Independence, accountability, impartiality, freedom of expression

Judicial Self-Government; Freedom of Expression and Association; Disciplinary proceedings; Judicial Ethics

Komisija za etiko in integriteto Sodnega sveta Republike Slovenije

Ethics and Integrity Commission of the Judicial Council of the Republic of Slovenia

Su Ek 7/2023-10

16 January 2024

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Retired judge-legal opinion in a pending criminal case-unethical behavior- retired judges bound by the Code of Ethics-judicial service-active judges.

The case raises the following legal issues:
Are retired judges bound by the Code of Judicial Ethics?
Did the retired judge violate the Code of Ethics by writing a legal opinion in support of the defendant in a criminal procedure?
What is the consequence of the fact that compliance with judicial ethics is a legal obligation, prescribed by an act of parliament?

NO

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Zakon o sodniški službi (ZSS) [Judicial Service Act] Articles 38, 42, 72 (2).

Zakon o sodnem svetu [Judicial Council Act], Article 53.

Kodeks sodniške etike [Code of Judicial Ethics]; accessible through the following link: http://www.sodni-svet.si/images/stories/Kodeks_sodniske_etike_komentar_sept_2017.pdf  [last accessed: 8 May 2024]

Constitutional Court’s Decision U-I-159/19-20 of 23 February 2023 – English version available at: https://www.us-rs.si/decision/?lang=en&q=U-I-159%2F19-20+&caseId=&df=&dt=&af=&at=&pri=1&vd=&vo=&vv=&vs=&ui=&va=&page=1&sort=&order=&id=119990 [last accessed: 8 May 2024]

A retired judge wrote a legal opinion in support of the defendant in a pending criminal procedure. The Supreme State Prosecutors’ office requested the Ethical Commission of the Judicial Council of the Republic of Slovenia (the Ethical Commission) to assess whether such behaviour is compatible with the Code of Judicial Ethics. The Ethical Commission first had to answer a preliminary question, namely, whether retired judges are bound by the Code of Ethics or not.

The Ethical Commission relied on the Constitutional Court’s Decision U-I-159/19-20 of 23 February 2023. In this decision, the Constitutional Court (the CC) found that Article 74 (2) of the Judicial Service Act (the JSA) was contrary to the Constitution since it distinguished between judicial service and judicial function. On that basis, judges retained the judicial function even when they retired. However, the CC found that such a provision runs counter to Article 129 of the Constitution, which provides: “The function of a judge is permanent. The age requirement and other conditions for election are determined by law. The retirement age of judges is determined by law.” The Constitutional Court ruled that this provision requires that the statute sets the retirement age for judges upon which their judicial service and function expires.

As a result of such a ruling of the CC, the answer to the above-raised question was straightforward: retired judges are not bound by the Code of Ethics, since judicial ethics is intrinsically linked with the profession of a judge. When a person ceases to be a judge due to retirement, he or she is no longer bound by the Code of Judicial Ethics. This follows also from Article 53 of the Judicial Council Act, which provides that judges are required to comply with judicial ethics, without mentioning retired judges. The Ethical Commission concluded that under the said provision, the Ethical Commission is not competent to review complaints about the unethical behaviour of retired judges when the alleged breach of judicial ethics occurred after their retirement.

Judge Strajnar gave a concurring opinion. He criticised the current Slovenian regulation of judicial ethics. He argued that Article 53 of the Judicial Council Act, which makes compliance with judicial ethics a legal obligation, has taken away the ethical rules and their essential characteristic – their autonomous nature. He seems to have implicitly added that the provision also transformed the nature of ethical rules from “directive and recommendatory” (sl. usmerjevalna in priporočilna) to “prescriptive and obligatory” (sl. zapovedna in dolžnostna). He exposed the problem that such an approach caused in the case at hand: if the ethical rules remained only of a recommendatory nature, and not ethical principles, turned into legally binding professional obligations by the Judicial Council Act, there would be no reason, why retired judges would not be bound by the code of ethics. But as the contrary is true, retired judges are not bound by judicial ethics. He recognised that this is a disturbing situation since the idea of judicial ethics is to build public trust in the judiciary. A retired judge who behaves unethically can well damage the trust in the judiciary. After all, retired judges’ rulings are still valid and create legal consequences. Judges are for example, also required to comply with the secrecy obligation under Article 38 of the Judicial Service Act. Such an obligation, even if it is not legally binding on retired judges, clearly applies to them as an ethical rule, as the judge, whose behaviour was under scrutiny in this case, himself recognised.

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Consistent interpretation

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The Ethics and Integrity Commission interpreted Article 53 of the Judicial Council Act and Article 74 (2) of the Judicial Service Act in the light of Article 129 of the Constitution, as interpreted in the recent case of the Constitutional Court.

To increase the legitimacy of the decision of the ethical commission.

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Mohor Fajdiga, University of Ljubljana