Strasbourg, 15 May 2002
CCJE (2002) 30
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Austria
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
Judges are bound by the law.
2. Is there a judge’s code of conduct?
There is no written code of ethics .
Judges have to perform their duty .
The duties are written in the Judges Code (Richterdienstgesetz)
Judges have to perform his office with all their abilities, effort and diligence, as quick as possible, impartially , uninfluenced, without looking at own interests only bound to the law. Outside of his office judges have to behave in a way that respects the dignity of their office. They have to avoid everything which could lead to a mistrust in the judge and his way of dealing with a certain case or in the judiciary as a whole. Judges have to keep their knowledge upon a certain case and the parties secret, they are not allowed to take any present or any advantage offered in direct or indirect connection with their office.
Besides of this rather general guidelines given by the Judges Code there exists no catalogue of concrete interdictions or commands of behaviour. But of course there is a large number of decisions of the disciplinary courts which clarify the meaning of the more general legal regulations.
This long lasting practice of the courts fulfils somehow the function of a written code of ethics.
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? The position of a judge is incompatible with the position of a member
Unfortunately it is not forbidden by law to be member of a parliament at the same time when performing the office of a judge. The Austrian Association of judges many times tried to persuade the politicians to change this regulation, but did not succeed so far.
Only for judges of the Supreme Court it is not allowed to be member of the government or a parliament.
A judge cannot be member of a supervisory board or an executive body of a joint-stock company or of a private limited company or a similar enterprise. If he wants to exercise any other profession, he has to inform the president of the court of appeal, who can forbid this activity.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
Every procedure (criminal and civil) includes this possibility . Nevertheless urgent steps have to be done, but never a final decision
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties? If so,
5.1 In what circumstances?
5.2 What is the procedure involved?
5.3 What is the competent institution or authority?
5.4 What sanctions or compensatory measures can be applied?
Like in every other public function a judge can be charged at a criminal court for the performance of his duty. This normally is only possible if the performance is against the law , the judge knows this and nevertheless acts in this way. Only in some very important issues the penal code includes a penal provision for negligence only, it is if the fundamental right of freedom or of the domiciliary right is concerned.
All this criminal procedure are handled within the normal system of all criminal procedures.
The civil liability of a judge is very much reduced. There is no direct claim against a judge but one has to put an action against the state. Within a normal civil procedure it is to be proofed if the judge used an opinion which is untenable., which means it is apparently against the law. If in such a case the state has to pay compensation, the state can claim the judge when his liability is at least a serious negligence
6. Can judges be subject to disciplinary proceedings? If so,
6.1 In what circumstances?
If a judge does not fulfil his duties (see above point 2) there can be a disciplinary procedure against him.
6.2 What is the procedure involved?
The procedure is regulated in the judges code. It is a kind of criminal procedure with a pre-trial part and a trial.
6.3 What is the competent institution or authority?
There exist special chambers at the court of appeal and at the supreme court dealing with this matters, composed of three res. five judges.
6.4 What disciplinary sanctions can be imposed?
The sanctions may be a warning, a reduction of the remuneration, a stop of promotion for some time, a transfer to another court in another town, a pension off with reduced pension or a removal from office.