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[ccje/docs2002/CCJE(2002)27] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THE CONDUCT,
ETHICS AND RESPONSIBILITY OF JUDGES
Reply submitted
by the
delegation of Iceland
Questionnaire on the conduct, ethics and responsibility of judges
C. Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
First and foremost Icelandic judges are bound by the Constitution of the Republic of Iceland no. 33/1944, which is founded on the principle of division of powers between the executive, legislative and judicial branches. According to article 2 judges exercise judicial power, which is further defined in article 61 where it is stated that in the performance of their official duties, judges shall be guided solely by the law.
The Act on the Judiciary law no. 15/1998, holds provisions concerning the administration of the judiciary and in chapter IV the rights and duties of judges are stated. Judges are responsible for cases assigned to them and have the duty to resolve those independently and shall never be subject to the authority of any other person. They shall proceed solely according to law, cf. article 24, paragraph 1 of the Act on the Judiciary. Judges shall conclude cases within a reasonable time. In respect to areas unrelated to the cases they are responsible for, judges are subject to the authority of the head of the relevant court and are also bound by decisions taken by the Judicial Council, cf. article 24, paragraph 2 of the Act on the Judiciary. Judges also have a duty to maintain their knowledge of the law, cf. article 24, paragraph 3 of the Act on the Judiciary no. 15/1998. Judges must be careful in taking on extra-judicial duties. They may not accept an occupation or own a share in a company or enterprise if this is not compatible with their office, cf. article 26, paragraph 1 of the Act on the Judiciary. The General Penal Code is applicable in respect to criminal liability resulting from a judge’s conduct in office, cf. article 32 of the Act on the Judiciary. If special provisions are not to be found, rules applying to public servants in general shall apply to judges, the Act on the Rights and Duties of Public Servants, law no. 70/1996. In their daily performance in court judges are guided by procedural rules and special notice is taken of article 6 of the European Convention of Human Rights, enacted as law no. 62/1994.
2. Is there a judge’s code of conduct?
No, there is not a part from the legal rules already stated above and rules no 463/2000, drafted by the Committee of Judicial Functions, which is established in accordance with article 23, paragraph 2 of the Act on the Judiciary, law no 15/1998. There are however some unwritten rules of conduct, such as requiring judges to refrain from any political activity, not to discuss cases outside of court or after an opinion has been stated, and to show impeccable behaviour in personal and public life.
2.1 If so, who drafted it and who adopted it?
./.
2.2 What are the obligations imposed upon judges?
./.
2.3 Is there provision for sanctions in the event of violation by judges?
./.
3. What incompatibilities are there between the duties of judge and other functions or professions?
According to article 16 of the Act on the Judiciary, law no. 15/1998, a judge may not accept an occupation or become the owner of a share in a company or enterprise if this is not compatible with his office or carries a risk that he will not be able to discharge his official duties properly.
The Committee on Judicial Functions shall issue generally applicable rules, now rules no. 463/2000, concerning which additional functions may be considered compatible with a judge’s official functions. A judge shall report any additional functions to the Committee before accepting them. If the general rules issued by the Committee do not enumerate that function, a judge shall seek its permission in advance.
The Committee on Judicial Functions shall issue generally applicable rules concerning the extent to which ownership of a share in a company or enterprise is compatible with the office of a judge. A judge shall report any share acquired by him in a company or enterprise to the Committee. If the general rules issued by the Committee do not provide for his right to own such a share, the judge shall seek its permission in advance.
The Committee on Judicial Functions can, by a reasoned decision, forbid a judge to take on an additional function or own a share in a company or enterprise. A judge shall be obliged to heed such prohibition, but is entitled to seek a judicial resolution on its legality.
Rules no. 463/2000 state explicitly that judges are not allowed to participate in litigation or execute, in return for payment, any work that traditionally falls within the field of legal practices. They are also forbidden to sit on the board of any company engaged in business. They may not participate in a dispute settlement outside of court except in accordance with a request issued by all parties concerned, or in accordance with a contract made prior to request, or in accordance with a rule of law providing for such arbitration.
There is a long tradition for judges not taking part in political activities, but no legal provisions forbid them to do so.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
Rules on impartiality are to be found in the Act on Procedure in Civil Cases, law no. 91/1991, article 5. A judge should step down from a case when: a) he/she is a party to the case or a representative or guardian of a party to the case; b) if he/she has represented or given advice, other than directly connected to his duties as a judge, to a party to the case - parties who are not lawyers and do not have legal representation are entitled to advice on procedural matters from the judge; c) if he/she has been called as a witness as to the facts of the case or has given an expertise opinion relating to the subject matter of the case; d) if he/she is or has been a spouse to a party to the case, or is a close relation by kin or by marriage to either party, or in a same manner related by an adoption; e) if he/she is related to a representative, guardian or a legal council of a party to a case in the same manner as stated in d); f) if he/she is in the same manner as stated in d) related to a witness in the case - this does also apply in respect to independent expert witnesses; g) if there are any other instances or circumstance that possibly might result in his/her apparent impartiality being called into question. Item g) is a very general provision and the decision as to whether or not it is applicable rests with the judge. A decision of a district court judge in this respect may be appealed to the Supreme Court. According to article 6 of the Act on Procedure in Criminal Cases, law no. 19/1991, the same conditions apply to judges in criminal cases, with the addition that a judge shall step down if he has ordered the accused to be confined to custody during the investigative process of the case, prior to the indictment being issued.
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties?
Yes. Article 32 of the Act on the Judiciary, law no. 15/1998, states that the General Penal Code and special provisions of other laws are applicable in case of any criminal liability resulting from a judge’s conduct in office.
The State shall be liable for damages in accordance with the generally applicable rules of law, if actions or inaction of a judge result in harm or loss to other persons. Damages can not be claimed from a judge personally, but following a judgement ordering damages to be paid, the State may claim refund from the judge if the loss was due to his/her intentional act.
If so,
5.1 In what circumstances?
In chapter XIV of the Criminal Code, law no. 19/1940, offences committed in public office are defined. A judge in Iceland is a civil servant in the meaning of this law. Articles 130 and 131 of the Criminal Code mention judges explicitly. Article 130 defines it as a criminal act when a judge intentionally issues an unjust decision. Article 131 makes it a criminal offence if a judge or any other public official uses illegal means to sway someone to confess to a criminal act, or issues illegal orders for an arrest, imprisonment or investigation
For judges to become liable for damages caused in office their conduct or lack of conduct must have been unlawful and culpable, according to the unwritten customary law of tort.
5.2 What is the procedure involved?
a) Criminal offence. Litigation on this account shall be governed by the generally applicable rules as in any criminal case.
b) Civil liability. Litigation on this account shall be governed by the generally applicable rules as in any civil case.
5.3 What is the competent institution or authority?
Regular district courts are competent here both in the case of a criminal and civil liability of a judge. Their decisions may be appealed to the Supreme Court. The regular judges, who are or have been colleges to the defendant would as a rule not be considered impartial and would step down. The Minister of Justice would then appoint judges ad hoc to sit on the case from the group of lawyers or legal academics who fulfil the conditions of becoming judges. In the district court a panel of three judges would decide on the case (in most regular cases there is only one judge).
5.4 What sanctions or compensatory measures can be applied?
In the case of a criminal offence committed by a public official punishment is generally more severe. According to article 130 and 131 of the Criminal Code a prison sentence may be up to 6 years. If the offence is very serious the sentence may be prison from 2 to 16 years. In the case of civil liability damages would be demanded. In both instances a dismissal from office would also be likely to follow, this can only be decided in a court case, which could be the same case as in which the decision on criminal or civil liability is rendered.
6. Can judges be subject to disciplinary proceedings?
Yes.
If so,
In what circumstances?
a) In article 27 of the Act on the Judiciary there is a provision allowing any person who considers that a judge has committed an infringement against his or her rights in the discharge of judicial functions to present a written complaint to the Committee on Judicial Functions.
b) According to article 28 of the same law the professional conduct or performance of a judge, or his private conduct may be a matter of censure.
6.1 What is the procedure involved?
a) The events in question shall be described in the complaint, and reasons presented for the allegation that the rights of the complainant have been infringed upon. If the Committee of Judicial Functions on having received a complaint, immediately considers evident that it does not warrant any further action, it shall dismiss the complaint. If not, the Committee shall afford the judge, and the person in charge of the court in question, an opportunity to present their written observations within a specified period of time. The Committee may consider two or more complaints at once, if they relate to the same judge.
If a complaint is considered worthy of consideration, the Committee on Judicial Functions shall bring the matter to a conclusion by a written and reasoned opinion. If the Committee considers that action should be taken on the matter, it may state in what manner the judge in question failed to observe his duties, or in more serious instances issue an admonition.
b) If the person in charge of a court, i.e. its President or Chief judge, considers the professional conduct or performance of a judge, or his private conduct, to be worthy of censure, he/she may request, orally or in writing, that the judge correct the matter.
If such a request is not successful, or if the person in charge of the court considers the matter so serious that a request of this kind is not suitable, he/she shall refer the matter to the Committee on Judicial Functions in writing, stating the reasons. The same procedure shall be followed in case a judge does not heed a decision of the Judicial Council or a prohibition laid down in accordance with decisions concerning his or her extra-judicial activities, cf. answer to question 3. The Minister of Justice may also refer a matter concerning a judge to the Committee on Judicial Functions and the Committee may also consider a matter on its own initiative.
When the Committee on Judicial Functions receives a matter for consideration it shall afford the judge in question an opportunity to reply to the allegations in a written exposition. The Committee shall in other respects collect evidence as it may consider necessary. The procedure shall in other respects be governed by the provisions of the Administrative Practices Act, law no. 37/1993, as applicable.
The Committee on Judicial Functions shall bring a matter to a conclusion by a written and reasoned opinion about whether the judge in question shall be presented with an admonition or not. A copy of an admonition shall be sent to the person in charge of the relevant court and to the Minister of Justice. If the judge is a district court judge, a copy shall also be sent to the Judicial Council.
A judge who has been admonished may take legal action for its invalidation against the Minister of Justice on behalf of the State within one month from the time when the admonition was served the judge.
6.2 What is the competent institution or authority?
a) The Committee on Judicial Functions, see answer to item 6.2.
Article 23, paragraphs 2-4 of the Act on the Judiciary, law no. 15/1998, state the establishment and functions of the Committee. The Minister of Justice shall appoint three persons to form a Committee on Judicial Functions, and three alternates. One member shall be appointed as proposed by the Icelandic Association of Judges, another as proposed by the Law Faculty of the University of Iceland, and the third without a nomination. The decisions taken by the Committee on Judicial Functions can not be referred to any higher administrative authority. The Committee shall, as necessary, maintain co-operation with the Judicial Council.
b) The person in charge of the Court concerned and/or the Committee on Judicial Functions. See answer to item 6.2.
6.3 What disciplinary sanctions can be imposed?
a) The Committee on Judicial Functions may present the judge with a reasoned opinion concerning the complaint or as the case may be issue an admonition, cf. article 27 of the Act on the Judiciary. See answer to item 6.2.a.
b) The person in charge of the court concerned may request of the judge that he/she improves his/her conduct or else may refer the matter to the Committee on Judicial Functions, which shall issue a written and reasoned opinion as whether or not the judge in question shall be presented with an admonition, and as the case may be, issue an admonition, cf. article 28 of Act of the Judiciary. See answer to item 6.2.b.
In the case of serious charges or serious immoral conduct on behalf of a judge, the Minister of Justice can sue the judge in a civil case for the purpose of ordering him/her out of office, temporarily or permanently, cf. article 29 of the Act on the Judiciary. A judge can be forced to step down from office only by a judgement issued by a court of law, cf. article 60 of the Constitution of the Republic of Iceland.