Sofia, 1 April 2014
High Level Conference on Integrity and Accountability of the Judiciary
Trust and Integrity; ethical aspects, organizational aspects
Bart van Lierop, President of the CCJE
The perspective of my contribution to this conference is the perspective of international
co-operation in the field of the independence, impartiality and professionalism of the judiciary. Our experience shows that international co-operation contributes very much to the awareness and understanding of the issues and problems at stake. International co-operation can also contribute to find and implement possible solutions.
The topic of this conference, integrity and accountability of the judiciary, is a very vast one. I will try to focus on two approaches when we think about integrity: the ethical approach, that is related to the conduct of the judges, and the organizational approach, that is related to the organization of the judiciary.
It is not without reason that one of the first Opinions (Opinion (2003)3) of the CCJE is devoted to the topic of rules governing judges conduct, to the topic of ethics of judges. When we think about the core values of the judiciary (independence, impartiality and competence/professionalism) we think about institutional aspects. But these core values bring us also to the dimension of the functioning of individual judges, to ethics. This is, for instance, well expressed in paragraph 70 of the Explanatory Note of Recommendation (2010)12 of the Committee of Ministers of the Council of Europe on judges: in2dependence, efficiency and responsibilities:
“An adequate legal framework and appropriate institutions for the preservation of judicial independence are not enough to ensure that judicial decisions are free from improper influences if judges do not personally administer justice in an independent manner. Judicial independence is also a judicial virtue, a standard of judicial ethics. This is the reason why the Recommendation ends with an appeal to the ethics of judges, understood as a set of duties guiding their ethical approach even in the cases where breaches to such duties are not sanctionable by the law. The effective participation of judges in the elaboration of such codes is to be promoted (Recommendation, paragraph 72).”
In the beginning of this century, we observe the development of many ethical guidelines, on an international level (the Bangalore Principles in 2002 and the Commentary on the Bangalore Principles in 2009) and on a national level. The national guidelines show a great variety in form ( e.g. global or detailed, long or short), but they deal, basically, with the same questions. I ask your attention for the document of the European Network of Councils for the Judiciary (ENCJ) on ethics: “Judicial Ethics, Report 2009/2010”, in which important qualities of ‘courage’ and ‘sense of humanity’ are mentioned, concepts that are not often used these days. When I look at the Guide to Judicial Conduct of my own country, the Netherlands, it is interesting to observe that it does not only deal with rules of conduct, but also with so called “external and internal pre-conditions” for the functioning of judges (the external pre-conditions refer to the political system of a separation or balance of powers, the internal pre-conditions refer to the organization in which the individual judge functions).
For the CCJE, two things are essential in judicial ethics: (i) ethical guidelines should be drafted by judges themselves and (ii) there is a clear distinction between ethical principles and rules that play a role in disciplinary proceedings.
If I may quote paragraphs 60 and 61 of the Opinion (2002) 3:
“(…) the first point which the CCJE identifies (…) is that it is incorrect to correlate breaches of proper professional standards with misconduct giving rise potentially to disciplinary sanctions. Professional standards, which have been the subject of the first part of this opinion, represent best practice, which all judges should aim to develop and towards which all judges should aspire. It would discourage the future development of such standards and misunderstand their purpose to equate them with misconduct justifying disciplinary proceedings. In order to justify disciplinary proceedings, misconduct must be serious and flagrant, in a way which cannot be posited simply because there has been a failure to observe professional standards set out in guidelines such as those discussed in the first part of this opinion.
This is not to say that breach of the professional standards identified in this opinion may not be of considerable relevance, where it is alleged that there has been misconduct sufficient to justify and require disciplinary sanction (…).”
As I just mentioned, we have seen, over the last 14 years, the development of ethical guidelines, on an international as well as a national level. But in recent years, the concept of integrity is also apprehended in a more organizational approach. The focus is then not on the conduct of individual judges, but on the organization in which the judges work. Integrity Commissions are set up in the courts, protocols are drafted that deal with the allocation of cases, the registration of ancillary positions of judges and their relatives, the registration of assets of judges and their relatives, the way in which the courts purchase goods and services, etc. In this approach: the conduct of all the persons working in the courts is important: the persons answering the telephone, the persons behind the help-desk, the people working in the treasury, the judges: they are all relevant in the “integrity-chain”.
One of the reasons for this approach is, of course, the fact that society demands transparency and accountability, in all regards, and that the judiciary recognizes and values this demand.
Individual, ethical aspects and organizational aspects have a complimentary relation. It is perhaps a truism, but that is so for a good reason: the individual judge functions in the context of an organization, the functioning of the individual judge depends on the acts of others; the functioning of the organization depends on the functioning of all the involved individuals.
I may add one proviso with regard to the organizational approach: protocols must not become a mere bureaucratic tool, they cannot replace the reflection on individual conduct.
The situation of the judiciary is, in many member states of the Council of Europe, not very bright. This is demonstrated by, i.a., reports of GRECO, the Venice Commission and the Situation Reports of the CCJE. From this perspective, the new Rule of Law Framework of the European Commission is very relevant. It shows that, finally, the EU is ready to analyze and remedy systemic shortcomings in the judiciaries. I think this new framework is an important step forward. We must, of course, see how it will develop. Irony makes that this new instrument is launched at a moment in which, according to the latest surveys, “trust” of the citizens in the institutions of the EU is very, very low. From the point of view of judges, the new framework of the European Commission should not only focus on quantitative elements and on considerations of economic welfare and internal market, the administration of justice is a social value (see the Declaration of St Gallen of the EAJ of May 2013 (“Appeal of the European Association of Judges: for a Judiciary of Quality, Efficiency and Independence in Europe”), that the CCJE fully endorses).
We observe a “crisis” in trust in the political institutions, including the judiciaries, in almost all the member States of the Council of Europe and the EU, in the North and the South, in the East and the West. It is of utmost importance to analyze and understand the reasons for this development. Judges may criticize the role of politics and of the media in this respect, but what we must not refrain from doing is to reinforce our own trustworthiness. Our trustworthiness depends, to a large extend, not on others, but on ourselves. It is, therefore, always the right time to reflect on judicial ethics and integrity and to act accordingly. The challenge is to make ethics a really living instrument in our daily practice.