INITIAL TRAINING INTERNATIONAL SHOWROOM
Judicial Ethics: Developments, Challenges and Solutions. Moldova’s Experience in Enforcing Ethics Standards for Judges
Imagine that tomorrow you have to go to court and appear as a plaintiff or a defendant in front of a judge. Do you feel confident that the judge will examine and decide your case independently, impartially and in strict compliance with the law? Do you believe the judge will treat you with dignity and respect and will uphold your right to a fair and public hearing within a reasonable time? The answers that you and your fellow countrymen give to these questions reflect the level of confidence that the judiciary enjoys in your society, and is a valuable indicator of how well the rule of law works.
A lot has been said and written about the importance of a strong, independent and impartial judiciary for enforcing democratic principles and building societies in which citizens feel secure that their rights will be protected and enforced in a predictable manner. The aim of this paper is not reiterate what was already said and written about judicial ethics. Rather, it has a two-fold purpose: 1) to familiarize the reader with the experience of the Republic of Moldova in developing and enforcing judicial ethics norms based on relevant international judicial ethics standards and best practices, and 2) to discuss some challenges and issues pertaining to judicial ethics worldwide and how they are applicable to the circumstances existent in the Republic of Moldova.
For readers’ convenience, this paper is structured into four parts. The first part provides a brief overview of the existent international and regional judicial ethics standards; the second part describes the evolvement of judicial ethics standards in Moldova and the efforts under way to enforce such standards; and the third part tackles some common challenges associated with judicial ethics worldwide and provides some concrete recommendations on how to address and possibly solve the issues affecting judicial ethics.
International Standards of Judicial Ethics
In any society, judges have powers that no other governmental officers have. Judges’ exercise of such power has dramatic impact upon the lives and fortunes of those who come before them. Citizens … will not wish such power to be reposed in any one who’s honesty, ability or personal standards are questionable. It is necessary that …there be standards of conduct, both in and out of court, which are designed to maintain confidence in these expectations…1
Judges should be free at all times to enforce, in a fair, predictable and impartial manner what the legislature intended, not what the executive wants. Sometimes, this means that judges should take decisions that are not very popular among the other branches of power or the general public. In order to have public’s confidence in their decisions and not be accused of being biased or prone to influences when making such decisions, judges have the responsibility to serve as the moral compass and as an example of competence, professionalism and integrity of the societies they serve.
Thus, from the nature of judges’ power stems the need to regulate judicial conduct in a way that would not allow judges to abuse of their professional competencies and thus jeopardize the rule of law. This is essential, since a person’s right to right to a fair trail can be hampered by judicial misconduct. Therefore, judicial ethics has become the topic of heated debates at both domestic and international forums, and is also dealt with in many important international and regional documents, which establish international standards for judicial conduct.
For the first time, a fundamental principle of judicial ethics – namely judicial independence, was mentioned in Article 10 of the Universal Declaration of Human Rights (1948), which stated the following:
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
The same principle has been further elaborated in Article 14 of the International Covenant on Civil and Political Rights that was adopted in 1966, in the following wording:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The same principle, as well as other important standards that should guide judicial conduct were later considerably expanded in the United Nations Basic Principles on the Independence of the Judiciary, adopted by the United Nations Congress in 1985, which stated, inter alia, that:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.”
The Bangalore Principles of Judicial Conduct, adopted by the General Assembly of the UN Human Rights Commission in May 2003, establish guidelines for ethical judicial conduct in the form of six values: independence, impartiality, integrity, propriety, equality, competence and diligence. These principles are designed to both provide guidance to judges with regard to their conduct, as well as educate the public, lawyers, and the other two branches of power about behavioral standards by which judges are expected to abide.
Regional Standards of Judicial Ethics
In addition to international judicial ethics standards, there are a number of regional documents that regulate judicial conduct. Below, there is a brief run-down of the main such documents by continents.
At the regional European level, there are a number of major instruments pertaining to judicial ethics. They are the Judges’ Charter in Europe adopted on March 20, 1993 in Wiesbaden (Germany) by the European Association of Judges, which is a regional group of the International Association of Judges, which provides, inter alia, that:
‘The Judge is only accountable to the law. He pays no heed to political parties or pressure groups. He performs his professional duties free from outside influence and without undue delay’ (Article 2), and that “Not only must the Judge be impartial, he must be seen by all to be impartial.”
The Recommendation on the Independence, Efficiency and Role of Judges, adopted by the Committee of Ministers of the Council of Europe in 1994, and the European Charter on the Statute for Judges adopted by the Council of Europe in Strasbourg in 1998 expand the principle of independence and responsibility of judges and contain provisions about the preconditions for ensuring judicial independence by ensuring proper methods of selecting and recruiting judges, ensuring proper working conditions, and safeguarding judicial independence by a judicial association or administration body.
In Western European countries, judicial ethics norms are embedded both in actual Codes of Judicial Ethics like the one that exists in Italy since 1994, as well as in various types of documents, that deal with certain aspects of judicial ethics, such as the Equal Treatment Bench Book published by the England’s Judicial Studies Board and the Dutch 2004 Judicial Impartiality Guidelines.
In Central and Eastern Europe, judicial ethics has also been the crux of judicial reform efforts during the last 18 years. Given the widespread perception of significant corruption among the judiciaries of this region of Europe, judges, governments and citizens alike can benefit from initiatives that promote adherence to clear standards of judicial conduct. With donor assistance, nnumerous countries such as Albania, Bosnia and Herzegovina, Republica Srpska, Montenegro, Croatia, Macedonia, Romania, Kosovo, Montenegro have adopted codes of judicial ethics and have trained judges on the provisions of such codes.
On the Northern American continent, the United States was among the first countries in the world to realize the need for drafting a code of ethics for judges. The motivating factor for codifying ethical norms for judicial conduct was the fact that in 1922, a federal district judge made an additional $42,500 a year to his $7,500 annual federal judicial salary by serving as national commissioner of baseball. Thus, in 1922, the American Bar Association appointed a commission on judicial ethics tasked to develop a code of judicial conduct. The Canons of Judicial Ethics approved in 1924 were applicable country-wide. In 1972, the ABA replaced the Canons with a mandatory and more streamlined Model Code of Judicial Conduct, which underwent major amendment in 1990, followed by subsequent changes.2 It contains, inter alia, provisions requesting judges to avoid impropriety and the appearance of impropriety in all of the judge’s activities, and that judges should carry out their extra-judicial activities as to minimize the risk of conflict with judicial obligations.
Canada adopted its Ethical Principles for Judges in 1998,3 which describe the very high standards of conduct to which all Canadian judges should strive. It contains requirements pertaining to judicial integrity, diligence, equality, and impartiality.
Recently, the interest in judicial ethics has also been increased in Latin America. On regional level, the Statute of Iberoamerican Judges adopted in 2001, for example, contains a separate chapter on judicial ethics. Numerous Latin and South American countries such as Mexico, Costa Rica, Guatemala, Panama, Chile, Venezuela, and Peru have also adopted, during the last 8 years, judicial ethics codes at national level.
Asia and the Pacific region
In the Asia and Pacific region, the Beijing Principles of the Independence of the Judiciary, signed by or on behalf of thirty-two Chief Justices of the Asia and Pacific region in 1995, including from China, Australia, India, Japan, Indonesia, South Korea, Malaysia, New Zealand, Pakistan, the Philippines, Fiji, Hong Kong, Singapore, and Thailand spell out the requirements to the judiciary when examining and deciding cases.
In Africa, judicial ethics standards are embodies in the African Charter on Human and People’s Rights adopted in 1986, the 2003 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, and the 2003 Commonwealth Principles on the Accountability of, and the Relationship between, the Three Branches of Government.
As demonstrated above, countries and continents, recognizing the heightened importance of the judiciary for any society, have made concerted efforts to devise strict and clear standards that should guide judicial conduct. By embracing such standards and having a professional and personal conduct beyond reproach, judges will gain the moral authority, respect and confidence of the public.
In the Republic of Moldova, judicial ethics was is a topic of heated debates among judges and lawyers since 1992, when a first draft a Judicial Ethics Code was developed and proposed for discussion and adoption to Moldovan judges. At that point, however, Moldovan judges did not see the need for such a Code, and were not ready to accept or internalize it. For a period of 8 years that followed since 2000, the issue of judicial ethics was being regularly brought up and discussed in various Moldovan law journals and broadcasted in media. The arguments invoked in favor of the necessity to adopt such a code of ethics for Moldovan judges was that judicial reform will not be possible and complete unless the judiciary is guided by and adheres to clear standards of conduct in and out of court. Such standards would help the judiciary earn the respect and authority it deserves in society, strengthening its impact on establishing a societal order based on the rule of law.
These theoretical debates finally brought about practical developments in 2000, when, on February 4, 2000, the General Assembly of Judges of the Republic of Moldova adopted the first-ever Code of Judicial Ethics. The approved Code was not the most comprehensive or progressive one, but it represented a concept of professional ethics of judges that Moldovan judges were ready to accept at that time.
The Code consisted of 30 brief rules addressing issues such as judicial independence, conflicts of interests, ex parte communications, inappropriate political activity, and protection of confidential information. The Ethics Code apparently had binding force, for systematic or serious violations could serve as basis for discipline, including judge’s removal from office. However, the brevity and ambiguity of some rules contained in the Code made it difficult for judges to know what the Code actually required from them. For example, Rule 6 of the Code stated that “Judges shall observe the honor and prestige of their profession with great respect,” without specifying what actions should judges take or abstain from taking in order to achieve such aim. While the Code did not address all important issues and its provisions where not sufficiently detailed, its adoption was in fact a very significant step forward for the judicial profession.
The 2000 Code of Ethics was supplemented by judicial ethics provisions scattered in several laws. For example, the Civil and Criminal Procedure Codes listed grounds when a judge must disqualify himself or herself from hearing a case, and the Law on the Status of the Judge prohibited judges from being members of political parties or engaging in other incompatible activities. The Judicial Reform Index for Moldova, an assessment conducted by the American Bar Association office in Moldova in 2007, has indicated that “Although judges often remarked about the importance of professional ethics and some, indeed, were well aware of the constraints the Code imposes on their conduct, other interviewees voices skepticism about the extent to which the Code actually influenced the judge’s conduct. Indeed, they asserted that the majority of judges do not have high ethical standards.”4 Judicial ethics was not taught in law schools; it was not a subject in which judicial candidates and judges were tested or trained, and many judges, although they’ve heard about the fact that a Code of Conduct existed, have never actually seen or read it, let alone follow its provisions.
Since 2000, despite the formal existence of a Code of Judicial Ethics, public trust in the judiciary kept diminishing. Recent surveys and independent opinion polls steadily demonstrated a low level of public’s confidence in the integrity and impartiality of the Moldovan judiciary. A shocking 78% of Moldovan respondents interviewed by Transparency International at the beginning of 2008 stated that they do not have any or very low confidence in the judiciary and that 54% of them in fact bribed judicial representatives and thus were able to avoid punishment in accordance with the law.
The almost 4,000 petitions that Moldovan citizens lodged with the European Court for Human Rights between 1998 and 2007 is a testimony to the growing eagerness of Moldovans to resort to international judicial bodies for protection of their rights and a sign of low trust and dissatisfaction of how courts decide their cases domestically.
Against this troubling background, the current leadership of the Superior Council of Magistracy, which is the Moldovan judicial self-administration body, is taking vigorous actions to both increase the discipline and adherence to ethics standards among judges, and remedy judicial reputation in the eyes of the general public. Such actions are implemented through promoting legislative changes that would increase judicial independence, adopting modern judicial ethics standards, educating judges and the general public about such standards, establishing bodies of judicial ethics supervision, and developing more efficient mechanisms for enforcing judicial standards and discipline among judges.
The development of a new, improved and, most importantly, enforceable Judicial Code of Ethics has become a national priority. The adoption of a new Code of Judicial Ethics was included in the Republic of Moldova – European Union Action Plan, the Action Plan for the Implementation of the 2006-2009 Joint Program of the Council of Europe and European Commission on Enhancing Independence, Transparency and Efficiency of Justice in Moldova, as well as in he Action Plan for the Implementation of the Moldova Threshold Country Plan funded by the Millennium Challenge Corporation.
In April 2007, the Superior Council of Magistracy convened a working group composed of judges, law professors, representatives of the Ministry of Justice, the National Institute of Justice, and various donor organizations, which drafted a new Judicial Ethics Code. In their work, drafters were inspired from the highest modern international judicial ethics standards, including the 2003 Bangalore Principles and various regional European documents pertaining to judicial ethics. The draft Judicial Ethics Code was circulated for review to judges, lawyers, and NGO representatives. Council of Europe experts have provided their opinion on the draft Code, and several roundtables were conducted on this topic. After incorporating the received recommendations, the Superior Council of Magistracy adopted the new Code of Judicial Ethics on November 29, 2007.
The 2007 Judicial Ethics Code introduces several concepts new for the Moldovan judiciary. Below is an overview of these novelties and their practical implications for the Moldovan judiciary.
Article 4 of the Code, entitled “Recusal” appears for the first time in a Moldovan judicial code of ethics, and many members of the working group have initially opposed its introduction in the Code. The invoked reasons were that the Civil and Criminal Procedure Codes already expressly provide the grounds for which the judge must disqualify himself or herself from examining a case. After much debate and due to the fact that disqualification is included in the Bangalore Principles, such a provision was finally included in the Code. In the commentaries to the Code, Moldovan judges are instructed to use this provision as self-protection in addition to the disqualification provisions of the procedural codes. Judges should act on the cautionary side and every time the judge believes s/he has information or there is any factor that might impair the unbiased examination of a case, although not covered by the procedural codes, they should disclose this information to the parties. The judge should always inform the parties, in open session and on the record, about any facts which might reasonably give rise to a perception of bias or conflict of interest. The judge should also disclose on the record information that s/he believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for the disqualification. After disclosure on the record, the judge can ask the parties if they still want him/her to judge their case. If, having the full information about a judge’s potential bias the parties would still like the judge to examine and decide their case, the judge shall continue with their case. In some cases, however, the rule of necessity may override the rule of disqualification. Thus, if a judge is the only one available to hear a case in a matter requiring judicial action, the judge must disclose on the record the basis for possible disqualifications and use reasonable efforts to transfer the case to another judge as soon as practicable.
Another innovation is Article 7 of the Code, which deals with the judge’s relationships with colleagues and staff. According to this article, the judge is required to have a tactful and respectful behavior with fellow judges and court staff. Another important provision of this article requires judges to not “publicly denigrate the professional and moral probity of his/her colleagues” by abstaining from berating, gossiping or spreading false information about a judge or court personnel. Judges should especially abstain from making such comments in full court, or in front of the prosecutors and the like. If discipline or correction is necessary, it should be done in private and according o the rules governing labor discipline in the court team. This article also prohibits judges’ ex parte communications about a case, allowing them to consult with other judges only for the purpose of discussing a substantive, procedural or administrative issue of a specific case. Such discussion, however, should be limited to academic or educational questions and shall be initiated only by the judge who examines the respective case.
Article 11 is also an innovation, in as it regulates and provides guidance for judges’ extrajudicial activities. It instructs judges to carry out social activities, but be mindful that such activities should not reflect negatively on their professional activity, and that, even at leisure, due to the nature of their profession, judges are the object of increased public scrutiny. Judges should be especially careful to avoid membership in organizations known for their radical views, be it of religious or other nature. Certainly, judges can be members of religious groups of peaceful nature, charities, sports clubs, etc. However, at all times during the course of their social activities, judges should not use the prestige of their office to influence or advance the interests of the social organization or group that they have joined. Of practical interest in this regard is a recent case of a Moldovan judge who, being a member of a Chinese-based religious group present in Moldova, was spreading leaflets about this religion, was actively advertising it among fellow judges and court staff, and participated in public protests in front of the Chinese Embassy in Moldova against prosecution of the respective religious group in China. The Superior Council of Magistracy has initiated a disciplinary proceeding against the judge. Soon after the initiation of the proceeding, the judge decided to give up judicial office in favor of full-time free practice and advertising of the belief of the religious group to which she belonged.
The restrictions to judges’ governmental, civil and charitable activities are provided for by article 12 of the Code and prohibit judges from accepting appointments to governmental committees, working groups or other structures except to those dealing with issues of legislative reform, improving the judicial system or the administration of justice. Even in these cases, judges shall not use the prestige of the office to influence the works of such units. Another provision of the same article regulates the type of civic and charitable activities in which judges may participate, stating that judges can participate in any such activity, “unless they reflect adversely upon judge’s impartiality or interfere with his/her judicial duties.” According to these provisions, judges should not allow the use of his/her pictures or judicial attributes to promote the interest of charity activities, and should not spend more time in his/her social activities in the detriment of time s/he should spend discharging his/her judicial duties.
Another important article aimed at protecting the independence and impartiality of the judge is Article 13 of the Code – “Financial Activities.” This article guides judges as to what financial activities are permissible, and which financial activities judges should avoid. The provisions of this article represent valuable and detailed addition to the provisions of the Law on the Status of Judges that generally prohibit judges to have “entrepreneurial activities.” Paragraph 1 of the article expressly and specifically limits financial transactions with lawyers or potential litigants who would likely appear in the court in which the judge serves. Business relations with these two groups give rise to impropriety or the appearance of impropriety which destroy the public trust and confidence in the administration of justice. A judge should disqualify himself from a case in which a business interest exists. Judge himself shall scrutinize transactions from the point of views of propriety to take part in them so that the position of the judicial office and his own reputation as representative of the judicial office would not be impaired.
Judges, however, may engage in financial transactions, acquire economic interest in legal companies, and real estate. A judge, though, may not serve as an officer, director, manager or employee of any bank, lending institution, insurance company, public company or other companies with a public interest share or governmental entity. The policy reasons for this prohibition are that large financial institutions are frequent participants in courts; they possess powerful resources and operate for profit. These interests might create a conflict of interest, an impropriety or the appearance of impropriety or improperly influence a judge deciding a case fairly. If allowed, it would diminish the image of the judge, the courts and will affect the public confidence and trust in the administration of justice.
When a judge acquires or disposes of property or engages in financial and business dealings, it should be in a manner that does not compromise or violate judicial ethics, raise questions about partiality or create a conflict of interest. Nor should it cause the appearance of impropriety or impropriety or reflect adversely on his impartiality, or interfere with the proper performance of judicial duties.
Enforcement of the new Judicial Code of Ethics
In order to avoid a situation when the new Judicial Code of Ethics remains unknown or unenforceable like the 2000 Judicial Ethics Code, the Superior Council of Magistracy undertook several concrete steps. Firstly, it spearheaded the development and publishing of an article-by-article explanatory commentary to the Code, which provides practical guidelines to judges on how they should act in situations involving dilemmas of an ethical nature. Every judge in the country has received a copy of the Commentaries to the Code of Ethics. Secondly, it declared education on judicial ethics issues a priority for the continuous training program of the National Judicial Institute (NJI) in 2008. The NJI has already conducted four sessions on judicial ethics for a total number of 120 judges throughout the country, and will organize eight more sessions in October 2008 covering all judges throughout Moldova. The sometimes controversial case studies discussed at these training sessions have ignited a keen interest even among judges who were initially skeptical about the need to have or abide by judicial ethics standards. The evaluation forms filled out by judges showed their desire to have more frequent and lengthy training sessions dedicated to judicial ethics. Judicial ethics has also been, for the first time, included as a discipline in the initial training curricula for candidates to judges and prosecutors undergoing training at the National Judicial Institute, and a syllabus and comprehensive judicial ethics training materials are currently being developed for the 2008-2009 academic year.
In addition to educating judges about the new Code of Judicial Ethics, its provisions will be enforced using mechanisms available under the Moldovan law for disciplining of judges. The disciplinary liability of the judge, including for ethical violations, is stipulated by the legislation in force and, namely, by the Law on the Status of the Judge, Law on Disciplinary College and Disciplinary Liability of Judges, Law on the Superior Council of the Magistracy.
Citizens and their lawyers have the right to file complaints concerning judicial misconduct with the Superior Council of Magistracy (SCM). If the SCM concludes that a judge may have engaged in misconduct, it can initiate disciplinary proceedings. Before doing so, the SCM must conduct an inquiry to verify that grounds for discipline exist and give the judge the opportunity to provide written explanation. The matters than is submitted to the Disciplinary Board, which examines the case of alleged judicial misconduct. The Board consists of 9 members.
According to the Moldovan law, the specific grounds for disciplining a judge are, inter alia:
· Serious or systematic violation of judicial ethics;
· Using judicial position to obtain inappropriate benefits;
· Failing to comply with requirements for declaring income and property;
· Deliberate or negligent failure to interpret or apply legislation uniformly;
· Disclosure of information regarding deliberations or confidential proceedings;
· Failing to act impartially;
· Undignified attitude toward colleagues, advocates, and other participants add “in a case” while performing professional duties;
· Interfering with the activities of another judge or attempting to influence public authorities, institutions, or civil servants.
A judge can be sanctioned for a disciplinary violation within 6 months from the date the violation occurred; however, no sanction can be imposed for violations that occurred more than one year ago. If discipline is justified, the Disciplinary Board can impose sanctions ranging from warning, reprimand, severe reprimand, reduction of qualification degree, to recommending removal of a court president or vice president from that position or removal of a judge. The decision about what type of discipline to impose should take into consideration matters such as the nature of the violation, its consequences and seriousness, the judge’s character, and the judge’s degree of fault. The judge may appeal the Disciplinary Board’s decision to the SCM within 10 days after the date of the decision, and the SCM may affirm, amend, or reverse the decision. If the judge is not subject to further disciplinary sanctions within one year, the sanction expires. Until then, the judge is not eligible for advancement. The best testimony that the new Judicial Ethics Code is working well is that, during the first half of 2008, the Disciplinary Committee of the Superior Council of Magistracy reviewed six disciplinary proceedings on the basis of the new Code. Six judges, including a chief judge, were held accountable. Of all decisions issued by the Disciplinary Committee, only one was appealed to the Superior Council of Magistracy. Most of the violations were sanctioned with warnings and reprimands.
Of all provisions violated so far, most violations have been of Art. 5, para.1, letter “c" of the Judicial Code of Ethics, which stipulates that the judge must decide all judicial cases promptly, efficiently and objectively, to act diligently and timely, to comply with all statutory timelines, and in the event the law does not provide such timelines, to complete his duties within a reasonable period of time.
Referring to a specific case, Judge X was sanctioned for violation of Art.5 para.1, letter “c" of the Judicial Code of Ethics due to the fact that he failed to examine and make a decision on a disqualification request received from a peer judge during the same day, as the law requires. Instead, Judge X made the decision after almost 2 months since the receipt of the request for disqualification, thus causing undue delay in the examination of the case.
Violation of the Code of Ethics, as grounds for imposition of disciplinary sanctions, was also the case of Judge Y who, deciding on the issue of annulment of the sentence with conditional suspension of execution of the punishment applied to a minor, reviewed the claim, based on the sentence, in the absence of the minor or his representative and ruled that the minor be sent to a semi-closed penitentiary for execution of the un-executed part of his punishment, in the form of two years of imprisonment. While reviewing this case, it was established that the provisions of the Criminal Code and Criminal Procedure Code regarding the rights of a juvenile convict were violated.
While Moldova is making the first steps in ensuring the existence and enforcement of a modern judicial ethics framework, it already faces some challenges characteristic to countries that internalized judicial ethics standards in their norms and cultures for over long period of times.
Some of these challenges are discussed below, along with attempts to provide solutions to these issues that would fit the Moldovan reality.
Safeguards for Judicial Independence
Judges cannot be independent unless they are selected, appointed, promoted and removed at the recommendation of the judicial self-administration body, their security of tenure is guaranteed, their personal security and the security of their family members is guaranteed and appropriately protected, they receive adequate remuneration for their work, and there is a strong body of judicial self-administration to represent, lobby for and protect the interests of judges.
In Moldova, efforts are being made to secure all the above mentioned safeguards to judges, and the Superior Council of Magistracy (SCM) plays a key role in these endeavors.
Selection/appointment. The SCM advertises judicial vacancies, reviews the received applications from candidates, and tests candidates during a capacity examination, which include an oral and written test. The SCM then nominates judicial candidates for appointment by the President of Moldova or the Parliament (in case of Supreme Court Judges). The President of Moldova may accept or reject the SCM’s proposed candidates. Legislative amendments in 2005 reduced the discretion of the President of Moldova as to judicial appointments. Now, the President may reject a candidate only once and give reasons for rejections. If the SCM proposes the same candidate again, the President must appoint him/her within 30 days after the second proposal.
In March 2009, when the first class graduates from the National Judicial Institute, judges will be selected from among the graduates, who will not have to take the capacity examination, but will participate in the competition for judicial appointment based on their average grades at graduation from the NJI.
Security of tenure. After an initial five-year appointment, district court judges are eligible for reappointment until the mandatory retirement age of sixty-five. Senior level judges are appointed until the mandatory age of retirement.
Personal security. In some countries in transition, judicial independence and even judges personal security may be threatened by law enforcement bodies such as prosecutor’s office, the police, or the armed forces, or even losing parties or the organization to which they belong (for instance, religious fundamentalists, nazzi groups, etc). In some countries, where mass media is controlled by the executive power, there may be situations where judges or their family members may be intimidated or derided publicly.
Fortunately, in Moldova judges are threatened only infrequently. However, they rarely receive police protection when they are threatened. Most courthouses have only a single member of the judicial police to provide security, and the judicial police rarely control entry into courthouses.
Judicial salaries. In order to preserve their independence, judges should be afforded decent salaries adequately reflecting the status of judges’ profession, tenure and immunity from suit for decisions taken. The judge should be in a position to determine the outcome of the case solely on basis of the evidence, thus “bringing an entirely unprejudiced mind to the resolution of the dispute.” Although Moldovan Parliament has recently increased judicial salaries, they are still insufficient to enable judges to support their families and live in a reasonably secure environment, thus making it difficult to attract and retain qualified judges. Furthermore, local authorities rarely fulfill their obligations to provide housing for judges.
Relationship with the Executive. The threat to judicial independence may come from the Executive branch, and in many developing countries there is an on-going power struggle between the body of judicial self-regulation and the Ministry of Justice or the Presidential office for the administration of courts.
Judicial Independence Versus Judicial Accountability
While judges should enjoy independence in the judicial decision-making process and resist any outside interference, they should not invoke “independence” as a shield for abuse of judicial power. Judicial independence therefore should go hand in hand with judicial accountability. Judicial accountably implies, first and foremost, accountability for the quality of judicial decisions, the transparency of the justice-making process and public access to judicial decisions.
The quality of judicial decisions can be ensured via on-going trainings of judges on how to draft well-reasoned and well-structured decisions, publishing of guides and bench books on writing judicial decisions, and disseminating model decisions that judges can use in their daily activity. In Moldova, for instance, guides containing model criminal judgments were published and disseminated among judges, and an updated version, which will be accompanied by a CD with templates for various types of criminal judgments (for ordinary, appellate courts, and investigative judges) will be published in August 2008, followed by a series of trainings in the fall 2008, when all Moldovan judges will be trained on how to best use the bench book, and will receive a copy of the bench book and the CD.
The transparency of the justice-making process will be guaranteed when all cases (except for the ones expressly provided by law) will be examined in public court sessions. In Moldova, many cases are still examined in judge’s chambers, where there is limited sitting space for persons who would like to attend the hearing.
While public availability of court decisions and documents is a norm in developed democracies, in Moldova that is not the case. Usually, only parties to a case and their lawyers can read the court minutes and receive copies from court decisions. All this will change, however, when the proposed amendments to the procedural codes, which provide that anyone can have a copy of a court judgment, and that all court judgments be published on a publicly available website, will hopefully be passed by the Parliament in the fall of 2008.
Judges’ Conduct Out of Office
Judges by no means should not adopt an ascetic or monastic life style, they should be active participants in the community, but know how to handle and behave themselves in various circumstances that may create a wrong impression to the members of the public about the judges and the judicial office in general.
If the judge cannot decide himself or herself what the preferred course of behavior would be in a certain situation posing an ethical dilemma and practical guides do not answer the problem, s/he should consult peer judges, the supervisors or representatives of the judicial self-administration body, as the case may be.
Public Perception and the Judiciary
The judiciary should at all times act independently, and not try to take “popular” decisions just to please the public, thus trying to gain a favorable reputation. In fact, the judiciary should always take decisions based on the facts of the case, in spite of public pressure, criticism or even anger with some judgments involving unpopular figures. The aim of the judiciary is to be perceived as impartial and independent, not “liked.”
The public and media can gain a better understanding of how the judiciary works if practical and user-friendly guides about the rights and duties, competencies and expected conduct of judges be available in courts and widely disseminated.
When it comes to the issue of corruption, as mentioned above, the judiciary in Moldova currently enjoys a low level of trust from the public, people believing that the judiciary is plagued by corruption. That is the case not only in Moldova, but in many countries undergoing transition. A solution to this issue would be, for the judicial self-administration body, every time there is an allegation of corruption of a judge in the media or in the private, to immediately investigate it, jointly with other law enforcement bodies, and make the results of such investigation public.
In addition, judges should never allow no ex parte communications, and should try to have all hearings only in court rooms, not in their office, and have detailed transcripts of the hearings, even audio recordings, if possible.
Done in a serious and consistent way, the prompt publication of the results of such investigations will convince the public that the judiciary is self-censoring, and always taking quick measures against cases where judges’ corruption was proved, or rejecting, based on facts, the allegation of such corruption.
Complaints and Disciplinary Mechanisms
Various countries use various complaints mechanisms for handling disciplinary complaints against judges. Usually, the disciplinary bodies, just like in Moldova, consist of several judges who investigate and examined the received complaints. A different and interesting model exists in Australia, in New South Wales, where members of the disciplinary board, called the Judicial Commission, consists not only from judges, but also from four members of the lay public. The involvement of such non-judicial members makes a significant contribution to maintaining the transparency and thus the public confidence in the complaint process. Such a situation avoids “judges judging judges” and gives the representatives of general public an active role in the process. It is also important that each complaint is considered in open and full session. In addition, lay persons participation in the investigation of the complaint can significantly contribute to developing and updating judicial conduct standards. Such a practice may be considered to be introduced in other countries of the world.
Judicial ethics is the foundation upon which rests the ability of the judiciary, in any given country, to adequately and fairly protect the human rights provided for by the international documents. Judicial ethics is a complex area requiring significant efforts from judges, judicial self-administration bodies, the legislative and the executive branches of power, if ethics standards would to be upheld. Internationally and domestically, there is a more clear understanding of the link between judicial ethics and successful functioning of rule of law institutions, and societies are making increased efforts to make structural and mentality changes necessary for judicial ethics to consolidate. Still, debates and challenges around judicial ethics continue. Hopefully, this paper indentified some of them, and provided some solutions that would help solve them.