Judges - CCJE-Op3

Judges - CCJE - Consultative Council of European Judges (CCJE) - …ct, in particular ethics, incompatible behaviour and impartiality 27/12/14
14 09:49
Strasbourg, 19 November 2002
CCJE (2002) Op. N° 3
Consultative Council of European Judges (CCJE)
Opinion no. 3 of the Consultative Council of European

Judges (CCJE) to the attention of the Committee of
Ministers of the Council of Europe on the principles
and rules governing judges’ professional conduct, in
particular ethics, incompatible behaviour and
impartiality
1. The Consultative Council of European Judges (CCJE) drafted this opinion on the basis of replies by
the Member States to a questionnaire and texts drawn up by the CCJE Working Party and the
specialist of the CCJE on this topic, Mr Denis SALAS (France).
2. The present opinion makes reference to CCJE Opinion No. 1 (2001) (www.coe.int/legalprof,
CCJE(2001) 43) on standards concerning the independence of the judiciary and the irremovability of
judges, particularly paragraphs 13, 59, 60 and 71.
3. In preparing this opinion, the CCJE took into account a number of other documents, in particular:
- the United Nations "Basic principles on the independence of the judiciary" (1985);
- Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the
independence, efficiency and role of judges;
- the European Charter on the Statute for Judges (1998) (DAJ/DOC(98) 23);
- the Code of judicial conduct, the Bangalore draft1.
4. The present opinion covers two main areas:
- the principles and rules governing judges’ professional conduct, based on determination of ethical
principles, which must meet very high standards and may be incorporated in a statement of
standards of professional conduct drawn up by the judges themselves (A);
- the principles and procedures governing criminal, civil and disciplinary liability of judges (B).
5. The CCJE questioned, in this context, whether existing rules and principles were in all respects
consistent with the independence and impartiality of tribunals required by the European Convention
on Human Rights.
6. The CCJE therefore sought to answer the following questions:
- What standards of conduct should apply to judges?
- How should standards of conduct be formulated?
- What if any criminal, civil and disciplinary liability should apply to judges?
7. The CCJE believes that answers to these questions will contribute to the implementation of the
framework global action plan for judges in Europe, especially the priorities relating to the rights and
responsibilities of judges, professional conduct and ethics (see doc. CCJE (2001) 24, Appendix A, part
III B), and refers in this context its conclusions in paragraphs 49, 50, 75, 76 and 77 below.
A. STANDARDS OF JUDICIAL CONDUCT
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Judges - CCJE - Consultative Council of European Judges (CCJE) - …ct, in particular ethics, incompatible behaviour and impartiality 27/12/14 09:49
8. The ethical aspects of judges' conduct need to be discussed for various reasons. The methods used
in the settlement of disputes should always inspire confidence. The powers entrusted to judges are
strictly linked to the values of justice, truth and freedom. The standards of conduct applying to judges
are the corollary of these values and a precondition for confidence in the administration of justice.
9. Confidence in the justice system is all the more important in view of the increasing globalisation of
disputes and the wide circulation of judgments. Further, in a State governed by the rule of law, the
public is entitled to expect general principles, compatible with the notion of a fair trial and
guaranteeing fundamental rights, to be set out. The obligations incumbent on judges have been put
in place in order to guarantee their impartiality and the effectiveness of their action.
1°) What standards of conduct should apply to judges?
10. Any analysis of the rules governing the professional demands applicable to judges should include
consideration of the underlying principles and the objectives pursued.
11. Whatever methods are used to recruit and train them and however broad their mandate, judges
are entrusted with powers and operate in spheres which affect the very fabric of people's lives. A
recent research report points out that, of all the public authorities, it is probably the judiciary which
has changed the most in the European countries2. In recent years, democratic societies have been
placing increasing demands on their judicial systems. The increasing pluralism of our societies leads
each group to seek recognition or protection which it does not always receive. Whilst the architecture
of democracies has been profoundly affected, national variations remain marked. It is a truism that
the East European countries that are emerging from authoritarian regimes see law and justice as
providing the legitimacy essential for the reconstruction of democracy. There more than elsewhere,
the judicial system is asserting itself in relation to other public authorities through its function of
judicial supervision.
12. The powers entrusted to judges are subject not only to domestic law, an expression of the will of
the nation, but also to the principles of international law and justice as recognised in modern
democratic societies.
13. The purpose for which these powers are entrusted to judges is to enable them to administer
justice, by applying the law, and ensuring that every person enjoys the rights and/or assets that are
legally theirs and of which they have been or may be unfairly deprived.
14. This aim is expressed in Article 6 of the European Convention on Human Rights which, speaking
purely from the point of view of users of the judicial system, states that "everyone is entitled to a fair
and public hearing within a reasonable time by an independent and impartial tribunal established by
law". Far from suggesting that judges are all-powerful, the Convention highlights the safeguards that
are in place for persons on trial and sets out the principles on which the judge's duties are founded:
independence and impartiality.
15. In recent years, there has been some recognition of the need for increased assurances of judicial
independence and impartiality; independent bodies have been set up to protect the judiciary from
partisan interference; the significance of the European Convention on Human Rights has been
developed and felt through the case-law of the European Court in Strasbourg and national courts.
16. Independence of the judge is an essential principle and is the right of the citizens of each State,
including its judges. It has both an institutional and an individual aspect. The modern democratic
State should be founded on the separation of powers. Each individual judge should do everything to
uphold judicial independence at both the institutional and the individual level. The rationale of such
independence has been discussed in detail in the Opinion N° 1 (2001) of the CCJE, paragraphs 10-13.
It is, as there stated, inextricably complemented by and the pre-condition of the impartiality of the
judge, which is essential to the credibility of the judicial system and the confidence that it should
inspire in a democratic society.
17. Article 2 of the "Basic principles on the independence of the judiciary" drawn up by the United
Nations in 1985 stipulates that "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". Under Article 8, judges "shall always conduct themselves in such a manner as to preserve
the dignity of their office and the impartiality and independence of the judiciary".
18. In its Recommendation N° R (94) 12 on the independence, efficiency and role of judges (Principle
I.2.d), the Committee of Ministers of the Council of Europe stated that "judges should have unfettered
freedom to decide cases impartially, in accordance with their conscience and their interpretation of
the facts, and in pursuance of the prevailing rules of the law".
19. The European Charter on the Statute for Judges indicates that the statute for judges should
ensure the impartiality which all members of the public are entitled to expect of the courts (paragraph
1.1). The CCJE fully endorses this provision of the Charter.
20. Impartiality is determined by the European Court both according to a subjective approach, which
takes into account the personal conviction or interest of a particular judge in a given case, and
according to an objective test, ascertaining whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect3.
21. Judges should, in all circumstances, act impartially, to ensure that there can be no legitimate
reason for citizens to suspect any partiality. In this regard, impartiality should be apparent in the
exercise of both the judge’s judicial functions and his or her other activities.
a. Impartiality and conduct of judges in the exercise of their judicial functions
22. Public confidence in and respect for the judiciary are the guarantees of the effectiveness of the
judicial system: the conduct of judges in their professional activities is understandably seen by
members of the public as essential to the credibility of the courts.
23. Judges should therefore discharge their duties without any favouritism, display of prejudice or
bias. They should not reach their decisions by taking into consideration anything which falls outside
the application of the rules of law. As long as they are dealing with a case or could be required to do
so, they should not consciously make any observations which could reasonably suggest some degree
of pre-judgment of the resolution of the dispute or which could influence the fairness of the
proceedings. They should show the consideration due to all persons (parties, witnesses, counsel, for
example) with no distinction based on unlawful grounds or incompatible with the appropriate
discharge of their functions. They should also ensure that their professional competence is evident in
the discharge of their duties.
24. Judges should also discharge their functions with due respect for the principle of equal treatment
of parties, by avoiding any bias and any discrimination, maintaining a balance between the parties
and ensuring that each receives a fair hearing.
25. The effectiveness of the judicial system also requires judges to have a high degree of professional
awareness. They should ensure that they maintain a high degree of professional competence through
basic and further training, providing them with the appropriate qualifications.
26. Judges must also fulfil their functions with diligence and reasonable despatch. For this, it is of
course necessary that they should be provided with proper facilities, equipment and assistance. So
provided, judges should both be mindful of and be able to perform their obligations under Article 6.1
of the European Convention on Human Rights to deliver judgment within a reasonable time.
b. Impartiality and extra-judicial conduct of judges
27. Judges should not be isolated from the society in which they live, since the judicial system can
only function properly if judges are in touch with reality. Moreover, as citizens, judges enjoy the
fundamental rights and freedoms protected, in particular, by the European Convention on Human
Rights (freedom of opinion, religious freedom, etc). They should therefore remain generally free to
engage in the extra-professional activities of their choice.
28. However, such activities may jeopardise their impartiality or sometimes even their independence.
A reasonable balance therefore needs to be struck between the degree to which judges may be
involved in society and the need for them to be and to be seen as independent and impartial in the
discharge of their duties. In the last analysis, the question must always be asked whether, in the
particular social context and in the eyes of a reasonable, informed observer, the judge has engaged in
an activity which could objectively compromise his or her independence or impartiality.
29. Judges should conduct themselves in a respectable way in their private life. In view of the cultural
diversity of the member states of the Council of Europe and the constant evolution in moral values,
the standards applying to judges’ behaviour in their private lives cannot be laid down too precisely.
The CCJE encourages the establishment within the judiciary of one or more bodies or persons having
a consultative and advisory role and available to judges whenever they have some uncertainty as to
whether a given activity in the private sphere is compatible with their status of judge. The presence of
such bodies or persons could encourage discussion within the judiciary on the content and
significance of ethical rules. To take just two possibilities, such bodies or persons could be established
under the aegis of the Supreme Court or judges’ associations. They should in any event be separate
from and pursue different objectives to existing bodies responsible for imposing disciplinary sanctions.
30. Judges' participation in political activities poses some major problems. Of course, judges remain
citizens and should be allowed to exercise the political rights enjoyed by all citizens. However, in view
of the right to a fair trial and legitimate public expectations, judges should show restraint in the
exercise of public political activity. Some States have included this principle in their disciplinary rules
and sanction any conduct which conflicts with the obligation of judges to exercise reserve. They have
also expressly stated that a judge's duties are incompatible with certain political mandates (in the
national parliament, European Parliament or local council), sometimes even prohibiting judges'
spouses from taking up such positions.
31. More generally, it is necessary to consider the participation of judges in public debates of a
political nature. In order to preserve public confidence in the judicial system, judges should not
expose themselves to political attacks that are incompatible with the neutrality required by the
judiciary.
32. From reading the replies to the questionnaire, it seems that in some States a restrictive view is
taken of judges' involvement in politics.
33. The discussions within the CCJE have shown the need to strike a balance between the judges’
freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for
judges, even though their membership of a political party or their participation in public debate on the
major problems of society cannot be proscribed, to refrain at least from any political activity liable to
compromise their independence or jeopardise the appearance of impartiality.
34. However, judges should be allowed to participate in certain debates concerning national judicial
policy. They should be able to be consulted and play an active part in the preparation of legislation
concerning their statute and, more generally, the functioning of the judicial system. This subject also
raises the question of whether judges should be allowed to join trade unions. Under their freedom of
expression and opinion, judges may exercise the right to join trade unions (freedom of association),
although restrictions may be placed on the right to strike.
35. Working in a different field offers judges an opportunity to broaden their horizons and gives them
an awareness of problems in society which supplements the knowledge acquired from the exercise of
their profession. In contrast, it entails some not inconsiderable risks: it could be viewed as contrary to
the separation of powers, and could also weaken the public view of the independence and impartiality
of judges.
36. The question of judges’ involvement in a certain governmental activities, such as service in the
private offices of a minister (cabinet ministériel), poses particular problems. There is nothing to
prevent a judge from exercising functions in an administrative department of a ministry (for example
a civil or criminal legislation department in the Ministry of Justice); however, the matter is more
delicate with regard to a judge who becomes part of the staff of a minister’s private office. Ministers
are perfectly entitled to appoint whomsoever they wish to work in their private office but, as the
minister’s close collaborators, such staff participate to a certain extent in the minister’s political
activities. In such circumstances, before a judge enters into service in a minister’s private office, an
opinion should ideally be obtained from the independent organ responsible for the appointment of
judges, so that this body could set out the rules of conduct applicable in each individual case.
c. Impartiality and other professional activities of judges 4
37. The specific nature of the judicial function and the need to maintain the dignity of the office and
protect judges from all kinds of pressures mean that judges should behave in such a way as to avoid
conflicts of interest or abuses of power. This requires judges to refrain from any professional activity
that might divert them from their judicial responsibilities or cause them to exercise those
responsibilities in a partial manner. In some States, incompatibilities with the function of judge are
clearly defined by the judges' statute and members of the judiciary are forbidden from carrying out
any professional or paid activity. Exceptions are made for educational, research, scientific, literary or
artistic activities.
38. Different countries have dealt with incompatible activities to varying effects (a brief summary is
annexed) and by various procedures, though in each case with the general objective of avoiding
erecting any insurmountable barrier between judges and society.
39. The CCJE considers that rules of professional conduct should require judges to avoid any activities
liable to compromise the dignity of their office and to maintain public confidence in the judicial system
by minimising the risk of conflicts of interest. To this end, they should refrain from any supplementary
professional activity that would restrict their independence and jeopardise their impartiality. In this
context, the CCJE endorses the provision of the European Charter on the Statute for Judges under
which judges' freedom to carry out activities outside their judicial mandate "may not be limited
except in so far as such outside activities are incompatible with confidence in, or the impartiality or
the independence of a judge, or his or her required availability to deal attentively and within a
reasonable period with the matters put before him or her" (para. 4.2). The European Charter also
recognises the right of judges to join professional organisations and a right of expression (para. 1.7)
in order to avoid "excessive rigidity" which might set up barriers between society and the judges
themselves (para. 4.3). It is however essential that judges continue to devote the most of their
working time to their role as judges, including associated activities, and not be tempted to devote
excessive attention to extra-judicial activities. There is obviously a heightened risk of excessive
attention being devoted to such activities, if they are permitted for reward. The precise line between
what is permitted and not permitted has however to be drawn on a country by country basis, and
there is a role here also for such a body or person as recommended in paragraph 29 above.
d. Impartiality and judges’ relations with the media
40. There has been a general trend towards greater media attention focused on judicial matters,
especially in the criminal law field, and in particular in certain west European countries. Bearing in
mind the links which may be forged between judges and the media, there is a danger that the way
judges conduct themselves could be influenced by journalists. The CCJE points out in this connection
that in its Opinion No. 1 (2001) it stated that, while the freedom of the press was a pre-eminent
principle, the judicial process had to be protected from undue external influence. Accordingly, judges
have to show circumspection in their relations with the press and be able to maintain their
independence and impartiality, refraining from any personal exploitation of any relations with
journalists and any unjustified comments on the cases they are dealing with. The right of the public to
information is nevertheless a fundamental principle resulting from Article 10 of the European
Convention on Human Rights. It implies that the judge answers the legitimate expectations of the
citizens by clearly motivated decisions. Judges should also be free to prepare a summary or
communiqué setting up the tenor or clarifying the significance of their judgements for the public.
Besides, for the countries where the judges are involved in criminal investigations, it is advisable for
them to reconcile the necessary restraint relating to the cases they are dealing with, with the right to
information. Only under such conditions can judges freely fulfil their role, without fear of media
pressure. The CCJE has noted with interest the practice in force in certain countries of appointing a
judge with communication responsibilities or a spokesperson to deal with the press on subjects of
interest to the public.
2°) How should standards of conduct be formulated?
41. Continental judicial tradition strongly supports the idea of codification. Several countries have
already established codes of conduct in the public sector (police), in regulated professions (solicitors,
doctors) and in the private sector (press). Codes of ethics have also recently been introduced for
judges, particularly in East European countries, following the example of the United States.
42. The oldest is the Italian "Ethical Code" adopted on 7 May 1994 by the Italian Judges' Association,
a professional organisation of the judiciary. The word “code” is inappropriate, since it consists of 14
articles which cover the conduct of judges (including presidents of courts) in its entirety and includes
public prosecutors5. It is clear that the code does not consist of disciplinary or criminal rules, but is a
self-regulatory instrument generated by the judiciary itself. Article 1 sets out the general principle: "In
social life, the judge must behave with dignity and propriety and remain attentive to the public
interest. Within the framework of his functions and in each professional act he must be inspired by
the values of personal disinterest, independence and impartiality".
43. Other countries, such as Estonia, Lithuania, Ukraine, Moldova, Slovenia, the Czech Republic and
Slovakia, have a “judicial code of ethics” or “principles of conduct” adopted by representative
assemblies of judges and distinct from disciplinary rules.
44. Codes of conduct have some important benefits: firstly, they help judges to resolve questions of
professional ethics, giving them autonomy in their decision-making and guaranteeing their
independence from other authorities. Secondly, they inform the public about the standards of conduct
it is entitled to expect from judges. Thirdly, they contribute to give the public assurance that justice is
administrated independently and impartially.
45. However, the CCJE points out that independence and impartiality cannot be protected solely by
principles of conduct and that numerous statutory and procedural rules should also play a part.
Standards of professional conduct are different from statutory and disciplinary rules. They express the
profession’s ability to reflect its function in values matching public expectations by way of counterpart
to the powers conferred on it. These are self-regulatory standards which involve recognising that the
application of the law is not a mechanical exercise, involves real discretionary power and places
judges in a relationship of responsibility to themselves and to citizens.
46. Codes of professional conduct also create a number of problems. For example, they can give the
impression that they contain all the rules and that anything not prohibited must be admissible. They
tend to oversimplify situations and, finally, they create the impression that standards of conduct are
fixed for a certain period of time, whereas in fact they are constantly evolving. The CCJE suggests
that it is desirable to prepare and speak of a “statement of standards of professional conduct”, rather
than a code.
47. The CCJE considers that the preparation of such statements is to be encouraged in each country,
even though they are not the only way of disseminating rules of professional conduct, since:
- appropriate basic and further training should play a part in the preparation and dissemination of
rules of professional conduct6;
- in States where they exist, judicial inspectorates, on the basis of their observations of judges'
behaviour, could contribute to the development of ethical thinking; their views could be made known
through their annual reports;
- through its decisions, the independent authority described in the European Charter on the Statute
for Judges, if it is involved in disciplinary proceedings, outlines judges' duties and obligations; if these
decisions were published in an appropriate form, awareness of the values underlying them could be
raised more effectively;
- high-level groups, consisting of representatives of different interests involved in the administration

of justice, could be set up to consider ethical issues and their conclusions disseminated;
- professional associations should act as forums for the discussion of judges' responsibilities and
deontology; they should provide wide dissemination of rules of conduct within judicial circles.
48. The CCJE would like to stress that, in order to provide the necessary protection of judges'
independence, any statement of standards of professional conduct should be based on two
fundamental principles:
i) firstly, it should address basic principles of professional conduct. It should recognise the general
impossibility of compiling complete lists of pre-determined activities which judges are forbidden from
pursuing; the principles set out should serve as self-regulatory instruments for judges, i.e. general
rules that guide their activities. Further, although there is both an overlap and an interplay, principles
of conduct should remain independent of the disciplinary rules applicable to judges in the sense that
failure to observe one of such principles should not of itself constitute a disciplinary infringement or a
civil or criminal offence;
ii) secondly, principles of professional conduct should be drawn up by the judges themselves. They
should be self-regulatory instruments generated by the judiciary itself, enabling the judicial authority
to acquire legitimacy by operating within a framework of generally accepted ethical standards. Broad
consultation should be organised, possibly under the aegis of a person or body as stated in paragraph
29, which could also be responsible for explaining and interpreting the statement of standards of
professional conduct.
3°) Conclusions on the standards of conduct
49. The CCJE is of the opinion that:
i) judges should be guided in their activities by principles of professional conduct,
ii) such principles should offer judges guidelines on how to proceed, thereby enabling them to
overcome the difficulties they are faced with as regards their independence and impartiality,
iii) the said principles should be drawn up by the judges themselves and be totally separate from the
judges’ disciplinary system,
iv) it is desirable to establish in each country one or more bodies or persons within the judiciary to
advise judges confronted with a problem related to professional ethics or compatibility of non judicial
activities with their status.
50. As regards the rules of conduct of every judge, the CCJE is of the opinion that:
i) each individual judge should do everything to uphold judicial independence at both the institutional
and the individual level,
ii) judges should behave with integrity in office and in their private lives,
iii) they should at all times adopt an approach which both is and appears impartial,
iv) they should discharge their duties without favouritism and without actual or apparent prejudice or
bias,
v) their decisions should be reached by taking into account all considerations material to the
application of the relevant rules of law, and excluding from account all immaterial considerations,
vi) they should show the consideration due to all persons taking part in the judicial proceedings or
affected by these proceedings,
vii) they should discharge their duties with due respect for the equal treatment of parties, by avoiding
any bias and any discrimination, maintaining a balance between the parties and ensuring each a fair
hearing,
viii) they should show circumspection in their relations with the media, maintain their independence
and impartiality by refraining from any personal exploitation of any relations with the media and from
making any unjustified comments on the cases they are dealing with,
ix) they should ensure they maintain a high degree of professional competence,
x) they should have a high degree of professional awareness and be subject to an obligation of
diligence in order to comply with the requirement to deliver their judgments in a reasonable time,
xi) they should devote the most of their working time to their judicial functions, including associated
activities,
xii) they should refrain from any political activity which could compromise their independence and
cause detriment to their image of impartiality.
B. CRIMINAL, CIVIL AND DISCIPLINARY LIABILITY OF JUDGES
4°) What criminal, civil and disciplinary liability should apply to judges?
51. The corollary of the powers and the trust conferred by society upon judges is that there should be
some means of holding judges responsible, and even removing them from office, in cases of
misbehaviour so gross as to justify such a course. The need for caution in the recognition of any such
liability arises from the need to maintain judicial independence and freedom from undue pressure.
Against this background, the CCJE considers in turn the topics of criminal, civil and disciplinary
liability. In practice, it is the potential disciplinary liability of judges which is most important.
a. Criminal liability
52. Judges who in the conduct of their office commit what would in any circumstances be regarded as
crimes (e.g. accept bribes) cannot claim immunity from ordinary criminal process. The answers to
questionnaire show that in some countries even well-intentioned judicial failings could constitute
crimes. Thus, in Sweden and Austria judges (being assimilated to other public functionaries) can be
punished (e.g. by fine) in some cases of gross negligence (e.g. involving putting or keeping someone
in prison for too long).
53. Nevertheless, while current practice does not therefore entirely exclude criminal liability on the
part of judges for unintentional failings in the exercise of their functions, the CCJE does not regard
the introduction of such liability as either generally acceptable or to be encouraged. A judge should
not have to operate under the threat of a financial penalty, still less imprisonment, the presence of
which may, however sub-consciously, affect his judgment.
54. The vexatious pursuit of criminal proceedings against a judge whom a litigant dislikes has became
common in some European states. The CCJE considers that in countries where a criminal investigation
or proceedings can be started at the instigation of a private individual, there should be a mechanism
for preventing or stopping such investigation or proceedings against a judge relating to the purported
performance of his or her office where there is no proper case for suggesting that any criminal liability
exists on the part of the judge.
b. Civil liability
55. Similar considerations to those identified in paragraph 53 apply to the imposition on judges
personally of civil liability for the consequences of their wrong decisions or for other failings (e.g.
excessive delay). As a general principle, judges personally should enjoy absolute freedom from
liability in respect of claims made directly against them relating to their exercise in good faith of their
functions. Judicial errors, whether in respect of jurisdiction or procedure, in ascertaining or applying
the law or in evaluating evidence, should be dealt with by an appeal; other judicial failings which
cannot be rectified in this way (including e.g. excessive delay) should, at most, lead to a claim by the
dissatisfied litigant against the State. That the state may, in some circumstances, be liable under the
European Convention of Human Rights, to compensate a litigant, is a different matter, with which this
opinion is not directly concerned.
56. There are however European countries, in which judges may incur civil liability for grossly wrong
decisions or other gross failings7, particularly at the instance of the state, after the dissatisfied litigant
has established a right to compensation against the state. Thus, for example, in the Czech Republic
the state may be held liable for damages caused by a judge’s illegal decision or incorrect judicial
action, but may claim recourse from the judge if and after the judge’s misconduct has been
established in criminal or disciplinary proceedings. In Italy, the state may, under certain conditions,
claim to be reimbursed by a judge who has rendered it liable by either wilful deceit or “gross
negligence”, subject in the latter case to a potential limitation of liability.
57. The European Charter on the statute for judges contemplates the possibility of recourse
proceedings of this nature in paragraph 5.2 of its text - with the safeguard that prior agreement
should obtained from an independent authority with substantial judicial representation, such as that
commended in paragraph 43 of the CCJE’s opinion no. 1 (2001). The commentary to the Charter
emphasises in its paragraph 5.2 the need to restrict judges’ civil liability to (a) reimbursing the state
for (b) “gross and inexcusable negligence” by way of (c) legal proceedings (d) requiring the prior
agreement of such an independent authority. The CCJE endorses all these points, and goes further.
The application of concepts such as gross or inexcusable negligence is often difficult. If there was any
potential for a recourse action by the state, the judge would be bound to have to become closely
concerned at the stage when a claim was made against the state. The CCJE’s conclusion is that it is
not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to
any personal liability, even by way of reimbursement of the state, except in a case of wilful default.
c. Disciplinary liability
58. All legal systems need some form of disciplinary system, although it is evident from the answers
given by different member states to the questionnaires that the need is much more directly felt in
some, as opposed to other, member states. There is in this connection a basic distinction between
common-law countries, with smaller professional judiciaries appointed from the ranks of experienced
practitioners, and civil law countries with larger and on average younger, career judiciaries.
59. The questions which arise are:
i) What conduct is it that should render a judge liable to disciplinary proceedings?
ii) By whom and how should such proceedings be initiated?
iii) By whom and how should they be determined?
iv) What sanctions should be available for misconduct established in disciplinary proceedings?
60. As to question (i), the first point which the CCJE identifies (repeating in substance a point made
earlier in this opinion) is that it is incorrect to correlate breaches of proper professional standards with
misconduct giving rise potentially to disciplinary sanctions. Professional standards, which have been
the subject of the first part of this opinion, represent best practice, which all judges should aim to
develop and towards which all judges should aspire. It would discourage the future development of
such standards and misunderstand their purpose to equate them with misconduct justifying
disciplinary proceedings. In order to justify disciplinary proceedings, misconduct must be serious and
flagrant, in a way which cannot be posited simply because there has been a failure to observe
professional standards set out in guidelines such as those discussed in the first part of this opinion.8
61. This is not to say that breach of the professional standards identified in this opinion may not be of
considerable relevance, where it is alleged that there has been misconduct sufficient to justify and
require disciplinary sanction. Some of the answers to questionnaires recognise this explicitly: for
example, professional standards are described as having "a certain authority" in disciplinary
proceedings in Lithuania and as constituting a way "of helping the judge hearing disciplinary
proceedings by illuminating the provisions of the law on judges" in Estonia. They have also been used
in disciplinary proceedings in Moldova. (On the other hand, the Ukrainian and Slovakian answers deny
that there is any relationship between the two).
62. In some countries, separate systems have even been established to try to regulate or enforce
professional standards. In Slovenia, failure to observe such standards may attract a sanction before a
"Court of Honour" within the Judges' Association, and not before the judges' disciplinary body. In the
Czech Republic, in a particularly serious situation of non-observance of the rules of professional
conduct, a judge may be excluded from the "Judges’ Union", which is the source of these principles.
63. The second point which the CCJE identifies is that it is for each State to specify by law what
conduct may give rise to disciplinary action. The CCJE notes that in some countries attempts have
been made to specify in detail all conduct that might give grounds for disciplinary proceedings leading
to some form of sanction. Thus, the Turkish law on Judges and Prosecutors specifies gradations of
offence (including for example staying away from work without excuse for various lengths of period)
with matching gradations of sanction, ranging from a warning, through condemnation [i.e.
reprimand], various effects on promotion to transfer and finally dismissal. Similarly, a recent 2002 law
in Slovenia seeks to give effect to the general principle nulla poena sine lege by specifying 27
categories of disciplinary offence. It is, however, very noticeable in all such attempts that, ultimately,
they all resort to general “catch-all” formulations which raise questions of judgment and degree. The
CCJE does not itself consider that it is necessary (either by virtue of the principle nulla poena sine
lege or on any other basis) or even possible to seek to specify in precise or detailed terms at a
European level the nature of all misconduct that could lead to disciplinary proceedings and sanctions.
The essence of disciplinary proceedings lies in conduct fundamentally contrary to that to be expected
of a professional in the position of the person who has allegedly misconducted him or herself.
64. At first sight, Principle VI.2 of Recommendation No. R (94) 12 might be thought to suggest that
precise grounds for disciplinary proceedings should always “be defined” in advance “in precise terms
by the law”. The CCJE fully accepts that precise reasons must be given for any disciplinary action, as
and when it is proposed to be or is brought. But, as it has said, it does not conceive it to be necessary
or even possible at the European level to seek to define all such potential reasons in advance in other
terms than the general formulations currently adopted in most European countries. In that respect
therefore, the CCJE has concluded that the aim stated in pragraph 60 c) of its Opinion No. 1 (2001)
cannot be pursued at a European level.
65. Further definition by individual member States by law of the precise reasons for disciplinary action
as recommended by Recommended No. R (94) 12 appears, however, to be desirable. At present, the
grounds for disciplinary action are usually stated in terms of great generality.
66. The CCJE next considers question (ii): by whom and how should disciplinary proceedings be
initiated? Disciplinary proceedings are in some countries brought by the Ministry of Justice, in others
they are instigated by or in conjunction with certain judges or councils of judges or prosecutors, such
as the First President of the Court of Appeal in France or the General Public Prosecutor in Italy. In
England, the initiator is the Lord Chancellor, but he has agreed only to initiate disciplinary action with
the concurrence of the Lord Chief Justice.
67. An important question is what if any steps can be taken by persons alleging that they have
suffered by reason of a judge's professional error. Such persons must have the right to bring any
complaint they have to the person or body responsible for initiating disciplinary action. But they
cannot have a right themselves to initiate or insist upon disciplinary action. There must be a filter, or
judges could often find themselves facing disciplinary proceedings, brought at the instance of
disappointed litigants.
68. The CCJE considers that the procedures leading to the initiation of disciplinary action need greater
formalisation. It proposes that countries should envisage introducing a specific body or person in each
country with responsibility for receiving complaints, for obtaining the representations of the judge
concerned upon them and for deciding in their light whether or not there is a sufficient case against
the judge to call for the initiation of disciplinary action, in which case it would pass the matter to the
disciplinary authority.
69. The next question (iii) is: by whom and how should disciplinary proceedings be determined? A
whole section of the United Nations Basic Principles is devoted to discipline, suspension and removal.
Article 17 recognises judges' "right to a fair hearing". Under Article 19, "all disciplinary (…)
proceedings shall be determined in accordance with established standards of judicial conduct". Finally,
Article 20 sets out the principle that "decisions in disciplinary, suspension or removal proceedings
should be subject to an independent review". At the European level, guidance is provided in Principle
VI of Recommendation No. R (94) 12, which recommends that disciplinary measures should be dealt
with by "a special competent body which has as its task to apply any disciplinary sanctions and
measures, where they are not dealt with by a court, and whose decisions shall be controlled by a
superior judicial organ, or which is a superior judicial organ itself" and that judges should in this
connection benefit, at the least, by protections equivalent to those afforded under Article 6.1 of the
Convention on Human Rights. Further, the CCJE emphasises in this context that disciplinary measures
include any measures adversely affecting a judge’s status or career, including transfer of court, loss of
promotion rights or pay.
70. The replies to the questionnaire show that, in some countries, discipline is ensured by courts
specialising in cases of this type: the disciplinary committee of the Supreme Court (Estonia, Slovenia
- where each level is represented). In Ukraine, there is a committee including judges of the same
level of jurisdiction as the judge concerned. In Slovakia, there are now two tiers of committee, one of
three judges, the second of five Supreme Court judges. In Lithuania, there is a committee of judges
from the various tiers of general jurisdiction and administrative courts. In some countries, judgment
is given by a Judicial Council, sitting as a disciplinary court (Moldova, France, Portugal).9
71. The CCJE has already expressed the view that disciplinary proceedings against any judge should
only be determined by an independent authority (or “tribunal”) operating procedures which guarantee
full rights of defence - see para. 60(b) of CCJE Opinion No. 1 (2001) on standards concerning the
independence of the judiciary and the irremovability of judges. It also considers that the body
responsible for appointing such a tribunal can and should be the independent body (with substantial
judicial representation chosen democratically by other judges) which, as the CCJE advocated in
paragraph 46 of its first Opinion, should generally be responsible for appointing judges. That in no
way excludes the inclusion in the membership of a disciplinary tribunal of persons other than judges
(thus averting the risk of corporatism), always provided that such other persons are not members of
the legislature, government or administration.
https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2002)OP3&Sector=s…net=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3 Sayfa 10 / 40
72. In some countries, the initial disciplinary body is the highest judicial body (the Supreme Court).
The CCJE considers that the arrangements regarding disciplinary proceedings in each country should
be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority,
tribunal or court) to a court.
73. The final question (iv) is: what sanctions should be available for misconduct established in
disciplinary proceedings? The answers to questionnaire reveal wide differences, no doubt reflecting
the different legal systems and exigencies. In common law systems, with small, homogeneous
judiciaries composed of senior and experienced practitioners, the only formal sanction evidently found
to be necessary (and then only as a remote back-up possibility) is the extreme measure of removal,
but informal warnings or contact can prove very effective. In other countries, with larger, much more
disparate and in some cases less experienced judiciaries, a gradation of formally expressed sanctions
is found appropriate, sometimes even including financial penalties.
74. The European Charter on the Statute for Judges (Article 5.1) states that "the scale of sanctions
which may be imposed is set out in the statute and must be subject to the principle of
proportionality". Some examples of possible sanctions appear in Recommendation No. R (94) 12
(Principle VI.1). The CCJE endorses the need for each jurisdiction to identify the sanctions permissible
under its own disciplinary system, and for such sanctions to be, both in principle and in application,
proportionate. But it does not consider that any definitive list can or should be attempted at the
European level.
5°) Conclusions on liability
75. As regards criminal liability, the CCJE considers that:
i) judges should be criminally liable in ordinary law for offences committed outside their judicial
office;
ii) criminal liability should not be imposed on judges for unintentional failings in the exercise of their
functions.
76. As regards civil liability, the CCJE considers that, bearing in mind the principle of independence:
i) the remedy for judicial errors (whether in respect of jurisdiction, substance or procedure) should lie
in an appropriate system of appeals (whether with or without permission of the court);
ii) any remedy for other failings in the administration of justice (including for example excessive
delay) lies only against the state;
iii) it is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial
functions, to any personal liability, even by way of reimbursement of the state, except in a case of
wilful default.
77. As regards disciplinary liability, the CCJE considers that:
i) in each country the statute or fundamental charter applicable to judges should define, as far as
possible in specific terms, the failings that may give rise to disciplinary sanctions as well as the
procedures to be followed;
ii) as regard the institution of disciplinary proceedings, countries should envisage introducing a
specific body or person with responsibility for receiving complaints, for obtaining the representations
of the judge and for considering in their light whether or not there is a sufficient case against the
judge to call for the initiation of such proceedings;
iii) any disciplinary proceedings initiated should be determined by an independent authority or

tribunal, operating a procedure guaranteeing full rights of defence;
iv) when such authority or tribunal is not itself a court, then its members should be appointed by the
independent authority (with substantial judicial representation chosen democratically by other judges)
advocated by the CCJE in paragraph 46 of its Opinion N° 1 (2001);
v) the arrangements regarding disciplinary proceedings in each country should be such as to allow an
appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a
court;
vi) the sanctions available to such authority in a case of a proven misconduct should be defined, as
far as possible in specific terms, by the statute or fundamental charter of judges, and should be
applied in a proportionate manner.
APPENDIX
SUMMARY OF THE REPLIES TO THE QUESTIONNAIRE ON THE CONDUCT, ETHICS AND

RESPONSIBILITY OF JUDGES
What are the obligations by which judges are bound ?
Source Date In relation to the In relation to the Personal

law office qualities
ANDORRA Qualified Justice 1993 professional Duty to act with

Act secrecy reservation
AZERBAIJAN loyalty to the honesty,

law objectivity,
incorruptibility
BELGIUM Judicial code 1967, an Act obligation to obligation under

of 1999 was adjudicate under the Constitution
to reform the pain of a denial to state the
system, but of justice reasons for
the decisions, to deal
implementing with cases within
decree was a specified time
never adopted
and now
Parliament is
seeking to
repeal the Act
CYPRUS Courts of justice oath of loyalty to judicial oath to

law the Republic and exercise his
to the duties without
Constitution favoritism,
without allowing
himself to be
impressed,
without allowing
himself to be
influenced by his
passions
CZECH REP New Act on Entered into must interpret impartiality, no right to
courts and judges force on 1 the law to the reasonable time, strike, no right
April 2002 best of his loyalty in carrying to take part in a
abilities, out duties, must public
according to his do nothing which demonstration
knowledge and would prejudicial to his
his convictions compromise the activities, must
dignity of the not be a
judicial system member of a
and the political party.
confidence which
it must inspire
ESTONIA Status of Judges a new Act is

Act being debated
in 2002
FINLAND Constitution, obey the law impartiality, behaviour in

oath, Code of efficiency, accordance with
Procedure, Act on reasonable time, the office
Civil Servants secrecy of
deliberations
FRANCE judges are not to infringe the refrain from any

required to principle of the political
adjudicate, even secrecy of the deliberation,
when the law is deliberations, from any display
silent, under duty of reserve, of hostility to the
pain of a denial no right to strike powers of the
of justice Republic
GERMANY German Judiciary principle of … and outside

Act moderation in his duties
expressing views,
keeping the
deliberations
secret, not
compromising
confidence in the
independence of
the judicial
system in his
work
ICELAND Constitution and 1998 must carry out must maintain

European Act on their duties with their level of
the Judiciary complete legal knowledge
independence, and be attentive
without ever to their extra-
being subject to judicial activities
the authority of
anyone
whomsoever,
within a
reasonable time
IRELAND Oath provided for 1937 comply with the Carry out his
in the Constitution and duties as a judge
Constitution the law faithfully and to
the best of his
abilities, without
fear or favour
ITALY Law on the 1946

judges’ discipline
JAPAN Constitution, 1947 (both) compliance with independence in requirements of

Court the Constitution the exercise of devotion to duty
Organisation Law and with law their conscience, and secrecy;
impartiality and must refrain
fairness from any
conduct casting
doubt on their
integrity
LIECHTENSTEIN Constitution and 1921 and duties of officials

Court 1922, Bill on in general, Civil
Organisation Act judiciary Servants Act

currently 1938
being
examined
LITHUANIA Courts Act 2002 obey the satisfy the

Constitution and requirements of
the law judicial ethics,
impartiality, deal
with cases within
a reasonable
time, stand down
if necessary,
disclose that
members of his
family are to
appear before the
court in which he
works
LUXEMBOURG No law defining

judges’ duties
MALTA First oath of adjudicate in act honestly and

allegiance before accordance with fairly, must not
the President the law and communicate
provided for in Maltese custom, with the parties
the Constitution, to the honour of or advise them
second oath in God and the except in public,
the Code of Maltese Republic in court or with
Judicial the leave of the
Organisation and President, provide
Procedure reasons for his
decisions, explain
the reasons for
delays
MOLDOVA Law on the status strict observance safeguard the

of the judiciary of the honour and
requirements of dignity of
the law in the citizens, the high
interests of culture of the
justice, protector judiciary, be
of individual impartial and
freedoms human, not
discredit justice,
compromise the
honour or dignity
of the judiciary,
cause doubts as
to their
objectivity
NETHERLANDS Art. 29 of the 1827 They will be They will carry

“Organisation of loyal to the King, out their duties
the Judiciary Act” they will impartially,
maintain and honestly and
obey the conscientiously
Constitution
NORWAY Constitution, oath must give an

of obedience and undertaking in
loyalty to the writing to carry

Constitution and out the duties of
the King, Court of his post
Justice Act conscientiously
POLAND Constitution, Acts of 1984, loyalty to the Meticulously obligation to

laws, codes and 1995 and nation, guardian observe the declare assets
rules of 1997 updated of the law obligations and resources,
procedure – oath in October associated with avoid any
before the 2001 his work, comply conflict of
President, with the oath, interests
internal rules of loyalty,
the courts impartiality,
dignity and
honesty in the
administration of
justice, secrecy of
the deliberations
PORTUGAL The status of Common duties must reside in

judges to all the public the place in
function, duty of which they sit;
reservation, must judges of the
wear gown lower courts
must not be
absent from that
place except at
weekends and
during holidays;
other judges
must not be
absent for more
than three
consecutive days
and not more
than 10 days in
a year, declared
to the Judicial
Service Board;
political activities
prohibited
ROMANIA Article 24 of the 1991 Oath of loyalty must not do must not do
Constitution to the anything which anything which
1992 constitution would would
Articles 82-87 of compromise the compromise
the Judicial and law dignity of the their personal
Organization profession dignity
92/92 Act
SLOVAK REP Act on judges 2000 Impartiality, must have

and lay judges reasonable time, reached the age
loyalty in carrying of 30 years,
out duties, must have completed
do nothing which higher studies in
would law, be capable
compromise the of being a judge,
dignity of judicial in particular as
system and the regards his
confidence which health and his
it must inspire, integrity, must
must refuse gifts, reside
not allow himself permanently in

to be influenced Slovakia, must
by his have been
relationships, through a
including by the selection
media procedure
SLOVENIA Judicial Service 1994, 1996 et conduct himself In the exercise

Act 1998 in his professional of his personal
life in such a way freedoms and
as not to call in rights, a judge
question his must always
impartiality, his take into
independence or account his duty
the reputation of to protect the
the judicial independence
system. and impartiality
of justice and
must not
compromise the
reputation of
justice.
SWEDEN Constitution, must observe an honest and

Codes of the law, must upright judge:
Procedure (oath) not manipulate it impartial, must
and Public administer justice
Employment Act to the best of his
abilities and his
conscience, must
not be involved in
corruption or
personal, family
or friendly
favours, must not
find the innocent
guilty or vice
versa, must
observe the
secrecy of the
deliberations
SWITZERLAND
TURKEY Constitution of Both in 1982 loyalty to the protect their no official

the Republic of Constitution, to independence, functions, unless
Turkey the law and to even though they prescribed by
his convictions may be linked to law
and Law on the provided they the Ministry in
Judges and Public are compatible their
Prosecutors. with the law administrative
duties
UKRAINE Law on the status Loyalty to the must submit

of judges law and to the himself to the
Constitution, discipline and to
objectivity, must the organisation
deal fully and of work in the
conscientiously court;
with the cases professional
brought before secrecy
him
UNITED Common law Oath of loyalty apply the law

KINGDOM and allegiance to independently
the Crown while and impartially
observing the
law
Is there a judge’s code of conduct?
Drafted by... Adopted by... Date Obligations Sanction
ANDORRA NO
AZERBAIJAN YES, prepared Same as the provisions of the Disciplinary

and adopted by Statutes proceedings
all the judges
and by the
Judicial Council
BELGIUM NO
CYPRUS NO, but

standards exist
on recruitment
in order to
ensure the high
moral quality of
the future judge
noted in his
practice as a
lawyer
CZECH REP YES AND NO, Approved by a 2000 7 principles setting out the No cases
but 7 brief representative duties and conduct of the judge
principles have assemble of in his professional life
been drawn up judges
by the Judges’
Union (an
organisation
representing
50% of judges)
and could be
made into a
Code
ESTONIA YES, Association Delegation by 1994 35 basic rules on professional No actual

of Estonian Parliament in conduct (conscience and sanction but
Judges the Judges Act diligence in work, professional may help to
for adoption by relations, independence and judge in
the Judges’ impartiality) and restriction of disciplinary
Conference personal freedoms (extra- proceedings
judicial activities, private by shedding
relations) light on the
provisions of
the Judges
Act
FINLAND NO
FRANCE NO
GERMANY NO
ICELAND NO, some

unwritten rules
IRELAND NO, but a report

on the ethics
and professional
conduct of
judges in 1999
recommended
that an ethics
and professional
conduct
committee draw
up a Code which
would be given
to all new judges
when taking up
their posts. Such
a committee
does not yet
exist. The law is
in the course of
being reformed.
ITALY YES, National National 1994 Dignity and correctness in It is primarily

Association of Association of private life, sense of public a means of
Judges Judges, with duty, disinterested exercise of self-
the authority of the judicial function, regulation. A
the government independence, impartiality, sanction may
and the attention given to relations with be available
legislature citizens, professional if the breach
conscience, continuous training, is one
procedures for using the covered by
resources of the administration, the
professional secrecy, discipline disciplinary
of relations with the media, no provisions or
protection from conflicts of the general
political or financial interests, law.
concern to examine his
impartiality, relations with his
peers and judicial personnel
JAPAN YES, stipulated

in certain laws,
although there is
no independent
code of conduct
LIECHTENSTEIN NO
LITHUANIA YES, National National 1998 Independence, conduct and NO, but
Judges’ Congress of all duties of the judge, then authority in
Association judges outside his judicial duties, etc. disciplinary
proceedings
LUXEMBOURG NO, a
Committee
which examined
the question
concluded that it
was preferable
to stick to
general
unwritten rules.
MALTA YES, drafted by All except 1 2000 28 paragraphs reflecting "The Code
the judiciary judge, agreement on good practice, itself” is nto
presented to confirming the values to which accompanied
the President at judges have adhered when by sanctions
the head of the taking the oath, image of
Justice justice for those subject to it
Administration who must also be effectively
Committee, sanctioned if necessary
which accepted
the Code with
few
amendments
MOLDOVA YES, by the CSM Judges’ 2000 Confidentiality, correctness, YES,

Conference punctuality, temperance, must disciplinary
be sober, polite, formal, calm,
tolerant, must listen, must
sanction those who do show
contempt of court, , must not
discuss the case with the
parties other then during the
proceedings, respect human
rights, no discrimination
NETHERLANDS NO
NORWAY No code, despite

an attempt in
1999 by the
Norwegian Law
Court
Commission,
which is now
pending before
Parliament
POLAND NO, but the

National Council
on the Judiciary
is authorised to
draft such a
code, and has
since July 2001
been working on
a collection of
principles
relating to
judges’ ethics
PORTUGAL NO
ROMANIA NO, but there Romanian 1992 Magistrates shall refrain from Penal and
are some Parliament any acts or deeds able to disciplinary
general rules in compromise their dignity in proceedings.
the Judicial function and in society.
Organisation Act
Magistrates shall be forbidden

to be affiliated to political
parties or to be engaged in
public activities with a political
character.
Magistrature is incompatible
with any other public a private
office, except that of an
academic professional activity.
Magistrates shall be forbidden

the exercise of trading
activities, participation in the
management of trading, civil
companies or of autonomous
companies, either directly or
through interposed persons.
They shall also be forbidden the
participation in the
administration of such
companies or autonomous
companies.
Other obligations for judges are

considered conditions for being
judge: ex. Good reputation or
characteristic for judge’s
activity: ex. independence,
impartiality, secret of
deliberation
SLOVAK REP YES President of the 2001 Private life, professional life and NO, only the
Council of the professional duties Judges Act
Judiciary and
the Minister for
Justice
SLOVENIA YES (it has just Association 2001 9 principles : independence, No, but there
replaced a impartiality and neutrality, is a Court of
former Code of ability, diligence, Honour
Professional incompatibilities/compatibilities, which may
Responsibility discretion, professional deal with an
dating from relations, reputation. infringement
1972), by a without any
group of judges sanction
from the Judges’ being
Association imposed.
SWEDEN No specific code, Olaus Petri in 1540 By another

but there is an the sixteenth system, the
historical model century; a law
which serves to judges’ empowers
inspire judges’ association has the
conduct, namely recently been Ombudsman
the General working on a and the
Code of Law draft code Justice
(1734), which which has not Chancellor to
includes an old been criticise a
code which is completed, in judge
not binding on the face of publicly for
judges numerous his conduct
critics
SWITZERLAND There are

practically no
written rules at
federal level or
to a large extent
at local level
TURKEY Law on the Parliament, 1982 Same as the provisions of the Disciplinary
Judges and the Supreme Statutes proceedings
Public Council of
Prosecutors and Judges and
rules of conduct Public
Prosecutors
UKRAINE YES, taken up by Council of 2002 Obedience of the law, NO, in

a Congress of Judges impartiality, maintenance of accordance
Judges in 1999 legitimate expectations, loyalty, with the
on the basis of justice and equity, sincerity, wishes of the
experiences in conduct faithful to the oath Congress of
Canada, America Judges
and Russia, in
particular,
together and
amendments
and proposals by
Ukrainian judges
UNITED NO, but there Established by Before being appointed, judges

KINGDOM are some the Lord are informed of what is
informal guides Chancellor by expected of them in terms of
which some agreement with conduct
(Judicial Studies the Lord Chief
Board, Scottish Justice
Justice Minister
and a doctrine in
Northern
Ireland) would
wish to see
placed on a
formal basis
without
constituting
statutory duties
Incompatibilities
Source Type of incompatibility Exceptions
ANDORRA Law on Justice (L.Q.J.) Any other public office;

commercial, industrial or
professional activities; work as a
lawyer or legal aid work
AZERBAIJAN "this question is unclear

for us"
BELGIUM A judge may not, at the same

time, be a public prosecutor,
elected representative, solicitor,
bailiff, barrister, soldier or
religious officer, or hold paid

political or administrative office
of any kind
CYPRUS Any other post or profession Lectures and legal

writings
CZECH No political office (eg President

REPUBLIC of the Republic or member of
parliament), no government
department or business activity.
Scientific work, teaching and
literary and artistic activities are
allowed, as is work as a political
adviser, if they do not
undermine the dignity of the
judiciary and the confidence it
should inspire.
ESTONIA No political mandate or activity,

no other posts except teaching
or research; may not sit on the
boards of public or private
companies
FINLAND Act on Civil Servants any public office, any civil, permission may be
commercial and salaried obtained from the court
profession or activity or a higher court
FRANCE Incompatibility with all types of

public office, any civilian,
commercial or salaried
profession and work as an
arbitrator
GERMANY German Judiciary Act Idea of the separation of The government may
powers: no administrative authorise a judge to sit
activity (except in the court, as an arbitrator or be
research and teaching); may heard as an expert by an
belong to a political party and arbitration tribunal
stand for election as member of
parliament: if elected, is
suspended from duties as a
judge; advisory and conciliation
activities prohibited
ICELAND 1998 Act on the Judiciary May not accept a post or have a Teaching, chairing
holding in a company if this is committees, lectures
incompatible with his/her office writings, etc. Permission
or likely to impair the quality of to engage in non-judicial
his or her work. activities must be
requested from the
Judicial Office Committee
IRELAND Constitution of 1937 No judge shall be eligible. to be

a member of either house of
parliament or to hold “any other
office or position of emolument”.
ITALY Royal decree of 30 No job or public or private office Teaching and scientific
January 1941 except as member of parliament activities possible with
or of a charitable organisation, authorisation - under

no commercial, industrial or strict conditions - from
professional activity. The High High Council. Arbitration
Council for the Judiciary may is only exceptionally
authorize “tasks of any other authorised.
kind”.
JAPAN Court Organisation Law Prohibition of political and Permission may be

commercial activities and of obtained from the
receiving remuneration other Supreme Court for
than for holding judicial office. receiving remuneration
other than for holding
judicial office
LIECHTENSTEIN Article 6, 1938 Civil No other remunerated or

Servants Act particularly time-consuming
activity without authorisation
from the government, which
considers whether it is
compatible with the work of a
judge, which is generally the
case for part-time research and
teaching
LITHUANIA 2002 Judicial Act No political activity, may not be Lecturing and legal
called up for military service, no writings
lucrative private activity, though
compensation is allowed in the
case of teaching, no work in an
association if it impairs the
judge’s independence
LUXEMBOURG Constitution and Judicial No paid employment

Organisation Act
MALTA Code of Organisation and No personal involvement or With the consent of the
Civil Procedure, Code of involvement as counsel in a case President of the Republic
Ethics that has already been opened or
is probably within the judge’s
remit, no other activity, even
temporary, except in an
international judicial body or the
university
MOLDOVA Status of Judges Act No other public or private office

or post as member of parliament
or local authority adviser; may
not belong to political parties or
other socio-political
organisations; may not engage
in business or in written or oral
consultation except for close
relatives. Publications and media
appearances possible if they do
not concern domestic policy
issues.
NETHERLANDS Art. 44 “Organisation of Judges may not be (the Dutch

the Judiciary Act equivalent of) barrister, solicitor,
(1827/2001)”; Act notary-public; they may not act
concerning in other professions that entail
incompatibilities national the giving of legal aid or advice;
and European parliaments judges of the Supreme Court

(1994) may not be a member of the
Dutch or the European
Parliament.
NORWAY Courts of Justice Act and Judges are relatively free; only The law before
State Basic Agreement Supreme Court judges are parliament, which is to
subject to specific provisions. replace tolerant case law,
Generally speaking, however, contains strict provisions
they may be barristers, on the prohibition,
mediators or jurors without authorisation and
having to resign. declaration of ancillary
activities and makes the
incompatibility rules
stricter.
POLAND Constitution and Statute No other work except scientific The application must be
publications and part-time forwarded to the
teaching, provided these do not hierarchical superior
affect the judge’s work; no (president of the court or
activity or lucrative position that supreme court or the
could tarnish the image of the minister)
judiciary; no political activity
PORTUGAL No public or private professional Teaching and legal

post; incompatibilities applicable research may be
to civil servants in general authorised by the Judicial
Service Commission, but
may not be remunerated
ROMANIA No political activity, no post

other than collaboration with
scientific publications and
teaching
SLOVAK 2000 Act No political posts in the broad

REPUBLIC sense of the term, including
government departments and
the army, no lucrative private
activity except scientific,
teaching or artistic activity, and
then on condition that it does
not undermine the dignity of the
post of judge.
SLOVENIA Constitution and Judicial Any administrative or political

Organisation Act post, any commercial or
professional activity, lucrative
activity or involvement in the
management of companies, and
anything that might tarnish the
reputation of the judiciary.
Teaching and research are
authorised subject to this
condition.
SWEDEN Laws and constitution No judge is subordinate to

another judge or public official
SWITZERLAND No other public office or post, no The court may authorise

other career or profession, no work as an expert or
post as director, manager or arbitrator and other
member of a body running a ancillary activities and

lucrative establishment, no post lay down the relevant
assigned or title or declaration conditions provided the
awarded by foreign authorities independence and
prestige of the judiciary
are not impaired
TURKEY Law on the Judges and No public activity unless

Public Prosecutors authorised by law, no profit
bringing activity.
UKRAINE No incompatibilities formally provided for
UNITED Guidelines May not sit as an arbitrator or

KINGDOM engage in any lucrative
professional activity (save
writing or editing) or any
professional activity (save
writing or editing) or any
political activity; substantial
restrictions also apply when a
judge has left office
Circumstances in which impartiality may be called into question
Source Circumstances
ANDORRA Law on Justice (L.Q.J.) Family proximity, to have been lawyer or

representative; commercial or economic legal
relationship. To have had a litigation with a Party or
his lawyer, interest in the object of the litigation,
hierarchical or friendly relationship.
AZERBAIJAN Question brought to the

discussion by the Attorney
General’s Department in a
situation referred to by law
BELGIUM Case-law based on the

provisions of the Code and the
legislation on standing down and
on incompatibilities
CYPRUS Case-law of the Supreme Court Conflict of family or personal interests, knowing the
case or the parties
CZECH REP Codes of Civil and Criminal

Procedure, mechanism for …
seeking damages from a judge
who has misused his authority
ESTONIA Conflict of interests, any relationship which might

adversely affect the credibility of the judicial
system, bias
FINLAND Code or Procedure Family connections, conflict of interest, bias,

involvement in the case and other reasons, which
bring the judge’s impartiality under reasonable
suspicion
FRANCE A judge may be challenged and must refrain from

hearing a case in various circumstances which call
his objective and subjective impartiality into

question: family or friendly relations, conflict of
financial interests, where he has already taken a
decision or delivered an delivered in the same case,
where there is a link of subordination
GERMANY Code of Civil Procedure Family connections, a case in which the judge has
given evidence or been examined as an expert, or
in which he has already taken a decision, doubts in
respect of his impartiality may thus be revealed by
a conflict of financial or friendly interests or a
stated preference for one of the parties
ICELAND Law on Civil Procedure and Law Party to the dispute, has given advice to a party to
on Criminal Procedure a case, having a family, friendly or professional
relationship with one of the parties; is a witness in
a case or has a close relation to a witness.
IRELAND Nemo judex in causa sua rule of No conflict of personal, family or financial interests,
law no bias or prejudice, otherwise the judge must
stand down
ITALY Codes of Civil and Criminal Conflict of family, personal or professional

Procedure interests, knowledge of the case or of the parties,
bias and prejudice.
JAPAN Constitution and Codes of Civil Apart from compliance with the rules on
and Criminal Procedure incompatibilities, judges may be challenged and/or
are required to withdraw from proceedings in
such as the party of a case being certain circumstances
his/her relative
LIECHTENSTEIN Conflicts of personal or family interests, bias,

raised by the Court of its own motion or by the
parties
LITHUANIA Code of civil procedure Conflict of personal or family interests, bias,

involvement in the case as a witness
LUXEMBOURG Article 521 of the New Code of Where the judge’s impartiality is challenged or
Civil Procedure, Article 542 of where there is a reasonable doubt as to the
the Code of Criminal fairness of the proceedings
Investigation, Article 6 of the
European Convention on Human
Rights
MALTA A comprehensive list of Conflict of personal or family interests, bias,

circumstances in which the judge involvement in the case as a witness
must stand down or the parties
refuse to allow him to deal with
the case is set out in the code of
Judicial Organisation and Civil
Procedure
MOLDOVA Codes of Civil Procedure and Must stand down where he has a direct or indirect
Criminal Procedure interest in the case or where there is a family
connection with the parties
NETHERLANDS Civil Procedure Act, Criminal “Facts or circumstances that could call the
Procedure Act, Administrative impartiality of the judge into question” (The law
Procedure Act does not go into detail, jurisprudence conforms to
the guidelines set by the European Court of Justice)
NORWAY Courts of Justice Act Family connections with the parties or their legal
advisers, provided that confidence in the judge
may be affected, the judge must stand down
(conflict of interests in the majority of cases)
POLAND Laws on Criminal and Civil Where the judge knows the parties or is familiar
Procedure with the case because he has already taken part in
it (close involvement with one of the parties or with
the case in a personal or professional capacity);
two categories of case: iudex inhabilis and iudex
suspectus
PORTUGAL Statute on the Judiciary, Code of A judge may not sit in a court in which a member
Civil Procedure, Code of Criminal of his family works, where there is a reasonable
Procedure doubt as to the fairness of the proceedings or
where he asks to be relieved of the case in the
event of a conflict of personal, economic or family
interests, he cannot have been involved in the case
or have taken part in it in a different capacity
ROMANIA Legislation Close connection with one of the parties, political

influence, media pressure, friendly relations
SLOVAK REP Any circumstances in which, in the performance of

his duties, in his private life or after he has left
office, the judge brings the dignity of his office into
disrepute or jeopardises the necessary confidence
in the judicial system.
SLOVENIA Codes of Civil and Criminal Where the judge is a party to the proceedings or is
Procedure, ECHR involved in the case, or has a connection with such
a person, if he has given evidence or been involved
in the case as an expert witness, if he has taken
part in a decision taken or delivered in the case, if
there is a reasonable doubt as to his impartiality.
SWEDEN Codes of Procedure Family connection, conflict of personal, financial or

political interests, bias, professional or personal
involvement in the case
SWITZERLAND Legislation and case-law ...consistent with the case-law of the European
Court of Human Rights
TURKEY Codes of Criminal and Civil Bias, conflict of interests, personal involvement in
Procedure an offence as victim, witness, counsel, arbitrator or
through a family connection
UKRAINE Codes of Procedure Close connection with one of the parties, personal
interest in the case, or where the performance of
the judge’s duties would in any way call his
impartiality into question
UNITED ECHR
KINGDOM
Criminal or civil liability of judges
Criminal liability Civil liability Procedures
Offences Sanctions
ANDORRA Criminal code, Article Judges bear civil In criminal matters,
114, corruption, corrupt liability in the event a judge can be

practices of fraud in the arrested only where
performance of their is caught in the act
duties of committing an
offence; temporary
suspension from
duties is automatic,
with the consent of
the Supreme
Judicial Council
AZERBAIJAN Where a judge knowingly Prison or A higher court The President and
convicts an innocent damages rehearing a case may the Council of
party, for example find that the judge Judges decide to
who dealt with the proceed by
case at first instance referring the matter
is liable to the Attorney
General’s
department, the
judge will be tried
by an ordinary
court
BELGIUM Offences against the Penalties Mechanism for In criminal matters,

general law on the prescribed under seeking damages the action is in the
occasion or in the the general law from a judge who has hands of the Public
exercise of his duties misused his authority Prosecutor attached
which allows a judge to the Court of
to be held personally Appeal, in civil
liable in the event of matters the
fraudulent intent or proceedings are
fraud on the part of held before the
the judge, the State Court of Cassation
may also be held
liable for misconduct
by a judge
CYPRUS The Constitution guarantees immunity for the judges of the Supreme Constitutional
Court and of the High Court (now combined into the Supreme Court).. Common law
and equity ensure that judges of the lower courts also enjoy immunity
CZECH REP In connection with the Where there has been Criminal
exercise of duties an unlawful decision proceedings against
or a harmful activity, a judge must be
the damage is made authorised by the
good by the State, President of the
which is entitled to Republic;
bring an action for jurisdiction lies with
indemnity if the judge the ordinary courts,
has been found guilty according to the
of a disciplinary procedures of the
offence general law
ESTONIA Where the judge has Removal from No personal liability The representative
deliberately delivered an office on the part of the of the Attorney
illegal decision judge, State liability General’s
department
addresses the
Supreme Court,
which ascertains
that the
prosecution may be
brought under the

Criminal Code and
the Code of
Criminal Procedure,
with the consent of
the President of the
Republic.
FINLAND Offences described in the Penalties Liability for damage Ordinary

Criminal Code committed prescribed by caused in the procedures, which,
in the course of duties general law, exercise of the according to the
including judge’s duties. The Constitution, may
removal from compensation is as a be instituted by
office rule paid by the anyone whose
State, which in rights have been
certain cases may be offended
reimbursed by the (exceptions and
judge. special procedure
for members of the
Supreme Courts).
FRANCE Offences defined by law Penalties Civil liability only Normal criminal
prescribed by the where the judge is procedure, a civil
general law personally at fault action is available
only against the
State, which has a
right to bring an
action for
indemnity
GERMANY Breaches of the Criminal Penalties Personal civil liability Normal criminal
Code involving misuse of prescribed under limited by Article and civil procedures
their judicial office and the general law 839(2) of the Civil
corruption. Code, where the act
giving rise to the
damage is a criminal
offence. State liability
is incurred in other
cases, and the State
can bring an action
for indemnity
whenever it is
ordered to pay
damages
ICELAND Where the judge has Aggravated The State bears civil Procedures laid
deliberately delivered an penalties liability but may down by the
unjust decision, where prescribed by the recover from the general law
he uses illegal general law judge if the fault was
procedures to obtain deliberate
admissions or where he
orders illegal arrests or
investigations
IRELAND Complete immunity for judicial office is recognised at common law
ITALY Prescribed in the Penalties Civil liability for gross Specific rules on
Criminal Code and aimed prescribed by the negligence or a denial jurisdiction in order
particularly at the judge general law of justice was to ensure that the
in the performance of his provided for in a Law case is dealt with in
judicial duties, such as of 1988 which a different area,
corruption marked a break from examination of the
the relative immunity admissibility of

from liability applications (can a
denounced in a problem raised by
referendum. The corrected by a
State acts as remedy? does the
guarantor and can complaint relate to
bring an action for the interpretation
indemnity against the of the law?). Cases
judge, the amount of are heard by the
damages is limited if ordinary courts
the damage was
caused
unintentionally.
JAPAN Ordinary criminal liability Under a precedent

established by the
Supreme Court in
1955, judges have no
personal, civil liability
for damage caused to
parties in the
performance of duty
LIECHTENSTEIN Offences under the Penalties General rules on the Ordinary courts and
general law, plus certain prescribed by the civil liability of the procedures in
particular offences such general law, a State, which may criminal matters
as malfeasance in office judge who is bring an action for and in civil
or corruption sentenced to a indemnity matters; the
term of Supreme Court has
imprisonment of jurisdictions to hear
more than one appeals
year is removed
from his post
LITHUANIA Breaches of the Criminal Penalties The State alone is Any criminal
Code involving misuse of prescribed under liable, but has a right prosecution or
their judicial office and the general law to bring an action for detention must be
corruption indemnity against the approved by
judge Parliament; the
judge is then
suspended from
office pending the
outcome of the
proceedings.
LUXEMBOURG Article 4 of the Civil Fines, prohibition Only State liability Article 639 of the
Code, abuse of powers on exercising can be incurred New Code of Civil
and denial of justice duties or from (procedure under the Procedure for
occupying public general law, Law of 1 seeking damages
posts or office September 1988) from a judge who
has misused his
authority
MALTA The Criminal Code Penalties No special rules; The ordinary

makes express provision prescribed by the there is no known procedures of the
for cases in which a general law case of an attempt to ordinary criminal
judge dismisses or render a judge civilly courts
refuses to hear a lawfully liable
submitted application for
habeas corpus; like any
holder of public
authority: misuse of
powers or malfeasance,
corruption, financial
misappropriation
MOLDOVA The general law, under the principle that No civil liability for Criminal
all are equal before the law judges prosecution
authorised by the
CSM and the
President of the
Republic or
Parliament,
depending on
circumstances, and
heard before the
higher courts.
NETHERLANDS General law applies Only State liability General law

can be incurred applies, no special
procedures
NORWAY Offences against the An action to establish The charges

general law civil liability on the against a judge are
part of the judge is defined by the
available only if the King’s Council and
decision has been set the judge is always
aside and if the judge tried by a higher
committed an offence court than the one
when taking it in which he sits
POLAND Offences connected with The judge may be Criminal

judicial activities and held personally liable proceedings and
duties in accordance with custodial measures
the general law, the must be authorised
State may be held by the Disciplinary
liable in a case of Court (except
unintentional fault or where the person is
misconduct in office caught in the act of
(an action for committing the
indemnity is limited offence): the
to three months’ Disciplinary Court
salary, is unlimited in may also suspend
a case of serious the judge from
breach), there is no office; an appeal
liability for the lies to a higher
consequences of a court
judgment
PORTUGAL Offences against the Penalties A judge incurs civil Ordinary criminal
general law committed prescribed by the liability only where procedure before a
on the occasion or in the general law the facts causing the higher court than
exercise of the judge’s damage have lead to that in which the
duties, special offences a criminal conviction judge sits in
of misuse of powers, for bribery, criminal matters,
abuse of authority, misappropriation of and before the
misappropriation of public funds or court where the
public funds, denial of prevarication, the facts arose in civil
justice, breach of secrecy judge is required to matters
reimburse the
compensation paid by
the State or to
indemnify the State
ROMANIA General law General law General law Ordinary

procedures and
courts in civil
matters; in criminal
matters, prior
opinion of the
Minister or the
President, then
ordinary
procedures and
courts (higher
courts for judges at
a certain level in
the hierarchy)
SLOVAK REP Offences committed in Imprisonment, In criminal matters,

the course of the judge’s loss of proceedings must
duties professional and be authorised by
honorary the body which
qualifications, appointed or
prohibition on elected the judge
practising, fines and are brought at
the initiative of the
President of the
court concerned or
the Minister for
Justice
SLOVENIA Malfeasance having Penalties In criminal matters,

given rise to a deliberate prescribed by the any proceedings or
offence general law, detention must be
which may have authorised by
the consequence Parliament
of removal from
office
SWEDEN Offence committed in the Penalties Damage caused in In criminal matters,

exercise of duties set out prescribed by the the exercise of the if the judge is a
in the Criminal Code: general law judge’s duties, the judge of the
breach of duty, (fines, prison) State is generally Supreme Court on
corruption, breach of and possibly liable for the the Ombudsman
professional secrecy disciplinary negligence of a public and the Justice
consequences, servant, the judge Chancellor can
including may be personally bring proceedings
removal from liable where there are
office aggravating
circumstances
SWITZERLAND Offences connected with Only the State can In criminal matters,
the judge’s activities or bear civil liability, the only Parliament can
official position direct civil liability of authorise
the judge is proceedings; it may
precluded also provisionally
suspend the judge
from office; the
case falls within the
jurisdiction of the
ordinary courrts
TURKEY Code of Criminal Imprisonment Code of Civil Criminal

Procedure: misuse or Procedure: civil proceedings require
abuse of office, consequences of a the consent of the
corruption, favouritism criminal offence, Supreme Council of

arbitrary decisions, Judges and Public
illegal decisions, Prosecutors, which
decisions dictated by who appoints the
personal investigators and
considerations or by the prosecutor,
considerations decides if a matter
extraneous to the is disciplinary and
case forwards the
documents to the
competent
authorities –
special procedure in
cases of treachery
(felony)
UKRAINE Penalties No civil liability for Ordinary criminal

prescribed by the judges procedure, however
general law, plus any preventive
removal from detention of a
office. judge must be
exceptional and
authorise by the
Supreme Council.
The judge is
suspended from
office immediately
an action is
initiated. The
competent court is
a Court of Appeal
designated for the
purpose, where the
judge has never
worked
UNITED Immunity at common law in the exercise of judicial duties, otherwise immunity only
KINGDOM if the judge has acted in good faith
Disciplinary proceedings
Circumstances Procedure Authority Sanction
ANDORRA Serious or very serious The Supreme Supreme Judicial Article 85 of L.Q.J.,
breaches set out in Judicial Council Council reprimand, fine,
Articles 83 and 84 of takes the initiative suspension of post,
L.Q.J. for an removal from office
investigation upon
application by an
injured person, a
citizen who was
aware of the facts,
the Attorney
General’s
department or the
president of the
court concerned
AZERBAIJAN In the even of The Minister requests Warning or dismissal

minor offences the Judges’ Council
to deal with the case
BELGIUM Breach of the rules of The judge appears Warning, simple

conduct laid down by before his President, censure, censure
law or deriving from the First President of with a reprimand,
case-law, i.e. the Court of Appeal suspension for
confidence in the or before the General between 15 days and
judicial institution disciplinary Assembly 1 year, dismissal
of either the Court of
Appal or the Court of
Cassation, depending
on his grade and the
gravity of the breach
or of the penalty
available
CYPRUS Mental or physical The Supreme Supreme Council of Reprimand or

incapacity preventing Court appoints an the Judicature removal from office
the judge from investigating judge
carrying out his and then decides
duties, breach of his to send the judge
ethical duties before the
disciplinary body
CZECH REP Breach of the The Minister for Disciplinary Court Reprimand,
disciplinary rules laid Justice or the composed of five temporary reduction
down in a Law of 2002 President of the judges appointed by in salary, suspension
Court concerned or a President of a from duties as
the President of Court appointed by president,
the Supreme Court agreement with the suspension from
decide to bring Judicial Council for a duties as a judge
proceedings within period of three years,
two months of an appeal lies to the
becoming aware of Supreme Court.
the facts, which
must not have
happened more
than two years
previously
ESTONIA Failure to follow Proceedings Disciplinary Warning, reprimand,

procedures and any initiated by the Committee of the fine, removal from
breach or conduct that President of the Supreme Court office (can only be
jeopardises confidence Supreme Court or ordered by the
in the judicial system the Minister for Supreme Court in
Justice plenary assembly)
FINLAND No disciplinary
proceedings: also
minor offences
(breach of duty) may
result in criminal
proceedings
FRANCE Breach of the duties Supreme Council of From a simple

associated with his the Judiciary, under reprimand recorded
post, dishonourable the presidency of the in the file to removal
unscrupulous or First President of the from office
undignified conduct Court of Cassation
GERMANY Breach of the duties Procedure The Federal Service Reprimand, fine,
defined in the administered by a Court, a Division of reduction in salary,
Statutes, proceedings special department the Federal Court of transfer to another
are very rarely Justice composed of post, removal from
brought professional judges office

appointed for life and
other career judges
ICELAND A breach in discharge A complaint in a) Committee on Admonition, personal

of judicial functions. writing may be Judicial Functions opinion (removal
lodged before the composed of three from office only by
Committee on members appointed conclusions of court
Judicial Functions by the Minister for proceedings in a
by any person who Justice (one more serious
has suffered harm proposed by the matters)
owing to the Assembly of Icelandic
conduct of a Judges and one
judge. If found proposed by the
valid, the judge is Faculty of Law)
invited to b) President of Court
comment before
the Committee
rules.
IRELAND There is only a procedure before Parliament for removal from office; it resembles the
impeachment procedure deriving from common law and is rarely used.
ITALY Any breach of the Proceedings Disciplinary court

duties associated with initiated by the composed of nine
his post, public or Attorney General’s judges who are
private conduct representative at members of the
adversely affecting the the Court of Supreme Council of
confidence and Cassation or on the Judiciary elected
prestige that a judge application by the by their peers; two
and the judicial Minister for of them must have
institution must inspire Justice. The been nominated by
(cases determined by procedure is Parliament
the case-law) judicial in nature,
with all the
guarantees
provided by such a
procedure
JAPAN Court Organisation Stipulated in the Hearing by a court of The disciplinary

Law, Law for Law on a level higher than procedure: Caution
Impeachment of Disciplinary that to which the or fines / the
Judges and Law on Actions against judge concerned impeachment
Disciplinary Actions Judges and Law belongs in the procedure: Dismissal
against Judges for Impeachment impeachment
of Judges procedure in which
the most serious
cases are handled,
hearing by the Court
of Impeachment
made up of Diet
members.
LIECHTENSTEIN Those laid down in the No specific Higher court in the Reprimand,
Statutes of Officials of procedure, similar case of ordinary temporary reduction
the State to criminal judges and Supreme in salary, dismissal
procedure Court in the case of
higher judges
LITHUANIA Breach of judge’s The Judicial Ethical and Reprimand or

duties, flagrant breach Council or the Disciplinary removal from office
of the law, failure to President of the Committee of the
observe rules on Court may initiate Judicial Council

incompatibility disciplinary (composed of judges
proceedings – elected or
appointed – and of
representatives of
the other Powers),
which refers the case
to a Court of Honour,
which, where it
decides that a judge
is to be dismissed,
proposes that
sanction to the
President or to
Parliament
LUXEMBOURG Article 155 of the Law Article 157 et seq. Article 156
on the Judicial
Organisation, wide
definition
MALTA Constitution. S. 971 of the Removal from office Removal from office
Constitution by the President on
Inability (physical or an address from
mental) to carry out S. 8 of Act No. 41 Parliament (approved
his duties or of 1944 by two thirds of the
particularly serious votes). Before this
misconduct steps is taken the
case is investigated
by the Commission
for the
Administration of
Justice when it is
found that the judge
has a case to answer
MOLDOVA Premeditated breach Disciplinary Disciplinary Board of Observation,

of the law in proceedings may the supreme council warning, dismissal
administering justice, be brought by: the of the Judiciary
disciplinary offence, President of the
public activity of a Supreme Court,
political nature, breach the President of
of the rules on the Supreme
incompatibilities, Council of the
systematic or serious Judiciary, any
breach of the Code of member of the
Conduct Supreme Council
of the Judiciary
NETHERLANDS In case of minor

breaches of duties or
rules of conduct by the
judge, the president of
the court can issue a
warning. It the judge
is convicted or
committing a crime
and/or is sentenced to
a prison sentence, if
he is declared
bankrupt or legally
unfit and, more
generally, if he acts in
such a way that justice
or the confidence of
the judiciary is
seriously impaired, the
Supreme Court can
suspend or dismiss the
judge.
NORWAY A current Bill seeks to A party, a witness A committee Warning and

put an end to the or a lawyer with a composed of two reprimand only;
practice whereby complaint about judges, one lawyer removal from office,
judges, like all senior the conduct of a and two outsiders, all as provided for in
officials, are not judge in the appointed by the the Constitution, for
subject to disciplinary exercise of his Government grave and repeated
proceedings duties may bring offences involves a
the matter before special procedure
the Disciplinary provided for in the
Committee – the Constitution
Committee’s
decision may be
reviewed by an
ordinary court
composed of lay
judges
POLAND Breach of the dignity Closely resembles Different disciplinary Warning, reprimand,
of his office, flagrant criminal courts deal with removal from post –
breach of the rules of proceedings; matters arising in the whether definitive or
law, minor offences proceedings are ordinary courts, the merely be way of
administered by administrative transfer – removal
judges elected for courts, the military from office
the purpose, on courts and the
application by the Supreme Court:
Minister, the there are three
Supreme Court or judges at first
any head of court, instance and seven
the National judges hear appeals
Council of the
Judiciary or
Prosecutor elected
himself; the
proceedings are
held in public and
the judge is
defended by
counsel
PORTUGAL Breach of professional Provided for in the Supreme Council of Fine of between 5
duties, acts or Statutes of Judges the Judiciary; and days’ and 90 days’
omissions in the appeal lies to the remuneration,
capacity of judge Supreme Court transfer, suspension
which are incompatible for between 20 days
with the dignity and 240 days,
essential to the compulsory
exercise of judicial retirement, removal
functions (in varying from office
degrees, which
determine the
sanction)
ROMANIA Professional Proceedings Supreme Council of Reprimand, warning,

misconduct and initiated by the the Judiciary, then at reduction in salary,
conduct contrary to Ministry, last resort before the block on promotion,
the interests of the investigation Supreme Court transfer, suspension,
service or to the carried out by removal from office
prestige of the judicial judges of the same
system (delays in rank, defense
dealing with cases, provided by a
absence, acting in the judge
judge’s personal
interest, interference
in the work of judges,
breach of secrecy)
SLOVAK REP Breach of the The Minister of Disciplinary Courts Admonition,

disciplinary rules laid Justice or the temporary reduction
down in a Law of 2000 President of the in salary,
or the consequences Court concerned suspension, removal
of a criminal are competent to from office
conviction initiate
proceedings
SLOVENIA Very strict cases Proceedings on the Disciplinary Court Transfer, suspension
provided for by the initiative of the composed of one of all promotion,
Law on the Judicial President of the judge of the reduction in salary,
Organisation Court, then Supreme Court as removal from office
application of the President and four
ordinary criminal judges representing
procedure the different levels of
courts
SWITZERLAND Switzerland is not concerned
TURKEY Failure to carry out Depending on the Supreme Council of Warning, reprimand,
duties, misconduct, hierarchical level, the Judges and delay in and block on
insulting behaviour in inspectors Prosecutors (which is promotion,
the course of work, appointed by the also competent for withholding of salary,
absence, delays, time- Minister, who takes appointments and compulsory transfer,
wasting, bringing the the initiative for career management) dismissal
image of justice into proceedings,
disrepute, observance of the
malfeasance, failure to rights of defence
fulfil administrative
and ministerial duties
UKRAINE Flagrant breach of the Disciplinary Reprimand or

law, failure to fulfil Committees recommandation to
duties as judge and the High Council on
those duties which Justice that the
that post imposes in judge be removed
the judge’s private life from office
UNITED Particular serious On the initiative of By the Queen on Removal from office
KINGDOM misconduct the Lord address of both (extremely rare)
Chancellor and the Houses of Parliament
Lord Chief Justice in the case of the
senior judiciary and
by the Lord
Chancellor in the
case of the rest of
the judiciary (but in
each case, no such
steps would be taken

without obtaining an
independent judicial
report and without
the concurrence of
the Lord Chief
Justice)
1 This has since been revised in November 2002, to become The Bangalore Principles of Judicial
Conduct. The CCJE did not have these Principles before it. The Explanatory Note to them
acknowledges the input of the CCJE’ s Working Party in June 2002.
2 Les mutations de la justice. Comparaisons européennes, Ph. Robert and A. Cottino (ed.),
Harmattan, 2001.
3 See for exemple Piersack case, judgment of 1 October 1982, Series A 53, para. 30, De Cubber case,
judgment of 26 October 1984, Series A 86, para. 24, Demicoli case, judgment of 27 August 1991,
Series A 210, para. 40, Sainte-Marie case, judgment of 16 December 1992, Series A 253-A, para. 34.
4 For a detailed analysis of incompatibilities, see the Communication by Jean-Pierre Atthenont,

presented at the seminar organised by the Council of Europe on the statute for judges (Bucharest,
19-21 March 1997) and the Communication by Pierre Cornu presented at a seminar organised by the
Council of Europe on the statute for judges (Chisinau, 18-19 September 1997).
5 It covers relations with individuals, the duty of competence, the use of public resources, the use of
professional information, relations with the press, membership of associations, the image of
impartiality and independence, the obligation to act correctly with collaborators, conduct in office and
outside and the duties of presiding judges.
6 In his summary report, presented following the first meeting of the Lisbon Network, Daniel Ludet
stressed that training should offer a link and encourage discussion of judges' professional practices
and the ethical principles on which they are based (see Training of judges and prosecutors in matters
relating to their professional obligations and ethics. 1st meeting of the members of the network for
the exchange of information on the training of judges and prosecutors, Council of Europe Publishing).
7 Merely because the State has been held liable for excessive delay, it by no means follows, of course,
that any individual judge is at fault. The CCJE repeats what it said in paragraph 27 above.
8 It was for these reasons that the CCJE Working Party, during and after its meeting with the United
Nations Commissioner for Human Rights on 18th June 2002, qualified its otherwise substantially
positive attitude to the Bangalore Code in its present draft form by disagreeing with the direct link
which it drew between the principles of conduct which it stated and the subjects of complaints and
discipline (see paragraph 2(iii) of Appendix V, doc. CCJE-GT (2002) 7): see the CCJE-GT’s comments
No. 1 (2002) on the Bangalore draft.
9 In England, the Lord Chancellor is responsible for initiating and deciding disciplinary action. By
agreement disciplinary action is initiated only with the concurrence of the Lord Chief Justice, and
thereafter (unless the judge concerned waives this) another judge of appropriate standing, nominated
by the Lord Chief Justice, is appointed to investigate the facts and to report, with recommendations.
If the Lord Chief Justice concurs the Lord Chancellor may then refer the matter to Parliament (in the
case of higher tier judges) or remove a lower tier judge from office, or take or authorise any other
disciplinary action.
Related Documents
Other documents
CCJE(2002)36E / 18 November 2002
CCJE(2002)35E / 18 November 2002

CCJE(2002)17E / 04 October 2002
CCJE(2002)34E / 18 June 2002
CCJE(2002)31E / 17 May 2002
CCJE(2002)29E / 15 May 2002
CCJE(2002)30E / 15 May 2002
CCJE(2002)28E / 29 April 2002
CCJE(2002)27E / 10 April 2002
CCJE(2002)25E / 11 March 2002
CCJE(2002)24E / 25 February 2002
CCJE(2002)1E / 22 January 2002
CCJE(2001)34revE / 10 January 2002

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Judges - CCJE - Consultative Council of European Judges (CCJE) - …ct, in particular ethics, incompatible behaviour and impartiality 27/12/14

Strasbourg, 19 November 2002

CCJE (2002) Op. N° 3

Consultative Council of European Judges (CCJE)

Opinion no. 3 of the Consultative Council of European

- the Code of judicial conduct, the Bangalore draft1.

4. The present opinion covers two main areas:

6. The CCJE therefore sought to answer the following questions:

- What standards of conduct should apply to judges?

- How should standards of conduct be formulated?

A. STANDARDS OF JUDICIAL CONDUCT

1°) What standards of conduct should apply to judges?

a. Impartiality and conduct of judges in the exercise of their judicial functions

b. Impartiality and extra-judicial conduct of judges

c. Impartiality and other professional activities of judges 4

d. Impartiality and judges’ relations with the media

2°) How should standards of conduct be formulated?

- high-level groups, consisting of representatives of different interests involved in the administration

3°) Conclusions on the standards of conduct

49. The CCJE is of the opinion that:

i) judges should be guided in their activities by principles of professional conduct,

B. CRIMINAL, CIVIL AND DISCIPLINARY LIABILITY OF JUDGES

59. The questions which arise are:

i) What conduct is it that should render a judge liable to disciplinary proceedings?

ii) By whom and how should such proceedings be initiated?

iii) By whom and how should they be determined?

5°) Conclusions on liability

75. As regards criminal liability, the CCJE considers that:

77. As regards disciplinary liability, the CCJE considers that:

iii) any disciplinary proceedings initiated should be determined by an independent authority or

SUMMARY OF THE REPLIES TO THE QUESTIONNAIRE ON THE CONDUCT, ETHICS AND

What are the obligations by which judges are bound ?

Source Date In relation to the In relation to the Personal

ANDORRA Qualified Justice 1993 professional Duty to act with

AZERBAIJAN loyalty to the honesty,

BELGIUM Judicial code 1967, an Act obligation to obligation under

CYPRUS Courts of justice oath of loyalty to judicial oath to

ESTONIA Status of Judges a new Act is

FINLAND Constitution, obey the law impartiality, behaviour in

FRANCE judges are not to infringe the refrain from any

GERMANY German Judiciary principle of … and outside

ICELAND Constitution and 1998 must carry out must maintain

ITALY Law on the 1946

JAPAN Constitution, 1947 (both) compliance with independence in requirements of

LIECHTENSTEIN Constitution and 1921 and duties of officials

Organisation Act judiciary Servants Act

LITHUANIA Courts Act 2002 obey the satisfy the

LUXEMBOURG No law defining

MALTA First oath of adjudicate in act honestly and

MOLDOVA Law on the status strict observance safeguard the

NETHERLANDS Art. 29 of the 1827 They will be They will carry

NORWAY Constitution, oath must give an

loyalty to the writing to carry

POLAND Constitution, Acts of 1984, loyalty to the Meticulously obligation to

PORTUGAL The status of Common duties must reside in

SLOVAK REP Act on judges 2000 Impartiality, must have

not allow himself permanently in

SLOVENIA Judicial Service 1994, 1996 et conduct himself In the exercise

SWEDEN Constitution, must observe an honest and