not exceed a period of three years.Salary reduction shall be set at 20% for a period of up to one year.Transfer to a court of the next lower instance or level or to a court of the same level in another town shall be applied for a period of not less than six months and not more than three years. No Supreme Court judge may be sentenced to this disciplinary sanction. A sentence of dismissal from judicial office can only be applied in case the judge is no longer suited to judicial office, due to the severe disciplinary offence he/she has committed. Any final decision of the disciplinary court shall be sent to the president of the court in question, to the Minister of Justice and to the Judicial Council. It is in the latter’s jurisdiction to enforce the sanctions dealt with in paragraphs 2 to 4 of this article.«
15 The provisions of the present Article 83, paragraph 1, according to the Draft Act of 18 February 2002 (q. v. supra), are going to be replaced by the new Article 81, paragraph 2 – q. v. footnote no. 5!

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