The ABA Rule of Law Initiative Compilation of International by fsb96139

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									CENTRAL EUROPEAN AND EURASIAN LAW INITIATIVE
               JUDICIAL REFORM PROGRAM




             COMPILATION OF
       INTERNATIONAL STANDARDS ON
JUDICIAL REFORM AND JUDICIAL INDEPENDENCE




                    January 2004




  Central European and Eurasian Law Initiative (CEELI)
    740 15th St., N.W., Washington, D.C. 20005-1022
            <http://www.abanet.org/ceeli>
The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and,
accordingly, should not be construed as representing the policy of the ABA.

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are
responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are
intended for educational and informational purposes only.



.
Printed in the United States of America.
               Compilation of
         International Standards on
Judicial Reform and Judicial Independence
                                  Table of Contents


Foreword………………………………………………………………………………………………………….. ii

United Nations Basic Principles on Independence of the Judiciary…………………………………….01

The Universal Charter of the Judge…………………………………………………………………………...06

IBA Minimum Standards of Judicial Independence………………………………………………………..10

Bangalore Principles of Judicial Conduct…………………………………………………………………...16

Council of Europe Rec No. R (1994) 12 on the Independence, Efficiency and Role of Judges……29

European Charter on the Statute for Judges………………………………………………………………..49

Judges’ Charter of the European Association of Judges..............………………………………………67

OSCE Commitments……………………………………………………………………………………………..70

Beijing Statement of Principles on Judicial Independence………………………………………………74

ABA Model Code of Judicial Conduct………………………………………………………………………..87

Caracas Declaration…………………………………………………………………………………………….116

Beirut Declaration–Recommendations by the First Arab Conference on Justice…………………..125




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                                           Foreword
International standards are an integral part of international and domestic initiatives to
promote the rule of law in emerging and mature democracies around the globe.
Numerous instruments have been drafted and adopted by international organizations
and groups of experts highlighting the importance of the rule of law to democratic
governance, respect for fundamental rights and freedoms, and the reduction of poverty
and social inequality. These instruments, including many found in this publication, reflect
the emerging international consensus on how to best establish and regulate institutions
that support the rule of law, such as an independent, efficient, and accountable judiciary.

ABA/CEELI relies on international standards and comparative legal traditions in its
efforts to strengthen judicial independence as a central pillar of the rule of law. Other
international providers of technical legal assistance have taken similar approaches
toward advancing judicial reform. Judicial reform initiatives that are rooted in the
language of international standards and are informed by comparative legal traditions have
more relevance to local reformers and stakeholders and are ultimately more sustainable.

This publication is intended to serve as a resource for ABA/CEELI field offices and local
partners throughout Europe and Eurasia as well as for collegial organizations involved
in supporting judicial reform in these regions and elsewhere. It may be employed to
inform and educate a variety of interested audiences, including policymakers, legislative
drafters, and civic groups and activists about the nature and scope of professional
freedoms and guarantees that judges should enjoy in order to administer justice fairly
and efficiently. Similarly, this publication can be used to remind members of the judiciary
and judicial associations of the many existing standards on judicial conduct and ethics,
so as to ensure the integrity of the profession and increase public confidence in the
judiciary.

Although the international standards contained herein should not be used as a template
or copied verbatim for purposes of drafting laws or codes of conduct, they do offer
sound guidance and provide democratically-oriented approaches for the development of
legal frameworks on the judiciary and strategies for pursuing judicial reform.
International standards should not be relied on in such a way as to displace domestic
policy debates or policies reflecting societal traditions and values in administering
justice. These standards should instead be relied on to help frame these debates and
remind governing authorities and others involved in judicial reform of the international
consensus on the role of a judiciary in a democratic society.

ABA/CEELI’s Judicial Reform Focal Area is committed to working in cooperation with
international and domestic organizations and reformers around the world to promote
greater awareness of and respect for international standards on judicial independence
and judicial reform. In this spirit, it welcomes wide dissemination of this publication.

The materials provided in this publication were compiled and formatted by ABA/CEELI Research
Assistant Brandon Blackburn-Dwyer for the Judicial Reform Focal Area.

ii
  United Nations Basic Principles
on the Independence of the Judiciary
       U.N. 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

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia,
their determination to establish conditions under which justice can be maintained to
achieve international co-operation in promoting and encouraging respect for human
rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the
principles of equality before the law, of the presumption of innocence and of the right to
a fair and public hearing by a competent, independent and impartial tribunal established
by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on
Civil and Political Rights both guarantee the exercise of those rights, and in addition, the
Covenant on Civil and Political Rights further guarantees the right to be tried without
undue delay,

Whereas frequently there still exists a gap between the vision underlying those
principles and the actual situation,

Whereas the organization and administration of justice in every country should be
inspired by those principles, and efforts should be undertaken to translate them fully into
reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges
to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights,
duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, by its resolution 16, called upon the Committee on Crime
Prevention and Control to include among its priorities the elaboration of guidelines
relating to the independence of judges and the selection, professional training and
status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of
judges in relation to the system of justice and to the importance of their selection,
training and conduct,



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The following basic principles, formulated to assist Member States in their task of
securing and promoting the independence of the judiciary should be taken into account
and respected by Governments within the framework of their national legislation and
practice and be brought to the attention of judges, lawyers, members of the executive
and the legislature and the public in general. The principles have been formulated
principally with professional judges in mind, but they apply equally, as appropriate, to
lay judges, where they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in
the Constitution or the law of the country. It is the duty of all governmental and other
institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is within its
competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial
process, nor shall judicial decisions by the courts be subject to revision. This principle is
without prejudice to judicial review or to mitigation or commutation by competent
authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using
established legal procedures. Tribunals that do not use the duly established procedures
of the legal process shall not be created to displace the jurisdiction belonging to the
ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the parties
are respected.

7. It is the duty of each Member State to provide adequate resources to enable the
judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the
judiciary are like other citizens entitled to freedom of expression, belief, association and
assembly; provided, however, that in exercising such rights, 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.

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9. Judges shall be free to form and join associations of judges or other organizations to
represent their interests, to promote their professional training and to protect their
judicial independence.

Qualifications, selection and training

10. 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.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate remuneration,
conditions of service, pensions and the age of retirement shall be adequately secured
by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective
factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an
internal matter of judicial administration. Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their
deliberations and to confidential information acquired in the course of their duties other
than in public proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to
compensation from the State, in accordance with national law, judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or omissions
in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and professional
capacity shall be processed expeditiously and fairly under an appropriate procedure.
The judge shall have the right to a fair hearing. The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested by the judge.


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18. Judges shall be subject to suspension or removal only for reasons of incapacity or
behavior that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in
accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to
an independent review. This principle may not apply to the decisions of the highest
court and those of the legislature in impeachment or similar proceedings.




   4
    The Universal Charter of the Judge




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                      The Universal Charter of the Judge

Preamble.

Judges from around the world have worked on the drafting of this Charter. The present
Charter is the result of their work and has been approved by the member associations
of the International Association of Judges as general minimal norms.

The text of the Charter has been unanimously approved by the delegates attending the
meeting of the Central Council of the International Association of Judges in Taipei
(Taiwan) on November 17, 1999.

Article 1 Independence

Judges shall in all their work ensure the rights of everyone to a fair trial. They shall
promote the right of individuals to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law, in the determination of their
civil rights and obligations or of any criminal charge against them.

The independence of the judge is indispensable to impartial justice under the law. It is
indivisible. All institutions and authorities, whether national or international, must
respect, protect and defend that independence.

Article 2 Status

Judicial independence must be ensured by law creating and protecting judicial office
that is genuinely and effectively independent from other state powers. The judge, as
holder of judicial office, must be able to exercise judicial powers free from social,
economic and political pressure, and independently from other judges and the
administration of the judiciary.

Article 3 Submission to the law

In the performance of the judicial duties the judge is subject only to the law and must
consider only the law.

Article 4 Personal autonomy

No one must give or attempt to give the judge orders or instructions of any kind, that
may influence the judicial decisions of the judge, except, where applicable, the opinion
in a particular case given on appeal by the higher courts.

Article 5 Impartiality and restraint

In the performance of the judicial duties the judge must be impartial and must so be
seen.

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The judge must perform his or her duties with restraint and attention to the dignity of the
court and of all persons involved.

Article 6 Efficiency

The judge must diligently and efficiently perform his or her duties without any undue
delays.

Article 7 Outside activity

The judge must not carry out any other function, whether public or private, paid or
unpaid, that is not fully compatible with the duties and status of a judge.

The judge must not be subject to outside appointments without his or her consent.

Article 8 Security of office

A judge cannot be transferred, suspended or removed from office unless it is provided
for by law and then only by decision in the proper disciplinary procedure.

A judge must be appointed for life or for such other period and conditions, that the
judicial independence is not endangered.

Any change to the judicial obligatory retirement age must not have retroactive effect.

Article 9 Appointment

The selection and each appointment of a judge must be carried out according to
objective and transparent criteria based on proper professional qualification. Where this
is not ensured in other ways, that are rooted in established and proven tradition,
selection should be carried out by an independent body, that include substantial judicial
representation.

Article 10 Civil and penal responsibility

Civil action, in countries where this is permissible, and criminal action, including arrest,
against a judge must only be allowed under circumstances ensuring that his or her
independence cannot be influenced.

Article 11 Administration and disciplinary action

The administration of the judiciary and disciplinary action towards judges must be
organized in such a way, that it does not compromise the judges genuine
independence, and that attention is only paid to considerations both objective and
relevant.

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Where this is not ensured in other ways that are rooted in established and proven
tradition, judicial administration and disciplinary action should be carried out by
independent bodies, that include substantial judicial representation.

Disciplinary action against a judge can only be taken when provided for by pre-existing
law and in compliance with predetermined rules of procedure.

Article 12 Associations

The right of a judge to belong to a professional association must be recognized in order
to permit the judges to be consulted, especially concerning the application of their
statutes, ethical and otherwise, and the means of justice, and in order to permit them to
defend their legitimate interests.

Article 13 Remuneration and retirement

The judge must receive sufficient remuneration to secure true economic independence.
The remuneration must not depend on the results of the judges work and must not be
reduced during his or her judicial service.

The judge has a right to retirement with an annuity or pension in accordance with his or
her professional category.

After retirement a judge must not be prevented from exercising another legal profession
solely because he or she has been a judge.

Article 14 Support

The other powers of the State must provide the judiciary with the means necessary to
equip itself properly to perform its function. The judiciary must have the opportunity to
take part in or to be heard on decisions taken in respect to this matter.

Article 15 Public prosecution

In countries where members of the public prosecution are judges, the above principles
apply mutatis mutandis to these judges. November 1999

List of the delegations attending the meeting of the Central Council of the International
Association of Judges in Taipei (Taiwan) on November 17, 1999

ARGENTINA, AUSTRIA, BELGIUM, BOLIVIA, BRAZIL, CAMEROON, CANADA, COSTA RICA,
CZECH REPUBLIC, DENMARK, ESTONIA, F.Y.R.O.M., FINLAND, FRANCE, GERMANY,
GREECE, ICELAND, ISRAEL, ITALY, IVORY COAST, LATVIA LIECHTENSTEIN, LITHUANIA,
LUXEMBOURG, MOROCCO, NORWAY, PARAGUAY, POLAND (observer), PORTUGAL,
REPUBLIC OF CHINA (Taiwan), ROMANIA, SENEGAL, SLOVAKIA, SLOVENIA, SPAIN,


8
SWEDEN, SWITZERLAND, THE NETHERLANDS, TUNISIA, UNITED KINGDOM, USA, URUGUAY




9
     IBA Minimum Standards of Judicial Independence




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             IBA Minimum Standards of Judicial Independence

                                     (Adopted 1982)

A. Judges and the Executive
1.     a) Individual judges should enjoy personal independence and substantive
       independence.

       b) Personal independence means that the terms and conditions of judicial service
       are adequately secured so as to ensure that individual judges are not subject to
       executive control.

       c) Substantive independence means that in the discharge of his judicial function
       a judge is subject to nothing but the law and the commands of his conscience.

2. The Judiciary as a whole should enjoy autonomy and collective independence vis-à-
vis the Executive.

3.     a) Participation in judicial appointments and promotions by the executive or
       legislature is not inconsistent with judicial independence provided that
       appointments and promotions of judges are vested in a judicial body in which
       members of judiciary and the legal profession form a majority.

       b) Appointments and promotions by a non-judicial body will not be considered
       inconsistent with judicial independence in countries where, by long historic and
       democratic tradition, judicial appointments and promotion operate satisfactorily.

4.     a) The Executive may participate in the discipline of judges only in referring
       complaints against judges, or in the initiation of disciplinary proceedings, but not
       the adjudication of such matters. The power to discipline or remove a judge must
       be vested in an institution, which is independent of the Executive.

       b) The power of removal of a judge should preferably be vested in a judicial
       tribunal.

       c) The Legislature may be vested with the powers of removal of judges,
       preferably upon a recommendation of a judicial commission.

5. The Executive shall not have control over judicial functions.

6. Rules of procedure and practice shall be made by legislation or by the Judiciary in co-
operation with the legal profession subject to parliamentary approval.

7. The State shall have a duty to provide for the executive of judgments of the Court.
The Judiciary shall exercise supervision over the execution process.

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8. Judicial matters are exclusively within the responsibility of the Judiciary, both in
central judicial administration and in court level judicial administration.

9. The central responsibility for judicial administration shall preferably be vested in the
Judiciary or jointly in the Judiciary and the Executive.

10. It is the duty of the State to provide adequate financial resources to allow for the due
administration of justice.

11.    a) Division of work among judges should ordinarily be done under a
       predetermined plan, which can be changed in certain clearly defined
       circumstances.

       b) In countries where the power of division of judicial work is vested in the Chief
       Justice, it is not considered inconsistent with judicial independence to accord to
       the Chief Justice the power to change the predetermined plan for sound reasons,
       preferably in consultation with the senior judges when practicable.

       c) Subject to (a) the exclusive responsibility for case assignment should be
       vested in a responsible judge, preferably the President of the Court.

12. The power to transfer a judge from one court to another shall be vested in a judicial
authority and preferably shall be subject to the judge’s consent, such consent not to be
unreasonably withheld.

13. Court services should be adequately financed by the relevant government.

14. Judicial salaries and pensions shall be adequate and should be regularly adjusted to
account for price increases independent of executive control.

15.    a) The position of the judges, their independence, their security, and their
       adequate remuneration shall be secured by law.

       b) Judicial salaries cannot be decreased during the judges’ services except as a
       coherent part of an overall public economic measure.

16. The ministers of the government shall not exercise any form of pressure on judges,
whether overt or covert, and shall not make statements, which adversely affect the
independence of individual judges or of the Judiciary as a whole.

17. The power of pardon shall be exercised cautiously so as to avoid its use as
interference.

18.    a) The Executive shall refrain from any act or omission which pre-empts the
       judicial resolution of a dispute or frustrates the proper execution of a court

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       judgment.

       b) The Executive shall not have the power to close down or suspend the
       operation of the court system at any level.

B. Judges and the Legislature
19. The Legislature shall not pass legislation, which retroactively reverses specific court
decisions.

20.   a) Legislation introducing changes in the terms and conditions of judicial services
      shall not be applied to judges holding office at the time of passing the legislation
      unless the changes improve the terms of service.

       b) In case of legislation reorganizing courts, judges serving in these courts shall
       not be affected, except for their transfer to another court of the same status.

21. A citizen shall have the right to be tried by the ordinary courts of law, and shall not
be tried before ad hoc tribunals.

C. Terms and Nature of Judicial Appointments
22. Judicial appointments should generally be for life, subject to removal for cause and
compulsory retirement at an age fixed by law at the date of appointment.

23.   a) Judges should not be appointed for probationary periods except for legal
      systems in which appointments of judges do not depend on having practical
      experience in the profession as a condition of the appointment.

       b) The institution of temporary judges should be avoided as far as possible
       except where there exists a long historic democratic tradition.

24. The number of the members of the highest court should be rigid and should not be
subject to change except by legislation.

25. Part-time judges should be appointed only with proper safeguards.

26. Selection of judges shall be based on merit.

27. The proceedings for discipline and removal of judges should ensure fairness to the
judge and adequate opportunity for hearing.

28. The procedure for discipline should be held in camera. The judge may however
request that the hearing be held in public, subject to final and reasoned disposition of
this request by the disciplinary tribunal. Judgments in disciplinary proceedings, whether
held in camera or in public, may be published.


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29.    a) The grounds for removal of judges shall be fixed by law and shall be clearly
       defined.

       b) All disciplinary actions shall be based upon standards of judicial conduct
       promulgated by law or in established rules of court.

30. A judge shall not be subject to removal unless by reason of a criminal act or through
gross or repeated neglect or physical or mental incapacity he has shown himself
manifestly unfit to hold the position of judge.

31. In systems where the power to discipline and remove judges is vested in an
institution other than the Legislature the tribunal for discipline and removal of judges
shall be permanent and be composed predominantly of members of the Judiciary.

32. The head of the court may legitimately have supervisory powers to control judges on
administrative matters.

D. The Press, the Judiciary and the Courts
33. It should be recognized that judicial independence does not render the judges free
from public accountability, however, the press and other institutions should be aware of
the potential conflict between judicial independence and excessive pressure on judges.

34. The press should show restraint in publications on pending cases where such
publication may influence the outcome of the case.

E. Standards of Conduct
35. Judges may not, during their term of office, serve in executive functions, such as
ministers of the government, nor may they serve as members of the Legislature or of
municipal councils, unless by long historical traditions these functions are combined.

36. Judges may serve as chairmen of committees of inquiry in cases where the process
requires skill of fact-finding and evidence taking.

37. Judges shall not hold positions in political parties.

38. A judge, other than a temporary judge, may not practice law during his term of
office.

39. A judge should refrain from business activities, except his personal investments, or
ownership of property.

40. A judge should always behave in such a manner as to preserve the dignity of his
office and the impartiality and independence of the Judiciary.

41. Judges may be organized in associations designed for judges, for furthering their

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rights and interests as judges.

42. Judges may take collective action to protect their judicial independence and to
uphold their position.

F. Securing Impartiality and Independence
43. A judge shall enjoy immunity from legal actions and the obligation to testify
concerning matters arising in the exercise of his official functions.

44. A judge shall not sit in a case where there is a reasonable suspicion of bias or
potential bias.

45. A judge shall avoid any course of conduct, which might give rise to an appearance
of partiality.

G. The Internal Independence of the Judiciary
46. In the decision-making process, a judge must be independent vis-à-vis his judicial
colleagues and supporters.




15
     Bangalore Principles of Judicial Conduct




16
               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)


                                       Preamble

WHEREAS the Universal Declaration of Human Rights recognizes as fundamental the
principle that everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of rights and obligations and of
any criminal charge.

WHEREAS the International Covenant on Civil and Political Rights guarantees that all
persons shall be equal before the courts, and that in the determination of any criminal
charge or of rights and obligations in a suit at law, everyone shall be entitled, without
undue delay, to a fair and public hearing by a competent, independent and impartial
tribunal established by law.

WHEREAS the foregoing fundamental principles and rights are also recognized or
reflected in regional human rights instruments, in domestic constitutional, statutory and
common law, and in judicial conventions and traditions.

WHEREAS the importance of a competent, independent and impartial judiciary to the
protection of human rights is given emphasis by the fact that the implementation of all
the other rights ultimately depends upon the proper administration of justice.

WHEREAS a competent, independent and impartial judiciary is likewise essential if the
courts are to fulfill their role in upholding constitutionalism and the rule of law.

WHEREAS public confidence in the judicial system and in the moral authority and
integrity of the judiciary is of the utmost importance in a modern democratic society.

WHEREAS it is essential that judges, individually and collectively, respect and honor
judicial office as a public trust and strive to enhance and maintain confidence in the
judicial system.

WHEREAS the primary responsibility for the promotion and maintenance of high
standards of judicial conduct lies with the judiciary in each country.

AND WHEREAS the United Nations Basic Principles on the Independence of the
Judiciary are designed to secure and promote the independence of the judiciary, and

17
are addressed primarily to States.

THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct
of judges. They are designed to provide guidance to judges and to afford the judiciary a
framework for regulating judicial conduct. They are also intended to assist members of
the executive and the legislature, and lawyers and the public in general, to better
understand and support the judiciary. These principles presuppose that judges are
accountable for their conduct to appropriate institutions established to maintain judicial
standards, which are themselves independent and impartial, and are intended to
supplement and not to derogate from existing rules of law and conduct which bind the
judge.


                                         Value 1:
                                     INDEPENDENCE

                                         Principle:

      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.

                                        Application:

1.1     A judge shall exercise the judicial function independently on the basis of the
        judge's assessment of the facts and in accordance with a conscientious
        understanding of the law, free of any extraneous influences, inducements,
        pressures, threats or interference, direct or indirect, from any quarter or for any
        reason.

1.2     A judge shall be independent in relation to society in general and in relation to
        the particular parties to a dispute which the judge has to adjudicate.

1.3     A judge shall not only be free from inappropriate connections with, and influence
        by, the executive and legislative branches of government, but must also appear
        to a reasonable observer to be free therefrom.

1.4     In performing judicial duties, a judge shall be independent of judicial colleagues
        in respect of decisions which the judge is obliged to make independently.

1.5     A judge shall encourage and uphold safeguards for the discharge of judicial
        duties in order to maintain and enhance the institutional and operational
        independence of the judiciary.

1.6     A judge shall exhibit and promote high standards of judicial conduct in order to

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       reinforce public confidence in the judiciary which is fundamental to the
       maintenance of judicial independence.


                                         Value 2:
                                      IMPARTIALITY

                                          Principle:

 Impartiality is essential to the proper discharge of the judicial office. It applies not only
      to the decision itself but also to the process by which the decision is made.

                                         Application:

2.1    A judge shall perform his or her judicial duties without favor, bias or prejudice.

2.2    A judge shall ensure that his or her conduct, both in and out of court, maintains
       and enhances the confidence of the public, the legal profession and litigants in
       the impartiality of the judge and of the judiciary.

2.3    A judge shall, so far as is reasonable, so conduct himself or herself as to
       minimize the occasions on which it will be necessary for the judge to be
       disqualified from hearing or deciding cases.

2.4    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.

2.5    A judge shall disqualify himself or herself from participating in any proceedings in
       which the judge is unable to decide the matter impartially or in which it may
       appear to a reasonable observer that the judge is unable to decide the matter
       impartially. Such proceedings include, but are not limited to, instances where

       2.5.1 the judge has actual bias or prejudice concerning a party or personal
             knowledge of disputed evidentiary facts concerning the proceedings;

       2.5.2 the judge previously served as a lawyer or was a material witness in the
             matter in controversy; or

       2.5.3 the judge, or a member of the judge's family, has an economic interest in
             the outcome of the matter in controversy:

       Provided that disqualification of a judge shall not be required if no other tribunal

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       can be constituted to deal with the case or, because of urgent circumstances,
       failure to act could lead to a serious miscarriage of justice.



                                          Value 3:
                                        INTEGRITY

                                         Principle:

            Integrity is essential to the proper discharge of the judicial office.

                                        Application:

3.1    A judge shall ensure that his or her conduct is above reproach in the view of a
       reasonable observer.

3.2    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.

                                         Value 4:
                                       PROPRIETY

                                         Principle:

       Propriety, and the appearance of propriety, are essential to the performance
                             of all of the activities of a judge.

                                        Application:

4.1    A judge shall avoid impropriety and the appearance of impropriety in all of the
       judge's activities.

4.2.   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.

4.3.   A judge shall, in his or her personal relations with individual members of the legal
       profession who practice regularly in the judge's court, avoid situations which
       might reasonably give rise to the suspicion or appearance of favoritism or
       partiality.

4.4    A judge shall not participate in the determination of a case in which any member
       of the judge's family represents a litigant or is associated in any manner with the

20
       case.

4.5    A judge shall not allow the use of the judge's residence by a member of the legal
       profession to receive clients or other members of the legal profession.

4.6    A judge, like any other citizen, is entitled to freedom of expression, belief,
       association and assembly, but in exercising such rights, a judge shall always
       conduct himself or herself in such a manner as to preserve the dignity of the
       judicial office and the impartiality and independence of the judiciary.

4.7    A judge shall inform himself or herself about the judge's personal and fiduciary
       financial interests and shall make reasonable efforts to be informed about the
       financial interests of members of the judge's family.

4.8    A judge shall not allow the judge's family, social or other relationships improperly
       to influence the judge's judicial conduct and judgment as a judge.

4.9    A judge shall not use or lend the prestige of the judicial office to advance the
       private interests of the judge, a member of the judge's family or of anyone else,
       nor shall a judge convey or permit others to convey the impression that anyone is
       in a special position improperly to influence the judge in the performance of
       judicial duties.

4.10   Confidential information acquired by a judge in the judge's judicial capacity shall
       not be used or disclosed by the judge for any other purpose not related to the
       judge's judicial duties.

4.11   Subject to the proper performance of judicial duties, a judge may:

       4.11.1 write, lecture, teach and participate in activities concerning the law, the
             legal system, the administration of justice or related matters;
       4.11.2 appear at a public hearing before an official body concerned with matters
              relating to the law, the legal system, the administration of justice or related
              matters;
       4.11.3 serve as a member of an official body, or other government commission,
              committee or advisory body, if such membership is not inconsistent with
              the perceived impartiality and political neutrality of a judge; or

       4.11.4 engage in other activities if such activities do not detract from the dignity
              of the judicial office or otherwise interfere with the performance of judicial
              duties.

4.12   A judge shall not practice law whilst the holder of judicial office.



21
4.13   A judge may form or join associations of judges or participate in other
       organizations representing the interests of judges.

4.14   A judge and members of the judge's family, shall neither ask for, nor accept, any
       gift, bequest, loan or favor in relation to anything done or to be done or omitted to
       be done by the judge in connection with the performance of judicial duties.

4.15   A judge shall not knowingly permit court staff or others subject to the judge's
       influence, direction or authority, to ask for, or accept, any gift, bequest, loan or
       favor in relation to anything done or to be done or omitted to be done in
       connection with his or her duties or functions.

4.16   Subject to law and to any legal requirements of public disclosure, a judge may
       receive a token gift, award or benefit as appropriate to the occasion on which it is
       made provided that such gift, award or benefit might not reasonably be perceived
       as intended to influence the judge in the performance of judicial duties or
       otherwise give rise to an appearance of partiality.


                                          Value 5:
                                         EQUALITY

                                          Principle:

        Ensuring equality of treatment to all before the courts is essential to the
                         due performance of the judicial office.

                                        Application:

5.1    A judge shall be aware of, and understand, diversity in society and differences
       arising from various sources, including but not limited to race, color, sex, religion,
       national origin, caste, disability, age, marital status, sexual orientation, social and
       economic status and other like causes ("irrelevant grounds").

5.2    A judge shall not, in the performance of judicial duties, by words or conduct,
       manifest bias or prejudice towards any person or group on irrelevant grounds.

5.3    A judge shall carry out judicial duties with appropriate consideration for all
       persons, such as the parties, witnesses, lawyers, court staff and judicial
       colleagues, without differentiation on any irrelevant ground, immaterial to the
       proper performance of such duties.

5.4    A judge shall not knowingly permit court staff or others subject to the judge's
       influence, direction or control to differentiate between persons concerned, in a
       matter before the judge, on any irrelevant ground.


22
5.5      A judge shall require lawyers in proceedings before the court to refrain from
         manifesting, by words or conduct, bias or prejudice based on irrelevant grounds,
         except such as are legally relevant to an issue in proceedings and may be the
         subject of legitimate advocacy.

.
                                      Value 6:
                              COMPETENCE AND DILIGENCE

                                           Principle:

    Competence and diligence are prerequisites to the due performance of judicial office.

                                         Application:

6.1      The judicial duties of a judge take precedence over all other activities.

6.2      A judge shall devote the judge's professional activity to judicial duties, which
         include not only the performance of judicial functions and responsibilities in court
         and the making of decisions, but also other tasks relevant to the judicial office or
         the court's operations.

6.3      A judge shall take reasonable steps to maintain and enhance the judge's
         knowledge, skills and personal qualities necessary for the proper performance of
         judicial duties, taking advantage for this purpose of the training and other
         facilities which should be made available, under judicial control, to judges.

6.4      A judge shall keep himself or herself informed about relevant developments of
         international law, including international conventions and other instruments
         establishing human rights norms.

6.5      A judge shall perform all judicial duties, including the delivery of reserved
         decisions, efficiently, fairly and with reasonable promptness.

6.6      A judge shall maintain order and decorum in all proceedings before the court and
         be patient, dignified and courteous in relation to litigants, jurors, witnesses,
         lawyers and others with whom the judge deals in an official capacity. The judge
         shall require similar conduct of legal representatives, court staff and others
         subject to the judge's influence, direction or control.

6.7      A judge shall not engage in conduct incompatible with the diligent discharge of
         judicial duties.


                                     IMPLEMENTATION


23
By reason of the nature of judicial office, effective measures shall be adopted by
national judiciaries to provide mechanisms to implement these principles if such
mechanisms are not already in existence in their jurisdictions.


                                      DEFINITIONS


In this statement of principles, unless the context otherwise permits or requires, the
following meanings shall be attributed to the words used:

"Court staff" includes the personal staff of the judge including law clerks.

"Judge" means any person exercising judicial power, however designated.

"Judge's family" includes a judge's spouse, son, daughter, son-in-law, daughter-in-law,
and any other close relative or person who is a companion or employee of the judge
and who lives in the judge's household.

"Judge's spouse" includes a domestic partner of the judge or any other person of either
sex in a close personal relationship with the judge.




24
                                   Explanatory Note

1.      At its first meeting held in Vienna in April 2000 on the invitation of the United
Nations Center for International Crime Prevention, and in conjunction with the 10th
United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
the Judicial Group on Strengthening Judicial Integrity (comprising Chief Justice Latifur
Rahman of Bangladesh, Chief Justice Bhaskar Rao of Karnataka State in India, Justice
Govind Bahadur Shrestha of Nepal, Chief Justice Uwais of Nigeria, Deputy Vice-
President Langa of the Constitutional Court of South Africa, Chief Justice Nyalali of
Tanzania, and Justice Odoki of Uganda, meeting under the chairmanship of Judge
Christopher Weeramantry, Vice-President of the International Court of Justice, with
Justice Michael Kirby of the High Court of Australia as rapporteur, and with the
participation of Dato' Param Cumaraswamy, UN Special Rapporteur on the
Independence of Judges and Lawyers) recognized the need for a code against which
the conduct of judicial officers may be measured. Accordingly, the Judicial Group
requested that codes of judicial conduct which had been adopted in some jurisdictions
be analyzed, and a report be prepared by the Coordinator of the Judicial Integrity
Program, Dr Nihal Jayawickrama, concerning: (a) the core considerations which recur in
such codes; and (b) the optional or additional considerations which occur in some, but
not all, such codes and which may or may not be suitable for adoption in particular
countries.

2.     In preparing a draft code of judicial conduct in accordance with the directions set
out above, reference was made to several existing codes and international instruments
including, in particular, the following:
(a)    The Code of Judicial Conduct adopted by the House of Delegates of the
       American Bar Association, August 1972.
(b)    Declaration of Principles of Judicial Independence issued by the Chief Justices of
       the Australian States and Territories, April 1997.
(c)    Code of Conduct for the Judges of the Supreme Court of Bangladesh, prescribed
       by the Supreme Judicial Council in the exercise of power under Article 96(4)(a) of
       the Constitution of the People's Republic of Bangladesh, May 2000.
(d)    Ethical Principles for Judges, drafted with the cooperation of the Canadian
       Judges Conference and endorsed by the Canadian Judicial Council, 1998.
(e)    The European Charter on the Statute for Judges, Council of Europe, July 1998.
(f)    The Idaho Code of Judicial Conduct 1976.
(g)    Restatement of Values of Judicial Life adopted by the Chief Justices Conference
       of India, 1999.
(h)    The Iowa Code of Judicial Conduct.
(i)    Code of Conduct for Judicial Officers of Kenya, July 1999.
(j)    The Judges' Code of Ethics of Malaysia, prescribed by the Yang di-Pertuan
       Agong on the recommendation of the Chief Justice, the President of the Court of
       Appeal and the Chief Judges of the High Courts, in the exercise of powers
       conferred by Article 125(3A) of the Federal Constitution of Malaysia, 1994.
(k)    The Code of Conduct for Magistrates in Namibia.
(l)    Rules Governing Judicial Conduct, New York State, USA.

25
(m)    Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.
(n)    Code of Conduct to be observed by Judges of the Supreme Court and of the
       High Courts of Pakistan.
(o)    The Code of Judicial Conduct of the Philippines, September 1989.
(p)    The Canons of Judicial Ethics of the Philippines, proposed by the Philippines Bar
       Association, approved by the Judges of First Instance of Manila, and adopted for
       the guidance of and observance by the judges under the administrative
       supervision of the Supreme Court, including municipal judges and city judges.
(q)    Yandina Statement: Principles of Independence of the Judiciary in Solomon
       Islands, November 2000.
(r)    Guidelines for Judges of South Africa, issued by the Chief Justice, the President
       of the Constitutional Court, and the Presidents of High Courts, the Labour Appeal
       Court, and the Land Claims Court, March 2000.
(s)    Code of Conduct for Judicial Officers of Tanzania, adopted by the Judges and
       Magistrates Conference, 1984.
(t)    The Texas Code of Judicial Conduct
(u)    Code of Conduct for Judges, Magistrates and Other Judicial Officers of Uganda,
       adopted by the Judges of the Supreme Court and the High Court, July 1989.
(v)    The Code of Conduct of the Judicial Conference of the United States.
(w)    The Canons of Judicial Conduct for the Commonwealth of Virginia, adopted and
       promulgated by the Supreme Court of Virginia, 1998.
(x)    The Code of Judicial Conduct adopted by the Supreme Court of the State of
       Washington, USA, October 1995.
(y)    The Judicial (Code of Conduct) Act, enacted by the Parliament of Zambia,
       December 1999.
(z)    Draft Principles on the Independence of the Judiciary ("Siracusa Principles"),
       prepared by a committee of experts convened by the International Association of
       Penal Law, the International Commission of Jurists, and the Centre for the
       Independence of Judges and Lawyers, 1981.
(aa)   Minimum Standards of Judicial Independence adopted by the International Bar
       Association, 1982.
(bb)   United Nations Basic Principles on the Independence of the Judiciary, endorsed
       by the UN General Assembly, 1985.
(cc)   Draft Universal Declaration on the Independence of Justice ("Singhvi
       Declaration") prepared by Mr L.V. Singhvi, UN Special Rapporteur on the Study
       on the Independence of the Judiciary, 1989.
(dd)   The Beijing Statement of Principles of the Independence of the Judiciary in the
       Lawasia Region, adopted by the 6th Conference of Chief Justices, August 1997.
(ee)   The Latimer House Guidelines for the Commonwealth on good practice
       governing relations between the Executive, Parliament and the Judiciary in the
       promotion of good governance, the rule of law and human rights to ensure the
       effective implementation of the Harare Principles, 1998.
(ff)   The Policy Framework for Preventing and Eliminating Corruption and Ensuring
       the Impartiality of the Judicial System, adopted by the expert group convened by
       the Center for the Independence of Judges and Lawyers, February 2000.


26
At its second meeting held in Bangalore in February 2001, the Judicial Group
(comprising Chief Justice Mainur Reza Chowdhury of Bangladesh, Justice Claire
L'Heureux Dube of Canada, Chief Justice Reddi of Karnataka State in India, Chief
Justice Upadhyay of Nepal, Chief Justice Uwais of Nigeria, Deputy Chief Justice Langa
of South Africa, Chief Justice Silva of Sri Lanka, Chief Justice Samatta of Tanzania, and
Chief Justice Odoki of Uganda, meeting under the chairmanship of Judge
Weeramantry, with Justice Kirby as rapporteur, and with the participation of the UN
Special Rapporteur and Justice Bhagwati, Chairman of the UN Human Rights
Committee, representing the UN High Commissioner for Human Rights) proceeding by
way of examination of the draft placed before it, identified the core values, formulated
the relevant principles, and agreed on the Bangalore Draft Code of Judicial Conduct.
The Judicial Group recognized, however, that since the Bangalore Draft had been
developed by judges drawn principally from common law countries, it was essential that
it be scrutinized by judges of other legal traditions to enable it to assume the status of a
duly authenticated international code of judicial conduct.

The Bangalore Draft was widely disseminated among judges of both common law and
civil law systems and discussed at several judicial conferences. In June 2002, it was
reviewed by the Working Party of the Consultative Council of European Judges (CCJE-
GT), comprising Vice-President Reissner of the Austrian Association of Judges, Judge
Fremr of the High Court in the Czech Republic, President Lacabarats of the Cour
d'Appel de Paris in France, Judge Mallmann of the Federal Administrative Court of
Germany, Magistrate Sabato of Italy, Judge Virgilijus of the Lithuanian Court of Appeal,
Premier Conseiller Wiwinius of the Cour d'Appel of Luxembourg, Juge Conseiller
Afonso of the Court of Appeal of Portugal, Justice Ogrizek of the Supreme Court of
Slovenia, President Hirschfeldt of the Svea Court of Appeal in Sweden, and Lord
Justice Mance of the United Kingdom. On the initiative of the American Bar Association,
the Bangalore Draft was translated into the national languages, and reviewed by judges,
of the Central and Eastern European countries; in particular, of Bosnia-Herzegovina,
Bulgaria, Croatia, Kosovo, Romania, Serbia and Slovakia.

The Bangalore Draft was revised in the light of the comments received from CCJE-GT
and others referred to above; Opinion no.1 (2001) of CCJE on standards concerning the
independence of the judiciary; the draft Opinion of CCJE on the principles and rules
governing judges' professional conduct, in particular ethics, incompatible behavior and
impartiality; and by reference to more recent codes of judicial conduct including the
Guide to Judicial Conduct published by the Council of Chief Justices of Australia in June
2002, the Model Rules of Conduct for Judges of the Baltic States, the Code of Judicial
Ethics for Judges of the People's Republic of China, and the Code of Judicial Ethics of
the Macedonian Judges Association.

The revised Bangalore Draft was placed before a Round-Table Meeting of Chief
Justices (or their representatives) from the civil law system, held in the Peace Palace in
The Hague, Netherlands, in November 2002, with Judge Weeramantry presiding. Those
participating were Judge Vladimir de Freitas of the Federal Court of Appeal of Brazil,
Chief Justice Iva Brozova of the Supreme Court of the Czech Republic, Chief Justice

27
Mohammad Fathy Naguib of the Supreme Constitutional Court of Egypt, Conseillere
Christine Chanet of the Cour de Cassation of France, President Genaro David Gongora
Pimentel of the Suprema Corte de Justicia de la Nacion of Mexico, President Mario
Mangaze of the Supreme Court of Mozambique, President Pim Haak of the Hoge Raad
der Nederlanden, Justice Trond Dolva of the Supreme Court of Norway, and Chief
Justice Hilario Davide of the Supreme Court of the Philippines. Also participating in one
session were the following Judges of the International Court of Justice: Judge Ranjeva
(Madagascar), Judge Herczegh (Hungary), Judge Fleischhauer (Germany), Judge
Koroma (Sierra Leone), Judge Higgins (United Kingdom), Judge Rezek (Brazil), Judge
Elaraby (Egypt), and Ad-Hoc Judge Frank (USA). The UN Special Rapporteur was in
attendance. The "Bangalore Principles of Judicial Conduct" was the product of this
meeting.




28
                     Council of Europe
              Recommendation No. R (1994) 12
     On the Independence, Efficiency and Role of Judges




29
                           Council of Europe
                     Recommendation No. R (94) 12
           On the Independence, Efficiency and Role of Judges

            (Adopted by the Committee of Ministers on 13 October 1994
                 at the 518th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council
of Europe,

Having regard to Article 6 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention") which provides
that "everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law";

Having regard to the United Nations Basic Principles on the Independence of the
Judiciary, endorsed by the United Nations General Assembly in November 1985;

Noting the essential role of judges and other persons exercising judicial functions in
ensuring the protection of human rights and fundamental freedoms;

Desiring to promote the independence of judges in order to strengthen the Rule of Law
in democratic states;

Aware of the need to reinforce the position and powers of judges in order to achieve an
efficient and fair legal system;

Conscious of the desirability of ensuring the proper exercise of judicial responsibilities,
which are a collection of judicial duties and powers aimed at protecting the interests of
all persons,

Recommends that governments of member states adopt or reinforce all measures
necessary to promote the role of individual judges and the judiciary as a whole and
strengthen their independence and efficiency, by implementing, in particular, the
following principles:

Scope of the recommendation

1. This recommendation is applicable to all persons exercising judicial functions,
including those dealing with constitutional, criminal, civil, commercial and administrative
law matters.

2. With respect to lay judges and other persons exercising judicial functions, the
principles laid down in this recommendation apply except where it is clear from the
context that they only apply to professional judges, such as regarding the principles

30
concerning the remuneration and career of judges.
Principle I - General principles on the independence of judges

1. All necessary measures should be taken to respect, protect and promote the
independence of judges.

2.   In particular, the following measures should be taken:

       a. The independence of judges should be guaranteed pursuant to the
          provisions of the Convention and constitutional principles, for example by
          inserting specific provisions in the constitutions or other legislation or
          incorporating the provisions of this recommendation in internal law. Subject
          to the legal traditions of each state, such rules may provide, for instance, the
          following:

              i.     decisions of judges should not be the subject of any revision
                     outside any appeals procedures as provided for by law;

              ii.    the terms of office of judges and their remuneration should be
                     guaranteed by law;

              iii.   no organ other than the courts themselves should decide on its own
                     competence, as defined by law;

              iv.    with the exception of decisions on amnesty, pardon or similar, the
                     government or the administration should not be able to take any
                     decision which invalidates judicial decisions retroactively.

       b. The executive and legislative powers should ensure that judges are
          independent and that steps are not taken which could endanger the
          independence of judges.

       c. All decisions concerning the professional career of judges should be based
          on objective criteria, and the selection and career of judges should be based
          on merit, having regard to qualifications, integrity, ability and efficiency. The
          authority taking the decision on the selection and career of judges should be
          independent of the government and the administration. In order to safeguard
          its independence, rules should ensure that, for instance, its members are
          selected by the judiciary and that the authority decides itself on its procedural
          rules.

However, where the constitutional or legal provisions and traditions allow judges to be
appointed by the government, there should be guarantees to ensure that the
procedures to appoint judges are transparent and independent in practice and that the
decisions will not be influenced by any reasons other than those related to the objective
criteria mentioned above. These guarantees could be, for example, one or more of the

31
following:

               i.     a special independent and competent body to give the government
                      advice which it follows in practice; or

               ii.    the right for an individual to appeal against a decision to an
                      independent authority; or

               iii.   the authority which makes the decision safeguards against undue
                      or improper influences.

       d. In the decision-making process, judges should be independent and be able
          to act without any restriction, improper influence, inducements, pressures,
          threats or interferences, direct or indirect, from any quarter or for any reason.
          The law should provide for sanctions against persons seeking to influence
          judges in any such manner. 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.
          Judges should not be obliged to report on the merits of their cases to anyone
          outside the judiciary.

       e. The distribution of cases should not be influenced by the wishes of any party
          to a case or any person concerned with the results of the case. Such
          distribution may, for instance, be made by drawing of lots or a system for
          automatic distribution according to alphabetic order or some similar system.

       f.    A case should not be withdrawn from a particular judge without valid reasons,
             such as cases of serious illness or conflict of interest. Any such reasons and
             the procedures for such withdrawal should be provided for by law and may
             not be influenced by any interest of the government or administration. A
             decision to withdraw a case from a judge should be taken by an authority
             which enjoys the same judicial independence as judges.

3. Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such exists.

Principle II - The authority of judges

1. All persons connected with a case, including state bodies or their representatives,
should be subject to the authority of the judge.

2. Judges should have sufficient powers and be able to exercise them in order to carry
out their duties and maintain their authority and the dignity of the court.

Principle III - Proper working conditions


32
1. Proper conditions should be provided to enable judges to work efficiently and, in
particular, by:

       a. recruiting a sufficient number of judges and providing for appropriate training
       such as practical training in the courts and, where possible, with other authorities
       and bodies, before appointment and during their career. Such training should be
       free of charge to the judge and should in particular concern recent legislation and
       case-law. Where appropriate, the training should include study visits to European
       and foreign authorities as well as courts;

       b. ensuring that the status and remuneration of judges is commensurate with
       the dignity of their profession and burden of responsibilities;

       c.   providing a clear career structure in order to recruit and retain able judges;

       d. providing adequate support staff and equipment, in particular office
       automation and data processing facilities, to ensure that judges can act efficiently
       and without undue delay;

       e. taking appropriate measures to assign non-judicial tasks to other persons, in
       conformity with Recommendation No. R (86) 12 concerning measures to prevent
       and reduce the excessive workload in the courts.

2. All necessary measures should be taken to ensure the safety of judges, such as
ensuring the presence of security guards on court premises or providing police
protection for judges who may become or are victims of serious threats.

Principle IV - Associations

  Judges should be free to form associations which, either alone or with another body,
have the task of safeguarding their independence and protect their interests.

Principle V - Judicial responsibilities

1. In proceedings, judges have the duty to protect the rights and freedoms of all
persons.

2. Judges have the duty and should be given the power to exercise their judicial
responsibilities to ensure that the law is properly applied and cases are dealt with fairly,
efficiently and speedily.

3.   Judges should in particular have the following responsibilities:

       a.   to act independently in all cases and free from any outside influence;

       b.   to conduct cases in an impartial manner in accordance with their

33
      assessment of the facts and their understanding of the law, to ensure that a fair
      hearing is given to all parties and that the procedural rights of the parties are
      respected pursuant to the provisions of the Convention;

      c. to withdraw from a case or decline to act where there are valid reasons, and
      not otherwise. Such reasons should be defined by law and may, for instance,
      relate to serious health problems, conflicts of interest or the interests of justice;

      d. where necessary, to explain in an impartial manner procedural matters to
      parties;

      e.   where appropriate, to encourage the parties to reach a friendly settlement;

      f. except where the law or established practice otherwise provides, to give clear
      and complete reasons for their judgments, using language which is readily
      understandable;

      g. to undergo any necessary training in order to carry out their duties in an
      efficient and proper manner.

Principle VI - Failure to carry out responsibilities and disciplinary offences

1. 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. Depending on the constitutional principles and the legal
provisions and traditions of each state, such measures may include, for instance:

      a.   withdrawal of cases from the judge;

      b.   moving the judge to other judicial tasks within the court;

      c.   economic sanctions such as a reduction in salary for a temporary period;

      d.   suspension.

2. Appointed judges may not be permanently removed from office without valid
reasons until mandatory retirement. Such reasons, which should be defined in precise
terms by the law, could apply in countries where the judge is elected for a certain
period, or may relate to incapacity to perform judicial functions, commission of criminal
offences or serious infringements of disciplinary rules.

3. Where measures under paragraphs 1 and 2 of this article need to be taken, states
should consider setting up, by law, 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. The law should provide for appropriate procedures to

34
ensure that judges in question are given at least all the due process requirements of the
Convention, for instance that the case should be heard within a reasonable time and
that they should have a right to answer any charges.




35
                         EXPLANATORY MEMORANDUM

                     to Recommendation Rec (1994)12
            On the Independence, Efficiency and Role of Rudges

         (Adopted by the Committee of Ministers on 13 October 1994, at the
                     518th meeting of the Ministers' Deputies)

Introduction

     1. Within the framework of the activities undertaken to promote and guarantee the
        efficiency and fairness of civil and criminal justice, it was decided to prepare a
        recommendation on the independence, efficiency and role of judges.

     2. Indeed, the Council of Europe includes among its aims the institution and
        protection of a democratic and political system characterized by the rule of law
        and the establishment of a constitutionally governed state, as well as the
        promotion and protection of human rights and fundamental freedoms.

     3. The recommendation on the independence, efficiency and role of judges
        recognizes and emphasizes the pre-eminent and significant role played by
        judges in the implementation of these aims. The independence of judges is one
        of the central pillars of the rule of law. The need to promote the independence of
        judges is not confined to individual judges only but may have consequences for
        the judicial system as a whole. States should therefore bear in mind that,
        although a specific measure does not concern any individual judge directly, it
        might have consequences for the independence of judges.

     4. The texts of the draft recommendation and its explanatory memorandum were
        prepared by the Project Group on Efficiency and Fairness of Civil Justice (CJ-
        JU). After examination by the European Committee on Legal Co-operation
        (CDCJ), the draft recommendation and its explanatory memorandum were
        submitted to the Committee of Ministers of the Council of Europe. The
        Committee of Ministers adopted the text of the draft recommendation and
        authorized the publication of the explanatory memorandum to the
        recommendation.

     5. In addition to representatives of the member states of the Council of Europe and
        the Commission of the European Community, the following observers attended
        the meetings of the project group which prepared these texts: Albania, Holy See,
        Latvia, Russia, the European Association of Judges Sitting in Commercial Courts
        and the International Association of Judges.

     6. In order to establish an efficient and fair legal system, it is necessary to

36
        strengthen the position and powers of judges and to ensure the proper exercise
        of judicial responsibilities. When preparing this recommendation, account was
        taken of the United Nations Basic Principles on the Independence of the
        Judiciary (1985) and the procedures for the effective implementation of these
        principles adopted in 1989. The basic principles of the United Nations are, in
        relation to the draft recommendation, to be seen as a basic text expressing
        minimum standards which are fully compatible with the recommendation. This
        implies, on the one hand, that it was not always considered necessary to deal
        with all subjects covered by the basic principles which would therefore apply. On
        the other hand, where further protection of the independence of judges within the
        framework of the like-minded member states of the Council of Europe was
        considered possible, this has been reflected in the recommendation. Because of
        its importance, the Committee felt however that it was appropriate to insert the
        text of Basic Principle No. 12 in the text of the recommendation, without making
        any amendments to it (see principle I, paragraph 3).

     7. The starting-point for the recommendation is the idea that the powers conferred
        on judges are counterbalanced by their duties. The recommendation fits into the
        framework of measures to be taken to make the judicial system fairer and more
        efficient. One of the cornerstones of a fair system of justice is the independence
        of judges. It is necessary to give judges appropriate powers guaranteeing their
        independence. However, such powers do not authorize them to act in an
        arbitrary manner. Judges are also subject to certain duties. Judicial
        responsibilities are accordingly determined by the relationship between the
        powers and the duties of judges.

     8. Consequently, with the same aim of preserving the independence of judges, it is
        essential to make judges liable to a system of supervision which makes sure that
        their rights and duties are respected.

     9. The recommendation calls upon the member states to adopt or reinforce, as the
        case may be, all measures necessary to promote the role of judges and
        strengthen their efficiency and independence.

     10. It contains six principles which should be applied by the governments of member
         states. These principles relate to the independence of judges, the authority of
         judges, proper working conditions, the right to form associations, judicial
         responsibilities and the consequences of failure to carry out responsibilities and
         disciplinary offences. Although the recommendation enumerates principles, it
         was felt necessary to give details concerning these principles, so as to provide
         guidance to the states implementing the recommendation. In view of the different
         legal traditions of the member states relating to the protection of judges, the
         recommendation does not seek a complete harmonization of the law on this
         matter but provides examples or general rules which show the direction in which
         steps need to be taken.


37
Scope of the recommendation

     11. The scope of the recommendation is not confined to specific fields of law and
         also covers both professional judges and lay judges, except, in the case of lay
         judges, with regard to the question of remuneration and certain other matters
         such as the requirement to have proper legal training. It covers the resolution of
         civil and criminal cases but also administrative law and constitutional law. The
         recommendation, when defining the scope, refers to persons exercising judicial
         functions rather than to judges as some persons exercising judicial functions in
         certain states which do not have the title of judges although they enjoy the same
         independence as judges in the exercise of their functions. For instance, some
         countries have a system whereby specialists perform the function of judges in
         cases which need highly specialized knowledge, such as auditors or experts in
         land surveying. Such experts exercising judicial functions cannot be compared
         with "lay judges" since they are often appointed because of their specialist
         knowledge. A number of these recommendations would also be appropriate for
         such persons. For reasons of convenience, it was however felt appropriate to use
         the term "judge" for any person exercising judicial functions. In any case, it is a
         matter for the internal law, and in particular the constitutions, to decide who are
         considered judges for the purposes of this recommendation.

The recommendation does not interfere with systems designated to discharge the
courts of minor cases in, for instance, criminal or administrative matters (for example
the so-called ordonnance pénale in France or the Ordnungswidrigkeiten in Germany).
On the contrary, the Council of Europe has previously encouraged the adoption of such
           1
measures.

Commentary on the principles

Principle I – General principles on the independence of judges

     12. Support for the independence of the judges is expressed in the first principle
         which calls for all necessary measures to be taken to respect, protect and
         promote the independence of judges. The scope of the concept of
         "independence of judges" is not confined to judges themselves but covers the
         judicial system as a whole.

     13. The independence of judges should be guaranteed pursuant to the provisions of
         the Convention and constitutional principles (see paragraph 2.a, of this principle).
         This requirement implies that the independence of judges must be guaranteed in
         one way or another under domestic law. Depending on the legal system of each
         country, this guarantee may take the form of a written or unwritten constitution, a
         treaty or convention incorporated in the national legal system, or even written or
         unwritten principles of superior status, such as general legal principles.

     14. With regard to the measures for implementing this principle, several aspects

38
        should be considered, taking into account the legal traditions of each state. The
        law should lay down rules on how and when appeals may be made against
        judges' decisions to courts enjoying judicial independence. A revision of
        decisions outside that legal framework, by the government or the administration
        would clearly not be admissible. Similarly, the term of office of judges and their
        remuneration should be guaranteed by law. As to the term of office, the
        recommendation provides specific rules on when it would be admissible to
        suspend judges or permanently remove them (see Principle VI). Moreover, a
        specific recommendation (see Principle III, paragraph c) is made in respect of the
        remuneration of judges. Courts should also be able to decide on their own
        competence, as defined by the law and the administration or government should
        not be able to take decisions which render the judges' decisions obsolete, with
        the exception of very special cases of amnesty, pardon, clemency or similar
        situations. Such exceptions are known in every democracy and find their
        justification in humanitarian principles of superior value.

     15. The independence of judges is first and foremost linked to the maintenance of
         the separation of powers (see paragraph 2.b of this principle). The organs of the
         executive and the legislature have a duty to ensure that judges are independent.
         Some of the measures taken by these organs may directly or indirectly interfere
         with or modify the exercise of judicial power. Consequently, the organs of the
         executive and legislative branches must refrain from adopting any measure
         which could undermine the independence of judges. In addition pressure groups
         and other interest groups should not be allowed to undermine this independence.

     16. It is essential that the independence of judges should be guaranteed when they
         are selected and throughout their professional career (see paragraph 2.c of this
                                                                  2
         principle) and that there should be no discrimination. All decisions concerning
         the professional life of judges should be based on objective criteria and even
         though each member state has its own method of recruitment, election or
         appointment, the selection of candidates for the judiciary and the career of
         judges must be based on merit. In particular where the decision to appoint judges
         is taken by organs which are not independent of the government or the
         administration or, for instance, by the parliament or the president of the state, it is
         important that such decisions are taken only on the basis of objective criteria.

All decisions affecting the professional career of judges should be based on objective
criteria. It is not only at the time of appointment as judge that judicial independence
needs to be preserved but throughout the entire professional career as judge. For
instance, a decision to promote a judge to another position could in practice be a
disguised sanction for an "inconvenient judge". Such a decision would of course not be
compatible with the terms of the recommendation. In order to deal with such situations,
some states, such as Italy, have adopted a system of separation of judicial careers and
judicial functions.

The recommendation seeks (paragraph 2.c, sub-paragraph 1) to propose standards

39
which should be upheld in all member states, ensuring that decisions are taken without
any undue influence from the executive branch or the administration.

Although the recommendation proposes an ideal system for judicial appointments, it
was recognized (see sub-paragraph 2) that a number of the member states of the
Council of Europe have adopted other systems, often involving the government,
parliament or the head of state. The recommendation does not propose to change these
systems which have been in operation for decades or centuries and which in practice
work well. But also in states where the judges are formally appointed by the
government, there should be some kind of system whereby the appointment procedures
of judges are transparent and independent in practice. In some states, this is ensured
by special independent and competent bodies which give advice to the government, the
parliament or the head of state which in practice is followed or by providing a possibility
of appeal by the person concerned. Other states have opted for systems involving wide
consultations with the judiciary, although the formal decision is taken by a member of
government.

It was not felt appropriate to deal explicitly in the text of the recommendation with
systems where appointments are made by the president or the parliament, although the
Committee was of the opinion that the general principles on appointments would apply
also for such systems.

An important aspect of ensuring that the most suitable persons are appointed as judges
is the training of lawyers. Professional judges must have proper legal training. In
addition, training contributes to judicial independence. If judges have adequate
theoretical and practical knowledge as well as skills, it would mean that they could act
more independently against the administration and, if they so wish, could change legal
profession without necessarily having to continue to be judges.

     17. In the decision-making process, judges should be able to act independently (see
         paragraph 2.d of this principle). The judge should have unfettered freedom to
         decide a case impartially, in accordance with his conscience and his
         interpretation of the facts, and in pursuance of the prevailing rules of law. The
         purpose of this provision is to ensure that no pressure of any kind and from any
         quarter obliges the judge to deliver judgment along the lines desired by a party,
         the administration, the government or any other person. Attempts to corrupt
         judges should be punished under criminal law. In some states, judges are
         obliged to report, for instance, on backlog of cases to the president of the court or
         to official authorities. Such reporting obligations, which are necessary for an
         efficient management of scarce resources in courts and for planning purposes
         are of course compatible with the concept of judicial independence. However, as
         it could be used as a means of exerting influence on judges, they should not be
         obliged to report on the merits of the cases with a view to justifying their
         decisions.

     18. There are various possible systems for the distribution of cases, such as the

40
        drawing of lots, distribution in accordance with the alphabetical order of the
        names of the judges or by giving cases to the divisions of the court in an order
        specified beforehand (so-called "automatic distribution") or the sharing out of
        cases among judges by decision of the president of the court (see paragraph 2.e
        of this principle). What matters is not so much the system of distribution, but the
        fact that the actual distribution should not be tainted by outside influence and
        should not benefit one of the parties. In some states, a decision by the president
        of the court is considered acceptable. Appropriate rules for substituting judges
        could be provided for within the framework of the rules governing the distribution
        of cases. This would ensure that where, as may occur relatively frequently (e.g.
        illness, vacation), a judge is unable to hear a case it is dealt with properly. In that
        way extraordinary decisions (see paragraph 2.f of this principle) would be
        necessary only in a limited number of cases. Rules for the substitution of judges
        should take account of the period of absence of the judge.

     19. Nevertheless, it might on some occasions be necessary to withdraw a particular
         case from a judge. Therefore, and out of the same concern to preserve the
         independence of the judicial system, the law should provide that a case should
         not be withdrawn from a judge by the appropriate body without valid reasons
         (see paragraph 2.f of this principle). The aim is to prevent a case from being
         withdrawn from a judge by the executive because the likely decision would not
         correspond to the expectations of, say, the government or the administration.

     20. A case may not be withdrawn from a judge unless there are valid reasons and
         the decision is taken by the competent body. The concept of "valid reasons"
         covers all grounds of withdrawal which do not affect the independence of judges.
         Reasons of efficiency may also constitute valid grounds. For example, when a
         judge faces a backlog in his caseload due to illness, it is possible for cases to be
         withdrawn from him and assigned to other judges. Similarly, it may prove
         necessary to withdraw cases from judges who have been assigned a time-
         consuming case which may prevent them from dealing with other cases already
         assigned to them. It may prove necessary for the list of valid reasons to be
         determined by statute. In no event does this provision affect the right of parties to
         withdraw a case.

     21. With regard to the question of the possibility for a judge to withdraw from a case,
         see Principle V (paragraph 3.c).

Principle II – The authority of the judges

     22. In order to ensure that the judge enjoys the respect due to him as a judge and
         that the proceedings are conducted efficiently and smoothly, all persons
         connected with a case (eg. parties, witnesses, experts) must be subject to the
         authority of the judge in accordance with domestic law. State bodies or their
         representatives must also submit to the authority of the judge.


41
     23. Judges should have available to them the necessary practical measures and
         appropriate powers to maintain order in their courts. Once such powers are
         allocated to judges, they have a responsibility to prevent the occurrence of
         situations which call in to question their independence.

     24. By way of example, reference may be made to the contempt of court procedures
         which exist in certain member states. In addition, the presence of security guards
         at hearings could be useful for the purpose of ejecting persons who disturb public
         order.

Principle III – Proper working conditions

     25. Proper working conditions for judges are a particularly noteworthy aspect of the
         arrangements for improving the efficiency and fairness of justice. Such working
         conditions, to which judges are entitled, derive in fact from the powers bestowed
         on them and the independence they are required to exercise.

     26. The following measures will contribute to the provision of proper conditions
         enabling judges to work efficiently.

     27. It is necessary to recruit judges in sufficient numbers to avert an excessive
         workload and enable the proceedings already started, regardless of their volume,
         to be finalized within a reasonable time (see paragraph 1.a). States may wish to
         give consideration to the possibility of allowing single judges to deal with cases of
                         3
         first instance.

     28. With a view to ensuring that the law is properly applied, it is not enough merely to
         require, at the selection stage, that judges possess suitable qualifications; they
         must also be given appropriate training before their appointment and during their
         career. It lies with member states to determine the content of such training
         although the recommendation proposes some fields where training is of
         importance. In some cases, training prior to appointment may be very limited, for
         example when the national system provides for the appointment of former
         practicing lawyers as judges. In the course of their career, judges must receive
         training which keeps them abreast of important new developments, such as
         recent trends in legislation and case-law, social trends and relevant studies on
         topical issues or problems.

     29. Status and remuneration are important factors determining appropriate working
         conditions (see paragraph 1.b). The status accorded to judges should be
         commensurate with the dignity of their profession and their remuneration should
         represent sufficient compensation for their burden of responsibilities. These
         factors are essential to the independence of judges, especially the recognition of
         the importance of their role as judges, expressed in terms of due respect and
         adequate financial remuneration.


42
     30. Paragraph 1.b is closely bound up with the reference in Principle I to all decisions
         concerning the professional life of judges, which obviously includes their status
         and their remuneration.

     31. The quality of judicial decisions depends primarily on the quality and competence
         of judges. Some member states have great difficulty in attracting the best lawyers
         to the judge's profession and retaining their services. There is intense
         competition with the private sector because the latter offers more attractive
         career prospects. Paragraph 1.c is therefore aimed at encouraging member
         states to make efforts to ensure that such lawyers can expect a successful
         career as judges. To this end, they must improve career structures, provide for
         genuine opportunities for promotion and increase remuneration.

     32. Judges will also be able to work more efficiently and deliver their judgments
         promptly if they are assisted by adequate back-up staff and equipment (see
         paragraph 1.d). In order to ensure improved management of courts and of case
         files, it is necessary to make all office automation and data processing facilities
         available to judges.

     33. Finally, in order to ease the burden on judges and enable them to concentrate on
         their work of hearing and determining cases, it is important to relieve them of all
         non-judicial tasks which can be assigned to other persons (see paragraph 1.f).
         Judges are not normally themselves empowered to delegate certain tasks to
         other persons, but it is the law in the broad sense of the term which would
                                                            4
         authorize the transfer of such non-judicial tasks.

     34. However, delegation cannot be done in such a manner that it will endanger the
         judicial independence of judges. Judicial tasks should, of course, remain within
         the exclusive purview of the judge.

     35. A final aspect in relation to working conditions concerns the safety and physical
         protection of judges (see paragraph 2). Member states should provide adequate
         facilities to ensure the protection of judges when this is necessary. While
         protection is needed more especially for judges dealing with criminal cases, it
         may also be needed for judges handling civil or commercial cases. The presence
         of security guards on court premises and police protection for judges who are the
         victims of serious threats are measures which could be envisaged.

Principle IV – Associations

     36. Under this principle, judges are given the right to take collective action to
         safeguard their professional independence and protect their interests. To this
         end, judges are free to form associations whose activities are confined to
         defending the independence and the interests of the profession. Such
         associations may, for example, take part in salary negotiations with the Ministry
         of Justice or contribute to the training of judges. The associations act either alone

43
        or with another body.

     37. In some member states, judicial bodies or the ministry of justice have a hand in
         the administration of the courts and tribunals. Once again, such intervention must
         always be based on respect for the independence of judges.

Principle V – Judicial responsibilities

     38. The independent allotted task of judges is that of safeguarding the rights and
         freedoms of all persons within the scope of their duty to administer justice (see
         paragraph 1). The judge is responsible for protecting the rights and freedoms
         granted to individuals. This obligation should not only be seen as a duty to
         protect the minimum rights as expressed in the European Convention of Human
         Rights. The obligation goes further but it is difficult to define in precise terms its
         scope. Ultimately, the obligation has to do with the defense of democracy and the
         rule of law, safeguarding against oppression and the totalitarian state as
         expressed in the Statute of the Council of Europe.

     39. This principle, which deals with the responsibilities of the judge, covers the
         relationship between the judge's duties and powers. Judges should be given
         appropriate powers to assure them of total independence in the fulfillment of their
         tasks. Judges have a duty to exercise the powers bestowed on them (see
         paragraph 2).

     40. Judges should be given proper working conditions to ensure that they are able to
         carry out their responsibilities (see Principle III). A balance is struck between the
         right of judges to adequate working conditions and their responsibility for the use
         of the resources placed at their disposal, but a lack of adequate working
         conditions is no excuse for failing to carry out the judicial responsibilities referred
         to in paragraph 3.

     41. Paragraph 3 specifies several responsibilities entrusted to judges.

            a. First of all, it is incumbent on judges to act independently in all cases,
            unaffected by any outside influence. This does not apply to cases where a
            lower court is bound by a higher court in respect of points of law.

            b. Independent judges should give impartial decisions based solely on an
            assessment of the facts and their understanding of the law. Sub-paragraph
            3.b refers expressly to the principle of fairness and the rights of the parties as
            enshrined in the European Convention on Human Rights, more particularly in
            Article 6.1 of that Convention, which stipulates that "everyone is entitled to a
            fair and public hearing within a reasonable time by an independent and
            impartial tribunal established by law".

            c. Judges have an obligation to give judgment in the cases assigned to them.

44
     This responsibility counterbalances Principle I, paragraph 2.f. If a case cannot
     be withdrawn from a judge by the appropriate body without valid reasons,
     judges are also not entitled themselves to withdraw from a case without valid
     reasons. On the other hand, where such reasons exist, judges should have
     an obligation to withdraw from the case. This twofold requirement contributes
     to guaranteeing the independence of judges. This responsibility is more
     particularly applicable to situations where judges withdraw from cases solely
     because the judgments to be delivered would be unpopular though justified.
     However, judges can disqualify themselves if there is a conflict of interest or
     any other valid reason. A "valid reason" can be defined by legislation or case
     law. Other examples of valid reasons are serious health problems or the
     interests of justice. This latter concept is difficult to define but relates to some
     extent to the principle that "justice must not only be done, but must also be
     seen to be done". For instance, if a case concerns a neighbor of a judge and
     the judge does not know this neighbor, there is no conflict of interest.
     However, the judge may consider it necessary to withdraw from the case in
     the interests of justice so as not to cast any shadow of a doubt over the
     impartiality of the court.

     d. It is also the duty of the judge, in the interests of justice, to give an impartial
     explanation of certain procedural matters in appropriate cases to the parties.
     In particular, parties who are not represented by lawyers often need
     explanations concerning the procedure and judges must ensure that such
     parties are sufficiently informed to enable them to understand the
     proceedings.

     e. The responsibility of encouraging the parties, where appropriate, to reach a
     friendly settlement underscores the importance of the conciliatory role played
     by the judge for the sake of efficiency of justice. In addition, it is the natural
     function of the judge to secure the reconciliation of the parties: discussion is
     better than litigation. Judges must however carry out this task with tact and
     sense and in such a manner that their impartiality cannot be questioned.

     f. Again in the interests of guaranteeing the efficiency and fairness of justice,
     judges must give clear and complete reasons for their judgments, which as
     far as possible should be comprehensible to the parties. They should try to
     avoid using complex words when there are more common synonyms, or
     quotations in a foreign language when an equivalent exists in the language of
     the country. The obligation to give reasons is, however, not absolute. In some
     states, it is not necessary to give reasons in specific types of cases, for
     instance judgments by default or which are based on the defendant's
     approval (Germany), where a jury has tried the case or in matters concerning
     provisional measures (Malta) or where a court of appeal does not change the
     decision of the district court (Sweden). Usually, such situations dispensing
     from the main principle are defined by law or, at least, established in long
     standing practice of the courts.

45
            g. In order to counterbalance the obligation placed on states to provide for
            appropriate training for judges before their appointment and during their
            career (Principle III, paragraph 1.a), judges should participate in any training
            needed for the efficient and proper performance of their duties. Indeed, if
            member states make training facilities available, judges should use them.
            This responsibility is more particularly concerned with the obligation to keep
            abreast of recent changes in legislation or case law.

Principle VI – Failure to carry out responsibilities and disciplinary offences

     42. This final principle places an obligation on judges to exercise their powers and
         assume their responsibilities. Like any other representative of one of the
         branches of state authority, judges are subject to monitoring of their compliance
         with this obligation.

     43. When judges fail to carry out their duties in an efficient and proper manner,
         appropriate measures must be taken. Such measures may, for instance, include,
         depending on the legal traditions of the state, withdrawal of cases from the judge,
         moving the judge to other judicial tasks within the court, economic sanctions such
         as a reduction of salary for a temporary period or suspension (see paragraph 1 of
         this principle). It goes without saying that taking such measures must remain
         exceptional in order to preserve judicial independence. It lies with the member
         states to decide which is the appropriate body for monitoring judges' activities,
         which is why the recommendation in paragraph 3 only requests the member
         states to "consider" setting up a special competent body. It should be possible to
         appeal against decisions of this body to a court. It could be a judicial body but
         other bodies, such as the ministry of justice, fulfill this task in some member
         states. Any measure taken by the supervisory body must be based on respect for
         the independence of judges. For example a ministry should not, under the pretext
         of exercising its supervisory authority, be allowed to withdraw a case from a
         judge whose decision does not appear likely to be consistent with the wishes of
         the administration. However, if a judge faces a substantial backlog in his
         caseload, the president of the court, a higher judicial authority or the ministry of
         justice may decide to undertake an investigation into the reasons for this state of
         affairs. In such cases, the requirement of efficiency of justice does not impair the
         independence of the judge.

     44. Where, according to domestic law, judges are alleged to have committed
         disciplinary offences, it is essential that any proceedings brought against them
         should safeguard their independence and that any competent tribunal or body
         should be independent and impartial. In some member states, a judge suspected
         of having committed a disciplinary offence is brought before a tribunal composed
         of judges or composed of judges and other persons not belonging to the
         judiciary. Other member states have no real disciplinary courts or tribunals. The
         only disciplinary sanction in such countries is dismissal. In certain countries only

46
           the national parliament is entitled to dismiss judges of higher courts from their
           posts. In conclusion: the fact that the tribunal conducting the disciplinary
           proceedings does not fall under the jurisdiction of judges or is not subject to a
           degree of influence by judges is not a source of difficulty provided that the
           independence of the tribunal or body and the impartiality of the proceedings are
           respected.

     45. Paragraph 2 takes account of the different circumstances in which judges may be
         removed from office before the age of retirement.

     46. The principle of absolute security of tenure for judges given permanent
         appointments is aimed at guaranteeing their independence and ensures that a
         permanently appointed judge cannot be removed from office without valid
         reasons before he reaches the mandatory retirement age. However, some
         member states do not guarantee security of tenure for judges up to the age for
         retirement. This applies to cases where either judges have to be re-elected after
         a certain period or some judges undergo a period of "probation" when they first
         take up their duties, during which they can be dismissed.

     47. The concept of "valid reasons" covers cases involving disciplinary offences or
         incapacity. It goes without saying that, in dismissal proceedings, judges enjoy the
         same rights and procedural guarantees as any other party to litigation. Reference
         should also be made to the United Nations Basic Principles on the Independence
                           5
         of the Judiciary.
       1
Note See Recommendation No. R (87) 18 on the simplification of criminal justice.
        2
Note The United Nations Basic Principles on the Independence of the Judiciary
provides in paragraph 10:
Note "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."
       3
Note Paragraph V of Recommendation No. R (86) 12 concerning measures to prevent
and reduce the excessive workload in the courts provides "Generalizing, if not yet so,
trial by a single judge at first instance in all appropriate matters".
        4
Note      See also Recommendation No. R (86) 12 of the Committee of Ministers
concerning measures to prevent and reduce the excessive workload in the courts, and
in particular the appendix thereto (examples of non-judicial tasks of which judges in
some states could be relieved according to the particular circumstances of each
country).
       5
Note Paragraph 19 of the United Nations Basic Principles provides: "All disciplinary,
suspension or removal proceedings shall be determined in accordance with established

47
standards of judicial conduct."




48
     European Charter on the Statute for Judges




49
                 European Charter on the Statute for Judges

                              Strasbourg, 8 - 10 July 1998


FOREWORD

The activities carried out in the Council of Europe for many years now, on the
organization of Justice in a democratic State governed by the rule of law, have allowed
the various aspects of the issue of the status of judges to be addressed on numerous
occasions. These meetings over the past years have been devoted to the recruitment,
training, career and responsibilities of judges, as well as the disciplinary system
governing them. The number of these meetings has increased since the end of the
eighties due to the profound changes that have taken place in Eastern Europe.

In 1997, the idea developed to maximize the results of the work and discussions in
order to give this work better ‘visibility’ and above all to give a new impulse to the
continuing effort to improve legal institutions as an essential element of the rule of law.

The need to draft a European charter on the statute for judges was confirmed in July
1997, following a first multilateral meeting in Strasbourg devoted to the Status of Judges
in Europe. The participants at this meeting came from 13 Western, Central and Eastern
European countries, as well as from the European Association of Judges (EAJ) and the
European Association of Judges for Democracy and Freedom (MEDEL).                      The
participants expressed a wish for the Council of Europe to give the necessary
framework and support to the elaboration of the Charter.

On the basis of these conclusions, the Directorate of Legal Affairs entrusted three
experts from France, Poland and United Kingdom with the realization of a draft charter.

This draft, created in Spring 1998, was laid before the participants of a second
multilateral meeting, also held in Strasbourg, on 8-10 July 1998. At the end of the three
days of discussion, the text, after having been improved by a certain number of
amendments, was unanimously adopted.

The value of this Charter is not a result of a formal status, which, in fact, it does not
have, but of the relevance and strength that its authors intended to give to its contents.
A thorough knowledge of its contents and a wide distribution of the Charter are essential
for its goals to be realized . The Charter is aimed at judges, lawyers, politicians and
more generally to every person who has an interest in the rule of law and democracy.




51
         EUROPEAN CHARTER ON THE STATUTE FOR JUDGES

       The participants at the multilateral meeting on the statute for judges in Europe,
organized by the Council of Europe, between 8-10 July 1998,

Having regard to Article 6 of the Convention for the Protection of Human Rights and
Fundamental Freedoms which provides that "everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established by
law" ;

Having regard to the United Nations Basic Principles on the Independence of the Judiciary,
endorsed by the United Nations General Assembly in November 1985;

Having referred to Recommendation No R (94) 12 of the Committee of Ministers to
member states on the independence, efficiency and role of judges, and having made their
own, the objectives which it expresses ;

Being concerned to see the promotion of judicial independence, necessary for the
strengthening of the pre-eminence of law and for the protection of individual liberties within
democratic states, made more effective ;

Conscious of the necessity that provisions calculated to ensure the best guarantees of the
competence, independence and impartiality of judges should be specified in a formal
document intended for all European States ;

Desiring to see the judges' statutes of the different European States take into account
these provisions in order to ensure in concrete terms the best level of guarantees;

Have adopted the present European Charter on the statute for judges.

1.     GENERAL PRINCIPLES

1.1. The statute for judges aims at ensuring the competence, independence and
impartiality which every individual legitimately expects from the courts of law and from
every judge to whom is entrusted the protection of his or her rights. It excludes every
provision and every procedure liable to impair confidence in such competence, such
independence and such impartiality. The present Charter is composed hereafter of the
provisions which are best able to guarantee the achievement of those objectives. Its
provisions aim at raising the level of guarantees in the various European States. They
cannot justify modifications in national statutes tending to decrease the level of guarantees
already achieved in the countries concerned.

1.2. In each European State, the fundamental principles of the statute for judges are set
out in internal norms at the highest level, and its rules in norms at least at the legislative
level.

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1.3. 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.

1.4. The statute gives to every judge who considers that his or her rights under the
statute, or more generally his or her independence, or that of the legal process, are
threatened or ignored in any way whatsoever, the possibility of making a reference to such
an independent authority, with effective means available to it of remedying or proposing a
remedy.

1.5. Judges must show, in discharging their duties, availability, respect for individuals,
and vigilance in maintaining the high level of competence which the decision of cases
requires on every occasion - decisions on which depend the guarantee of individual rights
and in preserving the secrecy of information which is entrusted to them in the course of
proceedings.

1.6. The State has the duty of ensuring that judges have the means necessary to
accomplish their tasks properly, and in particular to deal with cases within a reasonable
period.

1.7. Professional organizations set up by judges, and to which all judges may freely
adhere, contribute notably to the defense of those rights which are conferred on them by
their statute, in particular in relation to authorities and bodies which are involved in
decisions regarding them.

1.8. Judges are associated through their representatives and their professional
organizations in decisions relating to the administration of the courts and as to the
determination of their means, and their allocation at a national and local level. They are
consulted in the same manner over plans to modify their statute, and over the
determination of the terms of their remuneration and of their social welfare.

2.     SELECTION, RECRUITMENT, INITIAL TRAINING

2.1. The rules of the statute relating to the selection and recruitment of judges by an
independent body or panel, base the choice of candidates on their ability to assess freely
and impartially the legal matters which will be referred to them, and to apply the law to
them with respect for individual dignity. The statute excludes any candidate being ruled out
by reason only of their sex, or ethnic or social origin, or by reason of their philosophical and
political opinions or religious convictions.

2.2. The statute makes provision for the conditions which guarantee, by requirements
linked to educational qualifications or previous experience, the ability specifically to
discharge judicial duties.

53
2.3. The statute ensures by means of appropriate training at the expense of the State,
the preparation of the chosen candidates for the effective exercise of judicial duties. The
authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training
programs and of the organization which implements them, in the light of the requirements
of open-mindedness, competence and impartiality which are bound up with the exercise of
judicial duties.

3.     APPOINTMENT AND IRREMOVABILITY

3.1. The decision to appoint a selected candidate as a judge, and to assign him or her to
a tribunal, are taken by the independent authority referred to at paragraph 1.3 hereof or on
its proposal, or its recommendation or with its agreement or following its opinion.

3.2. The statute establishes the circumstances in which a candidate's previous activities,
or those engaged in by his or her close relations, may, by reason of the legitimate and
objective doubts to which they give rise as to the impartiality and independence of the
candidate concerned, constitute an impediment to his or her appointment to a court.

3.3. Where the recruitment procedure provides for a trial period, necessarily short, after
nomination to the position of judge but before confirmation on a permanent basis, or where
recruitment is made for a limited period capable of renewal, the decision not to make a
permanent appointment or not to renew, may only be taken by the independent authority
referred to at paragraph 1.3 hereof, or on its proposal, or its recommendation or with its
agreement or following its opinion. The provisions at point 1.4 hereof are also applicable to
an individual subject to a trial period.

3.4. A judge holding office at a court may not in principle be appointed to another judicial
office or assigned elsewhere, even by way of promotion, without having freely consented
thereto. An exception to this principle is permitted only in the case where transfer is
provided for and has been pronounced by way of a disciplinary sanction, in the case of a
lawful alteration of the court system, and in the case of a temporary assignment to
reinforce a neighboring court, the maximum duration of such assignment being strictly
limited by the statute, without prejudice to the application of the provisions at paragraph 1.4
hereof.

4.     CAREER DEVELOPMENT

4.1. When it is not based on seniority, a system of promotion is based exclusively on the
qualities and merits observed in the performance of duties entrusted to the judge, by
means of objective appraisals performed by one or several judges and discussed with the
judge concerned. Decisions as to promotion are then pronounced by the authority referred
to at paragraph 1.3 hereof or on its proposal, or with its agreement. Judges who are not
proposed with a view to promotion must be entitled to lodge a complaint before this
authority.


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4.2. 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.

4.3. Judges must refrain from any behavior, action or expression of a kind effectively to
affect confidence in their impartiality and their independence.

4.4. The statute guarantees to judges the maintenance and broadening of their
knowledge, technical as well as social and cultural, needed to perform their duties, through
regular access to training which the State pays for, and ensures its organization whilst
respecting the conditions set out at paragraph 2.3 hereof.

5.     LIABILITY

5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may
only give rise to a sanction upon the decision, following the proposal, the recommendation,
or with the agreement of a tribunal or authority composed at least as to one half of elected
judges, within the framework of proceedings of a character involving the full hearing of the
parties, in which the judge proceeded against must be entitled to representation. The scale
of sanctions which may be imposed is set out in the statute, and their imposition is subject
to the principle of proportionality. The decision of an executive authority, of a tribunal, or of
an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher
judicial authority.

5.2. Compensation for harm wrongfully suffered as a result of the decision or the
behavior of a judge in the exercise of his or her duties is guaranteed by the State. The
statute may provide that the State has the possibility of applying, within a fixed limit, for
reimbursement from the judge by way of legal proceedings in the case of a gross and
inexcusable breach of the rules governing the performance of judicial duties. The
submission of the claim to the competent court must form the subject of prior agreement
with the authority referred to at paragraph 1.3 hereof.

5.3. Each individual must have the possibility of submitting without specific formality a
complaint relating to the miscarriage of justice in a given case to an independent body.
This body has the power, if a careful and close examination makes a dereliction on the part
of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the
matter to the disciplinary authority, or at the very least to recommend such referral to an
authority normally competent in accordance with the statute, to make such a reference.

6.     REMUNERATION AND SOCIAL WELFARE

6.1.   Judges exercising judicial functions in a professional capacity are entitled to

55
remuneration, the level of which is fixed so as to shield them from pressures aimed at
influencing their decisions and more generally their behavior within their jurisdiction,
thereby impairing their independence and impartiality.

6.2. Remuneration may vary depending on length of service, the nature of the duties
which judges are assigned to discharge in a professional capacity, and the importance of
the tasks which are imposed on them, assessed under transparent conditions.

6.3. The statute provides a guarantee for judges acting in a professional capacity
against social risks linked with illness, maternity, invalidity, old age and death.

6.4. In particular the statute ensures that judges who have reached the legal age of
judicial retirement, having performed their judicial duties for a fixed period, are paid a
retirement pension, the level of which must be as close as possible to the level of their final
salary as a judge.

7.     TERMINATION OF OFFICE

7.1. A judge permanently ceases to exercise office through resignation, medical
certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or
dismissal pronounced within the framework of a procedure such as envisaged at
paragraph 5.1 hereof.

7.2. The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than
reaching the age limit or the expiry of a fixed term of office, must be verified by the authority
referred to at paragraph 1.3 hereof.




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                          EXPLANATORY MEMORANDUM
                                       To
                              The European Charter
                            On the Statute for Judges

1.     GENERAL PRINCIPLES

        The provisions of the European Charter cover not only professional but also non-
professional judges, because it is important that all judges should enjoy certain safeguards
relating to their recruitment, incompatibilities, conduct outside, and the termination of their
office.

         However, the Charter also lays down specific provisions on professional judges, and
in fact this specificity is inherent in certain concepts such as careers.

        The provisions of the Charter concern the statute for judges of all jurisdictions to
which people are called to submit their case or which are called upon to decide their case,
be it a civil, criminal, administrative or other jurisdiction.

1.1    The Charter endeavors to define the content of the statute for judges on the basis of
the objectives to be attained: ensuring the competence, independence and impartiality
which all members of the public are entitled to expect of the courts and judges entrusted
with protecting their rights. The Charter is therefore not an end in itself but rather a means
of guaranteeing that the individuals whose rights are to be protected by the courts and
judges have the requisite safeguards on the effectiveness of such protection.

       These safeguards on individuals’ rights are ensured by judicial competence, in the
sense of ability, independence and impartiality. These are positive references because the
judge's statute must strive to guarantee them; however, they are also negative because the
statute must not include any element which might adversely affect public confidence in
such competence, independence and impartiality.

        The question arose whether the provisions of the Charter should be mandatory, ie
whether it should be made compulsory to include them in national statutes regulating the
judiciary, or whether they should have the force of recommendations, so that different
provisions deemed capable of ensuring equivalent guarantees could be implemented
instead.

       The latter approach could be justified by a reluctance to criticize national systems in
which a long-standing, well-established practice has ensured effective guarantees on
statutory protection of the judiciary, even if the system barely mentions such protection.

      However, it has also been argued that in a fair number of countries, including new
Council of Europe member States, which do not regulate the exercise by political

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authorities of powers in the area of appointing, assigning, promoting or terminating the
office of judges, the safeguards on competence, independence and impartiality are
ineffective.

       This is why, even though the Charter’s provisions are not actually mandatory, they
are presented as being the optimum means of ensuring that the aforementioned objectives
are attained.

        Many of the Charter’s provisions are inapplicable in systems where judges are
directly elected by the citizens. It would have been impossible to draw up a Charter
exclusively comprising provisions compatible with such elective systems, as this would
have reduced the text to the lowest common denominator. Nor is the Charter aimed at
“invalidating” elective systems, because where they do exist they may be regarded by
nationals of the countries concerned as “quintessentially democratic”. We might consider
that the provisions apply as far as possible to systems in which the judiciary is elected. For
instance, the provisions set out in paragraphs 2.2 and 2.3 (first sentence) are certainly
applicable to such systems, for which they provide highly appropriate safeguards.

       The provisions of the Charter aim to raise the level of guarantees in the various
European States. The importance of such raising will depend on the level already achieved
in a country. But the provisions of the Charter must not in any way serve as the basis for
modifying national statutes so as on the contrary to decrease the level of guarantees
already achieved in any one country.

1.2    The fundamental principles constituting a statute for judges, determining the
safeguard on the competence, independence and impartiality of the judges and courts,
must be enacted in the normative rules at the highest level, that is to say in the
Constitution, in the case of European States which have established such a basic text.
The rules included in the statute will normally be enacted at the legislative level, which is
also the highest level in States with flexible constitutions.

        The requirement to enshrine the fundamental principles and rules in legislation or
the Constitution protects the latter from being amended under a cursory procedure
unsuited to the issues at stake. In particular, where the fundamental principles are
enshrined in the Constitution, it prevents the enactment of legislation aimed at or having
the effect of infringing them.

       In stipulating that these principles must be included in domestic legal systems, the
Charter is not prejudging the respect that is due under such systems for protective
provisions set out in international instruments binding upon the European States. This is
especially true because the Charter takes the foremost among these provisions as a
source of inspiration, as stated in the preamble.

1.3   The Charter provides for the intervention of a body independent from the executive
and the legislature where a decision is required on the selection, recruitment or
appointment of judges, the development of their careers or the termination of their office.

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       The wording of this provision is intended to cover a variety of situations, ranging
from the mere provision of advice for an executive or legislative body to actual decisions by
the independent body.

       Account had to be taken here of certain differences in the national systems. Some
countries would find it difficult to accept an independent body replacing the political body
responsible for appointments. However, the requirement in such cases to obtain at least
the recommendation or the opinion of an independent body is bound to be a great
incentive, if not an actual obligation, for the official appointments body. In the spirit of the
Charter, recommendations and opinions of the independent body do not constitute
guarantees that they will in a general way be followed in practice. The political or
administrative authority which does not follow such recommendation or opinion should at
the very least be obliged to make known its reasons for its refusal so to do.

       The wording of this provision of the Charter also enables the independent body to
intervene either with a straightforward opinion, an official opinion, a recommendation, a
proposal or an actual decision.

       The question arose of the membership of the independent body. The Charter at
this point stipulates that at least one half of the body’s members should be judges elected
by their peers, which means that it wants neither to allow judges to be in a minority in the
independent body nor to require them to be in the majority. In view of the variety of
philosophical conceptions and debates in European States, a reference to a minimum of
50% judges emerged as capable of ensuring a fairly high level of safeguards while
respecting any other considerations of principle prevailing in different national systems.

       The Charter states that judges who are members of the independent body should
be elected by their peers, on the grounds that the requisite independence of this body
precludes the election or appointment of its members by a political authority belonging to
the executive or the legislature.

        There would be a risk of party-political bias in the appointment and role of judges
under such a procedure. Judges sitting on the independent body are expected, precisely,
to refrain from seeking the favor of political parties or bodies that are themselves appointed
or elected by or through such parties.

       Finally, without insisting on any particular voting system, the Charter indicates that
the method of electing judges to this body must guarantee the widest representation of
judges.

1.4    The Charter enshrines the “right of appeal” of any judge who considers that his or
her rights under the statute or more generally independence, or that of the legal process, is
threatened or infringed in any way, so that he or she can refer the matter to an independent
body as described above.


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         This means that judges are not left defenseless against an infringement of their
independence. The right of appeal is a necessary safeguard because it is mere wishful
thinking to set out principles to protect the judiciary unless they are consistently backed
with mechanisms to guarantee their effective implementation. The intervention of the
independent body before any decision is taken on the judge’s individual status does not
necessarily cover all possible situations in which his or her independence is affected, and it
is vital to ensure that judges can apply to this body on their own initiative.

        The Charter stipulates that the body thus applied to must have the power to remedy
the situation affecting the judge’s independence of its own accord, or to propose that the
competent authority remedy it. This formula takes account of the diversity of national
systems, and even a straightforward recommendation from an independent body on a
given situation provides a considerable incentive for the authority in question to remedy the
situation complained of.

1.5     The Charter sets out the judge’s main duties in the exercise of his or her functions.
“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 judge’s
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 judge’s 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.

1.6   The Charter makes it clear that the State has the duty of ensuring that judges have
the means necessary to accomplish their tasks properly, and in particular to deal with
cases within a reasonable period.

       Without explicit indication of this obligation which is the responsibility of the State,
the justifications of the propositions related to the responsibility of the judges would be
deteriorated.

1.7    The Charter recognizes the role of professional associations formed by judges, to
which all judges are freely entitled to adhere, which precludes any form of legal
discrimination vis-à-vis the right to join them. It also points out that such associations
contribute in particular to the defense of judges’ statutory rights before such authorities and
bodies as may be involved in decisions affecting them. Judges may therefore not be
prohibited from forming or adhering to professional associations.

      Although the Charter does not assign these associations exclusive responsibility for
defending judges’ statutory rights, it does indicate that their contribution to such defense

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before the authorities and bodies involved in decisions affecting judges must be recognized
and respected. This applies, inter alia, to the independent authority referred to in
paragraph 1.3.

1.8   The Charter provides that judges should be associated through their
representatives, particularly those that are members of the authority referred to in
paragraph 1.3, and through their professional associations, with any decisions taken on the
administration of the courts, the determination of the courts’ budgetary resources and the
implementation of such decisions at the local and national levels.

        Without advocating any specific legal form or degree of constraint, this provision
lays down that judges should be associated in the determination of the overall judicial
budget and the resources earmarked for individual courts, which implies establishing
consultation or representation procedures at the national and local levels. This also applies
more broadly to the administration of justice and of the courts. The Charter does not
stipulate that judges should be responsible for such administration, but it does require them
not to be left out of administrative decisions.

        Consultation of judges by their representatives or professional associations on any
proposed change in their statute or any change proposed as to the basis on which they are
remunerated, or as to their social welfare, including their retirement pension, should ensure
that judges are not left out of the decision-making process in these fields. Nevertheless,
the Charter does not authorize encroachment on the decision-making powers vested in the
national bodies responsible for such matters under the Constitution.

2.     SELECTION, RECRUITMENT AND INITIAL TRAINING

2.1    Judicial candidates must be selected and recruited by an independent body or
panel. The Charter does not require that the latter be the independent authority referred to
in paragraph 1.3, which means, for instance, that examination or selection panels can be
used, provided they are independent. In practice, the selection procedure is often separate
from the actual appointment procedure. It is important to specify the particular safeguards
accompanying the selection procedure.

       The choice made by the selection body must be based on criteria relevant to the
nature of the duties to be discharged.

        The main aim must be to evaluate the candidate’s ability to assess independently
cases heard by judges, which implies independent thinking. The ability to show impartiality
in the exercise of judicial functions is also an essential element. The ability to apply the law
refers both to knowledge of the law and the capacity to put it into practice, which are two
different things. The selection body must also ensure that the candidate’s conduct as a
judge will be based on respect for human dignity, which is vital in encounters between
persons in positions of power and the litigants, who are often people in great difficulties.

       Lastly, selection must not be based on discriminatory criteria relating to gender,

61
ethnic or social origin, philosophical or political opinions or religious convictions.

2.2    In order to ensure the ability to carry out the duties involved in judicial office, the
rules on selection and recruitment must set out requirements as to qualifications and
previous experience. This applies, for instance, to systems in which recruitment is
conditional upon a set number of years’ legal or judicial experience.

2.3     The nature of judicial office, which requires the judge to intervene in complex
situations that are often difficult in terms of respect for human dignity, is such that “abstract”
verification of aptitude for such office is not enough.

       Candidates selected to discharge judicial duties must therefore be prepared for the
task by means of appropriate training, which must be financed by the State.

        Certain precautions must be taken in preparing judges for the giving of independent
and impartial decisions, whereby competence, impartiality and the requisite open-
mindedness are guaranteed in both the content of the training programs and the
functioning of the bodies implementing them. This is why the Charter provides that the
authority referred to in paragraph 1.3 must ensure the appropriateness of training
programs and of the organization which implements them, in the light of the requirements
of open-mindedness, competence and impartiality which are bound up with the exercise of
judicial duties. The said authority must have the resources so to ensure. Accordingly, the
rules set out in the statute must specify the procedure for supervision by this body in
relation to the requirements in question concerning the programs and their implementation
by the training bodies.

3.     APPOINTMENT AND IRREMOVABILITY

3.1    National systems may draw a distinction between the actual selection procedure
and the procedures of appointing a judge and assigning him or her to a specific court. It
should be noted that decisions to appoint or assign judges are taken by the independent
authority referred to at paragraph 1.3 hereof or are reached upon its proposal or
recommendation or with its agreement or following its opinion.

3.2    The Charter deals with the question of incompatibilities. It discarded the hypothesis
of absolute incompatibilities as this would hamper judicial appointments on the grounds of
candidates’ or their relatives’ previous activities. On the other hand, it considers that when
a judge is to be assigned to a specific court, regard must be had to the above-mentioned
circumstances where they give rise to legitimate and objective doubts as to his or her
impartiality and independence.

      For example, a lawyer who has previously practiced in a given town cannot possibly
be immediately assigned as a judge to a court in the same town. It is also difficult to
imagine a judge being assigned to a court in a town in which his or her spouse, father or
mother, for instance, is mayor or member of parliament. Therefore, where judges are to be
assigned to a given court, the relevant statute must take account of situations liable to give

62
rise to legitimate and objective doubts as to their independence and impartiality.

3.3    The recruitment procedure in some national systems provides for a probationary
period before a permanent judicial appointment is made, and others recruit judges on fixed-
term renewable contracts.

       In such cases the decision not to make a permanent appointment or not to renew
an appointment can only be taken by the independent authority referred to at paragraph
1.3 hereof or upon its proposal, recommendation or following its opinion. Clearly, the
existence of probationary periods or renewal requirements presents difficulties if not
dangers from the angle of the independence and impartiality of the judge in question, who
is hoping to be established in post or to have his or her contract renewed. Safeguards
must therefore be provided through the intervention of the independent authority. In so far
as the quality as a judge of an individual who is the subject of a trial period may be under
discussion, the Charter lays down that the right to make a reference to an independent
authority, as referred to in paragraph 1.4, is applicable to such an individual.

3.4     The Charter enshrines the irremovability of judges, which means that a judge
cannot be assigned to another court or have his or her duties changed without his or her
free consent. However, exceptions must be allowed where transfer is provided for within a
disciplinary framework, when a lawful re-organization of the court system takes place
involving for example the closing down of a court or a temporary transfer is required to
assist a neighboring court. In the latter case, the duration of the temporary transfer must
be limited by the relevant statute. Nevertheless, since the problem of transferring a judge
without his or her consent is highly sensitive, it is recalled that under the terms of
paragraph 1.4 he or she has a general right of appeal before an independent authority,
which can investigate the legitimacy of the transfer. In fact, this right of appeal can also
remedy situations which have not been specifically catered for in the provisions of the
Charter where a judge has such an excessive workload as to be unable in practice to carry
out his or her responsibilities normally.

4.     CAREER DEVELOPMENT

4.1      Apart from cases where judges are promoted strictly on the basis of length of
service, a system which the Charter did not in any way exclude because it is deemed to
provide very effective protection for independence, but which presupposes that high-quality
recruitment will be absolutely guaranteed in the countries concerned, it is important to
ensure that the judge’s independence and impartiality are not infringed in the area of
promotion. It must be specified that there are two potential issues here: judges
illegitimately barred from promotion, and judges unduly promoted.

      This is why the Charter defines the criteria for promotion exclusively as the qualities
and merits observed in the performance of judicial duties by means of objective
assessments carried out by one or more judges and discussed with the judge assessed.

       Decisions concerning promotion are then taken on the basis of these assessments

63
in the light of the proposal by the independent authority referred to in paragraph 1.3 or
upon its recommendation or with its agreement or following its opinion. It is expressly
stipulated that a judge who is proposed with a view to promotion submitted for examination
by the independent authority must be entitled to present his or her case before the said
authority.

         The provisions of paragraph 4.1 are obviously not intended to apply to systems in
which judges are not promoted, and there is no judicial hierarchy, systems which are also
in this regard highly protective of judicial independence.

4.2      The Charter deals here with activities conducted alongside judicial functions. It
provides that judges may freely exercise activities outside their judicial mandate, including
those which are the embodiment of their rights as citizens. This freedom, which constitutes
the principle, may not know of limitation except only in so far as judges engage in outside
activities incompatible either with public confidence in their impartiality and independence
or with the availability required to consider the cases submitted to them with due care and
within a reasonable time. The Charter does not specify any particular type of activity. The
negative effects of outside activities on the conditions under which judicial duties are
discharged must be pragmatically assessed. The Charter stipulates that judges should
request authorization to engage in activities other than literary or artistic when they are
renumerated.

4.3     The Charter addresses the question of what is sometimes called “judicial
discretion”. It adopts a position which derives from Article 6 of the European Convention
on Human Rights and the case-law of the European Court of Human Rights thereupon,
laying down that judges must refrain from any behavior, action or expression likely to affect
public confidence in their impartiality and independence. The reference to the risk of such
confidence being undermined obviates any excessive rigidity which would result in the
judge becoming a social and civic outcast.

4.4     The Charter lays down “the judge’s right to in-house training”: he or she must have
regular access to training courses organized at public expense, aimed at ensuring that
judges can maintain and improve their technical, social and cultural skills. The State must
ensure that such training programs are so organized as to respect the conditions set out in
paragraph 2.3, which relate to the role of the independent authority referred to in paragraph
1.3, in order to guarantee appropriateness in the content of training courses and in the
functioning of the bodies implementing such courses, to the requirements of open-
mindedness, competence and impartiality.

        The definition of these guarantees set out in paragraphs 2.3 and 4.4 on training is
very flexible, enabling them to be tailored to the various national training systems: training
colleges administered by the Ministry of Justice, institutes operating under the higher
council of judges, private law foundations, etc.

5.     LIABILITY


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5.1     The Charter deals here with the judge’s disciplinary liability. It begins with a
reference to the principle of the legality of disciplinary sanctions, stipulating that the only
valid reason for imposing sanctions is the failure to perform one of the duties explicitly
defined in the Judges' Statute and that the scale of applicable sanctions must be set out in
the judges' statute. Moreover, the Charter lays down guarantees on disciplinary hearings:
disciplinary sanctions can only be imposed on the basis of a decision taken following a
proposal or recommendation or with the agreement of a tribunal or authority, at least one
half of whose members must be elected judges. The judge must be given a full hearing
and be entitled to representation. If the sanction is actually imposed, it must be chosen
from the scale of sanctions, having due regard to the principle of proportionality. Lastly, the
Charter provides for a right of appeal to a higher judicial authority against any decision to
impose a sanction taken by an executive authority, tribunal or body, at least half of whose
membership are elected judges.

       The current wording of this provision does not require the availability of such a right
of appeal against a sanction imposed by Parliament.

5.2     Here the Charter relates to judges’ civil and pecuniary liability. It posits the principle
that State compensation shall be paid for damage sustained as a result of a judge’s
wrongful conduct or unlawful exercise of his or her functions whilst acting as a judge. This
means that it is the State which is in every case the guarantor of compensation to the
victim for such damage.

       In specifying that such a State guarantee applies to damage sustained as a result of
a judge’s wrongful conduct or unlawful exercise of his or her functions, the Charter does
not necessarily refer to the wrongful or unlawful nature of the conduct or of the exercise of
functions, but rather emphasizes the damage sustained as a result of that “wrongful” or
“unlawful” nature. This is fully compatible with liability based not upon misconduct by the
judge, but upon the abnormal, special and serious nature of the damage resulting from his
or her wrongful conduct or unlawful exercise of functions. This is important in the light of
concerns that judges’ judicial independence should not be affected through a civil liability
system.

        The Charter also provides that, when the damage which the State had to guarantee
is the result of a gross and inexcusable breach of the rules governing the performance of
judicial duties, the statute may confer on the State the possibility of bringing legal
proceedings with a view to requiring the judge to reimburse it for the compensation paid
within a limit fixed by the statute. The requirement for gross and inexcusable negligence
and the legal nature of the proceedings to obtain reimbursement must constitute significant
guarantees that the procedure is not abused. An additional guarantee is provided by way of
the prior agreement which the authority referred to at paragraph 1.3 must give before a
claim may be submitted to the competent court.

5.3   Here the Charter looks at the issue of complaints by members of the public about
miscarriages of justice.


65
      States have organized their complaints procedures to varying degrees, and it is not
always very well organized.

        This is why the Charter provides for the possibility to be open to an individual to
make a complaint of miscarriage of justice in a given case to an independent body, without
having to observe specific formalities. Were full and careful consideration by such a body
to reveal a clear prima facie disciplinary breach by a judge, the body concerned would
have the power to refer the matter to the disciplinary authority having jurisdiction over
judges, or at least to a body competent, under the rules of the national statute, to make
such referral. Neither this body nor this authority will be constrained to adopt the same
opinion as the body to which the complaint was made. In the outcome there are genuine
guarantees against the risks of the complaints procedure being led astray by those to be
tried, desiring in reality to bring pressure to bear on the justice system.

        The independent body concerned would not necessarily be designed specifically to
verify whether judges have committed breaches. Judges have no monopoly on
miscarriages of justice. It would therefore be conceivable for this same independent body
similarly to refer matters, when it considers such referral justified, to the disciplinary
authority having jurisdiction over, or to the body responsible for taking proceedings against
lawyers, court officials, bailiffs, etc.

       The Charter, however, relating to the judges' statute, has to cover in greater detail
only the matter of referral relating to judges.

6. REMUNERATION AND SOCIAL WELFARE

       The provisions under this heading relate only to professional judges.

6.1    The Charter provides that the level of the remuneration to which judges are entitled
for performing their professional judicial duties must be set so as to shield them from
pressures intended to influence their decisions or judicial conduct in general, impairing their
independence and impartiality.

        It seemed preferable to state that the level of the remuneration paid had to be such
as to shield judges from pressures, rather than to provide for this level to be set by
reference to the remuneration paid to holders of senior posts in the legislature or the
executive, as the holders of such posts are far from being treated on a comparable basis in
the different national systems.

6.2     The level of remuneration of one judge as compared to another may be subject to
variations depending on length of service, the nature of the duties which they are assigned
to discharge and the importance of the tasks which are imposed on them, such as
weekend duties. However, such tasks justifying higher remuneration must be assessed on
the basis of transparent criteria, so as to avoid differences in treatment unconnected with
considerations relating to the work done or the availability required.


66
6.3    The Charter provides for judges to benefit from social security, i.e. protection
against the usual social risks, namely illness, maternity, invalidity, old age and death.

6.4    It specifies in this context that judges who have reached the age of judicial
retirement after the requisite time spent as judges must benefit from payment of a
retirement pension, the level of which must be as close as possible to the level of their final
salary as a judge.

7.     TERMINATION OF OFFICE

7.1     Vigilance is necessary about the conditions in which judges’ employment comes to
be terminated. It is important to lay down an exhaustive list of the reasons for termination
of employment. These are when a judge resigns, is medically certified as physically unfit
for further judicial office, reaches the age limit, comes to the end of a fixed term of office or
is dismissed in the context of disciplinary liability.

7.2     On occurrence of the events which are grounds for termination of employment other
than the ones – i.e. the reaching of the age limit or the coming to an end of a fixed term of
office - which may be ascertained without difficulty, they must be verified by the authority
referred to in paragraph 1.3. This condition is easily realized when the termination of office
results from a dismissal decided precisely by this authority, or on its proposal or
recommendation, or with its agreement.




67
     European Association of Judges Charter




68
                            Judges’ Charter in Europe

                           (European Association of Judges)

Introduction

The process of European integration has brought about an expansion of legislative and
executive power, both at a national and international level. Furthermore, new pressure
groups have grown up.

The political changes in some parts of Europe have demonstrated once more that a
genuine separation of powers is indispensable for the proper functioning of any State
that respects the rule of law. The principle of the separation of powers must form a vital
part of the policy of European integration - all the more so because the member States
look upon themselves as democracies.

The independence of the judiciary is one of the foundations of the rule of law. In
consequence, it is necessary to buttress the independence of the judiciary so as to
ensure that the rights of the individual are protected against attack by the State or by
other pressure groups.

In order to achieve this end, the Judges of the different European countries must work
together to demonstrate their solidarity in pursuing their common interests. From this
point of view, the "Basic Principles on the Independence of the Judiciary” spelt out by
the United Nations are no more than the most basic framework.

Taking the United Nations Charter as a starting point, it is necessary to embody certain
common principles in a "Judges' Charter in Europe ".

Although differences exist between one State and another as a result of differing legal
traditions and practices, the European Association of Judges hereby vows to uphold the
following fundamental principles:

1. The independence of every Judge is unassailable. All national and international
authorities must guarantee that independence.

2. The Judge is only accountable to the law. He pays no heed to political parties or
pressure groups. He performs his professional duties free from outside influence and
without undue delay.

3. Not only must the Judge be impartial, he must be seen by all to be impartial.

4. The selection of Judges must be based exclusively on objective criteria designed to
ensure professional competence. Selection must be performed by an independent body
which represents the Judges. No outside influence and, in particular, no political
influence, must play any part in the appointment of Judges.
69
5. Judicial promotion, decided by the above-mentioned independent body, must equally
depend upon the same principles of objectivity, professional ability and independence.

6. The administration of the judiciary must be carried out by a body which is
representative of the Judges and independent of any other authority.

7. The other organs of the State have an obligation to give the judiciary all necessary
means to perform their function, including adequate manpower and facilities. The
judiciary must participate in decisions taken in relation to these matters.

8. Judicial salaries must be adequate, to ensure that the Judge has true economic
independence and must not be cut at any stage of a Judge's service.

9. Disciplinary sanctions for judicial misconduct must be entrusted to a body made up of
members of the judiciary in accordance with fixed procedural rules.

10. No Judge shall be directly liable to a civil suit in respect of the performance of his
professional duties.

11. The Judge, after leaving his office, shall have the opportunity to practice another
legal profession.

12. The Judges' Charter must be expressly embodied in legislation.

13. The above-mentioned principles shall apply to the members of the Public
Prosecution, according to their specific position in the national Judiciary.
 ________________________
(*)In June 1992 the Portuguese Association of Judges organized a first meeting on the subject of the
European Statute of Judges. At the congress in Seville in September 1992, the members of the European
Association of Judges requested that this topic be addressed more closely. To attain this goal, a
commission was established, which was received by the Association of Austrian Judges on November
20th, 1992 in Linz. The meeting was presided over by Mr Günter Woratsch. Mrs Pâquerette Girard, Mr
Claus Larsen, Mr Ramon Rodriguez Arribas and Mr Antonio Texeira Martins participated in the
compilation of a draft. At the meeting of March 20th, 1993, in Wiesbaden, the draft, presented by Mr G
FCnter Woratsch, was discussed. The members of the European Association of Judges approved the
text. The text was subsequently amended on april 20th, 1996, during the meeting of Bratislava, when
articles 12 and 13 were added and article 11 was modified.

4 novembre 1997




70
     OSCE Commitments




71
                             DOCUMENT
           Of the Copenhagen Meeting of the Conference on the
                     Human Dimension of the CSCE

                                       Copenhagen
                                   5 June- 29 July 1990



5) [The OSCE participating States] solemnly declare that among those elements of
justice which are essential to the full expression of the inherent dignity and of the equal
and inalienable rights of all human beings are the following:
(5.1) - free elections that will be held at reasonable intervals by secret ballot or by
equivalent free voting procedure, under conditions which ensure in practice the free
expression of the opinion of the electors in the choice of their representatives;
(5.12) - the independence of judges and the impartial operation of the public judicial
service will be ensured;
(5.13) - the independence of legal practitioners will be recognized and protected, in
particular as regards conditions for recruitment and practice;
(5.14) - the rules relating to criminal procedure will contain a clear definition of powers in
relation to prosecution and the measures preceding and accompanying prosecution;
 (5.16) - in the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone will be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law;




72
                               DOCUMENT
                Of the Moscow Meeting of the Conference on
                     The Human Dimension of the CSCE

                                      Moscow
                            10 September - 15 October 1991



19) The participating States
(19.1) - will respect the internationally recognized standards that relate to the
independence of judges and legal practitioners and the impartial operation of the public
judicial service including, inter alia, the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights;
(19.2) - will, in implementing the relevant standards and commitments, ensure that the
independence of the judiciary is guaranteed and enshrined in the constitution or the law
of the country and is respected in practice, paying particular attention to the Basic
Principles on the Independence of the Judiciary, which, inter alia, provide for
(i) prohibiting improper influence on judges;
(ii) preventing revision of judicial decisions by administrative authorities, except for the
rights of the competent authorities to mitigate or commute sentences imposed by
judges, in conformity with the law;
(iii) protecting the judiciary's freedom of expression and association, subject only to
such restrictions as are consistent with its functions;
(iv) ensuring that judges are properly qualified, trained and selected on a non-
discriminatory basis;
(v) guaranteeing tenure and appropriate conditions of service, including on the matter of
promotion of judges, where applicable;
(vi) respecting conditions of immunity;
(vii) ensuring that the disciplining, suspension and removal of judges are determined
according to law.
(20) For the promotion of the independence of the judiciary, the participating States will
(20.1) - recognize the important function national and international associations of
judges and lawyers can perform in strengthening respect for the independence of their
members and in providing education and training on the role of the judiciary and the
legal profession in society;



73
(20.2) - promote and facilitate dialogue, exchanges and co-operation among national
associations and other groups interested in ensuring respect for the independence of
the judiciary and the protection of lawyers;
(20.3) - co-operate among themselves through, inter alia, dialogue, contacts and
exchanges in order to identify where problem areas exist concerning the protection of
the independence of judges and legal practitioners and to develop ways and means to
address and resolve such problems;
(20.4) - co-operate on an ongoing basis in such areas as the education and training of
judges and legal practitioners, as well as the preparation and enactment of legislation
intended to strengthen respect for their independence and the impartial operation of the
public judicial service.




74
     Beijing Statement of Principles of the
        Independence of the Judiciary




75
                    Preamble to Statement of Principles of
                      the Independence of the Judiciary

                                Beijing, 19 August, 1995

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia,
their determination to establish conditions under which justice can be maintained to
achieve international co-operation in promoting and encouraging respect for human
rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the
principles of equality before the law, of the presumption of innocence and of the right to
a fair and public hearing by a competent, independent and impartial tribunal established
by the law,

Whereas the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights both guarantee the exercise of those
rights, and in addition the Covenant on Civil and Political Rights further guarantees the
right to be tried without undue delay,

Whereas the organization and administration of justice in every country should be
inspired by those principles, and efforts should be undertaken to translate them fully into
reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges
to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights,
duties and property of citizens,

Whereas the Sixth United Nations Congress on the prevention of Crime and the
treatment of Offenders, by its resolution 16, called upon the Committee on Crime
Prevention and Control to include among its priorities the elaboration of guidelines
relating to the independence of judges and the selection, professional training and
status of judges and prosecutors,

Whereas the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, at its meeting in Milan, Italy, from 26 August to 6 September
1985, adopted the Basic Principles on the Independence of the Judiciary by consensus,

Whereas the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders recommended the Basic Principles on the Independence of the
Judiciary for national, regional and interregional action and implementation, taking into
account the political, economic, social and cultural circumstances and traditions of each
country,


76
Whereas on 17-18 July 1982 the LAWASIA Human Rights Standing Committee met in
Tokyo, Japan and in consultation with members of the Judiciary formulated a Statement
of Principles of the Independence of the Judiciary in the LAWASIA Region ("the Tokyo
Principles") in the context of the history and culture of the region,

Whereas the 5th Conference of Chief Justices of Asia and the Pacific at Colombo, Sri
Lanka on 13-15 September 1993 recognized that it was desirable to revise the Tokyo
Principles in the light of subsequent developments with a view to adopting a clear
statement of principles of the independence of the Judiciary, and considered a first draft
of a Revised Statement of Principles of the Independence of the Judiciary and
requested the Acting Chairman of the Judicial Section of LAWASIA to prepare a second
draft of the Revised Statement taking into account the views expressed at the 5th
Conference of Chief Justices and comments and suggestions to be made by the Chief
Justices or their representatives, and

Noting that the 6th Conference of Chief Justices of Asia and the Pacific is being held in
Beijing in conjunction with the 14th Conference of LAWASIA, the primary object of
which is:

             "To Promote the administration of justice, the protection of human
             rights and the maintenance of the rule of law within the region."

The 6th Conference of Chief Justices of Asia and the Pacific:

Adopts the Statement of Principles of the Independence of the Judiciary contained in
the annex to this resolution to be known as the Beijing Statement of Principles of the
Independence of the Judiciary in the LAWASIA Region.




77
              Beijing Statement of Principles of the Independence of
                       the Judiciary in the LAWASIA Region

                             (As Amended at Manila, 28 August 1997)
                                             1
Independence of the Judiciary

1.        The Judiciary is an institution of the highest value in every society.

2.        The Universal Declaration of Human Rights (Art. 10) and the International
          Covenant on Civil and Political Rights (Art. 14(1)) proclaim that everyone should
          be entitled to a fair and public hearing by a competent, independent and impartial
          tribunal established by law. An independent Judiciary is indispensable to the
          implementation of this right.

3.        Independence of the Judiciary requires that;

            (a) the Judiciary shall decide matters before it in accordance with its impartial
                assessment of the facts and its understanding of the law without improper
                influences, direct or indirect, from any source; and

            (b) the Judiciary has jurisdiction, directly or by way of review, over all issues of
                a justiciable nature.

4.        The maintenance of the independence of the Judiciary is essential to the
          attainment of its objectives and the proper performance of its functions in a free
          society observing the Rule of Law. It is essential that such independence be
          guaranteed by the State and enshrined in the Constitution or the law.

5.        It is the duty of the Judiciary to respect and observe the proper objectives and
          functions of the other institutions of government. It is the duty of those
          institutions to respect and observe the proper objectives and functions of the
          Judiciary.

6.        In the decision-making process, any hierarchical organization of the Judiciary
          and any difference in grade or rank shall in no way interfere with the duty of the
          judge exercising jurisdiction individually or judges acting collectively to pronounce
          judgment in accordance with article 3 (a). The Judiciary, on its part, individually
          and collectively, shall exercise its functions in accordance with the Constitution
          and the law.

7.        Judges shall uphold the integrity and independence of the Judiciary by avoiding

1
    This heading was originally “Judicial Independence”

78
      impropriety and the appearance of impropriety in all their activities.

8.    To the extent consistent with their duties as members of the Judiciary, judges,
      like other citizens, are entitled to freedom of expression, belief, association and
      assembly.

9.    Judges shall be free subject to any applicable law to form and join an association
      of judges to represent their interests and promote their professional training and
      to take such other action to protect their independence as may be appropriate.

Objectives of the Judiciary

10.   The objectives and functions of the Judiciary include the following:

       (a) to ensure that all person are able to live securely under the Rule of Law;

       (b) to promote, within the proper limits of the judicial function, the observance
           and the attainment of human rights; and

       (c) to administer the law impartially among persons and between persons and
       the State.

Appointment of Judges

11.   To enable the Judiciary to achieve its objectives and perform its functions, it is
      essential that judges be chosen on the basis of proven competence, integrity and
      independence.

12.   The mode of appointment of judges must be such as will ensure the appointment
      of persons who are best qualified for Judicial office. It must provide safeguards
      against improper influences being taken into account so that only persons of
      competence, integrity and independence are appointed.

13.   In the selection judges there must be no discrimination against a person on the
      basis of race, color, gender, religion, political or other opinion, national or social
      origin, marital status, sexual orientation, 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.

14.   The structure of the legal profession, and the sources from which judges are
      drawn within the legal profession, differ in different societies. In some societies,
      the Judiciary is a career service; in other, judges are chosen from the practicing
      profession. Therefore, it is accepted that in different societies, different
      procedures and safeguards may be adopted to ensure the proper appointment of
      judges.


79
15.   In some societies, the appointment of judges, by, with the consent of, or after
      consultation with a Judicial Services Commission has been seen as a means of
      ensuring that those chosen as judges are appropriate for the purpose. Where a
      Judicial Services Commission is adopted, it should include representatives of the
      higher Judiciary and the independent legal profession as a means of ensuring
      that judicial competence, integrity and independence are maintained.

16.   In the absence of a Judicial Services Commission, the procedures for
      appointment of judges should be clearly defined and formalized and information
      about them should be available to the public.

17.   Promotion of judges must be based on an objective assessment of factors such
      as competence, integrity, independence and experience.

Tenure

18.   Judges must have security of tenure.

19.   It is recognized that, in some countries, the tenure of judges is subject to
      confirmation from time to time by vote of the people or other formal procedure.

20.   However, it is recommended that all judges exercising the same jurisdiction be
      appointed for a period to expire upon the attainment of a particular age.

21.   A judge's tenure must not be altered to the disadvantage of the judge during her
      or his term of office.

22.   Judges should be subject to removal from office only for proved incapacity,
      convict on of a crime, or conduct which makes the judge unfit to be a judge.

23.   It is recognized that, by reason of differences in history and culture, the
      procedures adopted for the removal of judges may differ in different societies.
      Removal by parliamentary procedures has traditionally been adopted in some
      societies. In other societies, that procedure is unsuitable: it is not appropriate for
      dealing with some grounds for removal; it is rarely if ever used; and its use other
      than for the most serious of reasons is apt to lead to misuse.

24.   Where parliamentary procedures or procedures for the removal of a judge by
      vote of the people do not apply, procedures for the removal of judges must be
      under the control of the judiciary.

25.   Where parliamentary procedures or procedures for the removal of a judge by
      vote of the people do not apply and it is proposed to take steps to secure the
      removal of a judge, there should, in the first instance, be an examination of the
      reasons suggested for the removal, for the purpose of determining whether
      formal proceedings should be commenced. Formal proceedings should be

80
      commenced only if the preliminary examination indicates that there are adequate
      reasons for taking them.

26.   In any event, the judge who is sought to be removed must have the right to a fair
      hearing.

27.   All disciplinary, suspension or removal Proceedings must be determined in
      accordance with established standards of judicial conduct.

28.   Judgments in disciplinary proceedings, whether held in camera or in public,
      should be published.

29.   The abolition of the court of which a judge is a member must not be accepted as
      a reason or an occasion for the removal of a judge. Where a court is abolished
      or restructured, all existing members of the court must be reappointed to its
      replacement or appointed to another judicial office of equivalent status and
      tenure. Members of the court for whom no alternative position can be found
      must be fully compensated.

30.   Judges must not be transferred by the Executive from one Jurisdiction or function
      to another without their consent, but when a transfer is in pursuance of a uniform
      policy formulated by the Executive after due consultation with the Judiciary, such
      consent shall not be unreasonably withheld by an individual judge.

Judicial Conditions

31.   Judges must receive adequate remuneration and be given appropriate terms and
      conditions of service. The remuneration and conditions of service of judges
      should not be altered to their disadvantage during their term of office, except as
      part of a uniform public economic measure to which the judges of a relevant
      court, or a majority of them, have agreed.

32.   Without prejudice to any disciplinary procedure or to any right of appeal or to
      compensation from the State in accordance with national law, judges should
      enjoy personal immunity from civil suits for monetary damages for improper acts
      or omissions in the exercise of their judicial functions.

Jurisdiction

33.   The Judiciary must have jurisdiction over all issues of a justiciable nature and
      exclusive authority to decide whether an issue submitted for its decision is within
      its competence as defined by law.

34.   The Jurisdiction of the highest court in a society should not be limited or
      restricted without the consent of the members of the court.


81
Judicial Administration

35.      The assignment of cases to judges is a matter of judicial administration over
         which ultimate control must belong to the chief judicial officer of the relevant
         court.

36.      The principal responsibility for court administration, including appointment,
         supervision and disciplinary control of administrative personnel and support staff
         must vest in the Judiciary, or in a body in which the Judiciary is represented and
         has an effective role.

37.      The budget of the courts should be prepared by the courts or a competent
         authority in collaboration with the courts having regard to the needs of the
         independence of the Judiciary and its administration. The amount allotted should
         be sufficient to enable each court to function without an excessive workload.2

Relationship with the Executive

38.      Executive powers which may affect judges in their office, their remuneration
         conditions or their resources, must not be used so as to threaten or bring
         pressure upon a particular judge or judges.

39.      Inducements or benefits should not be offered to or accepted by judges if they
         affect, or might affect, the performance of their judicial functions.

40.      The Executive authorities must at all times ensure the security and physical
         protection of judges and their families.

Resources

41.      It is essential that judges be provided with the resources necessary to enable
         them to perform their functions.

42.      Where economic constraints make it difficult to allocate to the court system
         facilities and resources which judges consider adequate to enable them to
         perform their functions, the essential maintenance of the Rule of Law and the
         protection of human rights nevertheless require that the needs of the judiciary
         and the court system be accorded a high level of priority in the allocation of
         resources.

Emergency


2
 The first sentence of Article 37 originally read: “The budget of the courts should be prepared by the courts or a
competent authority in collaboration with the judiciary having regard to the needs of judicial independence and
administration.”

82
43.     Some derogations from Independence of the Judiciary may be permitted in times
        of grave public emergency which threaten the life of the society but only for the
        period of time strictly required by the exigencies of the situation and under
        conditions prescribed by law, only to the extent strictly consistent with
        internationally recognized minimum standards and subject to review by the
        courts. In such times of emergency the State shall endeavor to provide that
        civilians charged with criminal offences of any kind shall be tried by ordinary
        civilian courts and detention of persons administratively without charge shall be
        subject to review by courts or other independent authority by way of habeas
        corpus or similar procedures.3

44.     The jurisdiction of military tribunals must be confined to military offences. There
        must always be a right of appeal from such tribunals to a legally qualified
        appellate court or tribunal or other remedy by way of an application for
        annulment.


It is the conclusion of the Chief Justices and other judges of Asia and the Pacific
listed below that these represent the minimum standards necessary to be
observed in order to maintain the independence and effective functioning of the
Judiciary.

Signatories at Beijing, 19 August 1995:

The Hon Sir Gerard Brennan AC KBE
Chief Justice of Australia

The Hon Mr. Justice A. T. M. Afzal
Chief Justice of Bangladesh

HE Mr. Wang Jingrong
Vice-President Supreme People's Court of the People's Republic of China
(Representing HE President Ren Jianxin, President of the Supreme People's Court)

The Hon Sir Ti Liang Yang
Chief Justice of Hong Kong

The Hon Shri Justice S.C. Agrawal
Justice of the Supreme Court of India
(Representing The Hon Mr Justice A. M. Ahmadi, Chief Justice of India)

The Hon Justice S. H. Soerjono
Chief Justice of Indonesia

3
  The first line of Article 43 originally read: “Some derogations from judicial independence may be permitted in
times of grave...”

83
The Hon Yun Kwan
Chief Justice of the Republic of Korea

The Hon D. Dembereltseren
Chief Justice of Mongolia

The Hon U Aung Toe
Chief Justice of the Supreme Court of the Union of Myanmar (Burma)

The Rt. Hon Mr Justice Biswanath Upadhyaya
Chief Justice of Nepal

Monsieur Le Premier Président Olivier Aimot
Premier Président of the Court of Appeal of New Caledonia

The Rt. Hon Sir Thomas Eichelbaum GBE
Chief Justice of New Zealand

The Hon Mr. Justice Sajjad Ali Shah
Chief Justice of Pakistan

The Hon Sir Arnold K. Amet
Chief Justice of Papua New Guinea

The Hon Andres R. Narvasa
Chief Justice of the Philippines

The Hon Justice Yong Pung How
Chief Justice Of Singapore

The Hon Mr. Justice P.R.P. Perera
Justice of the Supreme Court of Sri Lanka
(Representing The Hon Mr Justice G.P.S. De Silva, Chief Justice of Sri Lanka)

The Hon Charles Vaudin D'Imecourt
Chief Justice of Vanuatu

The Hon Mr Justice Pham Hung
Chief Justice of Vietnam

Tiavaasue Falefatu Maka Sapolu
Chief Justice of Western Samoa


Subsequent Signatories:

84
The Hon Sir Timoci Tuivaga
Chief Justice of Fiji

The Hon Kim Yong Joon
President of the Constitutional Court of Korea

The Hon Tun Dato’ Sri Mohd Eusoff b. Chin
Chief Justice of Malaysia

The Hon Justice V Allear
Chief Justice of the Republic of the Seychelles

The Hon Nigel Hampton
Chief Justice of Tonga

Signatories at Manila, 28 August 1997:

The Hon Richard Brunt Lussick
Chief Justice of the Republic of Kiribati

The Hon Daniel Cadra
Chief Justice of the High Court
(Representing the Hon Allan Fields
Chief Justice of the Marshall Islands)

Chief Justice Sir Gaven Donne
Chief Justice of Nauru and Tuvalu

Chief Justice Vyacheslav M. Lebedev
Chief Justice of the Supreme Court
Russian Federation

Subsequent Signatory:

The Hon Toru Miyoshi
Chief Justice of Japan
(Subject to reservation in attached Statement, as regards Article 9.)




85
                             Supreme Court of Japan
                                    Tokyo

             THE OPINION OF THE CHIEF JUSTICE OF JAPAN

                                      concerning

“Beijing Statement of Principles of the Independence of the Judiciary
                      in the LAWASIA Region”

       The independence in exercising the judicial function is firmly guaranteed to all the
 judges in Japan by the Constitution along with their compensation and status. This
 constitutional guarantee turns it unnecessary for the judges to make efforts to improve
 their working and economic conditions unlike workers with other professions, standing
 on the equal footing with their employers, who need to demand improvement against
 them. There is therefore no rights for the judges to form or join a labor union.

        On the other hand, regarding the question of whether or not the judges are able
to “form and join an association of judges to represent their interests and promote their
professional training and to take such other action to protect their independence as may
be appropriate” other than a labor union, it is understood as follows. The judges are
especially required to be politically neutral to perform their duties, and it is also
demanded that not only trial and judgment should be fair but also attitudes of judges
must be relied on to be fair by the general public. Because of these conditions, the
judges are not permitted to form or join an association which takes on a political
coloration and arouses people’s suspicion about fairness. And it may cause danger of
raising a doubt about political neutrality that the judges, who are firmly guaranteed their
status and independence as mentioned before and enjoy their, so to speak, special
status, "form and join an association of judges to represent their interests and promote
their professional training and to take such other action to protect their independence as
may be appropriate”. To take into consideration the above mentioned factors, it is
understood that there are some cases where those actions are deemed undesirable.

      On the basis of the understanding that Article 9 of the Statement is not contrary
to the law and system which are mentioned above, I express my agreement to
“BEIJING STATEMENT OF PRINCIPLES OF THE INDEPENDENCE OF THE
JUDICIARY IN THE LAWASIA REGION”.




86
       American Bar Association
     Model Code of Judicial Conduct




87
                        Model Code of Judicial Conduct

                              American Bar Association
                                       2000



 CANON 1: A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF
                               THE JUDICIARY
              Copyright (c) 1999 by the American Bar Association

   A. An independent and honorable judiciary is indispensable to justice in our society. A
judge should participate in establishing, maintaining and enforcing high standards of
conduct, and shall personally observe those standards so that the integrity and
independence of the judiciary will be preserved. The provisions of this Code are to be
construed and applied to further that objective.

Commentary:

   Deference to the judgments and rulings of courts depends upon public confidence in
the integrity and independence of judges. The integrity and independence of judges
depends in turn upon their acting without fear or favor. Although judges should be
independent, they must comply with the law, including the provisions of this Code.
Public confidence in the impartiality of the judiciary is maintained by the adherence of
each judge to this responsibility. Conversely, violation of this Code diminishes public
confidence in the judiciary and thereby does injury to the system of government under
law.


 CANON 2: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF
            IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES
              Copyright (c) 1999 by the American Bar Association

  A. A judge shall respect and comply with the law* and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commentary:

    Public confidence in the judiciary is eroded by irresponsible or improper conduct by
judges. A judge must avoid all impropriety and appearance of impropriety. A judge must
expect to be the subject of constant public scrutiny. A judge must therefore accept
restrictions on the judge's conduct that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly.



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   The prohibition against behaving with impropriety or the appearance of impropriety
applies to both the professional and personal conduct of a judge. Because it is not
practicable to list all prohibited acts, the proscription is necessarily cast in general terms
that extend to conduct by judges that is harmful although not specifically mentioned in
the Code. Actual improprieties under this standard include violations of law, court rules
or other specific provisions of this Code. The test for appearance of impropriety is
whether the conduct would create in reasonable minds a perception that the judge's
ability to carry out judicial responsibilities with integrity, impartiality and competence is
impaired. See also Commentary under Section 2C.

   B. A judge shall not allow family, social, political or other relationships to influence the
judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office
to advance the private interests of the judge or others; nor shall a judge convey or
permit others to convey the impression that they are in a special position to influence
the judge. A judge shall not testify voluntarily as a character witness.

Commentary:

   Maintaining the prestige of judicial office is essential to a system of government in
which the judiciary functions independently of the executive and legislative branches.
Respect for the judicial office facilitates the orderly conduct of legitimate judicial
functions. Judges should distinguish between proper and improper use of the prestige
of office in all of their activities. For example, it would be improper for a judge to allude
to his or her judgeship to gain a personal advantage such as deferential treatment when
stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be
used for conducting a judge's personal business.

   A judge must avoid lending the prestige of judicial office for the advancement of the
private interests of others. For example, a judge must not use the judge's judicial
position to gain advantage in a civil suit involving a member of the judge's family. In
contracts for publication of a judge's writings, a judge should retain control over the
advertising to avoid exploitation of the judge's office. As to the acceptance of awards,
see Section 4D(5)(a) and Commentary.

   Although a judge should be sensitive to possible abuse of the prestige of office, a
judge may, based on the judge's personal knowledge, serve as a reference or provide a
letter of recommendation. However, a judge must not initiate the communication of
information to a sentencing judge or a probation or corrections officer but may provide
to such persons information for the record in response to a formal request.

  Judges may participate in the process of judicial selection by cooperating with
appointing authorities and screening committees seeking names for consideration, and
by responding to official inquiries concerning a person being considered for a judgeship.
See also Canon 5 regarding use of a judge's name in political activities.

     A judge must not testify voluntarily as a character witness because to do so may lend

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the prestige of the judicial office in support of the party for whom the judge testifies.
Moreover, when a judge testifies as a witness, a lawyer who regularly appears before
the judge may be placed in the awkward position of cross-examining the judge. A judge
may, however, testify when properly summoned. Except in unusual circumstances
where the demands of justice require, a judge should discourage a party from requiring
the judge to testify as a character witness.

   C. A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, religion or national origin.

Commentary:

   Membership of a judge in an organization that practices invidious discrimination gives
rise to perceptions that the judge's impartiality is impaired. Section 2C refers to the
current practices of the organization. Whether an organization practices invidious
discrimination is often a complex question to which judges should be sensitive. The
answer cannot be determined from a mere examination of an organization's current
membership rolls but rather depends on how the organization selects members and
other relevant factors, such as that the organization is dedicated to the preservation of
religious, ethnic or cultural values of legitimate common interest to its members, or that
it is in fact and effect an intimate, purely private organization whose membership
limitations could not be constitutionally prohibited. Absent such factors, an organization
is generally said to discriminate invidiously if it arbitrarily excludes from membership on
the basis of race, religion, sex or national origin persons who would otherwise be
admitted to membership. See New York State Club Ass'n. Inc. v. City of New York, 108
S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v. Rotary
Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940 (1987), 95 L.Ed.2d 474; Roberts v. United
States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).

   Although Section 2C relates only to membership in organizations that invidiously
discriminate on the basis of race, sex, religion or national origin, a judge's membership
in an organization that engages in any discriminatory membership practices prohibited
by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the
appearance of impropriety. In addition, it would be a violation of Canon 2 and Section
2A for a judge to arrange a meeting at a club that the judge knows practices invidious
discrimination on the basis of race, sex, religion or national origin in its membership or
other policies, or for the judge to regularly use such a club. Moreover, public
manifestation by a judge of the judge's knowing approval of invidious discrimination on
any basis gives the appearance of impropriety under Canon 2 and diminishes public
confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.

   When a person who is a judge on the date this Code becomes effective [in the
jurisdiction in which the person is a judge] [FN1] learns that an organization to which the
judge belongs engages in invidious discrimination that would preclude membership
under Section 2C or under Canon 2 and Section 2A, the judge is permitted, in lieu of
resigning, to make immediate efforts to have the organization discontinue its invidiously

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discriminatory practices, but is required to suspend participation in any other activities of
the organization. If the organization fails to discontinue its invidiously discriminatory
practices as promptly as possible (and in all events within a year of the judge's first
learning of the practices), the judge is required to resign immediately from the
organization.


FN1. The language within the brackets should be deleted when the jurisdiction adopts
this provision.


 CANON 3 [FN2]: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE
                       IMPARTIALLY AND DILIGENTLY
               Copyright (c) 1999 by the American Bar Association

   A. Judicial Duties in General. The judicial duties of a judge take precedence over all
the judge's other activities. The judge's judicial duties include all the duties of the judge's
office prescribed by law*. In the performance of these duties, the following standards
apply.

     B. Adjudicative Responsibilities.

  (1) A judge shall hear and decide matters assigned to the judge except those in
which disqualification is required.

   (2) A judge shall be faithful to the law* and maintain professional competence in it. A
judge shall not be swayed by partisan interests, public clamor or fear of criticism.

     (3) A judge shall require* order and decorum in proceedings before the judge.

   (4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses,
lawyers and others with whom the judge deals in an official capacity, and shall require*
similar conduct of lawyers, and of staff, court officials and others subject to the judge's
direction and control.

Commentary:

  The duty to hear all proceedings fairly and with patience is not inconsistent with the
duty to dispose promptly of the business of the court. Judges can be efficient and
businesslike while being patient and deliberate.

   (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in
the performance of judicial duties, by words or conduct manifest bias or prejudice,
including but not limited to bias or prejudice based upon race, sex, religion, national
origin, disability, age, sexual orientation or socioeconomic status, and shall not permit
staff, court officials and others subject to the judge's direction and control to do so.

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Commentary:

   A judge must refrain from speech, gestures or other conduct that could reasonably be
perceived as sexual harassment and must require the same standard of conduct of
others subject to the judge's direction and control.

   A judge must perform judicial duties impartially and fairly. A judge who manifests bias
on any basis in a proceeding impairs the fairness of the proceeding and brings the
judiciary into disrepute. Facial expression and body language, in addition to oral
communication, can give to parties or lawyers in the proceeding, jurors, the media and
others an appearance of judicial bias. A judge must be alert to avoid behavior that may
be perceived as prejudicial.

  (6) A judge shall require* lawyers in proceedings before the judge to refrain from
manifesting, by words or conduct, bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation or socioeconomic status, against
parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate
advocacy when race, sex, religion, national origin, disability, age, sexual orientation or
socioeconomic status, or other similar factors, are issues in the proceeding.

   (7) A judge shall accord to every person who has a legal interest in a proceeding, or
that person's lawyer, the right to be heard according to law*. A judge shall not initiate,
permit, or consider ex parte communications, or consider other communications made
to the judge outside the presence of the parties concerning a pending or impending
proceeding except that:

      (a) Where circumstances require, ex parte communications for scheduling,
      administrative purposes or emergencies that do not deal with substantive matters
      or issues on the merits are authorized; provided:

             (i) the judge reasonably believes that no party will gain a procedural or
             tactical advantage as a result of the ex parte communication, and

             (ii) the judge makes provision promptly to notify all other parties of the
             substance of the ex parte communication and allows an opportunity to
             respond.

       (b) A judge may obtain the advice of a disinterested expert on the law*
      applicable to a proceeding before the judge if the judge gives notice to the parties
      of the person consulted and the substance of the advice, and affords the parties
      reasonable opportunity to respond.

      (c) A judge may consult with court personnel* whose function is to aid the judge
      in carrying out the judge's adjudicative responsibilities or with other judges.


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         (d) A judge may, with the consent of the parties, confer separately with the
         parties and their lawyers in an effort to mediate or settle matters pending before
         the judge.

         (e) A judge may initiate or consider any ex parte communications when expressly
         authorized by law* to do so.

Commentary:

   The proscription against communications concerning a proceeding includes
communications from lawyers, law teachers, and other persons who are not participants
in the proceeding, except to the limited extent permitted.

  To the extent reasonably possible, all parties or their lawyers shall be included in
communications with a judge.

   Whenever presence of a party or notice to a party is required by Section 3B(7), it is
the party's lawyer, or if the party is unrepresented the party, who is to be present or to
whom notice is to be given.

   An appropriate and often desirable procedure for a court to obtain the advice of a
disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

   Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling
and other administrative purposes and to accommodate emergencies. In general,
however, a judge must discourage ex parte communication and allow it only if all the
criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex
parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a
proceeding pending or impending before the judge.

   A judge must not independently investigate facts in a case and must consider only
the evidence presented.

  A judge may request a party to submit proposed findings of fact and conclusions of
law, so long as the other parties are apprised of the request and are given an
opportunity to respond to the proposed findings and conclusions.

  A judge must make reasonable efforts, including the provision of appropriate
supervision, to ensure that Section 3B(7) is not violated through law clerks or other
personnel on the judge's staff.

  If communication between the trial judge and the appellate court with respect to a
proceeding is permitted, a copy of any written communication or the substance of any
oral communication should be provided to all parties.

     (8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

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Commentary:

  In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due
regard for the rights of the parties to be heard and to have issues resolved without
unnecessary cost or delay. Containing costs while preserving fundamental rights of
parties also protects the interests of witnesses and the general public. A judge should
monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable
delays and unnecessary costs. A judge should encourage and seek to facilitate
settlement, but parties should not feel coerced into surrendering the right to have their
controversy resolved by the courts.

   Prompt disposition of the court's business requires a judge to devote adequate time
to judicial duties, to be punctual in attending court and expeditious in determining
matters under submission, and to insist that court officials, litigants and their lawyers
cooperate with the judge to that end.

    (9) A judge shall not, while a proceeding is pending or impending in any court, make
any public comment that might reasonably be expected to affect its outcome or impair
its fairness or make any nonpublic comment that might substantially interfere with a fair
trial or hearing. The judge shall require* similar abstention on the part of court
personnel* subject to the judge's direction and control. This Section does not prohibit
judges from making public statements in the course of their official duties or from
explaining for public information the procedures of the court. This Section does not
apply to proceedings in which the judge is a litigant in a personal capacity.

Commentary:

   The requirement that judges abstain from public comment regarding a pending or
impending proceeding continues during any appellate process and until final disposition.
This Section does not prohibit a judge from commenting on proceedings in which the
judge is a litigant in a personal capacity, but in cases such as a writ of mandamus
where the judge is a litigant in an official capacity, the judge must not comment publicly.
The conduct of lawyers relating to trial publicity is governed by [Rule 3.6 of the ABA
Model Rules of Professional Conduct]. (Each jurisdiction should substitute an
appropriate reference to its rule.)

   (10) A judge shall not commend or criticize jurors for their verdict other than in a court
order or opinion in a proceeding, but may express appreciation to jurors for their service
to the judicial system and the community.

Commentary:

   Commending or criticizing jurors for their verdict may imply a judicial expectation in
future cases and may impair a juror's ability to be fair and impartial in a subsequent
case.

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  (11) A judge shall not disclose or use, for any purpose unrelated to judicial duties,
nonpublic information* acquired in a judicial capacity.

     C. Administrative Responsibilities.

   (1) A judge shall diligently discharge the judge's administrative responsibilities without
bias or prejudice and maintain professional competence in judicial administration, and
should cooperate with other judges and court officials in the administration of court
business.

   (2) A judge shall require* staff, court officials and others subject to the judge's
direction and control to observe the standards of fidelity and diligence that apply to the
judge and to refrain from manifesting bias or prejudice in the performance of their official
duties.

  (3) A judge with supervisory authority for the judicial performance of other judges
shall take reasonable measures to assure the prompt disposition of matters before them
and the proper performance of their other judicial responsibilities.

  (4) A judge shall not make unnecessary appointments. A judge shall exercise the
power of appointment impartially and on the basis of merit. A judge shall avoid nepotism
and favoritism. A judge shall not approve compensation of appointees beyond the fair
value of services rendered.

   (5) A judge shall not appoint a lawyer to a position if the judge either knows that the
lawyer has contributed more than [$ ***] within the prior [[[***] years to the judge's
election campaign, [FN3] or learns of such a contribution by means of a timely motion
by a party or other person properly interested in the matter, unless

         (a) the position is substantially uncompensated;

         (b) the lawyer has been selected in rotation from a list of qualified and available
         lawyers compiled without regard to their having made political contributions; or

         (c) the judge or another presiding or administrative judge affirmatively finds that
         no other lawyer is willing, competent and able to accept the position.

Commentary:

  Appointees of a judge include assigned counsel, officials such as referees,
commissioners, special masters, receivers and guardians and personnel such as clerks,
secretaries and bailiffs. Consent by the parties to an appointment or an award of
compensation does not relieve the judge of the obligation prescribed by Section 3C(4).

     D. Disciplinary Responsibilities.

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   (1) A judge who receives information indicating a substantial likelihood that another
judge has committed a violation of this Code should take appropriate action. A judge
having knowledge* that another judge has committed a violation of this Code that raises
a substantial question as to the other judge's fitness for office shall inform the
appropriate authority*.

    (2) A judge who receives information indicating a substantial likelihood that a lawyer
has committed a violation of the Rules of Professional Conduct [[[substitute correct title
if the applicable rules of lawyer conduct have a different title] should take appropriate
action. A judge having knowledge* that a lawyer has committed a violation of the Rules
of Professional Conduct [[[substitute correct title if the applicable rules of lawyer conduct
have a different title] that raises a substantial question as to the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects shall inform the appropriate
authority*.

   (3) Acts of a judge, in the discharge of disciplinary responsibilities, required or
permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be
absolutely privileged, and no civil action predicated thereon may be instituted against
the judge.

Commentary:

   Appropriate action may include direct communication with the judge or lawyer who
has committed the violation, other direct action if available, and reporting the violation to
the appropriate authority or other agency or body.

     E. Disqualification.

  (1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances
where:

Commentary:

   Under this rule, a judge is disqualified whenever the judge's impartiality might
reasonably be questioned, regardless whether any of the specific rules in Section 3E(1)
apply. For example, if a judge were in the process of negotiating for employment with a
law firm, the judge would be disqualified from any matters in which that law firm
appeared, unless the disqualification was waived by the parties after disclosure by the
judge.

   A judge should disclose on the record information that the judge believes the parties
or their lawyers might consider relevant to the question of disqualification, even if the
judge believes there is no real basis for disqualification.


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   By decisional law, the rule of necessity may override the rule of disqualification. For
example, a judge might be required to participate in judicial review of a judicial salary
statute, or might be the only judge available in a matter requiring immediate judicial
action, such as a hearing on probable cause or a temporary restraining order. In the
latter case, the judge must disclose on the record the basis for possible disqualification
and use reasonable efforts to transfer the matter to another judge as soon as
practicable.

      (a) the judge has a personal bias or prejudice concerning a party or a party's
      lawyer, or personal knowledge* of disputed evidentiary facts concerning the
      proceeding;

      (b) the judge served as a lawyer in the matter in controversy, or a lawyer with
      whom the judge previously practiced law served during such association as a
      lawyer concerning the matter, or the judge has been a material witness
      concerning it;

Commentary:

   A lawyer in a government agency does not ordinarily have an association with other
lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge
formerly employed by a government agency, however, should disqualify himself or
herself in a proceeding if the judge's impartiality might reasonably be questioned
because of such association.

      (c) the judge knows* that he or she, individually or as a fiduciary, or the judge's
      spouse, parent or child wherever residing, or any other member of the judge's
      family residing in the judge's household*, has an economic interest* in the
      subject matter in controversy or in a party to the proceeding or has any other
      more than de minimis* interest that could be substantially affected by the
      proceeding;

      (d) the judge or the judge's spouse, or a person within the third degree of
      relationship* to either of them, or the spouse of such a person:

             (i) is a party to the proceeding, or an officer, director or trustee of a party;

             (ii) is acting as a lawyer in the proceeding;

             (iii) is known* by the judge to have a more than de minimis* interest that
             could be substantially affected by the proceeding;

             (iv) is to the judge's knowledge* likely to be a material witness in the
             proceeding;

      (e) the judge knows or learns by means of a timely motion that a party or a

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       party's lawyer has within the previous [***] year[s] made aggregate* contributions
       to the judge's campaign in an amount that is greater than [ [ [[ [$ ***] for an
       individual or [$ ***] for an entity] ]] [[is reasonable and appropriate for an
       individual or an entity]]. [FN4]

Commentary:

   The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative
of the judge is affiliated does not of itself disqualify the judge. Under appropriate
circumstances, the fact that "the judge's impartiality might reasonably be questioned"
under Section 3E(1), or that the relative is known by the judge to have an interest in the
law firm that could be "substantially affected by the outcome of the proceeding" under
Section 3E(1)(d)(iii) may require the judge's disqualification.

   (2) A judge shall keep informed about the judge's personal and fiduciary* economic
interests*, and make a reasonable effort to keep informed about the personal economic
interests of the judge's spouse and minor children residing in the judge's household.

   F. Remittal of Disqualification. A judge disqualified by the terms of Section 3E may
disclose on the record the basis of the judge's disqualification and may ask the parties
and their lawyers to consider, out of the presence of the judge, whether to waive
disqualification. If following disclosure of any basis for disqualification other than
personal bias or prejudice concerning a party, the parties and lawyers, without
participation by the judge, all agree that the judge should not be disqualified, and the
judge is then willing to participate, the judge may participate in the proceeding. The
agreement shall be incorporated in the record of the proceeding.

Commentary:

   A remittal procedure provides the parties an opportunity to proceed without delay if
they wish to waive the disqualification. To assure that consideration of the question of
remittal is made independently of the judge, a judge must not solicit, seek or hear
comment on possible remittal or waiver of the disqualification unless the lawyers jointly
propose remittal after consultation as provided in the rule. A party may act through
counsel if counsel represents on the record that the party has been consulted and
consents. As a practical matter, a judge may wish to have all parties and their lawyers
sign the remittal agreement.


FN2. Amended August 10, 1999, American Bar Association House of Delegates,
Atlanta, Georgia, per Report 123.


FN3. This provision is meant to be applicable wherever judges are subject to public
election; specific amount and time limitations, to be determined based on circumstances
within the jurisdiction, should be inserted in the brackets.

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FN4. This provision is meant to be applicable wherever judges are subject to public
election. Jurisdictions that adopt specific dollar limits on contributions in section 5(C)(3)
should adopt the same limits in section 3(E)(1)(e). Where specific dollar amounts
determined by local circumstances are not used, the "reasonable and appropriate"
language should be used.


     CANON 4: A JUDGE SHALL SO CONDUCT THE JUDGE'S EXTRA-JUDICIAL
       ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL
                                   OBLIGATIONS
                 Copyright (c) 1999 by the American Bar Association

   A. Extra-judicial Activities in General. A judge shall conduct all of the judge's extra-
judicial activities so that they do not:

       (1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

       (2) demean the judicial office; or

       (3) interfere with the proper performance of judicial duties.

Commentary:

  Complete separation of a judge from extra-judicial activities is neither possible nor
wise; a judge should not become isolated from the community in which the judge lives.

   Expressions of bias or prejudice by a judge, even outside the judge's judicial
activities, may cast reasonable doubt on the judge's capacity to act impartially as a
judge. Expressions which may do so include jokes or other remarks demeaning
individuals on the basis of their race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status. See Section 2C and accompanying Commentary.

   B. Avocational Activities. A judge may speak, write, lecture, teach and participate in
other extra-judicial activities concerning the law*, the legal system, the administration of
justice and non-legal subjects, subject to the requirements of this Code.

Commentary:

  As a judicial officer and person specially learned in the law, a judge is in a unique
position to contribute to the improvement of the law, the legal system, and the
administration of justice, including revision of substantive and procedural law and
improvement of criminal and juvenile justice. To the extent that time permits, a judge is
encouraged to do so, either independently or through a bar association, judicial
conference or other organization dedicated to the improvement of the law. Judges may

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participate in efforts to promote the fair administration of justice, the independence of
the judiciary and the integrity of the legal profession and may express opposition to the
persecution of lawyers and judges in other countries because of their professional
activities.

   In this and other Sections of Canon 4, the phrase "subject to the requirements of this
Code" is used, notably in connection with a judge's governmental, civic or charitable
activities. This phrase is included to remind judges that the use of permissive language
in various Sections of the Code does not relieve a judge from the other requirements of
the Code that apply to the specific conduct.

     C. Governmental, Civic or Charitable Activities.

   (1) A judge shall not appear at a public hearing before, or otherwise consult with, an
executive or legislative body or official except on matters concerning the law*, the legal
system or the administration of justice or except when acting pro se in a matter involving
the judge or the judge's interests.

Commentary:

     See Section 2B regarding the obligation to avoid improper influence.

   (2) A judge shall not accept appointment to a governmental committee or commission
or other governmental position that is concerned with issues of fact or policy on matters
other than the improvement of the law,* the legal system or the administration of justice.
A judge may, however, represent a country, state or locality on ceremonial occasions or
in connection with historical, educational or cultural activities.

Commentary:

   Section 4C(2) prohibits a judge from accepting any governmental position except one
relating to the law, legal system or administration of justice as authorized by Section
4C(3). The appropriateness of accepting extra-judicial assignments must be assessed
in light of the demands on judicial resources created by crowded dockets and the need
to protect the courts from involvement in extra-judicial matters that may prove to be
controversial. Judges should not accept governmental appointments that are likely to
interfere with the effectiveness and independence of the judiciary.

  Section 4C(2) does not govern a judge's service in a nongovernmental position. See
Section 4C(3) permitting service by a judge with organizations devoted to the
improvement of the law, the legal system or the administration of justice and with
educational, religious, charitable, fraternal or civic organizations not conducted for profit.
For example, service on the board of a public educational institution, unless it were a
law school, would be prohibited under Section 4C(2), but service on the board of a
public law school or any private educational institution would generally be permitted
under Section 4C(3).

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   (3) A judge may serve as an officer, director, trustee or non-legal advisor of an
organization or governmental agency devoted to the improvement of the law,* the legal
system or the administration of justice or of an educational, religious, charitable,
fraternal or civic organization not conducted for profit, subject to the following limitations
and the other requirements of this Code.

Commentary:

   Section 4C(3) does not apply to a judge's service in a governmental position
unconnected with the improvement of the law, the legal system or the administration of
justice; see Section 4C(2).

   See Commentary to Section 4B regarding use of the phrase "subject to the following
limitations and the other requirements of this Code." As an example of the meaning of
the phrase, a judge permitted by Section 4C(3) to serve on the board of a fraternal
institution may be prohibited from such service by Sections 2C or 4A if the institution
practices invidious discrimination or if service on the board otherwise casts reasonable
doubt on the judge's capacity to act impartially as a judge.

   Service by a judge on behalf of a civic or charitable organization may be governed by
other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited
by Section 4G from serving as a legal advisor to a civic or charitable organization.

       (a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it
       is likely that the organization

              (i) will be engaged in proceedings that would ordinarily come before the
              judge, or

              (ii) will be engaged frequently in adversary proceedings in the court of
              which the judge is a member or in any court subject to the appellate
              jurisdiction of the court of which the judge is a member.

Commentary:

   The changing nature of some organizations and of their relationship to the law makes
it necessary for a judge regularly to reexamine the activities of each organization with
which the judge is affiliated to determine if it is proper for the judge to continue the
affiliation. For example, in many jurisdictions charitable hospitals are now more
frequently in court than in the past. Similarly, the boards of some legal aid organizations
now make policy decisions that may have political significance or imply commitment to
causes that may come before the courts for adjudication.

       (b) A judge as an officer, director, trustee or non-legal advisor, or as a member or
       otherwise:

100
              (i) may assist such an organization in planning fund-raising and may
              participate in the management and investment of the organization's funds,
              but shall not personally participate in the solicitation of funds or other fund-
              raising activities, except that a judge may solicit funds from other judges
              over whom the judge does not exercise supervisory or appellate authority;

              (ii) may make recommendations to public and private fund-granting
              organizations on projects and programs concerning the law,* the legal
              system or the administration of justice;

              (iii) shall not personally participate in membership solicitation if the
              solicitation might reasonably be perceived as coercive or, except as
              permitted in Section 4C(3)(b)(i), if the membership solicitation is
              essentially a fund-raising mechanism;

              (iv) shall not use or permit the use of the prestige of judicial office for fund-
              raising or membership solicitation.

Commentary:

   A judge may solicit membership or endorse or encourage membership efforts for an
organization devoted to the improvement of the law, the legal system or the
administration of justice or a nonprofit educational, religious, charitable, fraternal or civic
organization as long as the solicitation cannot reasonably be perceived as coercive and
is not essentially a fund-raising mechanism. Solicitation of funds for an organization and
solicitation of memberships similarly involve the danger that the person solicited will feel
obligated to respond favorably to the solicitor if the solicitor is in a position of influence
or control. A judge must not engage in direct, individual solicitation of funds or
memberships in person, in writing or by telephone except in the following cases: 1) a
judge may solicit for funds or memberships other judges over whom the judge does not
exercise supervisory or appellate authority, 2) a judge may solicit other persons for
membership in the organizations described above if neither those persons nor persons
with whom they are affiliated are likely ever to appear before the court on which the
judge serves and 3) a judge who is an officer of such an organization may send a
general membership solicitation mailing over the judge's signature.

   Use of an organization letterhead for fund-raising or membership solicitation does not
violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or
other position in the organization, and, if comparable designations are listed for other
persons, the judge's judicial designation. In addition, a judge must also make
reasonable efforts to ensure that the judge's staff, court officials and others subject to
the judge's direction and control do not solicit funds on the judge's behalf for any
purpose, charitable or otherwise.

  A judge must not be a speaker or guest of honor at an organization's fund- raising

101
event, but mere attendance at such an event is permissible if otherwise consistent with
this Code.

  D. Financial Activities.

  (1) A judge shall not engage in financial and business dealings that:

       (a) may reasonably be perceived to exploit the judge's judicial position, or

       (b) involve the judge in frequent transactions or continuing business relationships
       with those lawyers or other persons likely to come before the court on which the
       judge serves.

Commentary:

   The Time for Compliance provision of this Code (Application, Section F) postpones
the time for compliance with certain provisions of this Section in some cases.

   When a judge acquires in a judicial capacity information, such as material contained
in filings with the court, that is not yet generally known, the judge must not use the
information for private gain. See Section 2B; see also Section 3B(11).

   A judge must avoid financial and business dealings that involve the judge in frequent
transactions or continuing business relationships with persons likely to come either
before the judge personally or before other judges on the judge's court. In addition, a
judge should discourage members of the judge's family from engaging in dealings that
would reasonably appear to exploit the judge's judicial position. This rule is necessary to
avoid creating an appearance of exploitation of office or favoritism and to minimize the
potential for disqualification. With respect to affiliation of relatives of judge with law firms
appearing before the judge, see Commentary to Section 3E(1) relating to
disqualification.

   Participation by a judge in financial and business dealings is subject to the general
prohibitions in Section 4A against activities that tend to reflect adversely on impartiality,
demean the judicial office, or interfere with the proper performance of judicial duties.
Such participation is also subject to the general prohibition in Canon 2 against activities
involving impropriety or the appearance of impropriety and the prohibition in Section 2B
against the misuse of the prestige of judicial office. In addition, a judge must maintain
high standards of conduct in all of the judge's activities, as set forth in Canon 1. See
Commentary for Section 4B regarding use of the phrase "subject to the requirements of
this Code."

   (2) A judge may, subject to the requirements of this Code, hold and manage
investments of the judge and members of the judge's family,* including real estate, and
engage in other remunerative activity.


102
Commentary:

  This Section provides that, subject to the requirements of this Code, a judge may
hold and manage investments owned solely by the judge, investments owned solely by
a member or members of the judge's family, and investments owned jointly by the judge
and members of the judge's family.

   (3) A judge shall not serve as an officer, director, manager, general partner, advisor
or employee of any business entity except that a judge may, subject to the requirements
of this Code, manage and participate in:

       (a) a business closely held by the judge or members of the judge's family,* or

       (b) a business entity primarily engaged in investment of the financial resources of
       the judge or members of the judge's family.*

Commentary:

   Subject to the requirements of this Code, a judge may participate in a business that is
closely held either by the judge alone, by members of the judge's family, or by the judge
and members of the judge's family.

   Although participation by a judge in a closely-held family business might otherwise be
permitted by Section 4D(3), a judge may be prohibited from participation by other
provisions of this Code when, for example, the business entity frequently appears
before the judge's court or the participation requires significant time away from judicial
duties. Similarly, a judge must avoid participating in a closely-held family business if the
judge's participation would involve misuse of the prestige of judicial office.

   (4) A judge shall manage the judge's investments and other financial interests to
minimize the number of cases in which the judge is disqualified. As soon as the judge
can do so without serious financial detriment, the judge shall divest himself or herself of
investments and other financial interests that might require frequent disqualification.

   (5) A judge shall not accept, and shall urge members of the judge's family residing in
the judge's household* not to accept, a gift, bequest, favor or loan from anyone except
for:

Commentary:

  Section 4D(5) does not apply to contributions to a judge's campaign for judicial office,
a matter governed by Canon 5.

   Because a gift, bequest, favor or loan to a member of the judge's family residing in
the judge's household might be viewed as intended to influence the judge, a judge must
inform those family members of the relevant ethical constraints upon the judge in this

103
regard and discourage those family members from violating them. A judge cannot,
however, reasonably be expected to know or control all of the financial or business
activities of all family members residing in the judge's household.

       (a) a gift incident to a public testimonial, books, tapes and other resource
       materials supplied by publishers on a complimentary basis for official use, or an
       invitation to the judge and the judge's spouse or guest to attend a bar-related
       function or an activity devoted to the improvement of the law,* the legal system or
       the administration of justice;

Commentary:

  Acceptance of an invitation to a law-related function is governed by Section 4D(5)(a);
acceptance of an invitation paid for by an individual lawyer or group of lawyers is
governed by Section 4D(5)(h).

   A judge may accept a public testimonial or a gift incident thereto only if the donor
organization is not an organization whose members comprise or frequently represent
the same side in litigation, and the testimonial and gift are otherwise in compliance with
other provisions of this Code. See Sections 4A(1) and 2B.

       (b) a gift, award or benefit incident to the business, profession or other separate
       activity of a spouse or other family member of a judge residing inthe judge's
       household, including gifts, awards and benefits for the use of both the spouse or
       other family member and the judge (as spouse or family member), provided the
       gift, award or benefit could not reasonably be perceived as intended to influence
       the judge in the performance of judicial duties;

       (c) ordinary social hospitality;

       (d) a gift from a relative or friend, for a special occasion, such as a wedding,
       anniversary or birthday, if the gift is fairly commensurate with the occasion and
       the relationship;

Commentary:

   A gift to a judge, or to a member of the judge's family living in the judge's household,
that is excessive in value raises questions about the judge's impartiality and the integrity
of the judicial office and might require disqualification of the judge where disqualification
would not otherwise be required. See, however, Section 4D(5)(e).

       (e) a gift, bequest, favor or loan from a relative or close personal friend whose
       appearance or interest in a case would in any event require disqualification under
       Section 3E;

       (f) a loan from a lending institution in its regular course of business on the same

104
       terms generally available to persons who are not judges;

       (g) a scholarship or fellowship awarded on the same terms and based on the
       same criteria applied to other applicants; or

       (h) any other gift, bequest, favor or loan, only if: the donor is not a party or other
       person who has come or is likely to come or whose interests have come or are
       likely to come before the judge; and, if its value exceeds $150.00, the judge
       reports it in the same manner as the judge reports compensation in Section 4H.

Commentary:

   Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from
lawyers or their firms if they have come or are likely to come before the judge; it also
prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the
clients' interests have come or are likely to come before the judge.

  E. Fiduciary Activities.

  (1) A judge shall not serve as executor, administrator or other personal
  representative, trustee, guardian, attorney in fact or other fiduciary,* except for the
  estate, trust or person of a member of the judge's family,* and then only if such
  service will not interfere with the proper performance of judicial duties.

  (2) A judge shall not serve as a fiduciary* if it is likely that the judge as a fiduciary will
  be engaged in proceedings that would ordinarily come before the judge, or if the
  estate, trust or ward becomes involved in adversary proceedings in the court on
  which the judge serves or one under its appellate jurisdiction.

  (3) The same restrictions on financial activities that apply to a judge personally also
  apply to the judge while acting in a fiduciary* capacity.

Commentary:

   The Time for Compliance provision of this Code (Application, Section F) postpones
the time for compliance with certain provisions of this Section in some cases.

   The restrictions imposed by this Canon may conflict with the judge's obligation as a
fiduciary. For example, a judge should resign as trustee if detriment to the trust would
result from divestiture of holdings the retention of which would place the judge in
violation of Section 4D(4).

   F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator
or otherwise perform judicial functions in a private capacity unless expressly authorized
by law.*


105
Commentary:

  Section 4F does not prohibit a judge from participating in arbitration, mediation or
settlement conferences performed as part of judicial duties.

   G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a
judge may act pro se and may, without compensation, give legal advice to and draft or
review documents for a member of the judge's family.*

Commentary:

   This prohibition refers to the practice of law in a representative capacity and not in a
pro se capacity. A judge may act for himself or herself in all legal matters, including
matters involving litigation and matters involving appearances before or other dealings
with legislative and other governmental bodies. However, in so doing, a judge must not
abuse the prestige of office to advance the interests of the judge or the judge's family.
See Section 2(B).

   The Code allows a judge to give legal advice to and draft legal documents for
members of the judge's family, so long as the judge receives no compensation. A judge
must not, however, act as an advocate or negotiator for a member of the judge's family
in a legal matter.

****************************************
   Canon 6, new in the 1972 Code, reflected concerns about conflicts of interest and
appearances of impropriety arising from compensation for off-the- bench activities.
Since 1972, however, reporting requirements that are much more comprehensive with
respect to what must be reported and with whom reports must be filed have been
adopted by many jurisdictions. The Committee believes that although reports of
compensation for extra-judicial activities should be required, reporting requirements
preferably should be developed to suit the respective jurisdictions, not simply adopted
as set forth in a national model code of judicial conduct. Because of the Committee's
concern that deletion of this Canon might lead to the misconception that reporting
compensation for extra-judicial activities is no longer important, the substance of Canon
6 is carried forward as Section 4H in this Code for adoption in those jurisdictions that do
not have other reporting requirements. In jurisdictions that have separately established
reporting requirements, Section 4H(2) (Public Reporting) may be deleted and the
caption for Section 4H modified appropriately.

****************************************
  H. Compensation, Reimbursement and Reporting.

   (1) Compensation and Reimbursement. A judge may receive compensation and
reimbursement of expenses for the extra-judicial activities permitted by this Code, if the
source of such payments does not give the appearance of influencing the judge's
performance of judicial duties or otherwise give the appearance of impropriety.

106
       (a) Compensation shall not exceed a reasonable amount nor shall it exceed what
       a person who is not a judge would receive for the same activity.

       (b) Expense reimbursement shall be limited to the actual cost of travel, food and
       lodging reasonably incurred by the judge and, where appropriate to the occasion,
       by the judge's spouse or guest. Any payment in excess of such an amount is
       compensation.

   (2) Public Reports. A judge shall report the date, place and nature of any activity for
which the judge received compensation, and the name of the payer and the amount of
compensation so received. Compensation or income of a spouse attributed to the judge
by operation of a community property law is not extra- judicial compensation to the
judge. The judge's report shall be made at least annually and shall be filed as a public
document in the office of the clerk of the court on which the judge serves or other office
designated by law.*

Commentary:

  See Section 4D(5) regarding reporting of gifts, bequests and loans.

   The Code does not prohibit a judge from accepting honoraria or speaking fees
provided that the compensation is reasonable and commensurate with the task
performed. A judge should ensure, however, that no conflicts are created by the
arrangement. A judge must not appear to trade on the judicial position for personal
advantage. Nor should a judge spend significant time away from court duties to meet
speaking or writing commitments for compensation. In addition, the source of the
payment must not raise any question of undue influence or the judge's ability or
willingness to be impartial.

   I. Disclosure of a judge's income, debts, investments or other assets is required only
to the extent provided in this Canon and in Sections 3E and 3F, or as otherwise
required by law.*

Commentary:

   Section 3E requires a judge to disqualify himself or herself in any proceeding in which
the judge has an economic interest. See "economic interest" as explained in the
Terminology Section. Section 4D requires a judge to refrain from engaging in business
and from financial activities that might interfere with the impartial performance of judicial
duties; Section 4H requires a judge to report all compensation the judge received for
activities outside judicial office. A judge has the rights of any other citizen, including the
right to privacy of the judge's financial affairs, except to the extent that limitations
established by law are required to safeguard the proper performance of the judge's
duties.


107
  CANON 5 [FN5], [FN6]: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN
               FROM INAPPROPRIATE POLITICAL ACTIVITY
              Copyright (c) 1999 by the American Bar Association

  A. All Judges and Candidates

   (1) Except as authorized in Sections 5B(2), 5C(1) and 5C(5), a judge or a candidate*
for election or appointment to judicial office shall not:

       (a) act as a leader or hold an office in a political organization,*

       (b) publicly endorse or publicly oppose another candidate for public office;

       (c) make speeches on behalf of a political organization;

       (d) attend political gatherings; or

       (e) solicit funds for, pay an assessment to or make a contribution to a political
       organization or candidate, or purchase tickets for political party dinners or other
       functions.

Commentary:

  A judge or candidate for judicial office retains the right to participate in the political
process as a voter.

  Where false information concerning a judicial candidate is made public, a judge or
another judicial candidate having knowledge of the facts is not prohibited by Section
5A(1) from making the facts public.

   Section 5A(1)(a) does not prohibit a candidate for elective judicial office from
retaining during candidacy a public office such as county prosecutor, which is not "an
office in a political organization."

  Section 5A(1)(b) does not prohibit a judge or judicial candidate from privately
expressing his or her views on judicial candidates or other candidates for public office.

   A candidate does not publicly endorse another candidate for public office by having
that candidate's name on the same ticket.

   (2) A judge shall resign from judicial office upon becoming a candidate* for a non-
judicial office either in a primary or in a general election, except that the judge may
continue to hold judicial office while being a candidate for election to or serving as a
delegate in a state constitutional convention if the judge is otherwise permitted by law*
to do so.

108
  (3) A candidate* for a judicial office:

      (a) shall maintain the dignity appropriate to judicial office and act in a manner
      consistent with the integrity and independence of the judiciary, and shall
      encourage members of the candidate's family* to adhere to the same standards
      of political conduct in support of the candidate as apply to the candidate;

Commentary:

   Although a judicial candidate must encourage members of his or her family to adhere
to the same standards of political conduct in support of the candidate that apply to the
candidate, family members are free to participate in other political activity.

      (b) shall prohibit employees and officials who serve at the pleasure of the
      candidate*, and shall discourage other employees and officials subject to the
      candidate's direction and control from doing on the candidate's behalf what the
      candidate is prohibited from doing under the Sections of this Canon;

      (c) except to the extent permitted by Section 5C(2), shall not authorize or
      knowingly* permit any other person to do for the candidate* what the candidate is
      prohibited from doing under the Sections of this Canon;

      (d) shall not:

              (i) make pledges or promises of conduct in office other than the faithful
              and impartial performance of the duties of the office;

              (ii) make statements that commit or appear to commit the candidate with
              respect to cases, controversies or issues that are likely to come before the
              court; or

              (iii) knowingly* misrepresent the identity, qualifications, present position or
              other fact concerning the candidate or an opponent;

Commentary:

   Section 5A(3)(d) prohibits a candidate for judicial office from making statements that
appear to commit the candidate regarding cases, controversies or issues likely to come
before the court. As a corollary, a candidate should emphasize in any public statement
the candidate's duty to uphold the law regardless of his or her personal views. See also
Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not
prohibit a candidate from making pledges or promises respecting improvements in court
administration. Nor does this Section prohibit an incumbent judge from making private
statements to other judges or court personnel in the performance of judicial duties. This
Section applies to any statement made in the process of securing judicial office, such as

109
statements to commissions charged with judicial selection and tenure and legislative
bodies confirming appointment. See also Rule 8.2 of the ABA Model Rules of
Professional Conduct.

      (e) may respond to personal attacks or attacks on the candidate's record as long
      as the response does not violate Section 5A(3)(d).

  B. Candidates Seeking Appointment to Judicial or Other Governmental Office.

   (1) A candidate* for appointment to judicial office or a judge seeking other
governmental office shall not solicit or accept funds, personally or through a committee
or otherwise, to support his or her candidacy.

  (2) A candidate* for appointment to judicial office or a judge seeking other
governmental office shall not engage in any political activity to secure the appointment
except that:

      (a) such persons may:

             (i) communicate with the appointing authority, including any selection or
             nominating commission or other agency designated to screen candidates;

             (ii) seek support or endorsement for the appointment from organizations
             that regularly make recommendations for reappointment or appointment to
             the office, and from individuals to the extent requested or required by
             those specified in Section 5B(2)(a); and

             (iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii)
             information as to his or her qualifications for the office;

      (b) a non-judge candidate* for appointment to judicial office may, in addition,
      unless otherwise prohibited by law*:

             (i) retain an office in a political organization*,

             (ii) attend political gatherings, and

             (iii) continue to pay ordinary assessments and ordinary contributions to a
             political organization or candidate and purchase tickets for political party
             dinners or other functions.

Commentary:

   Section 5B(2) provides a limited exception to the restrictions imposed by Sections
5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same
judicial office or appointment to another judicial office or other governmental office may

110
apply for the appointment and seek appropriate support.

   Although under Section 5B(2) non-judge candidates seeking appointment to judicial
office are permitted during candidacy to retain office in a political organization, attend
political gatherings and pay ordinary dues and assessments, they remain subject to
other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and
Application Section.

  C. Judges and Candidates Subject to Public Election.

  (1) A judge or a candidate* subject to public election* may, except as prohibited by
law*:

      (a) at any time

             (i) purchase tickets for and attend political gatherings;

             (ii) identify himself or herself as a member of a political party; and

             (iii) contribute to a political organization*;

      (b) when a candidate for election

             (i) speak to gatherings on his or her own behalf;

             (ii) appear in newspaper, television and other media advertisements
             supporting his or her candidacy;

             (iii) distribute pamphlets and other promotional campaign literature
             supporting his or her candidacy; and

             (iv) publicly endorse or publicly oppose other candidates for the same
             judicial office in a public election in which the judge or judicial candidate is
             running.

Commentary:

   Section 5C(1) permits judges subject to election at any time to be involved in limited
political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar
this activity.

  (2) A candidate* shall not personally solicit or accept campaign contributions or
personally solicit publicly stated support. A candidate may, however, establish
committees of responsible persons to conduct campaigns for the candidate through
media advertisements, brochures, mailings, candidate forums and other means not
prohibited by law. Such committees may solicit and accept reasonable campaign

111
contributions, manage the expenditure of funds for the candidate's campaign and obtain
public statements of support for his or her candidacy. Such committees are not
prohibited from soliciting and accepting reasonable campaign contributions and public
support from lawyers. A candidate's committees may solicit contributions and public
support for the candidate's campaign no earlier than [one year] before an election and
no later than [90] days after the last election in which the candidate participates during
the election year. A candidate shall not use or permit the use of campaign contributions
for the private benefit of the candidate or others.

Commentary:

   There is legitimate concern about a judge's impartiality when parties whose interests
may come before a judge, or the lawyer who represent such parties, are known to have
made contributions to the election campaigns of judicial candidates. This is among the
reasons that merit selection of judges is a preferable manner in which to select the
judiciary. Notwithstanding that preference, Section 5C(2) recognizes that in many
jurisdictions judicial candidates must raise funds to support their candidacies for election
to judicial office. It therefore permits a candidate, other than a candidate for
appointment, to establish campaign committees to solicit and accept public support and
reasonable financial contributions. In order to guard against the possibility that conflicts
of interest will arise, the candidate must instruct his or her campaign committees at the
start of the campaign to solicit or accept only contributions that are reasonable and
appropriate under the circumstances. Though not prohibited, campaign contributions of
which a judge has knowledge, made by lawyers or others who appear before the judge,
may, by virtue of their size or source, raise questions about a judge's impartiality and be
cause for disqualification as provided under Section 3E.

   Campaign committees established under Section 5C(2) should manage campaign
finances responsibly, avoiding deficits that might necessitate post-election fund-raising,
to the extent possible. Such committees must at all times comply with applicable
statutory provisions governing their conduct.

   Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial
selection commission or bar association, or, subject to the requirements of this Code,
from responding to a request for information from any organization.

   (3) A candidate shall instruct his or her campaign committee(s) at the start of the
campaign not to accept campaign contributions for any election that exceed, in the
aggregate*, [$ ***] from an individual or [$ ***] from an entity. This limitation is in addition
to the limitations provided in Section 5C(2). [FN7]

   (4) In addition to complying with all applicable statutory requirements for disclosure of
campaign contributions, campaign committees established by a candidate shall file with
[***] [FN8] a report stating the name, address, occupation and employer of each person
who has made campaign contributions to the committee whose value in the aggregate*
exceed [$ ***]. [FN9] The report must be filed within [***] [FN10] days following the

112
election.

   (5) Except as prohibited by law*, a candidate* for judicial office in a public election*
may permit the candidate's name: (a) to be listed on election materials along with the
names of other candidates for elective public office, and (b) to appear in promotions of
the ticket.

Commentary:

  Section 5C(5) provides a limited exception to the restrictions imposed by Section
5A(1).

   D. Incumbent Judges. A judge shall not engage in any political activity except (i) as
authorized under any other Section of this Code, (ii) on behalf of measures to improve
the law*, the legal system or the administration of justice, or (iii) as expressly authorized
by law.

Commentary:

   Neither Section 5D nor any other section of the Code prohibits a judge in the exercise
of administrative functions from engaging in planning and other official activities with
members of the executive and legislative branches of government. With respect to a
judge's activity on behalf of measures to improve the law, the legal system and the
administration of justice, see Commentary to Section 4B and Section 4C(1) and its
Commentary.

   E. Applicability. Canon 5 generally applies to all incumbent judges and judicial
candidates*. A successful candidate, whether or not an incumbent, is subject to judicial
discipline for his or her campaign conduct; an unsuccessful candidate who is a lawyer is
subject to lawyer discipline for his or her campaign conduct. A lawyer who is a
candidate for judicial office is subject to [Rule 8.2(b) of the ABA Model Rules of
Professional Conduct]. (An adopting jurisdiction should substitute a reference to its
applicable rule.)

FN5. Introductory Note to Canon 5: There is wide variation in the methods of judicial
selection used, both among jurisdictions and within the jurisdictions themselves. In a
given state, judges may be selected by one method initially, retained by a different
method, and selected by still another method to fill interim vacancies.

   According to figures compiled in 1987 by the National Center for State Courts, 32
states and the District of Columbia use a merit selection method (in which an executive
such as a governor appoints a judge from a group of nominees selected by a judicial
nominating commission) to select judges in the state either initially or to fill an interim
vacancy. Of those 33 jurisdictions, a merit selection method is used in 18 jurisdictions to
choose judges of courts of last resort, in 13 jurisdictions to choose judges of
intermediate appellate courts, in 12 jurisdictions to choose judges of general jurisdiction

113
courts and in 5 jurisdictions to choose judges of limited jurisdiction courts.

   Methods of judicial selection other than merit selection include nonpartisan election
(10 states use it for initial selection at all court levels, another 10 states use it for initial
selection for at least one court level) and partisan election (8 states use it for initial
selection at all court levels, another 7 states use it for initial selection for at least one
level). In a small minority of the states, judicial selection methods include executive or
legislative appointment (without nomination of a group of potential appointees by a
judicial nominating commission) and court selection. In addition, the federal judicial
system utilizes an executive appointment method. See State Court Organization 1987
(National Center for State Courts, 1988).

FN6. Amended August 6, 1997, American Bar Association House of Delegates, San
Francisco, California, per Report No. 112, and August 10, 1999, American Bar
Association House of Delegates, Atlanta, Georgia, per Report No. 123.


FN7. Jurisdictions wishing to adopt campaign contribution limits that are lower than
generally applicable campaign finance regulations provide should adopt this provision,
inserting appropriate dollar amounts where brackets appear.

FN8. Each jurisdiction should identify an appropriate depository for the information
required under this provision, giving consideration to the public's need for convenient
and timely access to the information. Electronic filing is to be preferred.

FN9. Jurisdictions wishing to adopt campaign contribution disclosure levels lower than
those set in generally applicable campaign finance regulations should adopt this
provision, inserting appropriate dollar amounts where brackets appear.

FN10. A time period chosen by the adopting jurisdiction should appear in the bracketed
space.




114
      Caracas Declaration




115
                                  Caracas Declaration

        Iberoamerican Summit of Presidents of Supreme Courts and
                         Tribunals of Justice

                               Caracas, March 24 to 26, 1999

Introduction

We, the representatives of the Courts and Tribunals of Justice of Ibero-America have
gathered together to evaluate the performance of the actions we committed ourselves
to, during the I Summit that took place in the month of March, 1998 in this city of
Caracas.
Persuaded by the need to make a follow-up of the performance of commitments made
in the I Summit and, compelled in the meeting held on October 1998 by the delegates of
the Follow-Up Technical Unit, we concluded to approach as a priority in this opportunity,
in view of the information received and the exchange of ideas that took place, topics
related to the Independence and Autonomy of the Judiciary; the Fight Against
Corruption; Validity, Protection, Promotion and Respect of Human Rights; and Drug
Trafficking and its Sequels; enhancing with this meeting, all initiatives in favor of the
maintenance of the juridical order aspired by the democratic systems of our nations,
assuring with it the respect to judicial activities and decisions, as fundamental premise
of the validity of the Rule of Law.
The following conclusions are the result of the agenda submitted to our consideration:


Autonomy and Independence of the Judiciary and Cooperation Between Public
Authorities

I. Budgetary Autonomy and Independence

      1. We, the Chief Justices of the Supreme Courts and Tribunals of Justice of Ibero-
         America, commit ourselves to negotiate the incorporation of constitutional and
         legal regulations, who will anticipate an important participation of the judicial
         budgets of our countries in the national budget, and that will also guarantee total
         autonomy for its planning and execution.
      2. The autonomy and independence of the Judiciary will strengthen through the
         instrumentation of mechanisms allowing for the determination of the efficiency
         with which the resources of the judicial system are administered, and not only
         through the establishment of a fixed budgetary allowance.
      3. Efficient management of the judicial budget, in its formulation and execution,
         legitimizes the budgetary autonomy of the Judiciaries. Therefore, greater
         economic independence will imply a commitment for good management and
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         planning. For that reason, the judicial budget must constitute an effective
         monitoring and report system, which will be achieved by applying the following
         criteria:

         a. Good Management: The budgetary system must allow for the establishment
         of priorities such as caseload reduction, and implementation of efficient
         economies. The information produced in reference to the budget must help
         managers in making decisions, establishing the relationship between the
         assigned resources and the volume of work of each Court.

         b. Planning: Annual planning of the judicial budget should provide performance
         indicators during a cycle of two to three years. This will allow to better determine
         the needs and to make adjustments of the available resources in order to
         consider incidental expenses.

         c. Report: Report functions help establish the appropriate structures to manage
         the administration of the Courts and monitor the number of cases. Information
         must be reported in a manner that will allow for the transparency of the judicial
         budget.

         d. Control: Through the use of performance indicators and a periodical review of
         goals and objectives established for the budget, the correctives of the budgetary
         system will be established.
      4. The Chief Justices of the Supreme Courts and Tribunals of Justice of Ibero-
         America determine the need to establish a methodology for the analysis of the
         judicial budgets, taking into account: the corresponding constitutional framework,
         the proportion of the National Budget as percentage of the Gross Internal
         Product, the proportion of the Judicial Budget as percentage of the National
         Budget, the budgetary allowance per Court in relation to the number on case
         intakes and the exact determination of what is included in the Judicial Budget.
      5. This budgetary autonomy must also be guaranteed in case of eventual general
         budgetary cuts, always assuring the continuity and the effective administration of
         justice.
Given the fact, than in the discussions about the judicial budget, it is not possible to limit
the debate to the determination of percentages on the Nation's budgetary total, its
execution must be regulated in a matter such as the possible dependence on
organizations of plural composition, the Judiciary's independence, headed by the
Supreme Court of Justice, will not be weakened.

II. Judge Selection and Judicial Stability Mechanisms

      1. We ratify the need to carry out a study of judge selection and judicial stability
         mechanisms, updating the information received in the Follow-Up Technical Unit.
      2. The responsibility related to justice administration deserves per se rigorous
         surveillance mechanisms, to be approached as follows:

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            a. Once the civil servant has been appointed as Justice, a follow-up process
               on his/her performance will be established in the manner summarized as
               follows:
                      Revision: of the update for the performance of duties.
                      Evaluation: of performance and quality of work.
                      Promotion: after reviewing the results of the two areas mentioned, a
                      recognition must be made for the effort shown, this is to be
                      translated into rank promotion as well as into levels of financial
                      remuneration.
            b. This process will be strengthened by the activity of the Judicial School of
               each country. It must guarantee to all civil servants and to rest of the
               personnel of the justice administration system, their participation in
               professional improvement courses or in those structured for those aspiring
               to be promoted.
      3. Judicial training must be performed through special organizations, schools of
         judges, by structuring permanent programs which incorporate the appropriate
         ethical values that are characteristic of the judge's function.
      4. We agree that the following are the guidelines to create an Educational Center
         for the Ibero-American Judicial Civil Servant:
            a. To assist in the education of the Ibero-American judges, paying special
               attention to the criteria of acquisition of new knowledge on other countries'
               tools, reason by which its action policy will be directed towards the
               establishment of the judge's comprehensive education aspect, taking into
               account relationships in global levels or platforms, through which they will
               handle large amounts of information, usually unavailable in the
               performance of their daily duties.
            b. The efforts of said Center will focus in the reception of the largest as
               possible amount of information, with the purpose of processing it,
               obtaining specific and useful conclusions from it, to be subsequently
               distributed through different means (publications, seminars, courses,
               Internet).
            c. It will also structure updating programs and, after gaining recognition as a
               formal education center, with give specialization and post-graduate
               courses.
            d. The Center will be in charge of the relationship with other institutions, such
               as Courts and Tribunals from other countries, in order to trade information
               with these organizations, and provide technical assistance for the
               preparation and investigation of projects outlined at an academic level
               (seminars, conferences and others), and will coordinate training programs

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              for justice sector personnel, not necessarily working at Courts and
              Tribunals.
          e. It will also be in charge of the judge's training in management, being this
             fundamental and indispensable to achieve a high grade of performance in
             the qualified performance of decisions. Management training can be
             basically resumed in the correct use of resources available to the judge.

The Fight Against Corruption
I. Ethics of the Ibero-American Judicial Civil Servant
1.    Based on the principles of confidentiality, loyalty, decorum, order, diligence,
      wisdom, independence, equality, morality, efficiency, procedural economy,
      promptness, democratic awareness, fairness, publicity, respect and deference
      towards the users and vigilance in ensuring the safekeeping of documents, the
      Chief Justices of Supreme Courts and Tribunals of Ibero-America do forthwith
      make the following statement of ethical principles:

Code of Ethics of the Ibero-American Judicial Civil Servant

Canon 1. Judicial civil servants will act, in the courts and outside same, guided by the
search for justice and equity and the desire to reach these goals.

Canon 2. Judicial civil servants will always act within the democratic rule of law, which
they will promote and defend.

Canon 3. Judicial civil servants will at all times preserve their judicial independence and
dignity.

Canon 4. Judicial civil servants will defend the independence of the judicial branch from
any act whose purpose is to do violence to it or discredit it.

Canon 5. Judicial civil servants will safeguard at all times the majesty and decorum
which their offices and the judicial branch should maintain.

Canon 6. When complying with the obligations of their positions, judicial civil servants
will not fear public or private criticism of their acts.

Canon 7. Judicial civil servants must remain, in any case, impartial with regard to
conflicting parties.

Canon 8. Judicial civil servants will never allow themselves to be influenced by interests
other than those of the justice administration system; neither will they allow other civil

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servants to be influenced.

Canon 9. Judicial civil servants will not use their respective offices for their own private
interests or those of other parties.

Canon 10. Judicial civil servants will receive, hear, and attend to the parties in conflict in
an equitable manner, maintaining precedence of transactions.

Canon 11. Judicial civil servants, with their conduct, will preserve the transparency of
judicial activities, to promote public confidence in the system of justice, except in those
cases in which the law establishes confidentiality.

Canon 12. Judicial civil servants will maintain at all times an honorable, prudent,
patient, respectful, courteous, and dignified behavior, in and out of their offices and
judicial activities.

Canon 13. Judicial civil servants will be careful of the quality of their acts and of the
results of their transactions.

Canon 14. Judicial civil servants will commit themselves with the development of the
law and disciplines of knowledge necessary for the judicial activity.

Canon 15. Judicial civil servants will watch over their technical training and will keep
informed of the developments in judicial knowledge.

Canon 16. Judicial civil servants will be diligent with the activities they are charged with
and will promote efficiency in their offices, to avoid procrastination, delays, and
unnecessary public service costs.

Canon 17. Judicial civil servants will ensure prompt and proper attention to the public in
their offices and will offer the information requested.

Canon 18. Judicial civil servants will follow the standards of efficiency that might have
been appropriately established for the performance of their obligations.

Canon 19. Judicial civil servants will commit themselves to the institutional
modernization and strengthening of their offices and the justice system.
      1. Each Court or Superior Court will take the necessary steps to have the
         universities incorporate the subject of Ethics in the law schools' programs of
         study.
      2. The scourge of corruption has a scope which transcends the ambit of personal

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         behavior, and its treatment should be assumed in conformity with the social
         dimensions to which it extends. Consequently, the corresponding judicial
         protection should be directed mainly toward society's general interest.

Validity, promotion, protection and respect of human rights

I. Exchange of Jurisprudence
      1. The sentences of the national Courts and Tribunals will cover that provided in the
         instruments for the protection of human rights and in the jurisprudence of the
         Inter-American Court of Human Rights.
      2. The exchange of national and inter-American jurisprudence on human rights will
         be facilitated.
      3. The effective application of the rules of due process, included in the American
         Convention of Human Rights, will be promoted, especially as regards:
            o   Respect of procedural periods;
            o   Strict observance of norms regarding detention or privation of freedom;
            o   Timely handling of judicial recourses; and
            o   Strengthening of public defense.
      4. National and regional jurisprudence on human rights, organized in a data base,
         will be freely accessible to interested social sectors through electronic
         mechanisms such as web sites.
      5. The Courts and Supreme Courts express their will to take part in the discussions
         currently underway regarding the reform process of the Inter-American system of
         protection of human rights.
      6. The Courts and Supreme Courts must assume an active role, using the
         mechanisms each country has for the de-application of national laws that go
         against international commitments acquired by the States in human rights
         matters.
      7. The adoption of constitutional reforms, in which the supremacy of international
         treaties on human rights is recognized, must be promoted.
The issues of impunity, lack of procedural celerity and selectivity in the treatment of
cases on violations of human rights, although they have been partially overcome,
continue to affect the credibility of justice and should be given priority attention by the
Courts and Supreme Courts.

II. Cooperation Mechanisms between the Judicial Branch and Nongovernmental
Organizations

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      1. Give maximum diffusion to Resolution No. 1998/7 of April 3, 1998 of the
         Commission on Human Rights of the Organization of United Nations, "On the
         right and duty of individuals, groups and institutions to promote human rights and
         fundamental liberties universally recognized".

      2. Until another mechanism is created, periodic reports will be supplied to the
         Follow-up Technical Unit with developments achieved in formal and de facto
         relations between the judicial authorities and nongovernmental organizations, in
         matters related to the validity, promotion, protection and respect of human rights.
      3. The specialized offices or units of the judicial branch in charge of relations with
         civic organizations (academic, religious, trade and nongovernmental, among
         others) will grant priority to the establishment of cooperation mechanisms with
         said organizations in areas such as promotion and training of legal personnel in
         matters concerning human rights, coordination of efforts to promote judicial
         reform processes and the diffusion of jurisprudence on this subject.
      4. Links will be established among the specialized offices or units of the judicial
         branch dedicated to relations with civic organizations, and the nongovernmental
         regional networks which exist in the field of human rights and judicial reform.

Drug Trafficking and Its Sequel

      1. The development of a general instrument to combat drug trafficking and to
         standardize national procedural systems, covering the typology of the different
         countries, will be encouraged. Courts and Supreme Courts commit themselves to
         discussing an agreement project, which will permit its definite approval in the
         middle term.
      2. Study and formulate proposals for the creation of an Ibero-American Court which
         will hear drug trafficking offenses and those derived from same, identified in the
         norms generated for this purpose.
      3. Establish an Ibero-American Network of Courts and Supreme Courts which will
         permit the exchange of concrete information on cases which go beyond the
         national ambit, and the diffusion of documentary contents of comparative
         legislation on the subject of drug trafficking and its sequels.
      4. The development of a set of instructions is proposed, which will contemplate the
         measures and mechanisms to achieve the effective protection of Ibero-American
         judges and magistrates who hear drug trafficking cases in their respective
         countries.
      5. Given the supranational nature of drug trafficking and other related criminal
         activities, the Courts and Supreme Courts agree to the drafting of a comparative
         study of experiences, legal bases and procedures applied in extradition-related

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         matters.

      6. Begin a detailed study of the mechanisms and criteria to confront cross-border
         activities of drug trafficking and its sequels and, in particular, of the cybernetic
         crimes which have facilitated and foment the legitimization of capitals and the
         international flow of electronic funds derived from drug trafficking.
      7. Create awareness in the judicial civil servant so that, when solving cases related
         to drug trafficking and money laundering, he will give precedence to the
         protection of collective interests, postponing those of individuals.

Final Conclusion
The Courts and Supreme Courts of Justice of Ibero-America, present at this Summit,
whereas Caracas has been the seat of our meetings on two occasions, and following
the alternating principle, finally recommend studying the possibility that the Organization
of Supreme Courts of the Americas absorb the Follow-up Technical Unit, in order to
give continuity to the work developed and organize the III Ibero-American Summit of
Courts and Supreme Courts of Justice in the city and date agreed.




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      Beirut Declaration




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                                   Beirut Declaration

         Recommendations of the First Arab Conference on Justice

                                  Beirut, 14-16 June 1999


Convened by the Arab Center for the Independence of the Judiciary and the Legal
Profession (ACIJLP), in collaboration with the Geneva-based Center for the
Independence of Judges and Lawyers (CIJL), hosted by the Bar Association in Beirut,
and under the auspices of the Lebanese Minister of Justice, 110 Arab jurists from 13
Arab states participated in a conference on "The Judiciary in the Arab Region and the
Challenges of the 21st Century." The conference, held on 14-16 June 1999, focused on
four main topics:

      1. The main challenges faced by judiciary institutions in the Arab region in the 21st
         century.

      2. The main impediments and problems related to the independence of the judiciary
         in the Arab region.

      3. The judiciary in the Arab region and international standards on human rights and
         the independence of the judiciary.

      4. The basic safeguards for the independence of the judiciary in the Arab region.

The participants discussed the ability of the judiciary in the region to confront the
various challenges resulting from international political and economic transformations
and the new technological challenges. The ability to confront such challenges depends
on the existence of real support for the independence of the judiciary in the Arab region.

Moreover, the judiciary’s capacity to be a substantial power in Arab countries and to be
an active party in entrenching democratic principles and the rule of law is pending on
the progress of democratic development and respect for the law, including the
subjection of the main powers to it. The discussions stressed that democracy is
progressing with difficulty, which in turn affects the development of the judiciary in many
Arab countries.

In the conference, participants discussed several papers and other issues in detail.
They stressed the importance of articulating and implementing a set of
recommendations which would be put into effect by individuals, jurist institutions and
Arab governments. This action would serve as real support for the judiciary in enabling
it to confront the challenges of the coming century, and would also contribute towards
entrenching the rule of law and democracy in the Arab region.



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The participants proposed the following recommendations:


First: Safeguards for the Judiciary

      1. To include the UN Basic Principles on the Independence of the Judiciary into
         Arab constitutions and laws, and in particular, to penalize any interference in the
         work of the judiciary.

      2. The state shall guarantee an independent budget for the judiciary, including all its
         branches and institutions. This budget shall be included as one item into the
         state budget, and shall be determined upon the advice of the higher judicial
         councils within the judicial bodies.

      3. The executive power shall not intervene in the activities of judicial inspection in
         any form, nor shall it breach the independence of the judiciary through orders or
         circulars.

      4. The public prosecution shall be considered a branch of the judiciary. The
         authority undertaking this prosecution shall be separate from those of
         investigation and referral.

      5. Judges shall have immunity associated with their jobs. Except in cases of illegal
         acts no judicial measures shall be taken unless upon a permission issued by the
         highest council.

      6. Lawsuits shall not be transferred from the judges reviewing them unless for
         reasons related to incompetence.

      7. It is important to reform the administrative structure and other work mechanisms
         pertaining to the work of judges, and to facilitate the means for an efficient
         administration of justice.

      8. To link the work of the judiciary with a democratic environment on the basis that
         democracy is the approach for a more effective management of justice.

      9. Lawsuits shall be distributed among judges of various courts through their
         general assemblies or according to their internal regulations in case such
         assemblies do not exist. Such distribution shall be made in a manner that
         guarantees the non-intervention of the executive.

      10. Judges shall freely practice freedom of assembly in order to represent their
          different interests. In this regard, they shall have the right to establish an
          organization to protect their interests and guarantee their constant promotion.

Second: Electing and Appointing Judges

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      11. The election of judges shall be free of discrimination on basis of race, color, sex,
          faith, language, national origin, social status, birth, property, political belonging,
          or any other consideration. Particularly when electing judges, the principle of
          equal opportunity must be followed to guarantee that all applicants for a judicial
          position are objectively assessed.

      12. Assuming the position of judge shall be possible, without discrimination, for all
          those who meet the its requirements. The appointment of judges shall be made
          through the higher councils of the concerned judicial bodies.

      13. No judges shall be appointed by virtue of temporary contracts. They cannot be
          disciplined unless by boards made from their bodies, provided that the decisions
          made by such boards shall not have immunity against being challenged, unless
          the decision is made by the highest council of the concerned judicial body.

      14. The law shall stipulate the rules for appointing, delegating, transferring,
          promoting, and disciplining judges, as well as for all other matters related to their
          affairs, particularly those concerning their livelihood while in office and in
          retirement. The aim of this is to guarantee in all cases their independence from
          the executive.

      15. A percentage of no less than 25 per cent of vacant judicial posts shall be
          allocated to lawyers and those working in legal issues, provided that the
          appointment is made by the highest judicial boards in the concerned judicial
          bodies.

Third: Qualification and Training of Judges

      16. The state shall endeavor, through specialized centers and institutes, to provide
          judges with an effective legal training in order to prepare them adequately to
          assume judicial posts. All aspects of the study and training programs shall be
          subject to the supervision of the judiciary.

      In the professional preparation of judges, the following principles shall be observed:
             a. To activate the Arab convention issued in Amman pertaining to the
                 cooperation in the professional qualification of judges, and to reinforce the
                 role of non-governmental organizations to secure their support for
                 qualification programs and to serve as intellectual entities for judges,
                 particularly in the field of human rights.

             b. These qualification programs shall focus on legal and professional
                training, as well as personal growth. The qualification programs shall
                particularly focus on managing and facilitating the role of the defense.

      17. To develop national institutions specializing in qualifying judges, whether by

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         developing courses or financial and information resources supported by modern
         technological systems, in such a way that would guarantee the modernization of
         the judiciary, change educational courses in the faculties of law and develop
         infrastructure for the legal profession.

      18. To support continuous judicial education in developing an in-depth understanding
          of constitutional provisions in a way that would guarantee constitutional
          legitimacy, the structure of which is connected with the intelligent understanding
          of human rights.

      19. To urge the judicial authorities to constantly refer to international human rights
          treaties ratified by states, as being part of the states’ legal structure and a
          framework of the values which societies should adopt and try to implement.

      20. To make the exchange of legal expertise between judges and lawyers,
          supporting human rights and freedoms, a firm methodology of Arab states, and a
          planned attitude of their legal systems in order to guarantee the objectiveness of
          their application and their consistence with modern concepts of advanced
          countries.

      21. To develop educational law courses in Arab countries that will give special
          consideration to human rights and freedoms and constitutional legitimacy, and
          affirm solidarity with efforts made by the United Nations in this regard.

Fourth: Judicial Review on Constitutionality of Laws

      22. States with no system for judicial review on the constitutionality of laws shall
          adopt such a system whether through establishing a supreme constitutional court
          for this purpose, or establishing constitutional councils to assume this task,
          provided that they are made of members of judicial bodies, lawyers, and law
          professors, and in a way that would guarantee the independence of such a court
          or council and secure the soundness of practicing its constitutional responsibility.
          All members of such a court or council shall be appointed without the intervention
          of the executive. The right of individuals to bring a constitutional lawsuit by
          means of original claim shall be guaranteed.

Fifth: Safeguards for the Rights of the Defense and a Fair Trial

      23. To call on Arab states to ratify the optional protocol to the International Covenant
          on Civil and Political Rights (ICCPR), which enables individuals to bring their
          case before the Human Rights Committee after having exhausted national
          means of challenging through national judiciary without being able to obtain their
          rights.

      24. Every defendant shall be guaranteed an attorney of his/her choice. In case the
          defendant is unable to afford lawyer’s fees, the judicial authority shall appoint a

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         lawyer to the defendant.

      25. Laws applied in Arab states shall set short periods for suspension whether in the
          stage of gathering information or during interrogations. During these two stages,
          the minimum human rights and freedoms must be observed including the right to
          a defense, as well as the constraints necessary to protect human rights and
          freedoms and secure everyone’s right to refrain from making statements that
          would condemn him.

      26. No suspension shall be made against misdemeanors of which the sentence is no
          more than one year in prison. Also, those in preventive detention shall not be
          denied their right to obtain, from the state, a suitable compensation for his
          imprisonment in case there is legal ground.

      27. Decisions on judicial litigation must be made according to previously set legal
          rules which respect human rights and freedoms, provided that parties have equal
          chances to a defense, whether with respect to the actual dispute or its legal
          factors.

      28. Judicial disputes shall only be decided on by judges who are the most objective
          given the nature of the case and the circumstances surrounding it.

      29. Only natural judges shall decide on disputes of a judicial nature.

      30. There must be a guarantee that any trial, be it civil or criminal, is heard within a
          reasonable time that would secure a fair trial. Trials shall be conducted with
          modern technical means as much as can be provided.

      31. Refraining from implementing judicial rulings by law enforcement officials is a
          crime the penalty of which shall be stiffened. Impeding the implementation of
          rulings shall be considered as refraining from the implementation.

Sixth: Women and the Position of Judge

      32. No discrimination is permitted between men and women with respect to
          assuming the judicial responsibility. Women shall not be subject to any
          discrimination for assuming this position.

      33. The rights achieved by Arab women in the field of the judiciary shall be supported
          and extended. Existing laws shall be cleared from impediments which prevent or
          restrict the practice of these rights.

      34. Links shall be made between the issue of women’s rights in the society and
          cultural and social development in concerned Arab countries. Studies which
          stress women’s rights in conscious work and in society shall be conducted.


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      35. To exchange experiences among Arab countries to support equal rights for men
          and women while practicing judicial work.

Seventh: The International Criminal Court

      36. To assert the role of the International Criminal Court and call upon Arab states to
          sign its Statute to support the Court and guarantee the effective practicing of its
          jurisdiction.

      37. To call upon Arab states to increase participation in preparatory meetings
          assigned to set the procedural rules of the Court in order to form a general trend
          with respect to the Court’s safeguards, and particularly its independence from the
          Security Council.




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