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Themis competition - 2017
Semi-Final D Judicial Ethics and Professional Conduct
COURAGE IN JUDGE’S SERVICE. NORM OR EXCEPTION?
Team Poland
Paulina Korfanty-Pisana
Radosław Skwira
Małgorzata Żmijewska
under supervision of Judge Artur Ozimek
I. Introduction. Courage and ethics.
The dispute concerning courage in judges’ ethics should be preceded by setting up common
ground in defining courage and the possible area, in which it could be applied - as in order to
clarify the subject of the argument. If so, first of all a potential definition of courage should be
specified and the role it might play in judges’ service, hence it must be verified, whether there
is a need to distinguish judges’ ethics from those concerning the rest of the society.
It seems obvious, that any actions undertaken by judges are defined by law, which leads to
a question, if there is any space for ethics and- furthermore - courage in their course of service,
as everything they do in the courtroom is strictly marked out by the boundaries of law? Without
further ado, it must be stated, that it is commonly supposed, that various professions have their
unique codes of dealing with problems that occur in their particular fields of interest. David
Luban clearly states1 that the so called “role morality” collides with common morality, as
actions, that are justified for lawyers might not be considered right for people not dealing with
legal issues. This concerns to a greater extent attorneys, as their role is much more biased and
polarized, however once it is stated that a specific code of ethical regulations applies to them, it
should come as a result, that also judges may need a particular book of rules concerning their
service. In his article Luban presents a concept of four stages for justification of one’s actions
as referred to role morality. First, individual actions should be justified by reference to general
rules, second, rules should be justified by social roles, third, social roles are to be justified by
institutions, by which they are set up and fourth, institutions are justified by the needs of
common morality. Going further on, Benjamin Freedman fully confronts2 the phenomenon of
professional morality with ordinary morality, as he underlines the confidentiality of some
professions, which couldn’t be possibly considered as moral in the common way. Therefore he
defines role morality as acquired and justified by nature and needs of practice. Since some
professional actions cannot be called as moral due to their contradiction with standard values of
society’s everyday life, it has to be stated, that they are immoral. Therein lies the rub - such
actions couldn’t be possibly acknowledged from the deontological point of view, so immorality
would have to be defined either as apparent or as coincidental. Freedman than states, that those
actions are justified by society’s approval due to their utilitarian values. He indicates, that
professional morality forms a continuum of actions of certain moral quality- from smallest to
greatest significance. In this continuum people’s deeds could violate: social conventions,
1 David Luban “Professional Ethics” R. G. Frey and Christopher Wellman (eds.) A Companion to Applied Ethics (Blackwell Companions to
Philosophy) 2003, p. 583-596 2 Benjamin Freedman “A Meta- Ethics for Professional Morality” Ethics 89 (1978), p. 1-19
customs, moral law, statutory law. Each violation- considered as a small contravention - of
those stages by a professional, can be justified in the eyes of the society.
Without stating, whether judges are morally allowed to do more or less as compared to
other lawyers, it is very clear that a particular system of ethics concerning judges does exist.
Bearing it in mind, it should be defined, what courage is indeed. From the linguistic point of
view, the word “courage” - in Middle English “corage”, comes from Anglo-French “curage” as
a noun formed from “quer”, earlier “coer”, meaning “heart”, which derives from the latin “cor”.
The word “courage” means a mental or moral strength to venture, persevere, and withstand
danger, fear, or difficulty. Of course it would seem impossible to present a unified definition of
courage, common for all European countries, in respect of their experiences and sentiments,
even referring to dialectical materialism - one cannot find the definition of a particular term
without the context and basic questions of philosophy, that impose a certain way of
understanding3. We simply cannot find one universal significatio without choosing a particular
modus loquendi. Since we are dealing with ethics, should we now confront a potentially
universal definition of courage in the field of philosophy. According to a dictionary, “courage”
is one of the four Greek cardinal virtues along with wisdom, temperance, and justice4 or
nowadays - in the widest contest it can be simply defined as virtue - and in more restrictive way
- it can be denoted by the efficiency in facing dangers in general, and particularly those during
the war5. At this point it should be stated with whole firmness, that courage could be defined in
various ways, depending on the very concept of approaching ethics. Without any doubt courage
could play one of the leading roles as far as virtue ethics or the aretaic ethics are concerned, as
they are set on the concept of courage per se. It could be said indeed, that looking from this
point of view and considering courage as an important feature of judge’s services might seem
autothematic, since sign of equation could be put between the moral system and courage, which
constitutes it. But courage could possibly mean something else, if ethics are about to be derived
from the concept of natural law, according to which universal and fundamental rights are
inherent by human nature. Further on, it also depends on what would be the source of the law-
nature itself, concept of god, transcendent source or the human reason? If we consider
utilitarianism, must we define exercising the law - or justice in general - as useful for certain
people, yet still having sense in the frames of system of common values, being legitimized by
something more than temporary helpfulness. In this case, courage would definitely be useful.
3 See also Lothar Kreiser “Deutung und Bedeutung. Zur logischen Semantik philosophischer Terminologie” Akademie- Verlag Berlin 1986,
p. 17-19 4 Dictionary of Philosophy and Religion, Eastern and Western Thought by W. L. Reese, New Jersey Humanities Press 5 Enciclopedia Filosofica Conrad- Martius Gaunione G. C. Sansoni Editore, Firenze 1967
On the other hand - as far as deontological ethics are concerned, understood as fulfilling one’s
duties and obligations, only the actions based on rules would be considered morally acceptable.
But in these circumstances all moral dilemmas are to be solved without the human factor and
without any doubt. So is there any space left for courage? Going on with the history’s timeline,
if Immanuel Kant’s ethics based on humans’ freedom and dignity are to be dealt with, bearing
in mind his maxims- the Formulas of Universal Law (Allgemeines-Gesetz-Formel), of the End
in itself (Reich-der-Zwecke-Formel) of the Law of Nature (Naturgesetzformel) and of
Humanity (Menschheitszweckformel) - there might be plenty of space for courage. Presumably
it would be less external- not facing potential enemies, but courage to think, consider, judge and
solve problems. In these terms might it be a mean to fight with one’s own weaknesses.
A brief glance at different philosophical schools and systems combined with national and
even personal experiences allows to put forth a statement, that courage might be whatever we
want it to be or however we define it. For one judge a courageous action might be exercising
the law contrary to his believes, yet in accordance to the law, for other it might be just the
opposite - acting praeter legem only to fulfill his or hers own justification for a particular case.
Since it is completely obvious, that no universal and common definition of courage can be held,
a definition shared by the population of the old continent should be searched for. European
culture flourishes with myriads of intellectual currents, though its roots are undeniably set in
ancient Greece and later on in the Roman Empire. Celebrating diversity nowadays must we find
common ground for our culture, for our ethics and for the meaning of important virtues, among
with courage. Those lie in antiquity, when everything began. The first to consider the
importance and meaning of courage was Plato. In his work “Laches”6 he forms a dialogue
between Socrates and two eminent Athenian generals- Laches and Nicias. Socrates, whilst
talking about virtues, asks the basic question, what courage was, to which Laches responds,
giving probably the first modern definition of courage, that he is a man of courage who does not
run away, but remains at his post and fights against the enemy. Without defining, who the
potential enemy might be, such a statement could easily fit what might be thought of a judge - a
representative of a state (just like a soldier, to which Laches was referring), that is consistent in
remaining at his post, no matter what the obstacles might be. Continuing the dialogue, Plato
denies through Socrates mouth the presented concept, as it refers only to heavy- armed soldiers,
while a universal definition should be found, as some have courage in pleasures, and some in
pains, some in desires, and some in fears, and some are cowards under the same conditions.
6 Plato “Laches” in “Plato. Complete works.” Hackett Publishing Company Indianapolis/Cambridge, p. 665- 686
Having said that, Laches admits, that courage is a sort of wise endurance of the soul and the
most noble quality. Challenged by Socrates, Laches than says, that a courageous man needs to
have certain skills to do, what he does. Just like a judge needs to be a wise man. Could it mean
that there is courage in wisdom? When Nicias joins the dialogue he says, that every man is
good in that in which he is wise, and bad in that in which he is unwise and states, that courage
is a sort of wisdom. Arguing with him, Socrates asks, if courage could be the knowledge of the
grounds of hope and fear and after a dispute they come to point, in which they admit, that
courage is not only the knowledge of the hopeful and the fearful, but seems to include nearly
every good and evil without reference to time. Having said so, Socrates admits, that courage
considered that way would not be a part of a virtue, but the virtue itself. At the end of the
dialogue Socrates says to Nicias, that they had not discovered what courage was. Laches is one
of the early works of Plato, therefore the lack of a clear statement does not surprise. In one of
his greatest works - The Republic, Plato clearly sets courage among wisdom, temperance and
justice - the four virtues, that the perfect state contains7. He than defines courage as a sort of
salvation – the never failing salvation of the opinions which law and education have prescribed
concerning dangers. Courage is than the power which preserves right opinion about danger with
addition of the epithet “political” or “civilized” in order to distinguish it from mere animal
courage. Within this widely known concept, could we think of courage as a quality defining
officials of the state others than the soldiers? After 72 years since the end of the second World
War, do we still need to maintain armies as bearers of courage, or can we just focus on what
Plato defined as civilized courage, with the present understanding of the word civilized?
Aristotle defines courage as moderation or observance of the mean with respect to feelings
of fear and confidence8, as we fear things that are terrible and evil. Even though fear of e.c
infame is noble, we must not fear things, that we are guilty for. A courageous man endangers
himself only to the things that he should, which means that one should be courageous within
certain limits - not become a coward, yet still stay away from recklessness. Excessive courage
or fearlessness leads to audacity, while excessive timidity or lack of courage leads to cowardice.
As far as the Roman Empire is concerned, we admire the roman thoughts and reflections on
law, however the philosophical insight on the subject of the thesis is just a multiplication of the
achievements of ancient Greece. It is enough to quote Cicero9, who defines courage (in some
7 Plato “The Republic” Second Edition, Basic Books 1968 8 Aristotle “Nicomachean Ethics”, Kegan Paul, Trench, Truebner & Co. Ltd., London 1906 9 M. Tulli Ciceronis “De Inventione” Liber Secundus LIII
translations “fortitude”) as one of the four parts forming the virtue (or simple honesty) among
with wisdom, justice and temperance.
In the medieval times much attention had been paid to the concept of courage, however it
was considered mainly from the point of view of the roman catholic church, which imposes
certain believes, including the concept of god, which are not common for the modern lay
Europe. The judeo-christian origins of Europe are undeniable, every wise European citizen
respects that, however in order to keep this thesis universal, we shall refrain from discussing
religion. It would be enough to say, that saint Thomas Aquinas understood courage (fortitude)
as one of the four cardinal virtues - among prudence, justice and temperance. He than says10,
that courage can be understood in two way - as denoting a certain firmness of mind, and in this
sense it is a general virtue, or rather a condition of every virtue or fortitude may be taken to
denote firmness only in bearing and withstanding those things wherein it is most difficult to be
firm, namely in certain grave dangers.
David Hume treats courage11 as a valuable quality of the mind, as courage defends us, but
cowardice lays us open to every attack. He indicates, that courage, which is the point of honour
among men, derives its merit, in a great measure, from artifice, as well as the chastity of women,
tho’ it has also some foundation in nature. The human soul, when elevated with joy and courage,
in a manner seeks opposition, and throws itself with alacrity into any scene of thought or action,
where its courage meets with matter to nourish and employ it. Later on he says, that courage
and ambition, when not regulated by benevolence, are fit only to make a tyrant and public
robber.
Thomas Hobbes defines courage (fortitude) as that same faculty of resisting stoutly in
present dangers12. He sets courage among three other virtues, which he calls cardinal-justice,
wisdom and moderation, but he defines them as virtues not of a citizen, but of men, as they are
useful not only for the state, but also for the people themselves.
Approaching modern times, clear division of powers and legal positivism, judges seem to
become more of a material mean of what is called in continental Europe “subsumption” (in
German “die Subsumtion”, Italian “la sussunzione”). As Charles Louis de Secondat , Baron de
Montesquieu stated in 1748, those forming the judicial power shall never make law, they are to
be “only the mouth that pronounces the words of the law, inanimate beings that are not able to
10 St. Thomas Aquinas “Summa Theologica”,2nd part of the 2nd part, question 123 Benziger Bros. Edition, 1947 11 David Hume “A Treatise of Human Nature” The Clarendon Press, London 1888 12 Thomas Hobbes “Of Man and Citizen” Blacmask Online 2000
modify either its force or its rigour”13. However this concept may still seem endearing for some,
it should be rather treated as historical. Modern legal positivism classicists look at the role of
judges from a different perspective. H. L. A. Hart states, that a judge is free and independent in
the process of imposing law, yet supported by the three secondary rules- Rule of Recognition,
Rule of Change and Rule of Adjudication14. Also according to Ronald Dworkin, even though
in simple matters the judge could be just a utility for finding the proper legal rules, in hard cases
judge has to refer to principles, policies and non-rule standards15. Since judges - even in the era
of legal positivism- must deal with non legal rules in the very process of exercising the law, it is
unarguably true, that they are no longer the mouth of law, but an important piece of the legal
procedure.
It had been clearly explained by John Rawls16 in his article, based on the concept of
punishing and keeping promises, that the position of judges and the legislator are completely
different. The role of judges is retributive, whereas the role of legislator is utilitarian. The
legislator looks to the future, while dealing with practices, the judge looks to the past, dealing
with particular cases, not forgetting about utilitarian principles. However Rawls in his thesis
deals with differences in justification of general practice defined by system of rules in
conjunction with e.c. social roles and justification of particular actions referring to that practice,
there shall be no equivalent between these two cases and - if so - judges shall have different
instruments, including separate systems of ethics, which might as well need courage.
Summing up, there is one common element, present in all thoughts on courage among with
its linguistic definition, which refers to “cor” - the heart, which in European culture is not only
a symbol of passion, love, enthusiasm, but also bravery, chivalry and might. This common
denominator is the state, in which courage can be defined, can be present. There is no courage
and there would be no need to constitute the very concept of courage without outer
circumstances, that would impose a certain attitude in men, and further on in judges. There is
no courage, when there is no danger, however we define it. So, if there are no wars in XXI
century Europe, if all potential problems are to be solved in the course of democratic debate, if
the rights of all minorities are to be exercised, preserved and respected, if we all live in the time
of legal positivism, yet enriched by the experiences of First and Second World War, criminal
13 Charles de Secondat, Baron de Montesquieu “The Spirit of Laws” Batoche Books, Kitchener 2001 14 Herbert Lionel Adolphus Hart “The concept of Law” Second Edition, Clarendon Press, Oxford 1994 15 Ronald Dworkin “Law’s Empire” The Belknap Press of Harvard University Press, Cambridge Mass. 1986 16 John Rawls “Two Concepts of Rules” The Philosophical Review 64 (1955), p. 3-32
nature of nationalisms and communism, the genocide of Holocaust is there still space for
courage? Is there need for the judges to be courageous?
II.„Courage” in codes of judicial conduct – comparative legal analysis.
II.1.Methodology.
We selected codes of judicial conduct adopted since 1980s until now. They will be divided
into three groups, i.e. global codes of conduct, European codes of conduct and national codes of
conduct. We analysed contents of each selected code of conduct in terms of provisions that
refer to “courage” as a desirable or required characteristic of a judge. Should we not find
“courage” in any context within the provisions of selected codes of conduct, we looked for
provisions which imply indirectly that performing judicial duties requires courage from judges.
Having conducted the aforementioned comparative analysis, we illustrated the results in three
tables. In the last column of every table we provided comments on each code of conduct
regarding the inclusion of provisions referring to “courage” in judicial service. Tables cover all
relevant issues and allow us to drive conclusions. Our conclusions will be divided into two
categories, i.e. structure of codes of conduct and contents of codes of conduct with emphasis on
regulations concerning courage in performing judicial duties.
II.2.Results.
On the global level, we selected four codes of judicial conduct. The documents are
presented in a chronological order which allows us to observe how a way of thinking about
judicial ethics evolved in the last decades. Results of our analysis are demonstrated in Table 1.
Table 1. Comparison of “courage”-related provisions in global codes of judicial conducts
Author Code of Conduct Provisions regarding courage
(directly / indirectly)
International
Bar Association
IBA Minimum
Standards of Judicial
Independence17
(1982)
Brief regulation of judicial ethics. Emphasis
on independence as a guarantee for judges,
e.g. judges shall not be a subject to executive
control.
Judicial independence does not render judges
free from public accountability.
Judges must be independent vis-à-vis their
judicial colleagues and supporters.
17 http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#Standards, Principles and Ethics
United Nations Basic Principles on
the Independence
of the Judiciary18
(1985)
Duty of deciding matters impartially, which
means (in this context) without any
restrictions, improper influences,
inducements, pressures, threats or
interferences from any quarter and for any
reason.
International
Association
of Judges
Universal Charter of
the Judge19 (1999)
Importance of judicial independence
underlined. “Independence of a judge”
defined as exercising judicial powers free
from social, economic, political pressure,
independently from other judges and the
administration of judiciary.
Judicial
Integrity
Group20
Bangalore Principles
on Judicial Conduct21
(2002)
The most detailed regulation, divided into
values, principles and their application (via
certain behaviours). Several dimensions of
independence, i.e. freedom of any extraneous
influences, independence in relation to
society, parties to the dispute, judicial
colleagues. Emphasis added on judges’
perception as independent by the public.
Source: own elaboration
On the European level, we chose three codes of judicial conduct as a subject for the
analysis. They were adopted by the Council of Europe and addressed to its Member States. On
the European level there exist also relevant codes of judicial conduct that refer to Court of
Justice of the European Union22 and European Court of Human Rights23. These codes are
applicable only to members (eventually former members) of these Courts. Having regard to the
fact that these Courts differ significantly from national courts (mainly in terms of jurisdiction
and judges’ selection process), we decided to exclude these Courts from the analysis. Outcomes
of our analysis are illustrated in Table 2.
18 http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx 19 http://www.iaj-uim.org/universal-charter-of-the-judges/ 20 This body has become known as “Judicial Integrity Group”, even though its full name is: “Judicial Group on Strenghtening Judicial
Integrity”. Judicial Integrity Group was created on the initiative of United Nations Centre for International Crime Prevention. It was composed of Chief Justices and senior justices. 21 http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf 22 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2016:483:FULL&from=FR 23 http://www.echr.coe.int/Documents/Resolution_Judicial_Ethics_ENG.pdf
Table 2. Comparison of “courage”-related provisions in European codes of judicial
conduct
Author Code of Conduct Provisions regarding courage
(directly / indirectly)
Council of
Europe
(Committee of
Ministers)
Recommendation on
the Independence,
Efficiency and Role
of Judges24 (1994)
Definition of independence refers explicitly to
UN Basic Principles on the Independence
of the Judiciary (1985) (see above).
Council of
Europe25
European Charter on
the Statute for
Judges26 (1998)
Independence not defined.
Focus on measures that would guarantee
competence, impartiality and independence
expected from judges by society.
Council of
Europe
(Committee of
Ministers)
Recommendation
CM/Rec(2010)12
on judges:
independence,
efficiency and
responsibilities27
External & internal independence.
Necessity of independence, impartiality and
ability to act without any restriction, improper
influence, pressure, threat or interference,
direct or indirect, from any authority
Source: own elaboration
In this context, it shall be noted that European Network of Councils for the Judiciary
(ENCJ) with the support of the European Union published “Judicial Ethics Report 2009-2010”.
In the report, independence is regarded more as a privilege of a citizen, than as a privilege
granted for a judge. Authors claim that citizens in a democratic society shall benefit from the
judiciary that is independent of the legislative and executive branches of government. Therefore
judges should apply law to specific cases placed before them, without fearing to please or to
displease all forms of power, executive, legislative, political, hierarchical, economic, of the
24 https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804c84e2 25 The Charter was drafted by three experts from France, Poland and United Kingdom. The draft was approved by the participants of a
multilateral meeting on the statute of judges in Europe, organised by Council of Europe in July 1998. Participants came from European countries as well as European Association of Judges (EAJ) and European Association of Judges for Democracy and Freedom (MEDEL). 26 https://wcd.coe.int/ViewDoc.jsp?p=&id=1766485&direct=true 27 https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2010)12&Language=lanEnglish&Ver=original&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383&direct=true
media or public opinion. Moreover, judges shall fulfil their duties without fear, favouritsm or
prejudice28.
Finally, we provide an overview of six national codes of judicial conduct. We decided to
analyse primarily codes of conduct from those countries, in which particular cases, that we will
discuss in the case-based part of the essay, took place (Italy, Poland, Spain). In order to provide
better coverage of different legal systems, we analysed codes of conduct from countries with
common law as well as continental legal systems. Moreover, we included Austria, as the first
German speaking country which dealt with questions on judicial ethics and as a consequence
adopted a relevant declaration. We described Latvia as a post-Soviet state. Results are presented
in Table 3.
Table 3. Comparison of “courage”-related provisions in national codes of conduct.
Country Code of Conduct Provisions regarding courage
(directly / indirectly)
Italy (National
Association of
Judges)
Code of Ethics for
Judges29 (1994)
Detailed regulation. Distinction between
internal and external independence provided.
External independence concerns refraining
from personal interests in the Rechtsstaat,
including every citizen’s business, whereas
internal independence means not being
influenced by a single judge in the course of
exercising one’s duties.
Latvia Ethics Code for
Latvian Judges30
(1995)
Collection of examples of behaviour and
attitude expected from judges, e.g. judge shall
be prepared to be constantly in the focus of
the society; judge shall not allow family,
social, political, or other relationship
influence judicial conduct while administering
justice; when deciding matters judge shall not
be swayed by interests of separate persons,
public protests, or fear of criticism.
28 https://www.encj.eu/images/stories/pdf/ethics/judicialethicsdeontologiefinal.pdf 29 http://www.coe.int/t/dghl/cooperation/CCJE/Onenparle/Foro_italiano_Magna_Carta.pdf (in Italian) 30 http://at.gov.lv/en/resources/laws/
Poland
(National
Council of
Judiciary)
Collection of
Principles of Judges’
and Judicial
Assessors’
Professional Ethics31
(2003)
Provisions written in a general manner.
Judge cannot be a subject of influences of any
kind jeopardising his independence,
regardless of their origin or reason.
Judge shall act in a way that would not
undermine confidence in his independence.
Austria
(Association of
Judges)
Wels Declaration of
Ethics32 (2007)
Declaration concerning social influence of the
judiciary. Acknowledgement of influence of
judicial work on political & social structure,
on lives of people affected by judicial
decisions.
England and
Wales (Judges’
Council)
Guide of Judicial
Conduct33 (2013)
Reflections on independence given in a
descriptive way. Desirable behaviour
includes: being alert to attempts of influence,
being immune to the effects of publicity,
being independent from judicial colleagues.
Reference to judicial oath which states that
judge will do right (…) without fear or
favour, affection or ill-will.
Spain (General
Council of the
Judiciary)
Principles of Judicial
Ethics34 (2016)
Descriptive regulation. Independence as an
attitude of mind that excludes from judges’
decisions any outside interference.
Judges must resist all direct or indirect
attempts by third parties, whether they
originate from other political powers, pressure
groups, public opinion, or the Judiciary itself.
Judges shall avoid taking into consideration
any expectation of approval or rejection.
Source: own elaboration
31http://www.krs.pl/pl/dzialalnosc/zbior-zasad-etyki-zawodowej-sedziow/c,18,uchwaly/p,1/4582,uchwala-nr-252017-krajowej-rady-sadownict
wa-z-dnia-13-stycznia-2017-r (in Polish) The Collection of Principles was subsequently amended in 2009, 2015 and 2017. 32 https://richtervereinigung.at/ueber-uns/ethikerklaerung/ 33 https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_conduct_2013.pdf 34 http://www.poderjudicial.es/cgpj/en/Subjects/Transparency/Good-Governance-and-Code-of-Ethics/Code-of-Ethics/
II.3.Conclusions.
Firstly, we will make a few comments concerning the structure of analysed codes of
conduct. It shall be noted that codes of judicial conduct vary significantly in terms of length and
level of detail. We observed that the first codes of judicial conduct were short and rather laconic,
e.g. IBA Minimum Standards, UN Basic Principles. They were not even called “codes of
conduct”. They should be regarded as initial attempts of regulating judicial ethics. Similarly, we
should evaluate Austrian code of conduct which in fact has a form a declaration that Austrian
judges will be guided in their work by adopted ethical principles. Latter codes are more detailed
and descriptive, especially in common law countries. In fact, English code of conduct is called a
“guide” and provides extensive descriptions of desirable behaviours in terms of judicial ethics.
Moreover, codes of ethics have different structure. They are divided into chapters, articles,
principles, canons etc. Structure of Bangalore Principles is the most complex, since the
document is divided into “values”, “principles” and “application” of them. In general, codes
lack a legally binding nature. However, some parts of Bangalore Principles have a nature of
customary international law, there is no binding international treaty or any comparable
instrument35. Codes of conduct should be perceived as recommendations on judicial ethics.
Secondly, we will draw conclusions that concern contents of codes of judicial conduct.
Initially codes of conduct were not focused on judicial ethics. Emphasis was added on
institutional aspects, such as institutional independence of the judiciary, judges’ selection &
qualifications, working conditions, professional associations etc. At this stage, individual
independence and institutional independence should be distinguished. The former is concerned
with judge’s state of mind; the latter with defining relationships between the judiciary and
others, particularly other branches of government, so as to assure both the reality and the
appearance of independence36. Afterwards, provisions regarding judicial ethics started to
expand. Bangalore Principles shall be evaluated as a breakthrough on a global level, since it
was a comprehensive regulation of judicial ethics. Bangalore Principles are widely recognized,
e.g. by United Nations, judges of Member States of Council of Europe. They became a model
for principles of judicial conduct.
35 J. P. Terhechte, Judicial Ethics for a Global Judiciary – How Judicial Networks Create their own Codes of Conduct, 2009, German Law
Journal, Vol. 10 No. 04, http://www.leuphana.de/fileadmin/user_upload/PERSONALPAGES/_st/terhechte_joerg-philipp/files/Judicial_Ethics_for_a_Global_Judiciary_
-_How_Judicial_Networks_Create_their_own_-_PDF_Vol_10_No_04_501-514_SI_Articles_Terhechte.pdf 36 United Nations Office on Drugs and Crime, Commentary on the Bangalore Principles of Judicial Conduct, 2007, https://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf, p. 39
None of analysed codes of conduct uses a term “courage” in any context. However, both
English and Latvian codes of conduct refer to the necessity of performing judicial duties
“without fear”. English code cites judicial oath which says that “judge should do right to all
manner of people after the laws and usages of the Realm, without fear or favour, affection or
ill-will”. Latvian code stipulates in Canon 3 that “judge shall not be swayed by interests of
separate persons, public protests, or fear of criticism”. It shall be noted that in Latvian code of
conduct “fear” was limited to “fear of criticism”. Moreover, we noticed references to “fear” in
“Judicial Ethics Report 2009-2010” where “fear” connotes with “fear to please or displease all
forms of power, executive, legislative, political, hierarchical, economic, of the media or public
opinion”. In the report, we also read that judges shall fulfil their duties “without fear,
favouritsm or prejudice”. Apart from these examples, no reference to “courage” or “fear” was
spotted by us. In our view, the necessity of performing judicial duties in a courageous way
could be derived from provisions regarding independence. “Independence” should be
distinguished from “impartiality”. “Impartiality” refers to a state of mind or attitude of the
tribunal in relation to the issues and the parties in a particular case whereas “independence”
connotes a status or relationship to others37. Analysed codes of judicial conduct provide
different definitions of individual independence of judges. Even though, these definitions put
emphasis on various aspects (political, social etc.), we found major similarities between them.
Accordingly, judicial independence means freedom of any extraneous influences, social,
economic and political pressure, as well as independence from parties of the dispute and other
judges, when exercising judicial powers. Additionally, it was underlined that institutional
independence does not render judges free from public accountability. Judges are a subject of
constant evaluation by the public opinion.
There is no doubt that meeting high standards of judicial conduct is a difficult task. In our
opinion, issuing verdicts independently, relying purely on their own judgement, regardless of
current political situation, social pressure, threats etc., requires great courage from judges.
Therefore, we are strongly convinced that provisions concerning individual independence of
judges should be interpreted as indicators of the need for performing judicial duties in a
courageous way.
37 Ibidem, p. 40
III.An exemplification of judicial courage. Case study.
The essay on courage in the judicial service cannot be confined solely to theoretical
considerations. The answer to the question as to whether this feature is necessary for the proper
and effective conduct of this profession requires the determination that it is in fact present in
judge’s daily work.
Our analysis of the jurisprudence and professional conduct of judges leads us to a conclusion
that courage among judges takes different forms and manifests itself mainly in three dimensions.
These are: adjudicating in accordance with a judge’s own conscience and convictions irrespective
of the will of the society, the ability to resist pressures and threats of the parties to the
proceedings, and to decide cases irrespective of political expectations.
In order to support the aforementioned thesis we have chosen four profiles of judges from the
cases we investigated who undoubtedly presented each of the above categories of courageous
practice.
III.1.“A coward dies a thousand times before his death, but the valiant taste of death but
once.” The case of Judge Giovanni Falcone.
It is very probable that judges at some point in their career will face a challenge of deciding
cases of serious offenders, often organized crime groups. Judging cases of such dangerous
defendants supported by well organized and rich criminal environment, which will stop at
nothing to achieve a favourable judgement, is a great pressure for the judge. By refusing to
comply with the defendant’s expectations, the judge is not only at risk of bad reputation in society
or potential disciplinary consequences, but the most precious asset for every human being: health
and life. In our opinion, the most brilliant example of brave judicial service regardless of pressure
and despite threats is Giovanni Falcone.
This prosecuting magistrate was born on 18th May, 1939 in Palermo. Initially, he served as a
district magistrate in the province of Syracuse, where he specialized in bankruptcy law. After
that, in 1980 he joined the “Office of Instruction” (Ufficio istruzione) - the investigative branch
of the Prosecution Office of Palermo. From that moment on, Giovanni Falcone has been involved
in investigations and preparation of mafia trials.
Falcone discovered the battle of clans in Palermo, which began in 1981 and has gone down in
history as a great clan war. Moreover, thanks to successful negotiations with Tomasso Buscetta -
one of the repentant mafiosi who decided to break the omerta rule, Falcone obtained evidence of
the existence of the third level mafia that is linked to prominent participants in political and
economic life who benefit from and cooperate with organized crime.
Surprisingly, the experience gained during his time in the bankruptcy court proved useful to
Falcone in the fight against the mafia. He developed the so-called “Falcone’s method”, which
consisted of departing from the usual pursuit of perpertrators of robberies, beatings and murders.
Instead he worked on reconstructing a mafia-based business involved in in drug trafficking on a
global scale. He was one of a few investigators who hit the nerve of the Sicilian Mafia - bank
accounts. He was able to distinguish dirty money from legitimate funds38.
On July 29th, 1983 Falcone spearheaded the anti-Mafia service consisting of seven
investigative judges, which led to the so-called Maxitrial - the largest in the history of the Italian
state trial of organized crime. It took place from 10th February 1986 to 17th April 1987. The
indictment drew up by Judge Falcone concerned 464 defendants, including main Mafia bosses,
containing over 8000 pages. Maxi Trial ended with 344 convictions for a total of 2665 years
imprisonment.
The Maxi trial sentences being upheld by the Supreme Court were a blow to the Mafia’s
prestige, what infuriated its chieftains, especially Salvatore Riina, who planned and ordered the
assassination of Giovanni Falcone. Riina’s goal was not only to get rid of the cumbersome
obstacle to continuing the criminal operation, but also to demonstrate the power of the mafia. To
make the message absolutely clear, Riina rejected the idea of killing 53-year-old Falcone in
Rome - it had to happen in Sicily.
Giovanni Falcone died on 23rd May 1992 on the way from Palermo Airport. A half-tone of
explosives was placed in a culvert under the motorway A 29 between Palermo International
Airport and the city of Palermo, near the town of Capaci. The explosion was so strong that it was
registered by local seismographs. Falcone, his wife Francesca Morvillo and police officers
Antonio Montinaro , Rocco Dicillo, and Vito Schifani were killed in the blast. At the news of
Falcone’s Heath Riina reportedly threw a lavish party. From that moment 23rd May became an
international day of justice.
Judge Giovanni Falcone was aware that he signed his own death warrant and had no doubts
about his fate 39 . However, fear was clearly not reason enough for him to stop the
uncompromising fight against the mafia. Conscious of the forthcoming, brutal death at the hands
38 http://wyborcza.pl/alehistoria/1,121681,12105981,Sedzia_Falcone_musi_zginac.html
G. Falcone, M. Podovani “Cosa nostra. The Judge and men of honour”, Frnacpol Lublin, 1991, p.11 39 G. Falcone, M. Podovani “Cosa nostra. The Judge and men of honour”, Frnacpol Lublin, 1991, p. 5
of Cosa Nostra he often repeated his favourite quotation from Shakespeare – “A coward dies a
thousand times before his death, but the valiant taste of death but once.”
III.2.“It is not appropriate to attempt to protect rights in such way which at the same time
would be in breach of these rights.” Zygmunt Miernik’s trial.
Deciding cases and issuing judgments by courts is the exercise of power and one of the three
most important functions of the state. As such judge’s work is constantly monitored by the media
and the society. Often the cases judges are dealing with evoke strong emotions of citizens. The
consequence of the above phenomenon is the pressure on magistrates to deliver a judgement
expected by society.
In our opinion social pressure on judges comes in various forms, such as presenting by the
audience present in a courtroom photographs of victims, banners of specific content, raising
screams, sometimes even violating the bodily integrity of judges as described below. More and
more often, one can also observe an attempt at influencing the judges through a massive, noisy
media campaign preceding the issuance of a judgment by commenting on the judge’s previous
rulings or private life40.
Under such conditions, issuing a judgment in accordance with one’s own conscience, even if
it contradicts the expectations of society, undoubtedly requires the courage of the judge. In our
opinion, phenomenon described above and skilful opposition to it is best illustrated by the case of
Zygmunt Miernik’s trial conducted in Poland in 2015-2016.
The case concerned the behaviour of Zygmunt Miernik during a sitting of the Provincial
Court in Warsaw considering suspending the trial against General Czesław Kiszczak due to the
defendant’s poor health condition. Czesław Kiszczak, the head of the Ministry of Internal Affairs
from 1981 to 1990, was accused of deliberately bringing a widespread danger to the lives and
health of people by issuing a Citizen’s Militia. This was an order allowing armed pacification of
protests in the “Wujek” and “Manifest Lipcowy” coalmines. It followed on from the introduction
of martial law on 13th December 1981. The order has been executed on December 15th and 16th
and as a result 9 miners died and 23 were injured.
On June 5th, 2013 a Warsaw Provincial Court sitting was held to hear expert psychiatrists
who in an oral opinion stated that Czesław Kiszczak’s health condition prevented him from
participating in the proceedings. When the Judge Anna Wielgolewska announced that the
40 E. Łętowska, “Dekalog dobrego sędziego” in “Sprawny Sąd. Zbiór dobrych praktyk. Część druga”, C.H. Beck, Warszawa, 2008, p. 227
experts’ testimony would take place without publicity, an audience consisting mainly of former
opposition activists, including Zygmunt Miernik, protested at the courtroom, chanting slogans
such as “Shame!”, “On Belarus!”. Therefore Anna Wielgolewska ordered a break in the sitting
and as she walked out of the courtroom, Zygmunt Miernik threw a whipped cream cake at her,
which hit the judge’s head and neck. As a result of aforementioned behaviour, Zygmunt Miernik
was charged with infringement of bodily integrity and insulting a public official in relation with
their duties.
Conducting the trial of Zygmunt Miernik was not an easy task for Judge Joanna Dryll. On
each of the hearings in the courtroom, there was a large group of people in the audience who
shouted disapprovingly for the judge’s decisions. What is more, the trial was recorded and its
fragments published on the Internet with commentaries such as “Communist criminals are
protected by renegades – so called Judges of the Third Commonwealth”.
Eventually, Zygmunt Miernik was sentenced by the court of first instance to non-suspended
term of imprisonment of two months. During the sentencing the audience gathered in the
courtroom began to shout the slogan “On Belarus!”, “We have a Soviet court!”, “Bolshevik
court!” So loudly that it drowned out the judge. Consequently, Judge Joanna Dryll issued a decree
ordering the audience to leave the courtroom. At the end of the oral pronouncement of the verdict,
Zygmunt Miernik requested the name of the judge. He was told that the judge’s name was written
on the door, the defendant shouted to the judge “You are next on the list! Goodbye!” and then left
the courtroom. This behaviour resulted in the Court’s decision to issue the defendant with an
orderly penalty of 14 days of imprisonment for contempt of court.
The verdict of the first instance court was challenged by both the prosecutor and the attorney
for the defence. Appeal proceedings led by the Provincial Court in Warsaw included Provincial
Court Judges: Piotr Kluz, Ewa Leszczyńska-Furtak and Agnieszka Komorowicz were also full of
obstacles. For instance, at the appeal hearing on April 13th, 2016 the audience gathered in the
courtroom were loud and shouting vulgar slogans such as “communist carrion!”, “bandits!”,
“murderers!”. Zygmunt Miernik himself kept hindering the proper conduct of the trial, not
adhering to the instructions of the chair of the presiding judge, filing an unjustified motion to
exclude all judges of the Warsaw Provincial Court from the ruling and shouting vulgar and
aggressive comments at the judges.
On April 20th , 2016, the Provincial Court in Warsaw changed the District Court’s ruling by
increasing the punishment of the defendant from 2 to 10 months of imprisonment. The
justification for the verdict indicated that there was a significant, clear and obvious, and therefore
unacceptable, disproportion between the punishment imposed and the well-deserved punishment.
Judge Piotr Kluz admitted that the court was able to understand the social dissatisfaction resulting
from prolonged trials, but added that using violence is unacceptable, reprehensible, and does not
serve the protection of the law. “It is not appropriate to attempt to protect rights in such way
which at the same time would be in breach of these rights” he emphasized41.
It should be stressed that the change of the verdict delivered by the court of first instance by
the court of appeal due to the leniency of the penalty by its tightening occurs in Poland rarely. For
example, in 2016, only 70 of the 705 appeals lodged by the prosecutor to the Warsaw District
Court were finalized with the imposition of a stricter penalty42.
III.3.“The court concludes that the circumstances brought before it today are such that it
must intervene to fulfil its constitutional role in our tripart government.” The case of
Judge James Robart.
The vast majority of countries adopted in their system the Montesquieu concept of the
tripartite government consisting of the legislature, the executive and the judiciary. Despite the
fact that the foundation of this concept is the independence of each authority from each other, in
reality judges often decide on cases that require a negative assessment of the specific rules of the
parliament and therefore involves considerable media and public interest, and also exposes
judges to at least critical comments from the politicians, including the Ministry of Justice.
We believe that the appropriate exemplification of the courageous judicial service against the
political expectations is the judgment of Judge James Robart temporary restraining President
Donald Trump’s executive order on travel and immigration. On January 27th, 2017 the President
of the United States Donald Trump issued an executive order 13769 Protecting the Nation from
Foreign Terrorist Entry into the United States under which the entry of citizens from seven
countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen was suspended for the period of
90 days. The Executive order was supposed to come into force in March 201743.
However on February 1st, 2017 the State of Washington and the State of Minnesota filed a
complaint seeking declaratory relief invalidating sections of the executive order and an order
enjoining federal defendants (The President of the United States, The United States Department
of Homeland Security, Secretary of DHS, Acting Secretary of States and The United States of
41https://fundacja.lexnostra.pl/wp-content/uploads/2016/08/wyrok-1.pdf,http://www.tvn24.pl/wiadomosci-z-kraju,3/proces-kiszczaka-obrzu
cil-sedzie-tortem-10-miesiecy-wiezienia,637328.html 42 http://bip.warszawa.so.gov.pl/artykuly/488/dane-statystyczne 43 https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states
America) from enforcing those same sections of the Executive Order. The States were seeking a
Temporary Restrain Order against federal defendants, to preserve the status quo before the
court held a hearing on a motion for preliminary injunction.
On February 3rd, 2017 United States District Court Western District of Washington in
Seattle issued a Temporary Restrain Order enjoining and restraining Federal Defendants and all
their respective officers, agents, servants, employees, attorneys and persons acting in concert or
participation with them from enforcing sections: 3 c concerning suspension of Issuance of
Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern; 5a
suspending the U.S. Refugee Admissions Program (USRAP) for 120 days; 5b concerning
prioritizing refugee claims made by individuals on the basis of religious-based persecution; 5e
allowing the Secretaries of State and Homeland Security to jointly determine to admit
individuals to the United States as refugees on a case-by-case basis, at their discretion, but
only so long as they determine that the admission of such individuals as refugees is in the
national interest. The TRO was granted on a nationwide basis44.
Justifying his ruling, Judge James Robart emphasized that although the work of court is not
to establish Policy or rate the validity of any particular Policy created by the other two branches
of federal government the circumstances brought before it in the described case were such that it
had to step in to fulfil its constitutional role in tripart government.
The abovementioned judgment met criticisms expressed by Donald Trump in a Twitter post.
The president wrote “The opinion of this so-called judge, which essentially takes
law-enforcement away from our country, is ridiculous and will be overturned!”.
Contrary to Trump’s expectations, the federal appeals court rejected a request by the Justice
Department to immediately restore President Trump’s executive order45.
III.4.“I am a judge but also a citizen who has freedom of expression and freedom of
ideology”. The case of Judge Santiago Vidal.
A reflection regarding judges’ attitude towards politics requires to stress that judges are also
citizens. They therefore exercise civil rights and obligations as well as those of other professions.
We strongly believe that a brave judge is the one who is not afraid to talk about it loudly. Such as
judge Santiago Vidal.
44 http://www.uscourts.gov/cameras-courts/state-washington-vs-donald-j-trump-et-al,
https://drive.google.com/viewerng/viewer?url=https://assets.documentcloud.org/documents/3446169/Robart-Order-20170203.pdf 45 https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html?_r=0
In February 2015 judge Vidal has been sentenced to a punishment of a 3-year expulsion
from the judicial service without pay for having prepared a constitution draft for a hypothetical
independent Catalonia. Spain’s Judicial Power Council (CGPJ) recognized Santiago Vidal’s
preparation of the constitution of Catalonia, his repeated public statements and participation in
public events to debate about Catalonia’s independence as a “very severe mistake” in “violating
his basic duty to be loyal to the Constitution and the legal framework”. In addition, it must be
pointed out that the punishment imposed on Santiago Vidal is the second most severe after
life-long expulsion46.
In response to the aforementioned opinion Santiago Vidal stated that such a draft was
prepared in his spare time same as his participation in public events to discuss it. What is more, he
emphasized that he is not only a judge but also a citizen who has the right to exercise his freedom
of expression and freedom of ideology. In Judge Vidal’s opinion the activities he was punished
for were an expression of exercising these rights. Moreover in his defence Santiago Vidal
stressed that when performing his professional duties as a judge, he has always followed the
current Spanish Constitution and legal framework47.
Unfortunately Vidal’s argumentation was not taken into account as Catalonia’s Supreme
Court has refused his appeal in order to repeal CGPJ’s decision to expel him from the judiciary
for a three-year period.
***
To sum up: courage indentified with ruling in accordance with one’s own conscience and
beliefs, and resistance to any pressure or expectation, regardless of their source, is a desirable
feature of a good judge. The above-mentioned thesis is confirmed both in most codes of
professional conduct and in the reality of practicing this profession. It also needs to be stressed
that majority of judges finds it one of the most important value. We hope this will continue to
be so in the future as well.
46http://www.catalannewsagency.com/politics/item/judge-who-wrote-draft-of-catalan-constitution-is-expelled-from-judiciary-by-spanish-author
ities 47 http://www.catalannewsagency.com/politics/item/suspension-of-judge-who-wrote-draft-of-catalan-constitution-proceeds
