MAGISTRATES ETHICS AND
Man in an imperfect being, thirsty and eager for someone else, for someone else’s experience, for someone else’s thoughts and view. Can this be untrue of judges and public prosecutors, irrespective of the fact that they regard themselves as perfect, often seeing one and perceiving it as another, whilst discharging their duties?
Justice J.B. Thomas of Australia once said:
“Some standards can be prescribed by law, but the spirit of, and the quality of the service rendered by a profession depends far more on its observance of ethical standards. These are far more rigorous than legal standards.... They are learnt not by precept but by the example and influence of respected peers. Judicial standards are acquired, so to speak, by professional osmosis. They are enforced immediately by conscience.”
[Judicial Ethics in Australia, 2d ed. Sydney: LBC Information Services, 1997]
According to the principle of separation of Powers, the Judiciary became one of the three powers at same level as the Legislative and Executive Powers. The Judiciary is the institutions to which the State entrusts the difficult and delicate, but honourable function, of adjudicating on and peacefully resolving disputes that, from time to time, arise in society. The institution is vested with the judiciary by which it provides a uniform mechanism for resolving such disputes justly. In order to achieve democratic governance under the rule of law and constitutionalism, it is important to have a judiciary that is ethical, independent and impartial. Without an independent and impartial judiciary and an independent and impartial public prosecution, democracy is at risk and the human rights of the individual risk the danger of being encroached by an unchecked executive or legislative power.
The judiciary and public prosecution are guardians of the Constitution and stalwart to the fundamental rights and freedoms of the individual. The judiciary and the public prosecution in these roles must be proactive and active; they must be benevolent and responsive to the public aspiration under the concept of accountability.
Ethics of Judges and Public Prosecutors
Same as in other professions, judges and public prosecutors are required to carry out the function in accordance with the laws and norms of the society they serve. They are called upon to determine right from wrong, irrespective of the skills and passions with which each disputant pursues his/her claim. For that reason, society expects every judicial officer to act with integrity, not only in the discharge of the judicial duty, but also to be, and to appear to be, a person of high integrity in all he/she does. Whether judicial functions are discharged properly and satisfactorily meet the expectations of society depends not only on the professional skills, but also heavily on the character and conscience of those individuals. It is the personal qualities of those men and women who serve as judicial officers, which are ultimately the essence of a competent and effective judiciary.
The professional ethics of judges and public prosecutors is an issue both very important and permanently burning in every judicial system, not because of the emergence of a particular crises in a certain period in a certain country or state or of a deterioration of the ethics of those in charge of the respective institutions, but because the professional ethics in these institutions is an essential part of the professionalism of the judges and public prosecutors, which, in turn, without a doubt needs to be permanently enhanced, improved and raised to a higher level. In fact, this is a requirement posed by the nature of the function of a judge or public prosecutor, who, no matter how resilient to change, given the need for stability of the judicial system, must nevertheless respond to the needs of the times and of the developmental processes of the concrete society.
WHY DO JUDGES AND PUBLIC PROSECUTORS NEED A CODE OF ETHICS?
“The Ethics of Judges and Public Prosecutors” may be defined as those principles and rules of conduct which set standards of behaviour and which must be adhered to by members of the judiciary in the discharge of their functions and in their private and official dealings with other institutions and persons. Ethics lie between and connect the judge/public prosecutor as a human being and his persona as dispenser of justice.
As an honourable profession, the judiciary – like other professions, e.g. medicine, – needs a code of ethics for the maintenance and upholding of proper standards of conduct in the delivery of justice. These ethics are meant to uphold the sacred standards of independence, impartiality, integrity, competence and diligence; they are intended to establish and attract respect, trust and public confidence. These ethical principles to which all judicial officers are to aspire, are designed to constitute a barometer on which judicial action, performance or conduct may be tested. These principles must be processed by the judiciary itself for its own good, and should not therefore be seen to emanate from the Executive or the Legislature. They must be published so tat they enjoy public awareness and acclamation.
Adherence to the highest standards of ethics of judges and public prosecutors bears importance in today’s world, as, although a judge and public prosecutor may have the best ethical fibre, he/she may inadvertently draw himself into disrepute or controversy due to the lack of knowledge of judicial ethics. The failure of such a professional obligation could often pose even a threat to the reputation of the judiciary in general. Apart from dealing with his/her case load, a judge/public prosecutor is expected to be well versed with the law and procedures, as well as be up to date with the latest legal developments. The judge’s/public prosecutor’s time is also often consumed by administrative responsibilities. However, inadvertence or ignorance of the norms, whatever the pressures of time on a judge/public prosecutor, can never be cited as an excuse.
Therefore, a judge/public prosecutor needs to keep him/herself update not only on the changes in the laws, but also to constantly keep abreast of judicial ethics. A judge/public prosecutor must appreciate that it is a process of continuous education and must periodically remind him/herself of the high ethical standards that he is expected to maintain. While following the established practices is always a well accepted path, attending seminars and panels on the ethics of judges and public prosecutors ethics and sharing ideas with fellow judges/public prosecutors at various fora on such practices, could also provide a valuable opportunity for sharing of experiences and learning from each other.
Apart from providing encouragement to judges/public prosecutors to follow such ideals, it can also act as a deterrent from unethical conduct. Just as justice must not only be deemed to have been done, but must also appear to have been done, ethical values must also appear to have been practiced. Avoiding impropriety and even a semblance of impropriety and being impartial and diligent in his/her conduct, is a duty that a judge/public prosecutor owes to the institution of the judiciary itself, as he must be aware that any carelessness on his/her part, could have an impact on the public perception of the integrity of the judiciary and, in turn, affect the independence of the judiciary. Although it goes without saying, that a judge/public prosecutor should maintain the highest standards of personal ethics, a judge should not let his/her standards of personal righteousness (however high and commendable they may be) come in the way of practicing the required codes of ethical judicial conduct.
BASIC PRINCIPLES OF THE ETHICS OF JUDGES AND PUBLIC PROSECUTORS
Every society has its own perceptions on what is ethically right, and what is ethically wrong. Similarly, there are diversities and variations in the ethics of judges and public prosecutors found in different jurisdictions. The notion of ”a good judge or public prosecutor” is not simply one who obeys the rules of conduct and therefore does not incur criminal or disciplinary responsibility, but one who has developed during his/her career certain features which represent judicial virtues. The judges` and public prosecutors` virtues cannot be very different from those which characterize other professions or social activities, although they are modified by the judicial practice.
The ethics of judges and public prosecutors goes beyond the legal rules. However, there is substantial, if not complete, unanimity on the basic principles on which the ethics of judges and public prosecutors is founded and on which a properly functional judiciary operates, namely: Independence; Impartiality; Integrity; Propriety; Equality; Competence and Diligence.
The goal of the above-listed basic principles is to assist judges and public prosecutors in the difficult ethical and professional issues which confront them and to assist members of the public to better understand the role of judges and public prosecutors. They are not and shall not be used as a code or a list of prohibited behaviours. They do not set out standards defining misconduct of judges and public prosecutors.
Independence of judges and public prosecutors
Independence of judges and independence of public prosecutors is a universally acknowledged tool for ensuring the functioning of the rule of law and of good governance. Their independence is not an end in itself, but a means to an end. It is the core of the rule of law, giving the citizenry confidence that laws will be fairly and equitably applied. Nowhere is this interest more keenly exposed than in the judicial protection of human rights.
It should not be viewed as a privilege of judges and public prosecutors or of their institution. The proper view is that it is the people's right to have an independent judiciary and public prosecution that is able to adjudicate impartially and to generally deliver quality justice.
An independent judiciary and an independent public prosecution require both that individual judges and individual public prosecutors are independent in the exercising of their powers, and that the judiciary and the public prosecution as a whole are independent, their sphere of authority protected from the influence, overt or insidious, of other government actors.
Addressing first the independence of individual judges and public prosecutors, two avenues for securing the respective independence are revealed:
Firstly, judges and public prosecutors must be protected from threat of reprisals, so that fear does not direct their decision-making.
Secondly, the method by which judges and public prosecutors are selected and the ethical principles imposed upon them must be constructed so as to minimize the risk of corruption and outside influence.
Impartiality is the very essence of the judicial and public prosecution systems. A judiciary and a public prosecution that fails to ensure impartiality in the exercise of the judicial and public prosecutors’ function defeats the very purpose for which it exists.
It is not enough for the judiciary and for public prosecution to be independent, but individual judges and public prosecutors must be seen to be objective and impartial. Impartiality is a virtue which largely depends upon one’s own good conscience and sense of morality. It requires integrity, courageousness and fairness. Impartiality does not imply any high standard of holiness or righteousness – it means even handed and fair treatment of the parties before the court and a perceptive, receptive and open mind to the evidence adduced in the proceedings before the court.
In their personal lives, judges and public prosecutors must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. Impartiality is not only concerned with the perception, but more fundamentally with the actual absence of bias and prejudgment. This dual aspect of impartiality is captured in the often repeated words that justice must not only be done, but manifestly be seen to have been done. Judges and public prosecutors must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom and public prosecutor’s office, judges and public prosecutors do not socialize or associate with lawyers or other persons connected with respective cases, or they may be accused of favouritism. Judges and public prosecutors typically declare a conflict of interests and withdraw from a case that involves relatives or friends.
Judges and public prosecutors cannot take part in politics, either as party member, fundraiser or donor, and many choose to relinquish their right to vote. Judges and public prosecutors are forbidden from being paid to do anything other than their professional duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.
In any society the judicial and public prosecutor offices are considered to be offices of high honour and trust. The holders of the offices are accorded respect, not out of fear of the power that goes with the office, but because the offices bear the considerable responsibility of administering justice. Through proper execution of that responsibility, judges and public prosecutors ensure protection of individual human rights and preservation of the rule of law. It is because of that, that society expects and demands a high degree of uprightness and integrity in the conduct of its judges and public prosecutors, and also why there is more outcry against corruption within the judiciary and public prosecution than in any other institution or state authority. Corruption is the antithesis of integrity. It is incumbent on all judges and public prosecutors, therefore, to seek to uproot it from the institution.
Judges and public prosecutors should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good decisions. The judges and the public prosecutors should display respect for the law, integrity in his or her private dealings and generally avoid the appearance of impropriety.
Judges and public prosecutors need to strike a delicate balance between the requirements of their offices and the legitimate demands on the judge’s and the public prosecutor’s personal life, development and family. In addition to judges and public prosecutors personally observing high standards of conduct, they should also encourage and support their colleagues to do the same, since questionable conduct by one judge and public prosecutor reflects on the judiciary or public prosecution as a whole.
This is an omnibus principle, which encompasses the conduct of the judge and public prosecutor in every day life. Propriety and the appearance of propriety are essential to the judge’s and public prosecutor’s performance of all his/her activities. They shall avoid impropriety and the appearance of impropriety in all judicial/public prosecution and personal activities.
International statutes enshrine a strong commitment to equality before and under the law and equal protection and benefit of the law without discrimination. Therefore, judges and public prosecutors should conduct themselves and the proceedings before them so as to assure equality according to law. The judge and public prosecutor should always do her or his best to strike the right balance. They should not be influenced by attitudes based on stereotype, myth or prejudice. They should, therefore, make every effort to recognize and demonstrate sensitivity to and correct such attitudes.
Equality according to law is not only fundamental to justice, but is strongly linked to judges’ and public prosecutors’ impartiality.
Competence and Diligence
The judge and the public prosecutor must be competent and diligent in order to discharge his/hers functions.
Competence and diligence are described as an ability to carry out judicial and public prosecutorial duties with professional skill, care and attention, as well as with reasonable promptness.
Performance of judicial and public prosecutorial duties necessarily involves some measure of personal sacrifice. Judges and public prosecutors should have a good knowledge of the law. This knowledge extends not only to substantive and procedural law, but to the real life impact of law. In that sense, a judge and a public prosecutor must be competent and able to identify the legal issues involved and to assess and master the facts before going into court. No case is ever too difficult or too simple, if the judge or public prosecutor diligently applies him/herself. A judge and public prosecutor must ensure that judicial proceedings are conducted in an orderly manner, with dignity and respect.
The ultimate goal of the efforts related to the professional conduct of judges and public prosecutors is, through the implementation of the principles of equality and respect of human rights, to implement justice. In this sense, the most important principle to which our conduct and professional relations surrender is the one which states that judges and public prosecutors must be subordinate to the law. It is from this subordination that the significance of the independence of the judiciary in their daily activities in the courts and public prosecutor’s offices emanates implying absence of the notion hierarchy. No force higher in the hierarchy may impose terms under which the judge and public prosecutor should implement law. On the contrary, they should remain free, autonomous and independent in the discharge of their duties.
The Bangalore Principles of Judicial Conduct 2002 were adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held in Hague. They are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, lawyers and the public in general to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established for the purpose of maintaining judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.
1. Ethics, deontology and morale
Ethics, deontology and morale are notions with a variable content, depending on the historical period and on the culture in each society. Hence, their definition has a special significance, especially bearing in mind the relation between ethics and deontology. Although deontology is placed in an autonomous space in regard to ethics, it sill has many commonalities with it. Therefore, the distinction between ethics and deontology represents a complex task, due to the fact that, on a philosophical and social science level, the distinctions are never completely clear and delineated.
Firstly, morale is a set of specific rules, norms, customs and categories with the help of which relations between people within the societal community are regulated, primarily in order to at all enable mutual existence and then to make it bearable and better. Ethics researches its sources, foundation, its criteria for the evaluation of moral conduct, etc.
Ethics is a branch of philosophy, which, according to some opinions, is a science addressing the issues of human behaviour, the motives governing man’s actions or the rules, principles and goals which should govern them, because in the viewpoint of the individual him/herself or in the judgment of others, are assessed as desirable and worthy moral behaviours. Ethics calls more for the consent on the values than for the performance of their duties. In a specific situation, the decision on a conduct stems from the deliberation on the positive and negative consequences of an action for the individual itself, for the other and for the environment in respect to the values which one society accepts. Ethics is devoted to the criteria for evaluation in the process of selection of the best action in given circumstances and also to the development of abilities of people to independently make responsible decisions.
The doctrines on ethics, which in a philosophical sense was introduced by Aristotle, develop and change. Kant’s philosophical doctrine on ethics was a beacon for the bulk of the thinking on ethics in the last two centuries and was decisive for the development of the idealistic philosophy in all its shapes. Kant’s ethics requires the acting of the virtual human to have universal significance and value, significance and value that are recognised or at least could be recognised by all people. This request for universality is expressed and accepted in the notion of duty.
Hegel’s critique of the formalism of Kant’s ethics highlights that freedom and duty cannot be understood abstractly as shapes that can be applied on an indiscriminate entity, but should be imbedded in the real social life. The refusal of Kant's ethics was expressed, in the period that followed, by different philosophical idealistic tendencies of the positivistic school, embracing the more affluent results achieved by the science of man, especially sociology and psychology, political economy and the natural sciences. Ethics, following this stream of thought, attempts to become more and more a doctrine on human conduct, taken not as an individual behaviour, but as a real behaviour of the individual in society. Ethics strives towards expressing, through such philosophical opinions, the concepts of duty and goal as objective and real situations. In short, the basic principle of ethics is constant research of that which is applicable to the concrete and real and not to the abstract human. The recent development of ethics, which constantly attempts more and more to identify itself with the contemporary conditions of existence, seems to indicate a common orientation, which, because it starts with underscoring the significance of social dialogue, discovers the idea of the community. The ethics of tolerance is linked to the problems of cultural anthropology and the relations between cultures. The rebirth of the interest in the values and dignity of another person indicates a broad and in-depth change in the structure of the feelings. As it could not rise to an absolute truth, the source of ethical norms shifts to man’s pragmatics. Ethics insist to become a phenomenon in which certain fields of man’s action are oriented towards a similar dignity. Typical and differentiated normative areas become formed, necessarily with their own rules which maintain their coherence only on the level of the same area. In this sense, the profession as, for example, a social subsystem accepts the changes that occurred in the external culture and thus exerted influence. The emergence of a constantly rising number of deontological codes is presented as a response to the request of ethics situated in the contemporary social dynamics. Thus, a shift can be noticed from one ethics to another which brings many contemporary scholars of ethics to avoid limiting the subject to predetermined patterns, thereby continuing to believe that ethics takes a high position in the structure of man’s behaviour and rules the other activities.
A special branch of ethics is deontological ethics or deontology. The concept of deontology was composed by Jeremy Bentham from two Greek words: deontos – that which should be or should be done and logos – science, knowledge, whereby the compound of the two concepts denotes the science of duties. The expression points out to the research of that “which should be done” in specific life situations, research of “the rules pertaining to a special standardised behaviour in the different situations in life”. As a branch of normative ethics, “in which the objectives and consequences of moral behaviour are established and their connection and their value are reviewed”, it facilitates an assessment of morality in the choice of a concrete action or behaviour. In short, deontology calls for duties.
Professional deontologies pertain to the rules of conduct which should be respected while exercising a profession. Professional rules of conduct are highly complex: they necessarily should respect the culture of one society, its history, socio-political organisation and the very organisation and internal culture of the profession. Therefore, professional deontology has the function and task of mediating in the communication between society and the professional groups, by way of rules of conduct which are historically determined but suffered through time diverse deep changes.
Ethics and deontology strive towards the same goal, to regulate conduct in order to ensure harmony in the relations among people. They both do it in their own way. Deontology calls for respecting duties and ethics calls for consent among men on the values.
2. Social basis - roots of morale and ethics
Every society creates a system of moral norms or unwritten rules of conduct, i.e. moral characteristics, such as the good, the common sense, the love of the truth, the courage, the moderateness, the righteousness, the solidarity, as opposed to the evil, the injustice, the lie, the cowardice, the excessiveness, reserving the moral judgments approval, acceptance, delight for the former, and refusal, condemnation, reprimand, contempt, boycott for the latter characteristics.
The law is an expression of the imperfection of society and man, of the division of society into groups with different and conflicting interests and needs, a means to regulating the social contradictions and conflicts, an instrument for defining of common interests and for protection of social goods. The law, as a system of norms, prescribed by the state, in conjunction with state sanction as its important element, compels, establishes, maintains and preserves a social order from its forced destruction or disruption, prevents voluntarism and absolutistic rule, guarantees and protects human rights, ensures democratic conquering of power.
3. Relation between ethics and law
Ethics and law are interlinked and interwoven, and the moral values and standards such as freedom, equality and dignity of man, peace, security and justice and respect of human rights cannot but serve as the basis, inspiration and source of contemporary law.
In private law, the principle of equality prevails (equivalent exchange between the seller and the buyer) or the so-called commutative justice.
The principle of appropriateness prevails in public law, according to merit or status - so-called distributive justice (individualisation of punishment, social assistance, honesty and conscientiousness in obligational law, honesty and conscientiousness in court proceedings - in the use of procedural authorisations).
In many cases, ethics and law have a dual - differential treatment of certain issues (euthanasia, abortion, death penalty, freedom of expression, protection of privacy, etc.).
4. The morale and ethics of the judge and prosecutor as an individual
“Man should have a love for the truth, and be honourable, adaptable, moderate, generally speaking - moral” - Plato.
A private system of values, attitudes and beliefs of the judge and prosecutor
Man is born free as a human being, yet fights his/her whole life for his/her dignity and rights, inspired by his/her love of freedom - the bright side of man, but not infrequently infringes upon or breaches the freedom and dignity of another man, inspired by his/her own lust for power - the dark side of man.
Which aspirations and feelings tip the scale within each individual depends on his/her physical, spiritual and moral potentials and inclinations and on the concrete social conditions and circumstances of the environment and of the age. Each individual has his/her own value and identity, with individual but also with universal characteristics and traits. In those persons with a dominant desire and longing for respect and recognition as equals to the others, prevail the characteristics and behaviours of courage, self-sacrifice, generosity, morale, integrity, resistance to injustice and tyranny, respect of the dignity of others, equality and freedom of all. In those persons with a dominant desire and longing for recognition by the others through self-promotion and domination over others, prevail the characteristics of superiority, domination, and lust for glory, prestige, honour and tyrannical-confrontational behaviour.
5. The relation between the legal rights and duties of judges and prosecutors and the ethical principles in their codes
The nature of law is “to prescribe” and “to order”, and that of morale “to persuade”, or in different terms, law says “must” and morale “should”. This principle is valid also for the relation between the legal rights and duties of judges and prosecutors and the ethical norms in their codes. A comparison of a judge’s and prosecutor’s legal duties and ethical principles of, for example, independence and impartiality, indicates that one and a same principle has the nature of a dual value: legal and moral; this dual value of “independence and impartiality”, both as a legal duty and as a moral conviction is the only path to justice. Law and morale are intertwined in the decisions of each judge and prosecutor, if, of course, they are “devoid” of any kind of prejudice, confusion, weakness, ulterior motives. The oath that each judge gives before commencing duty, states that he/she will adjudicate according to the law, with integrity, conscientiously, independently and responsibly and that he/she will protect the rights and freedoms of the individual and the citizen; the oath of each prosecutor states that he/she will discharge his/her function “conscientiously, impartially and responsibly and that he/she will protect the rights and freedoms of the individual and the citizen, and the interests of the other legal entities. The disposition of a judge (and a prosecutor), according to the Association of Judges (Attorneys) of New York, requires: a state of politeness, patience, dignity, tact (correctness), humour and ability to listen and remain open-minded. In other words, a person devoid of arrogance, pompousness, impatience, prejudice, short temper and repulsion. It is on the profession of judges and prosecutors (and attorneys) and their high professionalism that the achievement of all that marks a truly democratic society depends, namely the rule of law and the protection of human rights, and it is with them that the dispensing of justice is connected, through independent, impartial, highly professional and efficient judiciary and prosecution. Through their initial training, the candidate judges and prosecutors should acquire: in-depth knowledge in the legal areas of national and international material and procedural law from a practical viewpoint, basic technical abilities and skills for carrying out their function, abilities for efficient, independent, impartial decision-making and for use of clear understandable language when pronouncing decisions, command of the European law, openness towards comparative experiences and a pluralistic understanding of the social milieu and of the multicultural nature of society.
6. General civilisation ethics and morale
Today, the tendency and practice prevail of creation of and respect for general civilisation moral and ethical norms and principles that are based on the following fundamental assumptions:
— “We, the peoples of the United Nations, are determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (UN Charter);
— The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world (Universal Declaration of Human Rights);
— Contemporary European ethical values (individualism, human rights and freedoms, accountability, democracy, utilitarianism, cooperation and dialogue.
There are international ethical requirements and standards for candidates for judges and prosecutors. The individuals elected to perform the function of a judge must be able to demonstrate honour and expertise, posses proof for the required education and legal qualifications and have integrity and competence; the methods for selection of judges should prevent appointment of judges out of ulterior motives (UN documents). Every decision pertaining to the professional career of a judge should be based on objective criteria, and the selection and career development of judges on merit, taking into account their respective qualifications, integrity, abilities and efficiency. The selection and career development of judges needs to be independent from the Government, in other words needs to be managed and executed by the judiciary (taken from Council of Europe documents). The independence of the judiciary ensures judges rights, but also imposes on them ethical duties for the purpose of discharging their judicial work in a competent and diligent manner, which requires the acquisition, maintenance and advancement of their professional capacities through initial training, for future judges, and in-service training (taken from Council of Europe documents). The true source of the judicial and prosecutorial power lies in the moral authority and integrity of judges and prosecutors.
The European maxim for contemporary judges and prosecutors - Are there universal judicial and prosecutorial ethics and morale?
If professional ethics stands for respect and fair and good acting following the rules of the profession, for judicial and prosecutorial ethics this means independent and autonomous, impartial and honourable, competent and efficient performance in the discharge of the respective functions. There is no universal codified judicial and prosecutorial ethics and morale, but there is an inescapable ongoing process:
— of affirmation of international law, especially in the area of protection of human rights (establishment of an international legal order);
— of harmonisation of the judicial practice (especially harmonisation of the prosecution of organised crime and corruption by the national and international courts);
— of raising of the professional and ethical integrity of the judge and prosecutor, wherever they may be, through a unification of the education of judges and prosecutors in the application of international and national law;
— through insight into and analysis of the judicial codes from 25 countries, in 2000, the so-called Bangalore Draft Code on Judicial Conduct was prepared by the judges from the countries where Anglo-Saxon law is applied. This means that international standards exist, and have been accepted by the majority of countries, on the principles of judicial ethics which are: independence, impartiality, equality, integrity, propriety, competence and diligence;
— the principles of the judicial and prosecutorial ethics, according to the codes of conduct of judges and prosecutors, are as follows: independence, impartiality, integrity, propriety, competence and diligence (taken from the code of ethics of judges);
— lawfulness, impartiality and independence, competence, fairness, humane treatment and peer loyalty (taken from the code of ethics of public prosecutors).
With the increase in the significance of the role of the profession in society, the significance of the codification of professional deontology increases as well. The codified rules of professional conduct arise from the need for discovering and developing the awareness on the ethical objective of every profession, but also from the need for emphasising the quality of the work, expertise and professionalism within one particular profession. The emergence of countless deontological codes in recent times is due to the influence of two additional factors: the strong scientific and technological development which follows the redefining of the role of the profession and the contemporary understanding of ethics in the different areas of professional activity. This development follows the semantic confusion in the use of the terms ethics, deontology and morale, hence, we firstly need to refer to their differentiation and then the space, which, when in comes to content, is occupied by deontology, placing it into the triangle whose three sides signify the ethics, the law and the practice. Attention is drawn to the analyses of the sociology of professions and the sociology of law which facilitate understanding of the concord present in deontology between the otherwise confronted interests of the professionals, the profession and the society.
In order to strengthen the public trust and the fairness of the judicial function, it is necessary, in the preparation of the Code of Judicial Ethics, to bear in mind the international principles contained in:
- The Universal Declaration of Human Rights of the General Assembly of the United Nations (Resolution No. 217A (III) from 1948) awards the judiciary a crucial role in the protection of human rights and freedoms, prescribing that each individual has the right to full equality and a fair and public trial in front of an independent and impartial court.
- The Resolution of the United Nations “Fundamental Principles of the Independence of the Judiciary” from 1985 (so-called Singhwi Declarations) provides provisions for the independence of the judiciary, the right to an efficient trial by regular courts which apply the law in a prescribed procedure, and also the provisions for the freedom in the delivering of decision, the manner of appointment, promotion and permanent nature of a judge’s position, the immunity and the termination of the judicial duty. This Resolution addresses also the principle of “a natural judge” (juez natural), which represents a fundamental protection of the right to a fair trial. This principle stipulates that nobody can be tried by a court or judge other than the regular, by law established judge or court.
- The Resolution of the United Nations “Human Rights and the Judiciary” from 1993 No. 50/181 and 20 1993 No. 48/137, in addition to emphasising the independence of the judiciary, stipulates that “... the rule of the laws and the proper functioning of the judiciary play a crucial role in the promotion and protection of the human rights”.
- The Declaration on the Rights and Responsibilities of Individuals, Groups and Social Bodies for the Permission and Protection of the Accepted Human Rights and Fundamental Freedoms (Resolution of the General Assembly of the United Nations 53/44, adopted in 1999) places the emphasis on the autonomy and independence of the judiciary.
- The Recommendation of the Council of Europe No. R (94) 12 on the independence, impartiality and the role of the judge – in addition to the already stated principles, speaks of the accountability of the judges, the permanent nature of a judge’s position, his/her freedom of deliberation, the authority of judges and the dignity of the judicial calling.
- The Bangalore Principles of judicial conduct, confirmed through the ЕСОSОС Resolution 2006/23, establish ethical standards of judicial conduct and elaborate the principles of independence, impartiality, dignity, equality, competence and orderliness of judges.
- The European Charter on the Laws on Judges, adopted in 1998 in the Council of Europe, contains provisions on the appointment and dismissal of judges by independent bodies, on the permanent nature of a judge’s position, the preconditions for promotion, the responsibilities, the in-service training and the salaries and social security of judges.
- as well as in other documents of the international community, such as: the Burgh House Principles on the Independence of the International Judiciary; the Latimer House Guidelines for the countries of the Commonwealth on Judicial Independence; the Universal Charter on the Judge (adopted by the International Community of Judges in 1999); for the Asian region: the Beijing Statement on the Principles of Independence of the Judiciary (adopted by the LAWASIA Region supreme courts in Beijing in 1995 and adopted by the LAWASIA Assembly in 2001); in the African system, there are special standards for the independence of the judges, attorneys and prosecutors: the Principles and Guidelines on the Right to Fair Trial and Legal Aid in Africa (adopted as part of the report from the African Assembly on its 2nd summit and meeting of the Heads of States of the African Union, held in Maputo in 2003); the American Convention on Human Rights (adopted on the Inter-American Special Conference on Human Rights held in San Jose, Costa Rica, in 1969); the Inter-American Democratic Charter, adopted by the General Assembly in Lima, Peru, in 2001).
- the fundamental rights and freedoms of the man and citizen laid down in the Constitution and accepted in international law;
The principles of judicial ethics are as follows:
4. Propriety; and
5. Competence and diligence.
PRINCIPLE OF INDEPENDENCE
Every judge supports and epitomises judicial independence on an individual and institutional level, as it is a precondition for a fair trial (dispensing of justice) and for the rule of justice.
- every judge discharges his/her judicial function independently, on the basis of his/her assessment of the facts and conscientious understanding and application of the law, without any external influence, encouragement, pressure, threat or interference, direct or otherwise, by any side or for any reason whatsoever;
- every judge must refuse any attempt by the parties whatsoever to influence his/her decision and in all instances defend the independence of the court from political pressure and influence; and
- in the discharge of his/her judicial duties, each judge must demonstrate and promote high standards of judicial conduct, so as to strengthen public trust in the independence of the judges.
PRINCIPLE OF IMPARTIALITY
Every judge must discharge his/her judicial function impartially both in the process of making decisions and also in the management of the proceedings. Impartiality is necessary for the correct execution of the judicial function.
- every judge must do his/her judicial duties without favouritism, inclination and prejudice;
- every judge strives to maintain and strengthen public trust through his/her conduct in and out of court;
- a judge must not intentionally give comments on the likely outcome of the court proceedings in a case (file) presented or likely to appear before him/her, or to give comments to the public which could affect the fair trial of any individual or on any issue;
- a judge will not communicate with the parties on a case presented to the court without the presence of both parties or without their consent, except in cases prescribed by law; and
- every judge will contemplate withdrawal when he/she is not in a position to pass an impartial decision, i.e. might leave an impression not to be in a position to adjudicate impartially.
PRINCIPLE OF INTEGRITY
The judge strives, through his/her conduct, to contribute to the integrity of his/her own high profession and to leave an impression of a reasonable, fair and courageous person.
- every judge must, through his/her conduct and behaviour, both in his/her professional and private life, confirm the faith of the people in the integrity of the judiciary;
- a judge must not abuse the prestige of the judicial function for the purpose of satisfying his/her own interests or the interests of his/her family or anybody else;
- a judge must not adjudicate achieving or expecting any benefit for him/herself or for anybody else, and must refrain from any action in that respect; and
- a judge and the members of his/her family will not accept or request any gift or service in relation to the judicial function.
PRINCIPLE OF PROPRIETY
Every judge, with this proper and civilised behaviour, contributes to the confirmation of his/her authority and reputation and the reputation of the court.
- every judge must avoid impropriety and any action that might be seen as improper in all his/her activities as a judge;
- every judge is exposed to a constant, critical public scrutiny and must accept personal limitations and conduct him/herself in a manner adequate to the dignity of the judicial function;
- every judge, upon his/her election, must terminate all party and political activities and refrain from collecting funds for political causes, from participation in political gatherings and in public debates of a political nature;
- any judge can join associations of judges and also participate in citizens’ and volunteer activities which have no reflection on his/her impartiality; and
- any judge can write, lecture and participate in activities in connection with the law, the legal system and execution of justice, and also publicly speak of matters not connected with the law and participate in historical, educational cultural and sports activities, if they do not infringe upon the dignity of the judicial function.
PRINCIPLE OF COMPETENCE AND DILIGENCE
Every judge needs to maintain and promote the high level of professional competence in the discharge of his/her duty professionally, conscientiously, impartially, efficiently and in a reasonable time.
Rules of conduct:
- every judge will endeavour to improve his/her professional competence, knowledge and skills on the basis of permanent professional in-service training and education;
- every judge must be devoted to his calling and to the judicial duties and cannot conduct other duties and activities, if he/she disrupts in the process the trust and reputation of the court;
- every judge must execute his/her judicial duty diligently, efficiently and orderly, honourably and timely; and
- every judge will show patience in the proceedings in front of the court and will be dignified and polite in his/her communication with the parties, jurors, attorneys and other individuals he/she comes in contact with.
The code of ethics of public prosecutors regulates the manner of conduct and actions of public prosecutors for the purpose of ensuring respect for the principles of ethics and protection and promotion of the reputation and authority of public prosecutors in the Republic of Macedonia. The Code contains the following fundamental principles: lawfulness, impartiality and independence, competence, fairness, humane treatment and peer loyalty.
PRINCIPLE OF LAWFULNESS
Lawfulness represents the duty of a public prosecutor to execute his/her official duties in accordance with the Constitution, the laws and the ratified international agreements.
PRINCIPLE OF IMPARTIALITY
Public prosecutors are required to act impartially and:
- to independently and objectively decide on the basis of legally relevant facts, adhering to the rules of procedure;
- to refuse gifts or donations from those that can exert influence or those that might influence the resolving of the case or the professional approach to the execution of the official duty;
- to refrain from giving legal aid; and
- to discontinue membership in political parties and refrain from any political activity and not to participate in organisations and associations that advocate for and implement discrimination based on gender, race, religion or nationality.
PRINCIPLE OF COMPETENCE
- discharge their duties in accordance with the law, with integrity and impartially and efficiently;
- keep confidential what they learn in the process of discharging their duties, do not abuse it for personal needs and guarantee the confidentiality of data that are not publicly accessible;
- do not comment cases in public;
- are impartial in their actions and refrain from expressing any feelings towards the participants in the proceedings, including cases when the participants have given rise to such a reaction; and
- duly represent the interests of public prosecutors and participate in professional in-service training.
PRINCIPLE OF FAIRNESS
Public prosecutors are to act fairly and hence are required to:
- initiate proceedings only on the basis of credible evidence that have not been obtained in an unlawful manner;
- prosecute only in case of existence of legal and credible evidence that a criminal act has been conducted, which has not been obtained through the application of illegal methods and means;
- guarantee the rights of the parties in the proceedings and equality of all under the law;
- respect the rights and legal interests of the party that had suffered damage in accordance with the law and the fair trial requirement; and
- express appeals against unlawful and incorrect judicial decisions.
PRINCIPLE OF HUMANE TREATMENT AND PEER LOYALTY
Public prosecutors are required to:
- respect and protect human dignity and the fundamental rights and freedoms of man;
- serve the public interests and protect all from unlawful acts; and
- nurture and promote mutual respect towards colleagues regardless of their official status, origin, social or material status, gender, race, nationality, age and religious affiliation.
The judicial and prosecutorial functions are neither a privilege nor a right, but a mandate and duty - the rights are on the part of the citizens. There is always the risk and possibility of removing a judge or public prosecutor from his/her office on account of unconscientiuos and unprofessional discharge of function. The concept of unconscientiuos and unprofessional discharge of the judicial and prosecutorial function is taken to mean unsatisfactory competence or recklessness of the respective judge and prosecutor, which impacts the quality and timeliness of his/her work, which is turn ascertained by the Judicial Council and the Council of the Public Prosecutors, respectively, in a special procedure.
All global and local intentions for efficiency, fairness and impartiality in the “dispensing of justice” and protection of human rights and freedoms have been embedded into our positive legislation. The prominent Article 7 of the Universal Declaration on Human Rights “All men are equal before the law and entitled, without any discrimination” to equal protection by law” has been translated into the constitutional provision “the citizens are equal before the Constitution and the law” (Articled 9 paragraph).
Although the principle of separation of powers is formally recognised, and the constitutional and legal texts give general guarantees for judicial independence, such guarantees remain without much significance in the practice due to lack of mechanisms for their realisation. Sufficient space remains available for influence and control, especially of a financial nature, by the executive power.
The holders of functions in the Legislature and the Executive will find if difficult to give up the efforts to exert influence over judges and prosecutors, irrespective of the motives and reasons; therefore it is unlikely that the professional and moral code of judges and prosecutors will cease to be confronted with trials and temptations.
In this context, the new constitutional model according to which judges and public prosecutors will be appointed to and relieved of duty by the Judicial Council and the Council of the Public Prosecutors, respectively, will decrease the domination of the Legislature and the Executive over the judicial and prosecutorial integrity and independence, on which the rule of law and implementation of justice dependent.