Strasbourg, 21 June 2002
CCJE-GT (2002) COM N° 1
Working party of the Consultative Council of European Judges (CCJE-GT)
Comments no. 1 (2002) of the working party of the Consultative Council of European Judges (CCJE-GT) on code of judicial conduct the Bangalore draft
1. The Working Party welcomed the opportunity given to it to attend the meeting proposed by the United Nations Commissioner for Human Rights and held in Strasbourg on 18th June 2002 and to comment on the Bangalore draft. It emphasises that it is not authorised to speak for the full Consultative Council of European Judges (which will only meet in plenary session in November 2002). These are therefore no more than comments, which it is hoped may assist in the Bangalore drafting process.
2. The Working Party starts with three general comments:
i) The title or description “Code” should be avoided, especially in view of its prescriptive and exhaustive connotations in civil law countries. It would be preferable to describe the document as containing “Principles (or “Standards”) of Judicial Conduct”.
ii) The scheme and order of the present draft are questionable. The fundamental principles are those of independence (although this is primarily a structural matter, to be guaranteed by the constitution or law of the particular society) and impartiality (which the judge must both possess and display in the context of any particular dispute). The principle of equality is linked with that of impartiality – factors such as ethnic origin, gender and disability cannot be disregarded; on the contrary their relevance to the way people behave, both outside and inside the courtroom, needs to be taken into consideration, in order to ensure the fair and impartial adjudication of any dispute. Further, the principles of integrity and propriety appear to have much in common. In these circumstances, it suggested that a logical scheme would involve taking Independence, Impartiality and then Equality first, in that order, followed by Integrity and Propriety, with Competence and Diligence coming last.
iii) The section Implementation and Accountability contains propositions which do not really concern judicial conduct, but rather the existence and structure of arrangements for handling complaints against and disciplining judges. The Working Party does not agree with the direct links drawn (in paragraphs 7.1 and 7.3 to 7.6) between the previously stated principles and complaints/discipline. No doubt non-compliance with such principles could in many cases be of considerable relevance to any complaint or disciplinary step. But the wording (especially the repeated references to “the implementation of the code”) suggests that any non-compliance would necessarily justify a complaint or disciplinary step - which is not (or should not be) be the case. In the same connection, the Working Party considers that the words “and to a structure for regulating judicial conduct” in the last full paragraph of the Preamble should be deleted.
3. More particular points follow:
i) Explanatory note and Preamble: The Working Party mentions, as a potential further source of encouragement for the Bangalore drafting commitee, the Consultative Council of European Judges’ Opinion No. 1 (2001) on “Standards concerning the independence of the judiciary and the irremovability of judges” (especially to paragraphs 10-13 concerning the rationale of judicial independence) and Opinion No. 2 (2001) on “The Funding and Management of Courts with reference to the efficiency of the judiciary and to article 6 of the European Convention on Human Rights”.
ii) The Working Party expressed reservations about the last two recitals in the Preamble, particularly the philosophical (or sociological) statement made regarding the real source of judicial power. In most civil law countries, there is a much more obvious “real source” – namely a constitution; and too great an emphasis on the ultimate dependence of the judicial power upon general acceptation could in some circumstances even be dangerous. The Working Party would suggest another wording for the penultimate recital, such as:
a) “WHEREAS public confidence in the judicial system and in the authority and integrity of the judiciary is of the utmost importance in a modern democratic society.”
iii) Independence: This section is, at first sight, surprisingly weak – although the reason is (no doubt) that pointed out earlier in these comments, namely that independence is primarily a structural matter for the other branches of the state to introduce and ensure. Much of what is included falls in reality under the heading of Impartiality. The Working Party felt, however, that paragraph 2.3 might be misunderstood, especially in civil law countries with a strong tradition of collegiate decision-making. Paragraph 2.5 is in its first eleven words dealing (in a essentially circular way) with Propriety, rather than Independence, and is in the rest simply repeating the sense of part of the Preamble.
iv) Impartiality: The general principle and paragraphs 4.1 to 4.6 appear unexceptionable. The Working Party questioned whether paragraph 4.7 is in appropriate terms, in so far as it suggests a general duty on judges to keep themselves informed, unrelated to any possible risk to their actual or apparent impartiality. Paragraph 4.8 has no counterpart in a number of civil law countries and was regarded as positively inappropriate by some civil law members of the Working Party. Paragraph 4.9 also lacks any equivalent in some civil law systems (and it was thought that situations of emergency or necessity could anyway have been more briefly and generally covered).
v) Equality: Paragraphs 5.2 to 5.8 met with general approval. However, the Working Party would suggest that paragraphs 5.4 and 5.5 should also extend specifically to public prosecutors (because of their special status in civil law countries) and to police.
vi) Integrity: Paragraphs 3.1-3.3 met with general approval.
vii) Propriety: This is unquestionably the most contentious area; there are grouped under its head a whole list of subjects (some of which, it might be said, could equally well appear under the head of Impartiality). The following comments are made:
a) Paragraphs 1.1, 1.2, 1.9 , 1.10, 1.16 (first)1 (confidential information), 1.20 (gifts, etc), and 1.19 (membership of judges’ associations) appear generally acceptable.
b) The Working Party questioned the inclusion of paragraph 1.23 – why focus on only one aspect of a judge’s general duty to obey the law? If reference is to be made to this subject, it might be made more generally, perhaps in the Explanatory Memorandum, at the end of which the general scope of the proposed draft is also touched on.
c) Certain of the principles are limited expressly to activities that might reasonably “give rise to a suspicion or appearance of bias” or might “reasonably undermine public confidence in” or “reflect adversely on” the judge’s impartiality (it is not clear why these three different formulations are used and it might be better to use only one of them). The relevant paragraphs are:
i) 1.3: close personal relationship with individual lawyers;
ii) 1.5: use of judge’s residence by lawyers to receive clients or other lawyers;
iii) 1.6: membership of any group or organisation or participation in public discussion;
iv) 1.14 first sentence: civic and charitable activities;
v) 1.16 (first)2: financial or business dealings.
As to these paragraphs: the Working Party understands the general aim behind paragraph 1.3, but questions its width and the appropriateness of the direction from which it approaches quite common situations, such as marriage or a close personal relationship with a lawyer. The focus in such a case should not be on prohibiting (or purporting to prohibit) the relationship, but on the judge’s need to withdraw in any case where the other party to the relationship is involved.
The other paragraphs were regarded by the Working Party as in some respects very detailed for a general statement of principles, but open to no particular objection. The approach in the Canadian Judicial Council’s Ethical Principles for Judges is to have general statements followed by a more detailed commentary, and this might have something to commend itself in relation to some of the detailed points in the present draft.
d) Political activity - 1.7 (first sentence) and 1.8: whilst these represent common law principles, civil law countries do not always follow the same approach. In Switzerland, judges are elected on the basis of their party membership. In some other countries, judges have the right to engage in politics, and be elected as members of local councils (even while remaining judges) or of Parliament (their judicial status being in this case suspended). The present position in the Working Party’s view is that there is no general international consensus, that judges should either be free to engage in or should refrain from political participation. It appears to be for each country to strike its own balance between judges’ freedom of opinion and expression on matters of social significance and the requirement of neutrality. But, even though membership of a political party or participation in public debate on the major problems of society may not be prohibited, judges must at least refrain from any political activity liable to compromise their independence or jeopardise the appearance of impartiality.
e) 1.11 - testifying as a character witness: A detailed provision not considered by the Working Party.
f) 1.12 and 1.13 - writing, lecturing, teaching and engaging in public activities relating to (I) the law and (II) non-legal activities, and 1.22 - receipt of compensation and expenses: There was no real disagreement within the Working Party about any of the points made. But it was questioned whether it was necessary or wise to have a list of (permitted) activities in paragraph 1.13 – could not the wording simply allow judges to “engage in other non-legal activities, if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties in accordance with [these Principles]”?
g) 1.14 second sentence - fund-raising for civic or charitable organisations: The Working Party did not consider that the very strict limitations proposed by this paragraph of the draft either were, or should be, generally accepted as an international standard.
h) 1.21 - miscellaneous gifts: The Working Party had no particular comment or objection to make.
i) 1.15 - estate or trust activities: The Working Party did not agree with this very strict limitation. Why is it necessary?
j) 1.18 - appointment to government commissions, committees or positions concerned with non-legal matters: Again, the Working Party did not agree with this as a general international principle. The subject has been discussed in various states, from various viewpoints. The use of judges for non-legal activities can risk compromising the separation of powers, or exposing judges to public criticism in circumstances where politicians do not wish to address a difficult subject themselves, and of course it reduces the number of active judges. However, judicial training and characteristics can have important value in the context of certain enquiries. Current practice in a number of European countries is to allow judges to undertake such work.
Concern was, however, expressed in the Working Party about the possibility in some European countries of judges spending periods of time in the political cabinets of government ministers, or other posts of a political nature.
viii) The Working Party suggested that the Bangalore draft could address more specifically the issue of relations with the media. Paragraphs 1.16 (second)3 and 4.4 go some way, but not very far. The Working Party identified a number of possible aspects of concern. The first was the use of the media (in or out of court) to promote a judge’s public image and career, or (to take the other side of the coin) the possibility of concern on the part of a judge as to possible media reaction to a particular decision. For a judge to allow himself or herself to be influenced in either such direction by the media would almost certainly infringe paragraph 2.1 of the Bangalore draft, if not also other paragraphs such as 1.1, 3.1, 3.2, 4.1 and 4.2.
The second aspect is the question of contact out of court with the media. The common law tradition is that judges do not speak to the media about either cases involving themselves or cases involving other judges. The media gain information from those (defined) court records and documents which are open to them, and from the public nature of proceedings in court. In some countries (particularly those where court files are secret), a system exists whereby one particular judge in any court is deputed to inform the media of the actual position relating to any particular case. Apart from the provision of information of this nature, any out of court comment by judges on cases before them or before other judges would seem inappropriate.
A third aspect concerns comment, even in an academic article, on the judge’s own or another judge’s decision. Comment outside court on a judge’s conduct of a particular case or upon evidence or factual rulings in a particular case appears generally unacceptable. Comment on a purely legal point of general interest decided or considered in a particular case would appear to fall on the other (permissible) side of the line.
ix) Competence and Diligence: paragraphs 6.1-6.7 met with general approval. However, it was suggested that reference should be made to the need for appropriate training or continuing education or studies programmes to be available to judges. This could be done, for example, by adding to paragraph 6.3 a phrase such as: “taking advantage for this purpose of the training and other facilities which should be made available to judges (under judicial control) for this purpose”.