Ethics Council in 2022. Why the judiciary needs professional ethics

Andra Pärsimägi
Judge, Tartu Circuit Court, member of the Ethics Council

Professional judicial ethics focuses on the behavioural norms of a judge’s occupation, which require a higher sense of responsibility due to the specific requirements of a judge’s role in society. The principles of professional ethics are an outgrowth of good practices in a judge’s work. The principles underlie how judges communicate with each other, he public and participants in proceedings. In their work, a judge deals with conflict situations and makes discretionary decisions on an everyday basis. That need not mean that the judge wakes up in the morning, goes out and is constantly thinking about ethics. Yet if we presume that there is no reason whatsoever to question a judge’s sense of ethics and dignity, ethical matters may seem pointless – and that is certainly not the case. We mustn’t forget that we act in public interests. Optics and appearances are with us every step of the way. A judge and their work is something that all of society scrutinises, including people not trained in the law and unfamiliar with the principles of justice. As a representative of the judicial institution, a judge wields power that they must know how to use. Our job is to abide by various ethics principles in real-life situations.

To quote a young judge: “A judge represents the judicial system. Their conduct, perhaps even in a semi-official situation where it is known that they are a judge but are not acting in an official capacity, shapes the reputation of the judicial system. Reputation is inevitably tied to its strength and the honour and respect that I would expect society should have toward the courts.”[3]

Sources of professional judicial ethics

Ethics, including professional ethics, is one system of norms. The purpose of professional ethics is to raise awareness of how a conflict might arise, confer the ability to recognise a conflict, understand them, avoid them and make the right decisions. The law does not set forth ethics rules, but laws do govern judges’ individual independence and objective impartiality: to wit, Articles 147, 150 and 153 of the Estonian Constitution, and the Courts Act, particularly appointment of judges (Chapter 7), duties of judges (Chapter 9) and disciplinary liability (Chapter 11).

The rules of the office of judge, including ones that should ensure the impartiality of a judge adjudicating a matter, are laid out in the provisions governing adjudication in procedural codes. Subsection 9 (3) of the Code of Criminal Procedure explicitly states that courts must treat parties to proceedings without defaming their honour and disparaging their human dignity. The rules on when judges must recuse themselves are important: sections 23–30 of the Code of Civil Court Procedure, section 13 of the Code of Administrative Court Procedure and sections 49–51 of the Code of Criminal Procedure. In the same sense, distribution of court cases in a random manner (clause 37 (2) 2) and subsection 45¹ (1) of the Courts Act) are germane.

At the international level, the conduct of judges is governed by a document drafted in 2022 and adopted in 2003 by the UN Human Rights Committee and known as the Bangalore Principles[4]. The principles in Bangalore relating to the basic principles of how a judge should conduct themselves fall under six values, which are:  

• independence,
• impartiality,
• integrity,
• propriety,
• equality,
• competence and diligence.[5]

It is considered essential that judges act according to the Bangalore principles; that each judge considered separately and the judiciary as a whole respect the profession in a manner befitting of public trust and make an effort to preserve and further increase trust in the judiciary.[6]

Soon after Estonia regained re-independence in 1991, on 15 March 1994, the country’s Association of Judges adopted rules of conduct for judges, which remained in force until the new Courts Act was passed.  In accordance with the Courts Act that came into force in 2002 (the Estonian judges’ Code of Ethics had to be approved by the court en banc (clause 38 (3) 9) of the Courts Act). The code[7] was approved by the third regular court en banc on 13 February 2004. The Code of Ethics was amended and an Ethics Council was established by decision of the court en banc in 2019.

The Code of Ethics is one important part of the system of managing professional ethics of the judiciary. Ethics management refers to professional activities aimed at promoting and implementing ethics or professional dignity in order to prevent unethical conduct and corruption.

The rules of professional ethics of the judiciary are included in acts established for organising work of the courts, including rules of procedure.

Another source of professional ethics is the Guidelines on Promoting Best Practices in Judicial Proceedings (Estonian title: “Kohtumenetluse parima praktika edendamise suunised”[8]. The guidelines were prepared in conjunction with the judges, prosecutors and advocates of the Harju district and stem from the desire to advance the efficacy of judicial proceedings. The document agrees guidelines for establishing best standards of conduct in adjudicating court matters, mutual interaction and communication with the public.

An appropriate primary source would be to ask the opinion of a more experienced and competent colleague and opinions of the Ethics Council may also be useful .It is always rewarding to read the “450-year-old guidelines for judges” which can be found on the Supreme Court website[9].

Professional ethics and the occupation of judge

In the next ten years, about 10–15 judges per year will be replaced. This is in some sense a window of opportunity that shapes what courts do in their proceedings and how they do it. The renewal of the judiciary has lasted many years and largely the new colleagues determine what the judiciary will be like in the future.[10]

Ethics has a major role in both assessing a judge’s fit for their position and the work itself, including when it comes to promotions.[11]

Among the criteria for selecting judges are openness; respect for the parties to the proceedings; a collegial attitude toward other lawyers, including clerks, prosecutors and attorneys; awareness of their responsibility to society; ability to manage interpersonal relationships, tolerance and ability to be assertive in respect to parties in a trial (ability to respond to their various expressions, including ones that are insulting and/or unexpected).

Evaluation of judges – stems from the importance of the profession and the fact that appointments are lifelong. Constructiveness, personal maturity, conscientiousness are evaluated. It is wise for even veteran judges to take stock of their communication and attitudes, ability to reach consensus and work together, readiness to take responsibility. and to reflect on the fact that society expects them to be transparent and inclusive. They have to remain empathetic, which engenders trust in communication partners.

Professional ethics is also a criterion for promotion of judges. The judge is evaluated for how much importance they place on the reputation and authority of the court, and their understanding of the functioning of the judiciary and their inclusion of colleagues.

Ethics Council

The Ethics Council is an advisory body within the judiciary, which judges can recur to in the event of ethical dilemmas that come up in everyday life and work. It is essential to recognise situations in which corruption is present or a conflict of values and avail oneself of the option of raising an issue with the Ethics Council. The Ethics Council is an advisory body tasked with assisting and advising judges on matters of professional ethics. The Ethics Council responds to every question from judges, ensuring the anonymity of the person contacting them. In addition, the Council can at its own initiative or at the proposal of judges provide general recommendations in the field of ethics. The opinions and recommendations of the Council are not binding.

The members of the Ethics Council include both current and former judges. Starting from June 2022, the members of the Ethics Council are Uno Lõhmus, Kaupo Paal, Meelis Eerik, Krista Kirspuu and Andra Pärsimägi. The council may involve an ethics expert to elicit opinions in resolving a specific case.

To ensure that the Code of Ethics for judges is practically usable and helps make decisions, it must be implemented. Implementation includes introducing the Code of Ethics, training of judges in the field of ethics, interpretation of the principles of the code and giving assessments and applying sanctions in the event of violation of the code’s principles.

Unfortunately, no separate ethics training took place for judges in 2018, 2021 or 2022. 2023.Ethics training is however planned for 2023 and 27 people have expressed interest in participating. The training is a praiseworthy opportunity to influence ethics of conviction, ethics of responsibility and autonomous decision-making, especially now where intensive digitalisation of the legal cycle is taking place.

In connection with online sessions, the question of whether a court hearing is an ordinary work meeting or whether a certain level of proceduralism should be retained is on the agenda. Will adjudication suffer if in-person participants at a hearing saavad osa veebi teel liitunud menetlusosalise parkimiskoha otsingutest? Is there a place at hearings for the special authority of the court, the professional dignity of the judge and ritual elements related to the profession?

Colleagues entering the judicial profession, including former advocates who need business and ownership relationships to be resolved and there is the risk of role conflicts, above all in regard to impartiality (the perception thereof) stemming from their previous position.

The Ethics Council deems it necessary to map the possibilities and risks related to use of social media and to discuss the necessity of restrictions.[12]

The Ethics Council will do its part to raise awareness of the value of a judge’s work, the nature and role of professional ethics of judges in ensuring the reputation and trustworthiness of the court. The Ethics Council deems it necessary to hold discussions on the Code of Ethics and legal acts, including on the mutual relations of anti-corruption legislation and implementation of measures to prevent conflicts of interest in the courts. We welcome joint discussions with professionals who attend court – advocates and prosecutors. A superb example of earlier cooperation is the aforementioned Guidelines for Promoting Best Practices in Judicial Proceedings.

Positions of the Ethics Council in 2022–2023

The following is a brief overview of the issues that cane up before the Ethics Council in 2022 and the positions of the council. Only the position of the council was submitted, and readers can read the reasoning on the Supreme Court website[13].

• Must a judge who has previously worked as sworn advocate recuse themselves in a matter where a party in a proceeding is represented by the judge’s former colleague from a law office and a given matter started at a time when the judge was still working there?

This question ties in principally with the category of whether something that has the appearance of something is actually that thing. The Ethics Council ruled that recusal is not necessary in the situation described in the question.

• Does a judge have to recuse themselves if the spouse of a party to the proceedings previously worked under the judge, although the families never socialised?

The Ethics Council said that the reservations in regard to impartiality of the judge are not justified in this case. A co-worker relationship with anyone is not necessarily a close relationship for the purposes of point 25 of the Code of Ethics of judges.

• Can a judge adjudicating criminal matters prepare a legal analysis for the Tax and Customs Board, either for a consideration or not, in a matter pertaining to criminal proceedings?

The Ethics Council recommended refraining from such activities. Giving a specific person legal advice on a specific matter is similar to the work done by an attorney and may pose difficulties for a judge later in adjudicating a matter. Pursuant to point 20 of the Code, a judge shall avoid conflicts of interest. If opinions are ventured as part of academics or research, it is allowable based on subsection 49 (1) of the Courts Act.

• May a judge belong to the Defence League as an active-duty or supporting member? If yes, what activities are they allowed to take part in (sport, armed exercises, theoretical academics etc.)? Can they join both an ordinary defence district (malev) or the cyber defence unit?

The Ethics Council ruled that it is not prohibited for a judge to be a Defence League member and there are no restrictions on their area of activity in the Defence League.

• Can a judge express their attitude toward the Russian invasion of Ukraine, and if so, in what manner?

A judge’s impartiality does not mean it cannot hold positions about current events.    The Ethics Council believes that it would not contradict point 7 of the Code of Ethics – under which judges must refrain from statements expressing political support – for a judge to express an opinion about the invasion..

• How should the term “töötamine” (working) in subsection 49 (1) of the Courts Act be interpreted?

The Ethics Council noted that the official interpretation of the provision of this law is not in the purview of the Ethics Council but of parliament and the courts. Subsections 49 (1) and 76 (6) of the Courts Act allow judges, in addition to teaching and research, to fulfil duties of employment at an international institution or to participate as an expert in an international cooperation programme or other international cooperation format.

• Can a judge serve as member of an apartment association’s board[14]?

The Ethics Council holds that a judge may take part in the activities of an apartment association and serve on its management body if the judge themselves own or rent an apartment administered by the association. A judge must avoid a conflict of interest and not be exploited at cross purposes to the interests of adjudication (point 5 of the Code of Ethics).

• Can a judge receive remuneration as a member of the board of an apartment association?

The participation of a judge in the activities of a non-profit, including the board of an apartment association, presumes that they are not paid for it.

• Can a judge represent a non-profit in court?

The Code of Ethics does not provide clarification on the activities of a judge when it comes to provision of legal assistance. Under the Bangalore Principles, which forbid a judge from providing legal advice in a non-profit, the judge may not represent the organisation in a court either, since this, too, is intrinsically legal assistance. Such activity would go against the principle of propriety and create the risk of a conflict of interest.

• Can a judge be a partner in a limited company engaged in leasing activity? 

Under point 5 of the Code of Ethics, a judge may take part in activity aimed at earning income, considering standards of good conduct and honest business activity. A judge has the same kinds of rights in business activity as an ordinary citizen does. They may be engaged in investing and acquire real estate. According to clause 49 (2) 3) of the Courts Act, a judge may not be a founder of a company, a shareholder or partner in an executive capacity, a member of a management board or supervisory board or the director of a branch of a foreign company. Besides these restrictions, there is a prohibition on being engaged in providing legal advice to companies (point 169 of the comments to Bangalore). If a judge learns that a company is not following honest business practices, the judge must cease its involvement in the company in order to ensure compliance with the principle of honesty.

• Can a judge provide advice to the member of a management board of a private limited company? Can this be done for a fee?

A judge may not serve as the legal adviser to a non-profit. A judge may also not be engaged in legal consultation to a company, its management board or a member thereof. Providing free advice as a friend is not prohibited.

In closing

Professional ethics is not maintained by the Code of Ethics or Ethics Council but by every judge. It is an ongoing personal process as well, but spending time with the Code of Ethics alone does not yield the most results. It is more beneficial to discuss best practices with colleagues in order to craft suitable behavioural models centred on conscientious caring for the reputation of the judiciary and parties to proceedings. The goal is professionalism that ensures that adjudication is high in quality and parties to proceedings get a positive judicial experience and the judge, too, is satisfied.

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[1]J. Tontti. Olaus Petri and the Rules for Judges. Associations – Journal for Social and Legal Theory Vol. 4., 2000, No.1, p. 113–128. Cited on the Supreme court website as “450 aasta vanused juhtnöörid kohtunikele “tavainimese hüvang on ülim seadus”“ (450-year-old guidelines for judges ‘the good of the common man is the supreme law’”. – https://www.riigikohus.ee/sites/default/files/elfinder/%C3%B5igusalased%20materjalid/450_aasta_vanused_juhtnoorid_kohtunikele.pdf (23.01.2023).

[2]T. Aavik, K. Keerus et al. Eetikakoodeksite käsiraamat. (Manual of codes of ethics) Tallinn: Open Estonia Foundation 2007. – https://oef.org.ee/fileadmin/media/valjaanded/v2ljaanded/eetikakoodeksid2007.pdf (23.01.2023).

[3]H. Sepp. Vestlusi noorkohtunikega. Mõned sissevaated uueneva kohtunikonna mõttemaailma. (Conversations with young judges. Some insight into how the bench thinks. Yearbook of the Courts 2021. – https://aastaraamat.riigikohus.ee/vestlusi-noorkohtunikega-moned-sissevaated-uueneva-kohtunikonna-mottemaailma/(23.01.2023).

[4]The Bangalore principles of judicial conduct, 2002.
– https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf (23.01.2023).

[5]Commentary on the Bangalore principles of judicial conduct. United Nations Office on Drug and Crime, 2007. –http://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf(23.01.2023).

[6]Same, p. 18, para 13.

[7]Estonian judges’ Code of Ethics. Adopted on 13 February 2004 at the third regular court en banc. Amended on 8 February 2019 at the 18^th regular court en banc. – https://www.riigikohus.ee/et/kohtunikuamet/kohtunike-eetikakoodeks (23.01.2023).

[8]This is material of an advisory nature that all judges can use. – https://www.kohus.ee/sites/default/files/dokumendid/Parima_praktika_edendamine.pdf (23.01.2023).

[9]J. Tontti. Olaus Petri and the Rules for Judges. Associations – Journal for Social and Legal Theory Vol. 4., 2000, No.1, p. 113–128. Cited on the Supreme court website as “450 aasta vanused juhtnöörid kohtunikele “tavainimese hüvang on ülim seadus”“ (450-year-old guidelines for judges ‘the good of the common man is the supreme law’”. – https://www.riigikohus.ee/sites/default/files/elfinder/%C3%B5igusalased%20materjalid/450_aasta_vanused_juhtnoorid_kohtunikele.pdf (23.01.2023).

[10]H. Sepp. Vestlusi noorkohtunikega. Mõned sissevaated uueneva kohtunikonna mõttemaailma. (Conversations with young judges. Some insight into how the bench thinks. Yearbook of the Courts 2021. – https://aastaraamat.riigikohus.ee/vestlusi-noorkohtunikega-moned-sissevaated-uueneva-kohtunikonna-mottemaailma/ (23.01.2023).

[11]In 2023, the Supreme Court is participating in the project “Competence and career model of judges”. See also “The portrait of a judge”. – https://judgeportrait.eu/ (23.01.2023).

[12]In its most recent opinion, no. 25 (2022), the Consultative Council of European Judges (CCJE) recommended developing rules on freedom of speech for judges in each member state, to raise awareness of the risks related to use of social media. – https://rm.coe.int/opinion-no-25-2022-final/1680a973ef%0A%0A (23.01.2023).

[13]The Ethics Council’s opinions and procedure for recurring to the council have been published on the Supreme Court website: https://www.riigikohus.ee/et/kohtunike-omavalitsuskogud/kohtunike-eetikanoukogu.

[14]In responding to the following questions, the Ethics Council proceeded from the Courts Act, the judges’ code of ethics and the comments to the Bangalore Principles for Judicial Conduct.