Ministry of Education of the Republic of Moldova

Moldova State University

Faculty of Law

Report
Theme: International Legal regulations of
Legal deontology in respect to Judges

Prepared by: Furculi Cornelia

Gr 410 (English Department)

Chiinu
2016

Introduction
The importance of the deontology regarding judges can be easily noticed by the fact that it has been
highly and thoroughly treated both by national and international legal instruments. The legitimacy of
the judicial power is given by the value of an authority that recognizes its activitys necessity and
desireability. They are given by the international instruments with a unveirsal value, which transpose
in the duty of states obligations on prezervation of the judiciary as a fundamental institution of the
rule of law. The public trust and respect towards the judiciary represents the democratic essence of
the contemporary democracy. Breaches of deontological rules can impair the trust in justice, which
already became an imperative deontological rule.1 The present work has the aim to highlight
international principles and rules that aim to set a unviersal model behaviour of a judge that would
not affect the image of justice system.

Independence
The basical Principle that can be found in most international regulations is the principle of
independence. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee
of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its
individual and institutional aspects.2 The independence of the judiciary shall be guaranteed by the
State and enshrined in the Constitution or the law of the country. It is the duty of all governmental
and other institutions to respect and observe the independence of the judiciary.3 Similar provision can
be found on the European level, which states that The independence of the judiciary shall be
guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of
all governmental and other institutions to respect and observe the independence of the judiciary. 4
Judges should be independent both from other members of the judiciary and from other external
influences, which might come from other powers, as the legal and executive one. In this respect the
European Charter on the statute of judges mentions: In respect of every decision affecting the
selection, recruitment, appointment, career progress or termination of office of a judge, the statute
envisages the intervention of an authority independent of the executive and legislative powers within
which at least one half of those who sit are judges elected by their peers following methods
guaranteeing the widest representation of the judiciary.5 The modern democratic State should be
1 Deontologia profesiei de magistrate. Repere contemporane; Mona-Maria
Pivniceru, Ctlin Luca; Hamangiu-2008, page42
2 The Bangalore Principles of Judicial Conduct, Value I
3 Basic Principles on the Independence of the Judiciary, pt. 1
4 Judges: independence, efficiency and responsibilities Recommendation, Chapter I,
7
5 European Charter on the statute for judges and Explanatory Memorandum
Strasbourg, 1.3

founded on the separation of powers. Each individual judge should do everything to uphold judicial
independence at both the institutional and the individual level.6

Impartiality
Close to the independence of the judges is the impartiality. Impartiality can be both objective and
subjective. Thus, even if a judge considers he could remain objective, if the situation rises doubts by
third parties, which are considered to be reasonable observers, towards his impartiality he shall
recuse himself. However, impartiality is presumed until the contrary is proven. 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. 7 Impartiality must exist both
as a matter of fact and as a matter of reasonable perception. Independence and impartiality
are separate and distinct values. They are nevertheless linked as mutually reinforcing attributes of the
judicial office. Independence is the necessary precondition to impartiality and is a prerequisite for
attaining impartiality. A judge could be independent but not impartial (on a specific case by case
basis), but a judge who is not independent cannot, by definition, be impartial (on an institutional
basis).8. Judges should act in the exercise of their funciton without favoritism and bias. He shall treat
everbody equally, without making differece based on different criterias. On the eruopean leve, it is
mentioned that impartiality is also related to the extrajudicial behaviour of the judges. Still, judges
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. They should therefore remain generally free to
engage in the extra-professional activities of their choice. 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.9

Commentaries and Mass Media

A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any
comment that might reasonably be expected to affect the outcome of such proceeding or impair the
manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that
might affect the fair trial of any person or issue. 10 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
6 Opinion No. 3, pt. 16
7 Basic Principles on the Independence of the Judiciary, pt. 2
8 Commentary of Bangalore Principles, pt. 51, page 57
9 Opinion No. 3, pt. 27,28
10 The Bangalore Principles of Judicial Conduct, pt. 2.4

resulting from Article 10 of the European Convention on Human Rights. Judges should also be free
to prepare a summary or communiqu setting up the tenor or clarifying the significance of their
judgements for the public. The Consultative Council of European Judges (hereinafter 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.11

Private Life
The behavior and conduct of a judge must reaffirm the people's faith in the integrity of the judiciary.
Justice must not merely be done but must also be seen to be done. As a subject of constant public
scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the
ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or
herself in a way that is consistent with the dignity of the judicial office.12 Judges freely carry out
activities outside their judicial mandate including those which are the embodiment of their rights as
citizens. This freedom 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.
The exercise of an outside activity, other than literary or artistic, giving rise to remuneration, must be
the object of a prior authorization on conditions laid down by the statute. Judges must refrain from
any behavior, action or expression of a kind effectively to affect confidence in their impartiality and
their independence.13 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.14 According to Bangalore Principles a judge can for example hold conferences,
appear at a public hearing before an official body concerned with matters relating to the law, serve as
a member of an official body. However, all this functions can be hold only with the condition that
such activities do not detract from the dignity of the judicial office or otherwise interfere with the
performance of judicial duties.

Equality
A principle that a judge shall respect, is the Principle of equality. It means that he shall treat
everybody equally, moreover he shall ensure that parties in a process treat each other also in an equal
11 Ibid. 9, pt.40
12 The Bangalore Principles of Judicial Conduct, pt. 3.2; 4.2
13 European Charter on the statute of judges, pt. 4.2; 4.3
14 Opinion No. 3, pt. 29

manner. This principle is close and linked to the impartiality, It is the duty of a judge not only to
recognize, and be familiar with, cultural, racial and religious diversity in society, but also to be free of
bias or prejudice on any irrelevant grounds. A judge should attempt, by appropriate means, to remain
informed about changing attitudes and values in society, and to take advantage of suitable educational
opportunities (which ought to be made reasonably available) that will assist the judge to be, and
appear to be, impartial.15

Qualification
Persons selected for judicial office shall be individuals of integrity and ability with appropriate
training or qualifications in law. Any method of judicial selection shall safeguard against judicial
appointments for improper motives. In the selection of judges, there shall be no discrimination
against a person on the grounds of race, color, sex, religion, political or other opinion, national or
social origin, property, birth or status, except that a requirement, that a candidate for judicial office
must be a national of the country concerned, shall not be considered discriminatory.16 Judges must
also fulfill their functions with diligence and reasonable despatch. 17 Availability refers both to the
time required to judge cases properly and to the attention and alertness that are obviously required for
such important duties, since it is the judges decision that safeguards individual rights. Respect for
individuals is particularly vital in positions of power such as that occupied by the judge, especially
since individuals often feel very vulnerable when confronted with the judicial system. This paragraph
also mentions the judges obligation to respect the confidentiality of information which comes to his
or her attention in the course of proceedings. It ends by pointing out that judges must ensure that they
maintain the high level of competence that the hearing of cases demands. This means that the high
level of competence and of ability is a constant requirement for the judge in examining and
adjudicating on cases, and also that he or she must maintain this high level, if necessary through
further training. As is pointed out later in the text, judges must be granted access to training
facilities.18

Liability
Where judges fail to carry out their duties in an efficient and proper manner or in the event of
disciplinary offences, all necessary measures which do not prejudice judicial independence should be
taken.19 As regards criminal liability, the CCJE considers that judges should be criminally liable in
15 Commentary of Bangalore Principles, pt 186, page 123
16 Basic Principles on the Independence of the Judiciary, pt. 10
17 Opinion No. 3 pt. 26
18 Explanatory Memorandum to the European Charter on the statute for Judges, pt.
1.5
19 Judges: independence, efficiency and responsibilities Recommendation, Principle
VI, 1.

ordinary law for offences committed outside their judicial office. Criminal liability should not be
imposed on judges for unintentional failings in the exercise of their functions.
As regards civil liability, the CCJE considers that, bearing in mind the principle of independence: 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. Any remedy for
other failings in the administration of justice (including for example excessive delay) lies only
against the state. 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 willful default.20

Bibliography
1. The Bangalore Principles of Judicial Conduct 2002 (The Bangalore Draft
Code of Judicial Conduct 2001 adopted by the Judicial Group on
Strengthening Judicial Integrity, as revised at the Round Table Meeting of
Chief Justices held at the Peace Palace, The Hague, November 25-26,
2002);
2. Basic Principles on the Independence of the Judiciary Adopted by the
Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders held at Milan from 26 August to 6 September 1985
and endorsed by General Assembly resolutions 40/32 of 29 November
1985 and 40/146 of 13 December 1985;
3. Judges: independence, efficiency and responsibilities, Recommendation
CM/Rec(2010)12 adopted by the Committee of Ministers of the Council of
Europe on 17 November 2010 and explanatory memorandum;
4. European Charter on the statute for judges and Explanatory Memorandum
Strasbourg, 8 - 10 July 1998;

20 Opinion No. 3, pt. 75;76

5. 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;
6. Deontologia profesiei de magistrate. Repere contemporane;
Pivniceru, Ctlin Luca; Hamangiu, 2008.

Mona-Maria

Table of Contents

Introduction1
Independence...................................................................1
Impartiality.......................................................................1
Commentaries and Mass Media........................................2
Private Life........................................................................2
Equality............................................................................3
Qualification.....................................................................3
Liability.............................................................................4
Bibliography.....................................................................5