COMPARATIVE EU LAW STUDY ON

COURTS INSPECTION SERVICE AND

DISCIPLINARY LIABILITY
SUMMARY
I.
II.

INTRODUCTION
DATA ANALYSIS
1) INSPECTION SERVICE
a. Competent body for Court inspections
b. Organic position of the Inspection Service within the legal
system
c. The appointment of inspectors
d. Organization of the Inspection Service
2) DISCIPLINARY LIABILITY
a. Entitlement to the exercise of disciplinary actions
b. Powers to impose sanctions
c. Classification of disciplinary offences
d. Criteria for determining the severity of a sanction
e. Treatment of complaints without merit
f. Handling of complaints regarding the contents of judicial
decisions
g. Breaches of standards of conduct
h. Disciplinary sanctions record
3) THE PRINCIPLE OF INDEPENDENCE: AN INTERNAL PERSPECTIVE
III.
CONCLUSIONS

I.

INTRODUCTION
a.
Definition of the project and its
objectives

According to the objectives of the Twinning Light Project: RO-2007IB-JH-24-TWL, Fostering the efficiency of the Romanian Judicial
Inspection, the analysis of the legal and procedural framework of
the organization and functioning of the Romanian judicial inspection
service will include aspects of Comparative Law.
The following points are to be taken into account:
i.
ii.

Procedures for the recruitment of judicial inspectors.

Functioning of the inspection service (organization, methods,
main objectives and limits of the inspection activity).
Methodology used by the inspection service in order to carry
out its inquiries.
The system or disciplinary sanctions catalogue, as well as the
applicable sanctions system.

iii.
iv.

This study will therefore analyze how the EU countries deal with
the inspection of Courts and the disciplinary proceedings in
relation to the main European standards in this matter. The
main goal is to try to highlight the common points and underline
the differences taking into account how these countries respect
the principle of Judicial Independence.

b.

Sources of information

The data and information that allowed us to elaborate the present

study have been taken from the following sources:

Questionnaires delivered among European countries and filled

in by Judges or Prosecutors from: Belgium, Bulgaria, the Czech
Republic, Denmark, England and Wales, France, Germany,
Hungary, Italy, Latvia, Malta, Poland, Portugal, Slovenia and
Spain.
2

II.

Working papers and conclusions from the Meeting of the

Inspection Services of the European Union organized in Madrid
on 5-6 of June 2008 by the Spanish General Council of the
Judiciary.
Results achieved in the framework of the PHARE TWINNING
PROJECT BG-04-IB-JH-04: Improvement of the Magistrates
Legal Status and Strengthening the Capacity of the Supreme
Judicial Council, implemented in Bulgaria from 2005 to 2007.
Reports and conclusions drawn up in the framework of the
TWINNING PROJECT BG/2007/IB/JH/07 Strengthening the Public
Management of the Judiciary and Court Administration
implemented in Bulgaria from 2009 to 2010.
Reports and conclusions on the Principles of Independence of
the International Association of Judges. Justice in the World
Judicial Magazine.
Opinions issued by the Consultative Council of European Judges
(CCEJ) to the attention of the Committee of Ministers of the
Council of Europe, especially regarding Opinions 1, 3 and 10.
United Nations "Basic Principles on the Independence of the
Judiciary" (1985);
Recommendation No. R (94) 12 of the Committee of Ministers of
the Council of Europe on the Independence, Efficiency and Role
of Judges;
European Charter on the Statute for Judges (1998)
Results of the International Conference on Judicial Inspection
as Guarantor of the Independence of the Judiciary, held in
Bucharest on the 10th and 11th of May 2010.
Les yeux bandsLe visage voil. Rflexions sur lInstitution
dun Conseil de la Justice. Groupement des Magistrats
Luxembourgeois, Luxembourg 2010 .

DATA ANALYSIS
1)

INSPECTION SERVICE

a.Competent Body for Court Inspections

A first approach to the topic of this study recommends making a clear
distinction between those countries where there is no Court
Inspection Service in place and those that have developed
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mechanisms for carrying out Court Inspections. This study will

therefore focus on the latter and on the differences between both
cases.

Countries that do not have an Inspection Service in place: the

Czech Republic, England and Wales, Hungary, Latvia, Malta and
Denmark. However, this does not mean that they lack control or
supervision. In some of these countries, such as Denmark, the
courts are entitled to examine how they are managed and, as
for administrative matters, they are in the same position as any
other administrative body. All courts are ruled by the Court
Administration, which is an independent body, separated from
the Ministry of Justice, with its own Chief Executive Officers and
Board, the majority of which are judges. The Chairman of the
Board is a Supreme Court judge. In England and Wales, likewise,
the only inspection systems are linked to the Courts (where civil
servants are appointed to the provincial Courts), and not to the
judiciary body as such.
EU countries that have Court Inspection services are: Germany,
Slovenia, Italy, France, Belgium, Portugal, Bulgaria and Spain.

b.Organic position of the Inspection

Service within the legal system
Those countries whose legal systems foresee Court Inspections can
be classified into three different groups, depending on the authority to
which the inspection body is due to report.

Countries where the process is conducted by the Minister of

Justice.
Countries where there is a Council for the Judiciary in charge of
Court Inspections.
Countries where there is a mixed system.

1. Inspection Services reporting to the Minister of Justice

France, Germany and Italy are within this group. The importance and
specific weight of these countries within the EU judiciary system is
unquestionable.

As for France, the L'inspection gnrale des services judiciaires

(General Inspectorate for Judicial Systems, IGSJ) exercises a
permanent mission on the Courts Inspection. This mission
corresponds to the Inspector General, a Senior Judge attached
to the Minister of Justice, assisted by other Inspectors General.
In the case of Germany, each Court has established its own
Inspection Service where the Chief Inspector is always the
President of the Court. In each Lnder there are three different
Court levels. The President of the High Court is in charge of
inspecting the Lower Courts. There is an exception regarding
High Courts at the lowest level (such as Hamburg or Berlin), for
which inspections are dealt with by the President of the Superior
Court. The Minister of Justice, whether at Federal or Lnder
level, has full competence, depending on the nature of the
court.
In Italy, there is a Central Inspection Office which reports to the
Ministry of Justice.

2. Inspection Services reporting to the Council for the Judiciary

The following countries belong to this group: Belgium, Bulgaria,
Portugal and Spain.

Belgium: a preliminary remark must be made, namely, that

from a disciplinary point of view there is no specific body
competent for inspecting courts. However, the High Council of
Justice, composed of Judges and court members, plays an
important role in Belgian institutions, as it is charge of
organizing the selection of judges, exercising external control
over the operations of the judicial system, and making
recommendations and delivering opinions. Its recommendations
are independent from any disciplinary proceedings undertaken
against judges. Usually, the recommendations of the High
Council of Justice are addressed to the Minister of Justice to
improve the service of Justice in the inspected Court. A
permanent staff, all of them civil servants, is hired by The High
Council of Justice.
Bulgaria: the Bulgarian Inspection Service is foreseen in the
Constitution. Under article 132a (1) Bulgarian Constitution
(BGC), an inspection shall be established to the Supreme
Judicial Council, which shall be composed of a Chief Inspector
and ten Inspectors. The peculiarity of the system is that it is the
5

National Assembly that is in charge of making the

appointments, whereas it is the Inspection Service that
functionally reports to the Supreme Judicial Council, as will be
explained later.
Portugal: In Portugal the Magistrates inspections are carried
out solely and exclusively under the aegis of the Superior
Council of the Magistracy, which is the management and
disciplinary body regulating the Judges.
Spain: the Inspection Service is embodied within the structure
of the General Council for the Judiciary.

3. Mixed system
This group is represented by Slovenia. Under the Slovenian legal
system, the inspection of courts covers both courts administration
matters and the disciplinary liability of Judges.
With regard to the inspection of courts administrative matters (which
consists in the monitoring, organization and analysis of the Judges
performance, and in providing and regulating the conditions for the
exercise of the judicial authority, the timeliness of the procedural acts
and judicial decision-making in accordance to the Law, as well as the
Court Rules and other regulations), the Inspection is made both by the
Courts and the Minister of Justice. The performance of these matters
in Courts of First Instance is monitored by the President of the High
Court, whereas in Courts of all instances, it is carried out by the
President of the Supreme Court of the Republic of Slovenia. The
President of the Supreme Court of the Republic of Slovenia has the
obligation to report to the Minister of Justice over the Courts work. For
example, the Minister of Justice may exercise supervision by requiring
the submission of any data regarding the operations of the Court and
the decisions and work of the Courts President, or the submission of
written explanations and reports on the organization and supervision
of the Courts work or the implementation of particular tasks of the
Court administration. However, it is important to bear in mind that
Judges benefit from an independent status that give them full
competence and rights in the exercise of their tasks, which impedes
the Minister of Justice to interfere in their judicial decisions and
responsibilities.
With regard to the inspection of the disciplinary liability of Judges, the
only competent bodies are the disciplinary bodies that are appointed
and dismissed by the Court itself.

c. The appointment of Inspectors

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1. The Inspectors professional profile

Four groups can be established depending on the inspectors
professional profile:

Countries where only Magistrates are allowed to inspect Courts:

Belgium, France (with nuances as the changing nature of the
tasks entrusted to the Inspector General, in particular increased
interdepartmental thematic missions and his or her
participation in major projects aiming at the Judicial
modernization, led the department to diversify the profile of the
recruits, and the appointment of a Tax Inspector in the IGSJ),
Germany and Italy.
Countries where only jurists directly linked to the management
of Courts can perform inspection tasks: Portugal and Spain,
where these positions are occupied by Judges and Court Clerks.
Countries where inspection is bestowed to professions not
linked to the judiciary Administration: Bulgaria. In this country,
under article 142 (1) of the Judicial System Act (JSA), lawyers
with high-standards of professionalism and ethics are elected to
the positions of Inspector General and of Inspectors. Article 142
(4) of the JSA foresees that, under the Constitution, five out of
the ten foreseen positions are to be covered by Magistrates.
Special mention is to be made of the Slovenian case. Indeed,
given that in Slovenia there are two competent bodies for Court
inspections, a distinction needs to be made between
recruitment within the Judicial Body and within the Executive.
Judicial body.- Disciplinary Courts are appointed and dismissed
by the Plenary Session of the Supreme Court at the proposal of
the Judicial Council. The Slovenian legal system regulates two
different recruitment procedures: one for the Disciplinary Court
of First instance and another one for the Disciplinary Court of
Second Instance. The Disciplinary Court of First Instance
consists of eight Judges (two Judges of the Supreme Court, two
High Court Judges, two District Judges and two County Judges).
One of the Supreme Court judges shall be the President of the
Disciplinary Court of First Instance, and the other one shall be
the Deputy thereto. The Disciplinary Court of Second Instance
consists of five Judges of the Supreme Court.
Minister of Justice.- This is a political institution. The supervision
over the work of the Courts forms part of the Ministrys tasks
7

and competences. In this regard, the procedure for recruiting

the inspectors is irrelevant. For the Minister of Justice there are
no professional background requirements, but they are usually
graduated lawyers.

2. Procedures for inspectors appointment

There are great differences at this level:

Countries with a high degree of discretionary power for

appointment

France. The Inspector General is appointed by Decree of the

President of the Republic, without prior referral of the SCM. In
contrast, the Presidential Decree appointing Assistant General
Inspectors and the Inspectors consists of a mere opinion of the latter.
The selection process is conducted by the SCM, and the prosecutors
are required to have a minimum experience of 10 years. The
procedure is quite simple: an application form is submitted to the
Inspector General who can summon the applicant for an interview and
decide whether he or she fulfils the requirements for the position or
not.
Italy. The Minister of Justice is totally free to appoint or dismiss
inspectors.

Countries with a low degree of discretionary power for

appointment

Belgium. The members of the National Council of Discipline are

elected by their colleagues. They have to be Magistrates with at least
ten years of experience.

Countries with medium degree of discretionary power for

appointment

Bulgaria. BGC establishes that the Chief Inspector and the

Inspectors shall be elected by the National Assembly by a majority of
two-thirds of the Members.
Under articles 44, 45 and 4 of the JSA nominations for the positions of
Inspector General and Inspectors are submitted to the National
Assembly no earlier than three months and no later than two months
8

after the expiry of the term of office of the Inspector General and the
Inspectors. Nominations for the positions of the Inspector General
and Inspectors are examined by a specialized Standing Commission
of the National Assembly. The specialized Standing Commission
conducts a hearing of the nominated candidates meeting the
requirements of the Law and submits to the National Assembly a
report summarizing the outcomes thereof. The National Assembly
separately elects the Inspector General and the Inspectors by a
majority of two-thirds of its members.
It must be stressed that according to article 42 of the JSA, the
requirements for all inspectors (10) are to have at least 12 years of
practice in the sphere of Law. As for 5 of them there are special
requirements for 5 years practice as a Judge, Prosecutor or
Investigator at district level.
The Ministry of Justice has prepared an amendment of the JSA
regarding these requirements in order to increase the period of
required experience for Judges or Prosecutors for all ten Inspectors.
Portugal. Inspectors have to be Judges or Judicial Clerks and must
have broad experience Appellate Court level as a rule and very
good assessment. The recruitment procedure is made on professional
background and experience grounds.
Spain. Like in Portugal, Inspectors are selected among Judicial Clerks
and Judges with seniority. A CV is submitted to the General Council
for the Judiciary along with an application form and, later, an
interview is held with each candidate, whereby the Council gives a
reasoned decision.

d.Organization of the Inspection Service

1.- Goals of the Inspection Service
Bulgaria
According the JSA, the Inspection shall:
1. Check the organisation of Administrative Business in Courts,
Prosecution Offices and Investigation Bodies,
2. Check the arrangements made for the institution and courts
progress, prosecution and investigation case files, as well as the
disposal thereof within the established time limits,
9

3. Analyse and summarise the cases that have been disposed of by

virtue of an effective judicial Act, as well as the files and cases
assigned to the Prosecutors and Investigating Magistrates,
4. In the presence of contradictory jurisprudence, the existence of
which has been found in the course of business under paragraph 3, it
shall alert the competent bodies of the need to request interpretative
judgements or interpretative decrees,
5. In presence of violations in the discharge of business under items 1
- 3, it shall alert the administrative Head of the Body concerned and
the Supreme Judicial Council,
6. Make proposals for the imposition of disciplinary sanctions on
Judges, Prosecutors and Investigating Magistrates and on the
administrative heads of Judicial System Bodies,
7. File tip-offs, proposals and reports with other State Bodies,
including the competent judicial system bodies,
8. Prepare and submit to the Supreme Judicial Council an annual
programme and a report on its business,
9. Discuss the draft budget for the Judiciary proposed by the Minister
of Justice with regard to the budgetary account of the Inspectorate
and submit it to the Supreme Judicial Council,
10. Provide on an annual basis public information and reports about
its business and publish them on the Website of the Supreme Judicial
Council.
France
THE IGSJ has three main functions:
Evaluation of the functioning of the Courts and services
Thematic Missions on public policy or other topics
Administrative investigation missions on the individual
behaviour of the staff
Italy
The General Inspection (GI) is a Department of the Ministry of Justice
in charge to carry out systematic monitoring of the regularity of the
performance and efficiency of the judicial offices, as well as to check
or verify the staffs (officials and Judges) behaviour.

Portugal
Inspections of Courts are held for the purpose of achieving the
perfect knowledge of the situation, needs and deficiencies in the
services provided by the Courts in order to take the necessary
10

measures or to propose to the Minister of Justice actions within the

executive province.
The Portuguese system of inspections, with a view to assess the
merits of Judges, is governed under the following basic principle: "The
inspection services cannot interfere with the independence of Judges,
particularly in statements referring to the substance and content of
judgments, but should investigate the need to implement measures
that lead to improved services and provide Judges with all the
elements for self-awareness, as well as to the correctness of the
procedures aiming to get more improved and evener judicial services
by showing more accurate procedural and administrative practices,
advisable to obtain a faster administration of justice.
Spain
The Inspection Service:

Complies information on the current situation of the Courts.

Supports and helps improve the management of Courts and
Tribunals.
Monitors the activities of Courts and Tribunals.

An inspection will examine whatever may be necessary for appraising

how the Court is run and the extent to which judicial staff comply with
their duties, considering in particular the need for a quick and
efficient handling and treatment of the different issues.
No interpretation or application of Acts undertaken by Judges or
Courts, when administering justice, may be subject to any approval,
criticism or correction, during or as a result of the inspection
activities.

2.- Coordination.
Bulgaria
Under article 54 (2) of the JSA, the Inspectorate shall adopt
resolutions by a majority of more than half of its members. On the
other hand, under article 56 (3), the Inspector General shall fix by
order the procedure of inspection.

11

There is no contradiction between article 54 (2) and article 56 (3) of

the JSA. The second article refers only to procedure. The Inspector
General has an obligation to issue the order for inspections. Most of
the inspections (planned or thematic) are in the Annual programme
[article 54 (2).8]. All inspectors approve this Programme every year
by majority votes. The Inspectorate (all the inspectors) can only take
a decision by majority. These decisions are the final and approved
ones. In practice, there are some cases in which a negative vote
against proposals for disciplinary sanctions are to be taken into
account and, thus, the Inspector General has the obligation to
consider these decisions.
It seems that the Ministry of Justice has prepared an amendment on
the JSA regarding article 54 (2). It does not constitute the last
decision, of course, but the idea is to ignore this article. In this case
the last word will be given to the Inspector General. The philosophy of
the establishment of this Body will be changed substantially.
France
The Assistant General Inspectors and the Inspectors support the
Inspector General in the exercise of his or her missions, and are
placed under his or her hierarchical and functional authority, even if
the Assistant General Inspectors, who are the direct Deputies of the
Inspector General, benefit from a broad designation of jurisdiction.
If, in accordance with these principles, the reports of the IGSJ are
signed by the Inspector General, they however include the work of all
the members of the inspection. In other words, the Inspectors reports
are directly passed on to the Inspector General to the Minister of
Justice.
Italy
The GI is composed of 21 judge inspectors (President, Vice and 19
judges with a rank not lower than Appeal court judge), 36 inspectors
"leaders" and 56 Inspectors "officials."
Portugal
In order to facilitate the coordination between the Inspection Service
and its staff of Inspectors by the President of the CSM and other
competent bodies, an Inspector (Judge) is appointed coordinator
inspector among the judicial inspectors every three years.
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Spain
The Inspection Service is conducted by a Head of Service and the
service headquarters is formed by Inspection Units and Specialized
Sections.
Inspection Units- There are 14 Units organized according to
each branch of Law. Each unit is formed, as a general rule, by a
Judge Inspector and a Clerk Inspector.
Specialized Sections- There are two sections: Reports and
Organization and Management.
o The Reports Unit deals with receiving and processing
reports, complaints and claims against the running of the
Justice Administration, in general, and the actions of
Judges, in particular. Such complaints, reports and claims
will be processed as Preliminary Information, and will be
subject to a Proposal Report by the Head of the Inspection
Service and submitted to the Disciplinary Committee of
the General Council for the Judiciary (GCJ), which may
decide to reject the complaint or proceed to a
Supplementary Investigation or Disciplinary Actions.
o The Organization and Management Section carries out
tasks assigned by the Head of the Service and, in
particular, those given to the Inspection Service that
involve assessing the jurisdictional performances of
Judges and Magistrates.
It is to the Head of Service to develop coordination tasks.

3.- Types of inspections:

Bulgaria
The Inspection shall act through ordinary inspections or following tipoffs.
France
There are two types of inspections:

Ordinary ones, which are previously planned by the General

Inspector and examine both the Court and the staff Office.
Extraordinary ones, i.e. they are produced after a relevant
action has occurred in a Court.
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Italy
The activities of the GI may be ordinary or extraordinary. Ordinary
activities are regularly scheduled every three years. Such activities
are assigned to a team of inspectors led by a Judge and composed of
a variable number of leader Inspectors and Officials, according to
the volume and importance of the office under control.
Special activities may include an inspection ordered by the President
of the GI before the end of the three-year period. They aim to assess
all the activities of the Body or to check a particular sector of the
court activities.
In both cases, the special inspection can be set in motion for various
reasons: on the offices own motion, at the request of the Courts in
charge of controlling lower level Courts --such as the President of the
Court of Appeal or the Attorney General--, or at the request of citizens
who have raised a complaint.
A special inspection may consist of an "administrative inquiry"
ordered by the Minister, and may be useful for the Supreme Judicial
Council, its goal being the disciplinary control of employees or Judges
Portugal
The inspections, depending on their purpose, may be on Courts or on
Judges. Depending on their purpose, and in accordance with the
amendment on the Regulation of the Judicial Inspection (3180/2008),
the inspection on courts will be a summary visit, while the inspection
on Judges can be ordinary or extraordinary.

The summary visit on Courts aims to collect and transmit

complete information to the CSM on how the inspected Courts
worked during the period covered by the inspection, particularly
regarding the completion of timetables, levels of organization
and efficiency, procedural motion, real backlog and workload
distribution, pointing out the deficiencies and weaknesses and
proposals for measures aimed at improving the Courts
functioning;
The ordinary inspection on Judges aims to inform about how
judicial duties are fulfilled and the merits of the Judges. As a
result, a proposal is submitted to the CSM for appropriate
classification.
Extraordinary inspections on Judges may be set in motion ex
officio by the CSM when the Judges work has been classified as
14

Good and two years after the last classification, or at the own
Judge's request, once three years have elapsed since the last
ordinary inspection was done.
Spain
Types of visits
Ordinary Inspection Visits
Appraisal Visits
Extraordinary Visits

4. Frequency of inspections:
Bulgaria
Ordinary inspections
Programme.

are

envisaged

in

the

Annual

Inspection

France
There is no periodicity.
Italy
Each Court is inspected every three years according to an Annual
Work Programme approved by the President of the GI.
Portugal
The inspections, either on Courts or on Judges, are to be held every
four years as a rule.
As an exception, an inspection on a Judge can be done after
completion of a year in office.
Spain
Inspections are scheduled on a quarterly-basis. Each unit must submit
to the Head of the Inspection a proposal for the inspections to be
quarterly carried out, and must be approved by the Plenary Session of
the GCJ. To this end, the proposal has to be submitted one or two
months before the corresponding quarter period starts, depending on
the cases.

5. Inspection procedure:
Bulgaria
15

Inspections are carried out by the Inspector General or by an

inspector assisted by experts. The Inspector General fixes by order
the procedure of inspection.
Inspections foreseen in the Annual Programme are carried out by
teams designated by a draw of lots that include an inspecting officer,
as well as the experts that will assist him or her or her. The draw of
lots is carried out by the Inspector General in presence of all
inspectors, immediately after the Annual Programme has been
elaborated.
For the inspections triggered by tip-offs, the inspecting Officer and
two experts are designated on the basis of AN electronic distribution
pursuant to the random selection principle in the order of receipt of
such tip-offs.
Inspections are assigned at the order of the Inspector General. That
order sets out:
1. The judicial system body, the Judge, Prosecutor or investigating
Magistrate to be inspected, the objectives and the time set for the
completion of the inspection,
2. The name of the inspecting Officer,
3. The names of the experts who will assist him or her,
4. The time set for drafting the Act that lays out the outcomes of the
inspection.
The Act laying out the outcomes of the inspection contains the
findings from the inspection and, where necessary, recommendations
and a deadline for their implementation.
The Act laying out the outcomes of the inspection will be passed on to
the inspected Magistrate, as well as to the concerned administrative
head of the judicial system body. Each of them may file objections
and submit them to the Inspector General within a period of 7 days.
The Administrative Head has to inform the Inspector General of the
implementation of recommendations, if any, within the time specified
in the act laying out the outcomes of the inspection.
The Administrative Heads of the judicial system bodies must provide
assistance to the Inspector General and the Inspectors in the
discharge of their powers, and provide them access to the materials
required to this effect.
The Inspector General must ensure the general organisational and
methodological guidance of Inspection business by means of:
1. Representing the Inspectorate and designating a replacement
during his or her absence,
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2. Disposing of the funds on the budgetary account of the

Inspectorate,
3. Controlling the business of the inspectors,
4. Making arrangements for the publication of a Bulletin with the
outcomes of inspections to be published on the Supreme Judicial
Council Website,
5. Entering and terminating labour contracts with experts and
members of the Inspectorate administrative staff,
6. Making arrangements for improving the qualifications of the
inspectors and of the Inspectorate administration.
The Inspector General shall take part in the Supreme Judicial Council
sessions, but cannot participate in the voting process.
France
The IGSJ can just be set in motion by the Minister of Justice. This
hampers any direct implication of the Prime Minister or any other
Minister, neither can the MSC or the Courts Presidents intervene. The
IGSJ may not take the initiative.
In order to ensure a greater objectivity in the analysis, all missions are
to be conducted by at least two members of the service, except in
special circumstances. The inspectors cannot implement any coercive
measure, and IGSJ members must "give notice without delay to the
prosecutor of the Republic and transmit to the magistrate all the
information, Minutes of Proceedings and acts" relating to offences
which they had known during their investigations.
The investigation of the IGSJ is of an administrative in nature. It
follows that the forms applicable in disciplinary cases are not
applicable, including those related to issuing copies of documents of
the files, or to authorizing the presence of the lawyer. However, and
although it is not legally foreseen, the IGSJ has developed a
methodology for administrative inquiry based on practical experience.
Its investigations are carried out in strict compliance with essential
ethical rules, in particular, loyalty, impartiality and confidentiality, and
the respect of the constitutional principle of the independence of the
jurisdictional activities.
The analysis of the elements obtained during the investigation must
be exhaustive, rigorous and objective. The opinions delivered by the
Inspectorate-General must be motivated, and any shortcoming must
be identified, accurately described and qualified. In contrast, it does
not belong to the General Inspectorate to pronounce on the
17

convenience of pursuing disciplinary proceedings, which is the

function of the Minister of Justice.
In addition, at the conclusion of a reasonable period of study of the
file by the services of the Minister (about six months) the report is,
unless otherwise ordered by the Minister of Justice, transmitted by the
IGSJ to the DSJ in order to be recorded in the Magistrates personal
file, and to acknowledge either the MSC or the Commission of
Advancement should the situation of the person concerned require
subsequent examination by the competent statutory bodies. At
present, a procedure for the withdrawal of this information is still
lacking. THE IGSJ proposes the establishment of a procedure for the
withdrawal of these documents from the record of the Magistrate at
the request of the person concerned.
Italy
The activities of the GI are of an administrative nature and consist in a
technical control. Therefore, the Inspection is not entitled to exercise
powers of intervention regarding the activities of the inspected body,
which are typically functions of the Government. On the other hand, if
serious irregularities are detected during any ordinary or
extraordinary inspection, the inspectors must immediately refer them
to the Superior Court.
When the inspectors have to deal with urgent situations in relation to
the management of public treasury, or irregular conduct of Judges
and officials which cast features of disciplinary or criminal nature
worth being studied, the Leader Inspector is entitled to report directly
to the President of the GI to monitor the case.
At the end of the inspection, each inspection team draws up a report
addressed to the GI. All reports are collected in a single "inspection
report, according to a pre-designed model, in order to achieve a
homogeneous overview nationwide.
Inspection reports are reviewed by GI Judges with the purpose of
transmitting all the information raised by the inspection teams to the
Ministry of Justice, so he or she can take the necessary measures.
Portugal
In conducting such inspections, the inspector must, in all cases, use
means of investigations and, when the Judge's merit is concerned,
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criteria for appraisal are set out in the regulation for inspections,
although these criteria are not exhaustive.
Regarding the assessment of Judges, a classification will be proposed
by the judicial inspector to the CSM once the inspection has finished.
This report must be previously serviced to the inspected Judge so that
he or she can exercise the right of pleading or seeking evidence.
The CSM will assign one of the following marks to the proposal: Very
good, Good with distinction, Good, Sufficient or Poor.
If a Judges work is qualified as Poor, the Judge will be suspended and
an inquiry to investigate the possible inability to remain in office can
be deposed. As mentioned earlier, a mark Sufficient can be a reason
for inspection.
If the concerned judge disagrees with the assigned mark, a complaint
may be submitted before the Permanent Committee of the CSM. If
dismissed, a final decision must be adopted by the CSM in Plenary
Session.
An appeal against that decision may be brought before a special
section of the Supreme Court.
Spain
Ordinary Inspection Visits
Aims: comprehensive review of the judiciary body's activities
verifying information at the GCJ.
monitoring compliance with management standards, both
qualitatively and quantitatively.
Diagnosis of the body's organization and operation.
Improvement proposals, overcoming dysfunctions.
Stages:
Preliminary stage

Selection of the bodies to be visited

Approval of the plan for the trimester.

19

Notice to the Presidents of the Superior Regional Courts of

Justice where the inspections will take place.
Work schedule

First stage: preparation of the inspection.

Requesting information from the judicial body to be inspected.

Notifying the body and other Administrations.
Compiling information kept at the GCJ.
Analyzing the information. Possible drafting of a conclusion offsite report.
Notifying Barrister and Solicitor Associations

Second stage: performing the inspection visit

Initial contact. First interviews.

Analysing procedural activities. Quality and quantity.
o Work and activity load. Yardsticks.
o Analysing the length of the proceedings.
o Analysing procedural dysfunctions.
o Analysing the principles of procedural immediacy and
reasoning.
o Analysing performance effectiveness.
o Technical management of procedural activities.

Analysing the Judicial Office (Staff, work distribution, IT,

facilities, book and dossier management, accounts, relations
with defendants, judicial-office management).
Proceedings sampling (Selection, data-capture, analysis of the
information obtained).
Interviews: with the head of the judicial body and the clerk,
judicial-office staff, external agents.
Direct observation: procedural immediacy, relations with
defendants, division of work within the office, the facility- and
documentation-management situation, effective performance of
the proceeding's technical management tasks.

Third stage: drafting reports

20

Essential contents: accurate information, monitoring compliance

with standards, serving to help improve the Body.
The inspected judicial Body's situation.
Analysis of and conclusions on procedural activities.
Analysis of and conclusions on the judicial office.
Conclusions and proposals. Action Plans. Appended documents.

Fourth stage: follow-up and assessment of results

Follow-ups
Appraisal Visits
Follow-up reports
Development study.

Appraisal visits
Aims: To gather information on specific aspects of Courts running and
proceedings.
Actions
Verifying specific data.
Investigating specific problems affecting one or more bodies.
Diagnosing specific dysfunctions affecting one or more specific
areas and drafting proposals to rectify them.

Extraordinary visits
Approved by the Standing Committee or Plenary Session of the GCJ,
they aim at verifying the exceptional facts that prompted the visit and
at drafting proposals regarding them.

2)

DISCIPLINARY LIABILITY

a.Entitlement
to
disciplinary action

the

exercise

of

Regarding this point, there are many differences too. The main
difference lies in the powers conferred to the Minister of Justice to
promote proceedings.
21

Countries where the Minister of Justice plays a role in

disciplinary proceedings

Bulgaria, Czech Republic, Denmark, France, Latvia, Poland and

Slovenia entitle the Minister of Justice to play a more or less relevant
role in this ground.
Bulgaria.- A proposal for the imposition of a disciplinary sanction on
a Magistrate can be made by: The respective administrative head,
any higher-standing administrative head of Inspection at the
Supreme Judicial Council, or not less than one-fifth of the Supreme
Judicial Council members and the Minister of Justice.
Czech Republic.- The proposal can be lodged by the President of the
Republic, the Minister of Justice or the President of the Supreme Court
against a Judge of a Supreme Court or a Judge of any Lower Court, a
President of the High Court against any judge of a High Court or lower
court, a President of a Regional Court against any judge of the
Regional and Lower courts, a President of the District Court against a
Judge of his or her Court.
Denmark.- Besides the Minister of Justice, anybody who considers
him or herself or helself subject to misconduct or negligence. The
system is really open and an example was provided to show clearly
how it functions: In a case that had been given much attention in the
press, the delivery of the sentence was televised. A viewer found that
a remark from the judge about the burden of deciding on this difficult
case had been inappropriate and filed a complaint to the Special
Court, which actually pronounced its disapproval of the remark.
France.- Originally, the initiative for prosecution was exclusively
reserved for the Minister of Justice who, in the light of the facts
brought to its knowledge, requested the General Inspection of Judicial
Services to make inquiries. Then, it was up to the latter to decide
whether to initiate disciplinary proceedings or not, depending on the
results of these inquiries.
Due to the criticism against this monopoly of proceedings, the organic
law n2001-539 of 25 June 2001, relating to the status of the
Magistrates and the Council of the Judiciary extended the right to
complain to the first Presidents of the Courts of Appeal for the Judges
and to the general attorneys via the Prosecutor-General of the Court
22

of Cassation for prosecutors. Moreover, the constitutional reform

(dated 23rd July 2008) provides that individuals may directly refer to
the MSC.
Latvia.- The Minister of Justice is entitled to initiate disciplinary
proceedings along with the Chief Justice of the Supreme Court, the
Chief Judges of Regional Courts, the Chief Judges of District (city)
courts and the Heads of Land Registry Offices of regional Courts. Their
entitlement depends on the kind of position the concerned judge is
appointed to and on the nature of the offence.
Poland.- A disciplinary agent is elected by the National Council of the
Judiciary from the list of candidates lodged by assemblies of Appellate
Courts Judges, and is affiliated with the National Council of the
Judiciary. A disciplinary agent is elected for a period of 4 years.
Deputy disciplinary agents are elected: for all appellate courts by the
Councils of Appellate Courts and for all regional Courts - by the
Councils of Districts Courts, from the list of Judges of a particular
Court. The deputy disciplinary agents are elected for 2 years.
The disciplinary agent initiates disciplinary proceedings in addition to
the request of the Minister of Justice, on the request of the chairmen
of Appellate or Regional Court, Councils of Appellate or Regional
Courts, the National Council of the Judiciary and motu propio; after a
preliminary investigation with regard to the circumstances needed for
establishing elements of the offence and after explanation from a
Judge, unless this explanation is impossible to obtain.
Slovenia.- Apart from the Minister of Justice, the initiative to
introduce disciplinary proceedings may be put forward by the
President of the Court where the Judge performs judicial service, the
president of immediately Superior Court and the Judicial Council.

Countries where the Minister of Justice is set aside

Belgium, Germany, Hungary, Italy, Portugal and Spain can be placed

in this group.
Belgium.- Every citizen may introduce a claim against a Magistrate,
but it is the Head of the Court who can start a case against one of the
Magistrates of the Court. Sometimes, though, the complaint is
addressed to the Minister of Justice who transmits it to the Head of
Court.
23

Germany.- It is for the President of the Court to open a disciplinary

proceeding. This President is entitled to delegate the investigation to
other Judges. The preliminary enquiry can lead either to closing the
proceedings or to submitting a formal claim for disciplinary
punishment before the body in charge of the sanctions to be applied
to Judges.
Hungary.- In the event of any allegation of professional misconduct,
disciplinary proceedings shall be initiated by the NJC in the case of
executives who fall within the appointment authority of the NJC, by
the Chief Justice of the Supreme Court in the case of Supreme Court
justices, by the President Judge of the High Court of Appeal in the
case of Judges of the High Court of Appeal and by the President Judge
of the County Court in the case of Local Court Judges and County
Court Judges.
Italy.- Only a high level judge: the General Attorney of "Corte di
Cassazione" ("Supreme Court of Cassation") is entitled to initiate
disciplinary proceedings. This judge generally represents the public
accusation in front of the highest level Ordinary Court in the State.
The Ministry of Justice can force him or her to submit a request for a
sanction to the body who's exclusively entitled to impose it, which is
the Superior Council of the Judiciary.
Portugal.- It is always for the Supreme Council for the Magistracy to
initiate a disciplinary procedure on the basis of complaints addressed
by citizens, Civil Judicial Servants or the Inspection Service if
irregularities have been detected when inspecting the Courts.
Spain.- Disciplinary proceedings will be conducted ex officio at all
stages, and shall commence following a proposal made:
by the Board of Governance or the President of a Superior Court
of Justice,
by the Disciplinary Commission or the Plenary Session of the
Council General of the Judiciary,
or on its own initiative based on a petition stating the grounds
for such request made by another body, or following a
complaint lodged. The Public Prosecutor may also lodge a
complaint.
Any complaint on the functioning of the Judicial system, in general, or
on any actions carried out by Judges or Magistrates, in particular, will
24

be the object within the term of one month of a report by the Head of
the Inspection Services of the Council General of the Judiciary which
will decide on whether to file the proceedings, open an inquest or
directly file for disciplinary proceedings.

Common Law System countries

Special mention must be made of Malta, England and Wales, owing to

their peculiarities in contrast with civil law systems.
England and Wales.- The responsibility falls on the Office for Judicial
Complaints (OJC). This body supports the Lord Chancellor and the Lord
Chief Justice in their joint responsibility with a view to ensuring that all
judicial disciplinary issues are dealt with consistently, fairly and
efficiently. Any member of the public may make a complaint to the
OJC.
The office will investigate allegations of personal misconduct by a
Judge such as inappropriate remarks made in Court, rude or offensive
conduct towards someone in Court or unacceptable delays in
judgments releasing. If a complaint is accepted by the OJC, it will
consider the issues raised and the quality of the evidence provided. If
satisfied that the complaint requires further investigation, it will then
send the Judge a copy of the complaint and ask for his or her
comments. Further evidence may be called for, and the OJC may also
listen to the tape recording of the hearing and/or obtain information
from other people who were present. In some cases a Senior Judge
may be asked to carry out an investigation on the case.
Malta.- A judge cannot be sanctioned in Malta. he or she can appear
before the Commission for the Administration of Justice which is a
Commission constituted from the President of Malta, the Chief Justice,
the Attorney General, the President of the Chamber of Advocates, two
Judges, two Magistrates and a representative from both political
parties, the Government and the Opposition. This has not much power
at all. It can only draw the attention of the Judge or Magistrate in the
case of no-respect of the Code of Ethics. If there is a wrong doing,
misbehaviour or insanity then it can recommend his or her
impeachment, and this would need two thirds majority votes in the
Parliament. This case has never occurred yet in the History of Malta.

b.Empowerment for imposing sanctions

25

A distinction can be made regarding those systems where this

capacity belongs to courts of justice and those where special
administrative bodies are entitled.

Countries where disciplinary matters are dealt with by Courts.

The following countries can be grouped under this title: Belgium,

Germany, Hungary Latvia, Poland and Slovenia.
Belgium.- The Head of the Court is able to sanction the Magistrates
only for light penalties.
The Conseil National de Discipline National Council of Discipline
is a specific body able to deal with the case of the Magistrates facing
major penalties but the National Council of Discipline may only
suggest a penalty.
Magistrates of a superior level will render the final decision on
disciplinary liability. For example, in the case of the Deputy Kings
Prosecutor of Brussels, the Attorney General of Brussels would render
the decision. In the same way, the Court of Appeal will sanction a
judge of the Court of First Instance.
It must be taken into account that the current system may be
modified in a very near future. The Belgian Minister of Justice intends
to create a new specific Court to deal with disciplinary liability of the
Magistrates. At the same time, the High Council of Justice is claiming
to deal with such cases.
Czech Republic.- Independent body, it is the disciplinary panel
existing within the Supreme Administrative court.
The disciplinary panel for judges is composed of 6 people, the
Chairman of the Panel is the Judge of the Supreme Administrative
Court, then there is a Judge of the Supreme Court, then another Judge
from the Courts, one Public Prosecutor, one attorney and one
representative from the Faculties of Law. In case of draw the result is
not guilty.
Germany.- The competence depends on the type of sanction. For
imposing Admonition (the softest) the competence belongs to the
President of the Court where the judge sits. For more serious
punishments the competence is assigned to special Courts (Courts
referred to the Judges position). In each Lnder, these courts are
26

formed by three Judges (the President of the Lnders Second Degree

Court, a permanent member and a non-permanent member). Their
decisions can be Appealed before another specialized Disciplinary
Court formed by 5 judges (the President of the Superior Court, 2
permanent members Judges from that Court and 2 non-permanent
members belonging to the same branch of law Courts). Regarding the
Supreme Federal Courts there is a special section in charge to deal
with disciplinary issues. Its structure corresponds to the described
above as for the disciplinary Appellate Court in the Lnders.
Hungary.- County courts and High Courts of Appeal shall operate
disciplinary Tribunals in the first instance, and the Supreme Court
shall operate disciplinary Tribunals in the first and second instances.
The president Judge and the seven Members of the disciplinary
tribunal shall be elected for six years by the plenary session of Judges
of the competent county Court and High Court of Appeal and by the
full Council of the Supreme Court.
Candidates for the president judge and members of the disciplinary
tribunal must have at least five years of experience as judges, they
must not have been penalized by a disciplinary action and must not
have been implicated in disciplinary proceedings. The members of the
National Justice Council as well as the president judges authorized to
initiate disciplinary proceedings and their deputies may not be
elected for these offices.
Latvia.- A decision sanctioning a judge may be issued only by a
Judicial Disciplinary Board. There is no difference depending on the
seriousness of the offence.
The composition of the Judicial Disciplinary Board shall be the Chief
Justice of the Supreme Court and his or her deputy, three judges of
the Supreme Court, two Chief Judges of regional courts, two Chief
Judges of district (city) courts and two Heads of Land Registry Offices.
The members of the Judicial Disciplinary Board (with the exception of
the Chief Justice of the Supreme Court) shall be elected by secret
ballot for four years at a gathering of Judges.
The Chairperson of the Judicial Disciplinary Board shall be the Chief
Justice of the Supreme Court. The Judicial Disciplinary Board, among
its own members, shall elect the Vice-Chairperson of the Judicial
Disciplinary Board.
27

The Minister of Justice and the Prosecutor General, or any person

authorized by them, as well as a person authorized by the Board of
the Latvian Society of Judges, may participate in the sittings of the
Judicial Disciplinary Board in an advisory capacity.
The Judicial Disciplinary Board shall act in accordance with by-laws
approved by the Judicial Disciplinary Board.
Poland.- The disciplinary courts are: in first instance - Appellate
Courts, in second instance the Supreme Court.
In general, territorial jurisdiction is given to a disciplinary court, in the
district of which the judge is serving his or her office. However, if the
case concerns a judge of Appellate Court or a Judge of Regional Court,
territorial jurisdiction will be given to another court selected by the
First Chairman of the Supreme Court, after a motion of the disciplinary
agent.
Disciplinary courts are sitting in panels of three judges. All judges of
the particular court are allowed to sit in the disciplinary Court, with
the exception of a Chairman of the Court, Vice-Chairmen and a
disciplinary agent.
Judges sitting in the disciplinary court are selected by random, from
the list of all judges serving office in a particular court. Nevertheless,
in the panel of judges there must always be at least one criminal
court`s judge. The Chair of the panel is a criminal court`s judge, with
largest judicial experience.
Slovenia.- To issue a decision sanctioning a judge there are some
conditions which must be fulfilled. First, there can be no sanction
without proper disciplinary proceedings and, second, a decision must
be made by a special disciplinary organ The Disciplinary Court of
First instance or the Disciplinary Court of Second Instance. Both
disciplinary bodies are appointed and dismissed by the Plenary
Session of the Supreme Court at the proposal of the Judicial Council.
The Slovenian system does not foresee different bodies depending on
how serious the disciplinary offence is. The difference between both
disciplinary bodies remains in the fact that the disciplinary court of
second instance rules on Appeals against resolutions by the
disciplinary court of first instance. Different bodies are therefore
created to assure the right to Appeal and not to distinguish between
different kinds of offences.
28

Countries where disciplinary liability is declared by special

administrative bodies

It can be mentioned within this group: Bulgaria, England and Wales,

France, Italy, Portugal and Spain.
Bulgaria.- A disciplinary sanction shall be imposed by:
1. The administrative head, as regards to the sanctions under Article
308, paragraph 1, items 1 and 2 (soft sanctions) served on a judge,
prosecutor or an investigating magistrate
2. The Supreme Judicial Council, as regards to the sanctions:
a) Under Article 308, paragraph 1, items 2, 4, and 6 (serious
sanctions) served on a judge, Prosecutor or an investigating
magistrate,
b) Served on an administrative head or a deputy of an administrative
head;
c) SG No. 103/2009, effective 29.12.2009) under Article 308(3) of an
elected member of the Supreme Judicial Council.
The resolution of the Supreme Judicial Council may be appealed
before the Supreme Administrative Court. It must be noted that the
resolution of the Administrative Head cannot be directly challenged
and this is because its resolution must be upheld by the Supreme
Judicial Council so that the judicial remedy is sought regarding the
upholding decision and not as for the Administrative Heads decision
which is more a proposal than an actual resolution.
England and Wales.- The Lord Chancellor (Minister of Justice) and
the Lord Chief Justice.
If the Lord Chancellor and the Lord Chief Justice uphold the complaint,
they will consider what action, if any, is appropriate. The Lord
Chancellor and the Lord Chief Justice have the power to agree to
advice, warn or remove a judge for misconduct. In some cases where
the Lord Chancellor and the Lord Chief Justice decide to take formal
disciplinary actions against a judicial office holder, the judicial office
holder has a right to request that his or her case be referred to a
'review body'. Where a case has been referred to a review body, the
Lord Chancellor and the Lord Chief Justice must accept any findings of
fact made by the review body and cannot impose a sanction on the
judicial office holder that is more severe than that recommended by
29

the review body. Each review body consists of 4 members (2 judicial

office holders and 2 lay).
Judicial Review applications are possible but highly improbable. They
would be heard by a Judge of the Administrative Court, which is part
of the High Court, with a possible Appeal to the Court of Appeal. A
further Appeal to the Supreme Court is highly unlikely as it would not
raise an issue of law of 'general public importance' and leave would
not, therefore, be given for any such Appeal.
France.- It must be made a distinction between the procedure for
judges and for prosecutors.
a. Procedure applicable to judges: the Magistracy Superior Council. Its
decisions have the authority of res judicata. The challenges are
carried out before the Council of State, a judge of cassation.
b. Procedure applicable to public prosecutors: the Minister of Justice.
The disciplinary board of judges does not make binding decisions. It
gives a reasoned opinion on the sanctions to be taken. The Minister of
Justice is not bound, but the practice shows that he or she has always
followed the proposal of the MSC. If he or she wishes to follow the
sanction, he or she submits to the MSC a draft enumerating the
reasons of his or her decision. After hearing the observations of the
interested magistrate, the MSC shall deliver an opinion which is filed
in the record of the concerned magistrate. The minister's decision on
disciplinary matters acting for the public prosecutors may be the
subject of an Appeal for abuse of power before the State Council and,
thus, compromise the legality of the decisions taken by the Minister
of Justice.
Italy.- Only the Superior Council of the Judiciary can impose a
disciplinary sanction. There is no distinction according the seriousness
of the offence so regardless to its gravity the competence belongs to
the Council.
Its decision is subject to judicial review before the High Court of
Cassation.
Portugal.- The CSM in Plenary session is the only body entitled to
impose disciplinary punishments on Judges.
Spain.- The following bodies are competent for imposing sanctions:
30

a) Warning sanctions may be passed by the President of the Supreme

Court, the President of the State Court and of the Superior Courts of
Justice to the Judges and Magistrates who are below them.
b) In the case of fine or warning and fine for minor infractions, the
Boards of Governance of the Superior Court, of the State Court and of
the Supreme Courts of Justice with regard to the judges and
magistrates under them.
c) Sanctions for major offences are passed by the Disciplinary
Commission of the Council General of the Judiciary.
d) Sanctions for very serious offences are imposed by a Plenary
Session of the Council General of the Judiciary following a proposal of
the Disciplinary Commission.
Nevertheless, the bodies mentioned in the aforementioned rules may
impose lesser sanctions to those vested in them when, on
examination of a file initially submitted to them, they find that the
findings merit a lesser sanction.
Disciplinary liability resolutions can be challenged via administrative
Appeals and the decisions solving the latter can be appealed before
the Supreme Court.

c. Classification of disciplinary offences

Classification of disciplinary offences is not the general rule. Among
all the assessed countries just Slovenia and Spain know this system.
Slovenia.- In classifying disciplinary offences, the Slovenian system
is very accurate. Judicial Service Act lists several acts that entail a
breach of judicial duties or irregular performance of judicial service,
some of them representing a serious breach of discipline, while others
a not serious breach of discipline. We can say that the system
knows two different disciplinary offences according to their
seriousness serious and petty disciplinary offences.
Spain.- In Spain there is a clear classification of offences according
their seriousness. They can be petty, serious and very serious. Each
class comprises a list of definition of the offences so that an offence is
committed just when the facts fit the legal description.

31

d.Criteria for determining the severity of

the sanction
Every countrys system follows some criteria in order to determine the
severity of the sanction to impose. In this sense the differences are
not very important.
However, is worth making an initial remark regarding the Slovenian
and the Spanish systems. For determining the severity of the
sanction, proportionality must be observed since sanctions imposed
must take into account that a fair correlation exists between the
nature of the breach and the sanction imposed. When a sanction can
be imposed between a bottom and a top level, the chosen degree
must be properly reasoned in the decision. But those margins are not
wide since each type of offence can just be sanctioned with some
classes of sanctions. In Slovenia the disciplinary court determines the
severity of the sanction in relation to the seriousness of the
disciplinary offence. The Judicial Service Act provides some
measurements and criteria for this determination, but they are quite
lax.
In order to show the current system in other countries, it can be
underlined the following:
Bulgaria.- There are six disciplinary sanctions. The Judicial System
Act, article 309, lies down graduation criteria: the gravity of the
offence, the form of guilt, the surrounding circumstances and the
conduct of the offender shall be taken into consideration.
Czech Republic.- It is only up to the panel of judges and individual
circumstances of the case. There is no Appeal against the resolution
issued on disciplinary liability. This is a deep controversial point which
is at the moment pending of decision in the Constitutional Court due
to possible unconstitutionality of the law what, according the
European Court of Human Rights' jurisprudence, seems to be.
Denmark.- The sanction must be in proportion to the seriousness of
the offence and may vary can end by, according the Special Court's
expression of disapproval, either a fine or ultimately a removal.
England and Wales.- The seriousness of the offence is a matter for
the Lord Chancellor and the Lord Chief Justice to decide according to
32

the particular circumstances and to decide the sanction accordingly.

Unification of criteria would be theoretically possible through Judicial
Review but these legal remedies are rarely used.
France.- The French Disciplinary Law does not follow a hierarchy of
facts: they are punishable or are not, it follows a hierarchy of
sanctions. There are eight disciplinary sanctions:
a) Reprimand with registration in the file;
b) Displacement of office ;
c) Withdrawal of certain functions;
d) Prohibition of being appointed to the functions of single judge
for a maximum period of five years;
e) Downgrading;
f) Temporary exclusion of functions for a maximum period of one
year, with total or partial loss of treatment;
g) Demotion;
h) Retirement of office or the admission to cease its functions
where the magistrate has no right to a retirement pension; or
revocation with or without suspension of pension rights.
Due to the generality of these texts, the MSC has established a stable
jurisprudence about the distinction between jurisdictional act and
disciplinary offence. The content of the disciplinary is refined
progressively over the decisions and inputs of the Council of State,
which in his or her capacity as a judge of Appeal, contributes to the
preparation of this concept. However, the renewal every four years of
the members of MSC can raise questions relating to the sustainability
of this jurisprudence.
Germany.- The system foresees a gradation of sanctions but not of
offences (for judges on active duty: admonition, fine, earnings
reduction, downgrading and dismissal). Decision making process is
governed by the principle of discretion so that the competent body
has to assess on the seriousness of the infringement considering the
extent the infringement has hurt societys confidence and the own
judges personality. At first, no problems have been detected about
unity of criteria. If those appeared they could be solved by the Court
referred to the judges position at the Supreme Court when deciding
recourses for unification on law interpretation.
Hungary.- The following disciplinary penalties may be imposed
against a judge for professional misconduct: a) reprimand; b) censure;
33

c) demotion by one salary grade; d) discharge from executive office;

e) motion for dismissal from judge's office.
The disciplinary penalty imposed shall be consistent with the gravity
and consequences of the infringement, and the degree of the offence.
Italy.- Italian Disciplinary Law foresees a kind of codification (for
every single kind of violation, a specific sanction). The seriousness of
the offence is valuated only to justify the specific sanction adopted.
There is a main distinction between disciplinary violations related to
judicial activities and disciplinary violation not related to professional
duties. Then there are six general types of sanctions (from the simple
warning to the dismissal from the judicial order). They are applied
on the basis of every single violation, as mentioned above. According
article 12 RDL 109/2006 on Discipline for illegal behaviour of
magistrates, it is stated when sanctions of reprimand, loss of length of
service, disqualification for directive position, suspension or removal
are applicable.
Portugal.- In Portugal there is a catalogue of sanctions: dismissal,
compulsory retirement, compulsory transfer, suspension, fine,
reprimand with or without recording. The SCM chooses the specific
sanction according to the circumstances of the case. As the Supreme
Court rules on those cases, its jurisprudence sets guidelines for the
measurement of proportion.

e.Treatment of complaints without merit

As a general rule, complaints of this nature can be dismissed without
further proceeding.
However, there are some nuances worth underlining.
Bulgaria.- Regarding complaints may be two phases: preliminary
investigation or Inspection. Where the preliminary investigation
established beyond any doubt that the complaint either does not fall
within the scope of the Inspections powers or is groundless, a
reasoned position shall be drawn up and dispatched to the claimant.
However, the Bulgarian system does not allow the disciplinary body to
reject without further proceeding a complaint without merit. The
disciplinary panel has an obligation to open the case, to make a
decision and to make a proposal in the session of the SJC. The SJC's
34

decision is not final as it can be appealed to the High Administrative

Court which decision is final.
France.- As the entitlement for the public to complain did not yet
come into force, there is no experience on this matter, but the power
for dismissing that sort of complaints is foreseeable to exist.
Hungary.- The disciplinary board of the disciplinary tribunal shall
decide whether to initiate disciplinary proceedings, refuse to hold
disciplinary proceedings, or order a preliminary examination.
If a judge commits a lesser offence and the misconduct in question
did not result in detrimental consequences or resulted in moderate
damage, disciplinary proceedings may not be initiated. Then, a
warning to the judge is issued instead of initiating disciplinary
proceedings. The concerned judge is entitled to refuse the warning
and ask for a disciplinary proceeding to be opened. In such a case,
disciplinary proceedings are to be opened.
Poland.- If a disciplinary agent finds no grounds for initiating
disciplinary proceedings after the request from the relevant body, he
or she will issue a decision, which declines the initiation of the
investigation. The decision is delivered to the body which lodged the
motion to examine the disciplinary case, to the competent appellate
or regional courts councils and to the accused.
Within a period of 7 days from the moment of delivery of the decision
mentioned above a body which lodges a motion to examine the
disciplinary case and the competent court's council have a right to
lodge an Appeal to the disciplinary court. The Appeal shall be
examined within a period of 2 weeks.
Portugal.- When a complaint has been lodged, an inspector analyses
it and appraises if it has merits or not. If considered without merit, a
proposal for rejecting is issued to the Vice-President of the SCM, who
can either dismiss the complaint or send it to the Standing
Commission for decision.
Slovenia.- The Judicial Service Act states that the proposal for
disciplinary sanctioning is lodged and submitted by the disciplinary
prosecutor who is a judge of the Supreme Court. If the disciplinary
prosecutor fails to introduce proceedings, he or she shall be obliged to
inform the initiator of the grounds for such (the president of the court
where the judge performs judicial service, the president of the
35

immediately superior court, the Judicial Council or the Minister of

Justice). If the initiator persists with the initiation, the disciplinary
court of first instance shall make a final ruling on the introduction of
proceedings. It can be concluded that if the initiator persists with the
initiation, even if it is without merit, the introduction of proceedings is
not up to the disciplinary prosecutor but is up to disciplinary court of
first instance.
Spain.- Any complaint against the functioning of the Judicial system
in general, or against any actions carried out by Judges or Magistrates
in particular, will be the object of a report to be submitted within the
term of one month by the Head of the Inspection Services of the
Council General of the Judiciary, which will decide on whether to file
the proceedings, open an inquest or directly file for disciplinary
proceedings. On this reports basis, a reasoned decision shall be
issued by the Board of Governance or the Disciplinary Commission,
depending on the classification of the offence, as to whether opening
proceedings.

f. Handling of complaints regarding the

contents of judicial decisions
Regarding this point, all checked systems are unanimous. This kind of
complaints can be rejected without further proceeding. The present
situation in France requires, nevertheless, a deeper analysis.
Bulgaria.- the Inspection shall inspect the activity of the judiciary
bodies without affecting the independence of judges, court assessors,
prosecutors and investigating magistrates while performing their
duties.
If the proposal for disciplinary liability concerns the substance of the
judicial decision, the disciplinary body rejects the proposal.
Czech Republic.- Such proceedings would be kept or discontinued.
England and Wales.- Lord Chief Justice cannot consider any
complaint about a judicial decision or the way in which a case has
been handled. Examples of judicial decisions include the length or
type of sentence, whether a claim can proceed to trial, whether or not
a claimant succeeds in their claim, what costs should be awarded and
what evidence should be heard. The usual way to challenge this type
of decision is to Appeal. So the system does not allow for opening a
36

disciplinary proceeding on grounds of the content of the judicial

decision so that such complaints can be rejected without further
proceeding.
France.- Due to the generality of the legal description of disciplinary
offences, the MSC has established a stable jurisprudence about the
distinction between jurisdictional act and disciplinary offence. The
latter will certainly evolve with the organic law on the adoption of the
constitutional reform.
The traditional jurisprudence of MSC
-.Principle
According to the jurisprudence convergent of the higher Council
acting in disciplinary matters and of the Council of State, it cannot be
brought any assessment on the judicial acts of judges. This principle
is stated, not in the interest of judges, but in that of litigants, who
must have an independent and serene judiciary system.
Then, "the CSM, acting as a board for discipline of judges, may not
issue any assessment on the judges judicial acts, which are covered
by their own powers and cannot be criticized but by using the
remedies provided by the law in favour of the parties to the dispute".
-. Exception:
This jurisprudence has, however, an exception after the case Bidalou,
since "such a principle has a limit when it appears from the res
iudicata principle that a judge has, in such a gross and systematically
way, exceeded its jurisdiction or ignored the framework of his or her
power that he or she has not fulfilled, despite appearances, but an act
abroad to any jurisdictional activity".
The reformulation of its jurisprudence
-. A first attempt censured by the Constitutional Council
In addition to the malfunctions identified, the case of Outreau
contributed to offer to the public the idea that the severe mental
disorders observed revealed a form of absence of responsibility of the
magistrates.

37

In a first place, the Executives project provided that a disciplinary

offence came from the fact of having deliberately violated the guiding
principles of the criminal and civil procedure. The Executive has,
subsequently, stated that: "constitutes, inter alia, a breach of the
duties of its state, the serious breach and deliberate, by a magistrate,
of one or several rules of procedure of the essential guarantees
constituting the rights of the parties, committed in the framework of
an instance terminated by a final judicial decision Despite the
differences between assemblies, the National Assembly supporting
the Executives project being the Senate less favourable, the text
finally adopted by the Parliament has included most of the initial draft
as defined by the Executive.
However, this act has been censured by the Constitutional Council. In
effect, "whereas the independence of the judicial authority,
guaranteed by article 64 of the Constitution, and the principle of the
separation of powers, proclaimed by the article 16 of the Declaration
of 1789, do not prohibit the legislator to extend the organic
disciplinary responsibility of judges to their jurisdictional activity in
providing that a deliberate and grave violation of a rule of procedure
constitutes an essential guarantee of rights of the parties; whereas,
however, these same principles are impeding the commitment of
disciplinary proceedings when this violation has not previously been
stated by a definitive judicial decision".
Therefore, the Council states the need to use the ways of challenging
the judicial procedural decisions and thus obtain a final decision
before engaging the responsibility of the magistrate.
.- A second approach included in the bill on the implementation of
article 65 of the Constitution
The draft of organic law on the application of article 65 of the
Constitution is in way of study before Parliament. The text has been
transmitted by the National Assembly in the Senate on 24 February
2010, for a second reading.
Article 14 bis of this text provides that "constitutes one of the
breaches of the duties of their condition the serious and deliberate
breach by a magistrate of a rule of procedure, which constitutes an
essential guarantee of the rights of the parties, determined by a final
judicial decision.
38

This article meets the needs posed by the Constitutional Council at its
above- mentioned decision dated March 1st 200. If the text came into
force, it would pass the monitoring of constitutionality. The scope of
application of this article is, without doubt, wider than that of the
jurisprudence Bidalou. It should be noted that in the decision Burgaud
the CSM has reconsidered the principles under the provisions of
article 43 of the statute of the judiciary. Thus, the remedies against
judges are therefore led to multiply. This movement will also be
strengthened by the direct litigants referral provided for in this same
organic law to articles 18 and 25.
The judicial acts which are within the only conscience of the
magistrate and its power of judging fall beyond the disciplinary scope.
The jurisprudence of the Council of State, acting as a judge of
cassation, regarding sanctions imposed by the Council of the
judiciary, appears to exclude the possibility of challenging a judicial
decision in its content.
The MSC recalls this limit: "expected that the Council may not cover
[...] any assessment on the judicial acts of judges, which are reflected
in their power and cannot be criticized, but in the exercise of
recourses provided by law.
The cases of abuse and the misuse of power have nevertheless been
retained by the Council of the Judiciary. In fact, when it follows from
the res iudicata principle that a judge has gross and systematically
exceeded its jurisdiction or ignored the framework of its competence,
the act performed does not constitute, despite the appearances, but
an act alien to the jurisdictional activity, and is therefore likely to call
for the adoption of disciplinary measures
Germany.- Opening disciplinary proceedings on the judicial decision
content is not allowed. The judicial decision content is out of bounds
for the Inspection, so it can be straightforwardly dismissed.
Italy.- As a general rule, these complaints can be rejected without
proceeding. The General Attorney will simply leave out any request
concerning a disciplinary proceeding to CSM.
There is an exception in the case of manifest violation of the law
caused by ignorance or inexcusable negligence.

39

Latvia.- Judges are independent on their judicial decisions. So, its up

to the person entitled to initiate a disciplinary matter to reject a
complaint without further proceeding. The argument would be
judges are independent regarding their decisions, so there are no
reasons to initiate disciplinary proceeding.
Portugal.- these kinds of complaints are rejected, since the
substance of the judicial decisions can only be challenged through the
judicial remedies foreseen in the procedural laws.
Slovenia.- According to the law, judges may not be brought before a
disciplinary court for opinions they expressed when deciding in court.
The question whether judicial decisions are lawful or not is not to be
decided in disciplinary proceedings. However, if the initiator persists
with initiation, even in this case, the introduction of proceedings is not
up to the disciplinary prosecutor but up to disciplinary court of first
instance.
Spain.- This kind of complaints are usually directly rejected after a
report is made by the Inspection Service stating that the question falls
within what belongs to judicial powers.

40

g.Breaching of standards of conduct

In the conclusions of this Study, the different treatment approaches
given to breaches of standards of conduct will be summarized. It can
be stated that in every country the breach of standards of conduct
has relevance, although its intensity varies considerably.
Belgium.- A judge or a prosecutor who breaches his or her
obligation may face disciplinary sanction.

ethical

Although there is code of conduct as such, all magistrates must

respect ethical obligations, such as being beyond suspicion in his or
her personal life. The jurisprudence of the national council of
discipline delivers guidelines to that respect.
Bulgaria.- There is a Code of Ethics whose breach entails disciplinary
liability. Until 2009 the Code of Ethics was adopted by the Judicial
Associations and the SJC granted its approval. Since 2009 it is only for
the SJC to enact the Code of Ethics what it is considered an important
threat since, having breaches of ethical rules disciplinary
consequences, the SJC is enabled to create new disciplinary offences
by means of mere ordinance amending the Code of Ethics for
magistrates (article 30 JSA).
Czech Republic.- There is an ethical code of the judges. The
disciplinary proceedings can be brought only when the judge
breaches his or her duties set by the law.
Denmark.- The professional ethical obligations of judges are stated
by the Special Court in its decisions. There is no written ethical
standard.
England and Wales.- On being appointed to judicial office, all Judges
agree to adhere to a strict code of conduct and it is the responsibility
of the Lord Chief Justice and the Lord Chancellor to see that there was
compliance with that strict Code of Conduct.
France.- Article 18 of the organic law of 5 March 2007 has entrusted
the Higher Council of the judiciary the task of preparing and make
public a compendium of ethical obligations of magistrates. The
compilation entails a catalogue of positive deontological obligations
for magistrates. It will be made public on 3 June 2010. The
41

deontological reform becomes a permanent mission of MSC, but this

collection will not be a code. Its normative scope is therefore
uncertain.
Germany.- There is no formal Code of Ethics for judges but they must
behave consistently with democracy and its principles. In this sense
they must try to be people who society can rely on.
Hungary.- There is no law governing the ethics of judges. However,
the National Association of Judges passed a Code of Ethics in 2005. It
includes the most important principles of ethics and guidelines of
attitude that promote the implementation of constitutional and
statutory provisions concerning judgeship and it offers guidelines for
all judges of the Hungarian judiciary. The Code emphasizes the
connection
of
the
constitutional
requirements
of
judicial
independence and the responsibility the judiciary has in respect of
society. It declares the will on behalf of the judiciary that the high
expectations of society govern their work. Therefore, as a kind of selfregulation, the Code formulates the most important ethical principles
and guidelines of attitude in the awareness that judges will adhere to
them out of inner conviction and based on the judicial oath they made
at their appointment.
Italy.- It depends on the specific type or violation. If a judge uses her
professional authority to obtain personal or economical benefit, for
instance, he or she will be punished at least with censorship; if he
or she is condemned for penal crimes intentionally committed,
punished with more than 1 year of imprisonment, he or she is
dismissed, and so on.
Latvia.- There is a Judicial Code of Ethics in Latvia that is not law but
that is obligatory for all judges. The consequence when the judges
breach their professional ethical obligations is initiating a disciplinary
matter since Section 1 of the Judicial Disciplinary Liability Law
establishes that a judge may be subjected to disciplinary liability for:
3) dishonourable actions or gross violation of the norms of the Judges
Code of Ethics;
Portugal.- There is no ethic code but there are rules of conduct
foreseen in the statutory law for judges, which can entail disciplinary
liability.

42

Slovenia.- A breach (wilfully or by negligence) of professional ethical

obligations means at the same time a breach of the judicial duties
prescribed by law and the court rules or an irregular performance of
judicial service. The principal acts that entail a breach of judicial
duties or irregular performance of judicial service are listed in the
Judicial Service Act. Listed acts can represent the basis for initiating a
discipline proceeding and, consequently, a discipline sanction.
A breach of professional ethical obligations is also reflected in the
assessment of judicial service, which is crucial for any kind of
promotion, and, moreover, a negative assessment can signify that a
judge is unsuitable for judicial service, which must therefore result in
the termination of his/her judicial office.
Spain.- There is no Code of Ethics. Until 1985, when the new Act on
the Judiciary came into force, there used to be a disciplinary rule
which considered disciplinary offence any misconduct entailing
irregular moral behaviour or vices endangering Judiciarys public
image or decency of judicial office. This provision was overruled and
since that moment private life was set aside from disciplinary liability.
However, several infringements are commonly listed among ethical
duties. For instance, regarding professional exclusivity it is sanctioned
the breach of the rules on incompatibility; as for the ethical duty of
impartiality, it is sanctioned the failure of self denial; other examples
could be enter decisions which entail a clear procedural abuse or
misrepresent the effective workload with regard to the benchmarking
systems established by the General Council General for the Judiciary,
hinder Inspection activities, disrespect to his or her superiors in the
judicial hierarchy when it is not considered a major infraction,
Disregard or dismiss other equal or lower Courts, or act in a
derogatory manner with regard to citizens, institutions, clerks,
coroners or other individuals working in the administration of justice,
or to the Public Prosecutor, attorneys and barristers, labour
counsellors and officers of the Judicial Police, congratulate or reproach
public authorities, officers or local bodies for any event invoking or
availing him or herself of his or her office as a judge or abuse of
authority to secure preferential treatment by authorities, officers or
professionals

h.Disciplinary sanction records

43

The general rule is that disciplinary decisions are recorded in the

concerned judges personal file. Differences are found regarding
erasing those records after a period of time has elapsed.

Countries where records are deleted

Belgium.- Light penalties are erased for the future after 3 years
(article 427 bis Judicial Code). Major penalties may be erased on
request after a period of 6 years since the decision.
Bulgaria.- A disciplinary sanction, with the exception of relief from
office or of dismissal is deleted one year after having been served. A
disciplinary sanction, with the exception of disciplinary relief from
office or dismissal, may also be deleted prior to the expiry of the
aforementioned term, but no earlier than 6 months following its
imposition, by the body which has imposed it, provided the individual
on whom it has been served has not committed any other offence.
Early deletion of a disciplinary sanction occurs at the initiative of the
administrative head or of the bodies or the persons that have made a
proposal for its imposition. Deletion acts ex nunc.
Czech Republic.- Following 5 years after the sentence, the law says
that he or she is looked upon as he or she committed no offence.
Germany.- Sanctions are recorded in the judges personal file. The
records can be erased after a period of time has elapsed. For instance
in Lower Saxony: admonition (2 years), fine (3 years), downgrading (7
years)
Hungary.- If a judge has been sanctioned by a disciplinary penalty,
this shall be indicated in his or her personal records on file.
The disciplinary penalty imposed on a judge by final decision shall
remain in force,
a) For one year in the case of censure,
b) For two years in the case of demotion by one salary grade or
discharge from executive office,
c) For three years in the case of dismissal from judge's office.
A judge under the effect of a disciplinary penalty
a) May not be promoted to a higher position,
44

b) May not be appointed to an executive office,

c) May not be transferred to a higher salary grade,
d) May not be granted a title corresponding to a higher judicial office,
e) May not receive premiums or incentives.
A judge, under the effect of a disciplinary penalty, may, at his or her
request, be relieved from the applicable legal consequences by the
disciplinary tribunal of the first instance once half of the period
referred to in Subsection (1) has passed, provided that the judge in
question has not been implicated in other disciplinary proceedings.
Latvia.- The sanctions are recorded and can be erased after only one
year, and even less depending on the case.
Poland.- The copy of a final disciplinary courts sentence, imposing
disciplinary penalty, shall be attached to personal files of a judge.
After a period of five years from the moment when it became final,
Minister of Justice shall order removal of the sentence from the files,
on condition that during this period the judge has not been charged
within other disciplinary proceedings. In such case, only one,
simultaneous removal is permissible.
The National Council of the Judiciary, the First Chairman of the
Supreme Court and Minster of Justice may put forward the motion of
re-opening of proceedings.
Portugal.- The sanctions are recorded in the judge's personal file.
Spain.- Disciplinary sanctions are recorded in the personal file of the
offender, describing the circumstances leading to such proceedings.
Entries of warnings made are cancelled after six months reckoned
from the date in which such decision became final if during that time
the offender has not been involved in any disciplinary proceedings
which finalized with a sanction.
Entry of the foregoing sanctions, except for removal, may be
cancelled at the request of the offender after the Public Prosecutor
has been heard once one, two or four years have elapsed after the
sanction was imposed depending on whether the infraction was a
petty, a serious or a very serious one and if during that time the
offender has not been subject to any further disciplinary proceedings
that ended with an imposed sanction.
45

Cancellation removes the record of any sanctions to all purposes.

Countries where records are indelible

Denmark.- A decision of the Special Court is recorded in the personal

file of the judge in question, and is never deleted.
England and Wales.- The decision will be recorded in the Judges
personal file. The record is permanent though, as time passes, its
significance reduces.
France.- These sanctions are listed in the file in the symbol
"disciplinary incidents ". They can be deleted at the result of an
amnesty law. In reality, the periodic assessments of judges, who
remain permanently in the dossier, may include these sanctions.
Therefore, erasure by an act of amnesty remains sometimes
theoretical.
Italy.- It is permanently recorded in the Judges personal file.
Portugal.- Sanctions are recorded in the judges individual file and
are not erased.
Slovenia.- The Judicial Service Act prescribes that all the information
significant for the formulation of the assessment of judicial service
shall be recorded in the personal file. Sanctioning a judge is surely a
very significant decision for the formulation of the assessment, for
this record stays permanently in the judges personal file.

III.

THE PRINCIPLE OF INDEPENDENCE:

AN INTERNAL PERSPECTIVE

The questionnaire on which this study was prepared focused on the

judges perception and views on the principle of Independence in their
respective countries. All the answers point out that every system
knows its own mechanisms for guaranteeing independence, and all
the questioned judges feel confident about the defence of their own
independence.
Belgium.- There is a bad feeling about the excessive power given to
the Head of the Courts. The system depends too much on the Courts
46

Presidents and personal considerations may play a substantial role in

his or her decision.
There is for the moment a few sensitive cases involving important
fellows and no action was taken in due time against them probably
due to this factor. Therefore, an external and independent body may
be preferable.
Bulgaria.- The principle of judicial independence is deemed to
provide sufficient guarantees on the defence of Magistrates
Czech Republic.- As the Ministry is not involved in the disciplinary
proceedings, Czech judges feel sufficiently protected.
Denmark.- The guarantee for independence is clearly sufficient.
Members of the Special Court are appointed for 10 years and can only
be removed from the court by a court decision.
England and Wales.- English Judges are completely sure that the
independence of the judiciary system is satisfactorily guaranteed by
their system. Before the Constitutional Reform Act 2005, it was the
responsibility of the Lord Chancellor to protect the independence of
the judiciary. One of the key objectives of the Constitutional Reform
Act 2005 was to strengthen the principle of judicial independence
throughout all areas of the justice system by securing the
independence of the judiciary and maintaining a balance of
separation of powers between the executive, legislature and judiciary.
To achieve this there was much discussion between the Lord
Chancellor and the Lord Chief Justice to explore how best reforms
could deal with the judicial related functions of the Lord Chancellor.
Proposals were agreed and incorporated in a document now
commonly known as The Concordat. The Lord Chief Justice made a
statement at the time approving and supporting these proposals on
behalf of the judiciary and stated that the terms agreed were a
highly desirable package of measures designed to ensure the
continuous independence of the judiciary.
Section 4 of the Act places a positive obligation upon the Lord
Chancellor, other Ministers of the Crown and all with responsibility for
matters relating to the administration of justice, to uphold the
continuing independence of the judiciary. This general duty is
substantiated by the following particular requirements:
47

(a) The Lord Chancellor and other Ministers of the Crown must not
seek to influence particular judicial decisions through any special
access to the judiciary.
(b)The Lord Chancellor must have regard to the need to defend
judicial independence, the need for the judiciary to have the
support necessary to enable them to exercise their functions, and
finally the need for the public interest to be properly represented in
decisions affecting matters relating to the judiciary or otherwise to
the administration of justice. A statutory duty to respect the rule
of law is included in the new Lord Chancellors Oath, which states:
I do swear that in the office of Lord High Chancellor of Great Britain
I will respect the rule of law, defend the independence of the judiciary
and discharge my duty to ensure the provision of resources for the
efficient and effective support of the courts for which I am
responsible. So help me God.
France.- French judges consider that their independence is
safeguarded by their statute, especially by the principle of
immovability. As for the Prosecutors, the question is totally different:
they do not have independence, in so far as their functioning is
governed by the hierarchical principle.
Germany.- German Judges generally believe that their independence
is safeguarded. When they have to adopt measures that may threaten
their independence, the competence is allocated to completely
independent courts. Even admonition is not an exception, as the
decision can be challenged and, on the other hand, it is considered as
a preventive measure intended to prevent more serious procedures to
be adopted. The courts referred to the judges position act according
a pre-established objective plan for allocation of cases. The executive
has no chance to interfere in those issues.
Hungary.- The Minister of Justice does not exercise any competence
on the Courts. The National Council of Justice has full competences.
Italy.- Italian judges feel protected because: a) only a judge (the
General Attorney) can submit a request for a sanction against them;
b) the body in charge of evaluating this request (the Superior Council
of Judiciary) is mainly composed by judges (2/3; 1/3 is designed by
the Parliament among high experienced lawyers/professors); c)
inspectors are judges; d) the Italian Constitution contains clear and
solid rules that guarantee the judiciarys autonomy from the
48

executive, as a historical reaction against Fascism; e) Judicial review is

foreseen before the Supreme Court against the final disciplinary
decision.
Latvia.- Regarding inspecting judges from the executive, the system
is considered sufficiently respectful to the Independence principle.
Slovenia.- In the Slovenian system, the Minister of Justice is not
entitled to conduct the Inspection service. It is only entitled to put the
initiative to introduce the disciplinary proceedings. Therefore, the
independence principle is normatively sufficiently guaranteed. As
already observed, in disciplinary matters, the Executive (Minister of
Justice) has only the initiative right to introduce the disciplinary
proceedings, otherwise he or she cant interfere with this process.
However, in matters related to courts administration, the Minister of
Justice exercises his or her supervision over the work of courts only
via the presidents of courts of higher instance by demanding the
submission of data regarding the operation of the court and the
submission of other written explanations and reports relating to the
organisation and supervision of the courts work. The law itself is welldesigned and appropriate.
Spain.- Generally speaking, the Spanish legal system offers sufficient
guarantees for the protection and the safeguard of the principle of
independence.

49

III.

CONCLUSIONS
1)

INSPECTION SERVICE
a.Principle of Independence

The way in which the Inspection System is designed has a significant

influence on the defence of the principle of Independence.
Unsurprisingly, Opinion no 1 (2001) of the Consultative Council of
European Judges (CCJE) for the attention of the Committee of
Ministers of the Council of Europe on standards concerning the
independence of the judiciary and the irrevocability of judges states in
Conclusion 10 that the court inspection systems shall not serve to
prejudice the independence of judges.
Thus, there are many countries where no Inspection Service has been
established. Others have systems for inspecting Courts. Among this
last group, there are countries where the Inspection Service reports to
the Council for the Judiciary, and others where it reports to the
Minister of Justice.
In this regard, the Opinion number 10 (2007) of the Consultative
Council of European Judges (CCJE) on the Council for the Judiciary at
the service of society must be borne in mind. Under point 10, the CCJE
states that the Council for the Judiciary should promote the efficiency
and quality of justice, in order to ensure that Article 6 of the European
Convention on Human Rights is fully implemented, and to reinforce
public confidence in the justice system. In this context, the Council for
the Judiciary has the task to set up the necessary tools to evaluate
the justice system, to report on the state of services, and to ask the
relevant authorities to take the necessary steps to improve the
administration of justice. Under point 42, the CCJE recommends that
the Council for the Judiciary ensures that the following tasks, to be
performed preferably by the Council itself, or in cooperation with
other bodies, are fulfilled in an independent manner: administration
and management of courts; evaluation of judges and disciplinary and
ethical matters.
Regarding the administration and management of courts, the CCJE
stresses under points 76, 78 and 79 of the aforementioned opinion
that the Council for the Judiciary should have competence in this
respect. It is important that the Council for the Judiciary can obtain
from the courts relevant data and statistics. The Council for the
50

Judiciary should supervise the organization of the inspection service

so that inspection is compatible with judicial independence. This is
particularly important where inspection services belong to the
executive.
It is worth analyzing those countries where the Inspection Service
reports to the executive, especially France, Germany and Italy for
their weight in the EU. In all these countries there seems to be a
balance between the powers assigned to the executive and the
guarantees for the fair exercise of those powers.
In Italy, as seen earlier, there is an internal feeling of safety among
judges because the powers the Minister of Justice is able to set in
motion are limited by a set of guarantees at different stages,
especially at the moment of conducting disciplinary proceedings and
deciding on them as well as when providing judicial review.
In Germany, the independence of the judicial system would seemingly
be threatened at first glance. Ultimately, however, the relationship
between the democratic legitimacy and independence brings a
number of warranties for the rights of the Judiciary.
The management of all Supreme Federal Courts is determined in a
differentiated manner by the competent federal ministry in Berlin
(mainly by the Federal Minister of Justice in Berlin). The Parliament,
with the help of electoral commissions, preserves its influence on the
selection of high judges and high prosecutors. Regarding all principle
matters (fundamental issues), attention is to be paid to the role of the
federal regions, since, traditionally, the system of management of the
judicial power focuses all the main authorities for managing the
judicial power in the Ministries of Justice in the separate federal
Lnder. The Minister of Justice uses the judicial apparatus widely: the
chairmen of courts of Appeal and district courts, their deputies as well
as heads of prosecutors' offices at all levels. The cooperation and
coordination of the system for supervisory authority has already
established itself in the process of long-term practice.
The chairmen of these courts have numerous staff assistants, who
assist them in their work. As far as these assistants perform judicial or
prosecutorial work for the respective chairmen, they themselves
belong to the respective profession. The chairmen have a supervisory
authority in their judicial district for all professional groups. A higherstanding administrative head is the chairman of the respective Court
of Appeal, yet the highest-ranking administrative head is the Minister
of Justice. Due to the fact that all court chairmen are trying a reduced
51

number of cases, they perform a dual function that of judge and

administrative head.
The Minister of Justice and the chairmen of the respective courts
(respectively heads of the prosecutors offices) coordinate their
activity at business meetings.
There is however a strictly regulated system of participation in
decision-making as a guarantee for judicial independence:

The distribution of all tasks in the court exclusively depends on

the so-called Presidium, elected by all judges.

Another body, responsible for decision-making in the judicial

system is the so-called Council for judicial appointments. This
body is elected by the colleagues in each federal province, and
controls the decisions of the Minister of Justice related to the
appointments in the judicial power. The elected members of the
Council have the right not to support the proposals of the
Minister of Justice, concerning for example promotions. In case
of conflict between the Minister and the Council, which takes
place rarely, due to the reluctance of the Minister to participate
in a political debate in increased media attention, the decision
is taken by a conciliation commission

In all courts and prosecutors offices at regional, district and

appellate level, there are committees integrated by elected
judges or prosecutors, who take a stand on "all general and
social issues" (these committees are called councils of judges,
and in the prosecutors offices councils on the issues of human
resources). There are catalogues with strictly differentiated
rules concerning the competences of these committees
(hearing, participation in decision-making). In cases of
contradiction, the questions are addressed to the so-called
conciliation committee.

In some federal provinces there are formal rules for the

participation of professional organizations in voting for decisions
leading to changes in the status of judges and prosecutors on
substantive issues.

Due to the independence of the judicial system, disciplinary

powers exercise is more sensitive. It is worth reminding that the
Administrative officer (a court chairman or a head of a
prosecutors office) is entitled, as a disciplinary measure, to
52

make "remarks", and this is the lowest disciplinary penalty. It

may refer to the way of execution of the official duties. The
decisions for making remarks are subject to Appeal. All other
disciplinary measures against judges and prosecutors are
decided by specialized courts.
Beside those counterbalance mechanisms, there is an ongoing
discussion about the convenience of creating a Council for the
Judiciary for the German Federal State and Councils for each Lnder.
This has been formally proposed by the most important German
Association for Judges and Prosecutors (the Deutscher Richterbund
Federation of German Judges) on 25 March 2010. It reflects the
opinion of a large representative group of German Judges. This
Council would deal with the personal statute for judges, clerks and
staff and disciplinary matters. It would include the personal Inspection
as one of its more important tasks. The Council for the Judiciary would
replace the Ministry of Justice. The main reasons pushing for the
creation of Councils for the Judiciary is the European environment
regarding this issue, since many European countries have this system
which is thought more respectful with the principle of separation of
powers. In fact, in 2009, the Council of Europe in plenary session
requested Germany to enact a system of self-management for the
Judiciary by means of Judicial Councils so that the Ministry of Justice
cannot influence on the management of the judicial system. This
system allegedly would improve the image of the German judicial
system.
The French legal system also establishes a set of guarantees.
However, regarding the protection of the principle of independence in
France there are controversial opinions after the Constitutional
amendment passed on 21 July 2008. Under this amendment, the
composition of the Supreme Council of the Magistracy varies. The new
wording have made minority judges in each panel of the SCM for the
benefit of individuals nominated by the political power without any
real guarantee of impartiality (7 judges, one lawyer, one member of
State Council and 6 people appointed by the political power).
Authorized voices have claimed against this institutional regression.
Among them, it is worth mentioning the opinion formally expressed
by the European Association of Judges at its meeting held in Turku on
May 23, 2008, on the project of constitutional amendment. At this
meeting, the European Association of Judges adopted unanimously
the following resolution :
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1. The European Association of Judges takes notice of the

modifications planned by the French government regarding the
composition of the SCM, whereby there would be only a minority of
judges on the authority in charge of their career and discipline, but a
majority of representatives directly nominated by the executive and
legislative powers.
2. The European Association of Judges recalls and emphasizes that,
with regard to the competent authority in the field of the judges'
selection, career and discipline, the European authorities have, for
many years, established fundamental rules in order to preserve the
independence and the impartiality of justice.
3. In this regard, the European Association of Judges refers to:

Recommendation R94-12 of the Council of Europe Ministers'

committee, which requires that the competent authority should
be independent from the government and the administration.

The European Charter on the Statute for Judges enacted by the

Council of Europe in 1998, which requires the creation of an
authority independent from the executive and legislative
powers within which at least half of its members have been
elected among the judges by their peers.

The Consultative Council of European Judges, which, in its

opinion n10 adopted in Strasbourg in October 2007 which
requires the creation of an authority within which there is a
substantial majority of judges elected by their peers.

4. The European Association of Judges also emphasizes that these

standards have not been enacted for the benefit of judges or their
corporate interest, but as the sole means of ensuring the necessary
independence of Justice within a democratic society.
5. The European Association of Judges expresses its deep concern
with regards to these developments in France. It Appeals to the
French government to observe scrupulously the standards universally
acknowledged of an independent judiciary, which is essential if
citizens are to have full trust and confidence in the judicial system.
It is also interesting to pay attention to the current situation in
Luxembourg. Luxembourg has no Council for the Judiciary. The main
tasks regarding functioning of justice are tackled by the Ministry of
Justice. However, there is an ongoing movement proposing a Council
for the Judiciary to be enacted.
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There is a Mediator of Justice (Mediator de la Justice) in Luxembourg

who proposes a council formed by judges and high non judicial
authorities, while the Association of Luxembourgian Magistrates
(Groupement des Magistrats Luxembourgeois) thinks about a council
completely shaped by magistrates elected by their peers. They
consider necessary a Council for their system according the general
accepted standards under the Opinions issued by the CCJE.
Regarding the Councils competences, it would conduct the selective
process for appointment of magistrates, their promotion, and
appointments for non-judicial positions as well as deontology and
discipline.
As for Romania, according the twinning team opinion, the placement
of the Inspection System under the dependence of the Supreme
Council for the Magistracy is consistent with the general standards
reflected in the aforementioned opinions. Any legal amendment
aimed to make it report to the Minister of Justice is deemed a serious
threat for the principle of judicial independence in Romania.

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b.Inspectors professional background

Regarding the inspectors professional background, they are generally
recruited among people with experience in court management
(judges or clerks). Nevertheless there are cases where external legal
professions are allowed to develop such functions, which seem
incongruous with the required efficiency of the service since those
professions lack of internal knowledge on the way the courts are
actually run.

c. Procedures for appointments

As for appointment procedures, there are countries where there is a
high degree of discretion, whereas others have strict rules governing
these procedures.
All systems should be as transparent as possible, enhancing quality,
merit and capacity of candidates.
From an organizational point of view, most systems possess a
hierarchical structure.

2)

DISCIPLINARY LIABILITY

a.Entitlement
actions

to

exercise

disciplinary

The main distinction can be made between countries where the

Minister of Justice plays a role in promoting disciplinary proceedings
and countries where the Minister of Justice is set aside.
The Opinion no. 3 of the CCJE on the principles and rules governing
judges professional conduct, in particular ethics, incompatible
behaviour and impartiality, tackles this issue under point 68. The CCJE
considers that the procedures leading to the initiation of disciplinary
action need great formalization. It proposes that countries envisage
introducing a specific body or person with responsibility for receiving
complaints, entitled to represent the judge concerned, and to decide
whether or not there is a sufficient case against the judge to call for
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the initiation of disciplinary actions, in which case it would pass the

matter on to the disciplinary authority.
In this sense, Romanian legal provisions seem well balanced.

b.Powers to impose sanctions

Comparatively speaking, a distinction can be made between those
systems where the power to impose sanctions belongs to the courts
of justice, and those which entitle special administrative bodies. In
Luxembourg, for instance, disciplinary issues are nowadays a province
of the Minister of Justice, something which the Association of
Luxembourgian Magistrates deems necessary to change.
Under Paragraph 71 of the aforementioned Opinion, disciplinary
proceedings against any judge should only be determined by an
independent authority (or tribunal), operating procedures that may
guarantee the full defence of rights. It also considers that the body
responsible for appointing this independent authority or tribunal can
and should be an independent body (with substantial judicial
representation chosen democratically by other judges) which, as the
CCJE advocated under paragraph 46 of its first Opinion, should
generally be responsible for appointing judges. This does not preclude
the establishment of a disciplinary tribunal of persons other than
judges (thus averting the risk of corporatism), always provided that
such persons are not members of the legislature, government or
administration.
The twinning team proposes to accommodate the system to the EU
procedural standards, so that the accused judges enjoy all
guarantees consistently with the provisions under article 6.1 to the
European Convention on Human Rights, which entails that at least the
following procedural guarantees must be observed:

As soon as the disciplinary procedure has been launched, the

judge has the right to obtain the communication of its file and
material of the preliminary investigation, if there has been such
a process,

The charged judge may be assisted by a counsel,

The adversarial principle must also be respected. The accused

judge is to be invited to provide his or her own explanations and
means of defence on the facts which he or she is accused for,
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The hearing must be public, the decision must be reasoned,

keep proportion with the seriousness of the offence and be
made publicly,

There must be judicial remedies against the disciplinary

decisions. The challenges must be carried out before the
highest national court.

Regarding decisions adopted on disciplinary matters by the Council of

the Judiciary, Opinion 10 CCJE, paragraph 39, stresses that such
decisions should contain an explanation of their grounds, have
binding force, and be susceptible of being judicially reviewed. Indeed,
the independence of the Council for the Judiciary does not mean that
it is outside the law and exempt from judicial supervision.
On the other hand, under paragraph 63 Opinion 10 CCJE, the Minister
of Justice or any other representative of the politic power cannot take
part in the disciplinary body.

c. Classification of disciplinary offences

The classification of disciplinary offences is not the general rule.
Among all the assessed countries, only Slovenia and Spain count on a
classification
system.
In
Luxembourg,
the
Association
of
Luxembourgian Magistrates regrets the way disciplinary infringements
are defined due to a lack of precision. Under Law 7 March 1980, any
deed, while exercising judicial functions or not, that may damage the
image of the justice, compromise magistrates reputation, create
scandal and damage good traditions and the service to the justice, as
well as the breach of judicial duties, may be considered a disciplinary
offence. In front of this open definition, the Association of
Luxembourgian Magistrates proposes that a clear description of
disciplinary offences be made that is consistent with the principle of
legal certainty. A classification of offences according their seriousness
should be made and connected to a corresponding classification of
sanctions. This classification is linked to the application of the
principle of proportion (Opinion 3 CCJE). The Association regrets that
these ideas are not proposed either by the Minister of Justice or by the
Mediator of Justice.
Although it refers more to sanctions than to offences, paragraph 74 of
Opinion 3 CCJE endorses the need for each jurisdiction to identify the
sanctions permissible under its own disciplinary system, and for such
sanctions to be, both in principle and in application, proportionate.
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In spite of the described international comparative benchmarks, the

twinning team proposes that Romania creates such a system. The
main reason is that proportion on the application of sanctions would
be easier. For instance, if there are 6 types of sanctions, three groups
of sanctions can be made where sanctions 1 and 2 would correlate
with petty offences; sanctions 3 and 4 with serious offences and 5 and
6 with very serious offences.
This classification system would help reduce significantly the risk of
treating similar cases differently, since petty offences would never be
punished with sanctions between 3 and 6.

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d.Criteria for determining the severity of

sanctions
Proportionate application of sanctions is, therefore, a general
requirement. Every countrys system follows some criteria in order to
determine the severity of the sanction that is to be imposed. In this
sense, the differences are not very important. However, as has been
said before, those countries whose legal system classifies offences
into different degrees tend to reduce the margin of discretionary
power from the beginning and to provide a certain degree of legal
certainty.
Undoubtedly, unifying criteria is extremely important in order to
establish a final judicial review system capable of fixing uniform
criteria, hence avoiding contradictory practices.

e.Treatment of complaints without merit

Paragraph 67 of Opinion 3 CCJE considers that there must be a filter.
Otherwise judges may find themselves constantly facing disciplinary
proceedings brought at the instance of disappointed litigants. As a
general rule, complaints of this nature can be dismissed without
further proceeding.
However, a minimum procedural requirement is unavoidable. This
does not mean that, as it happens in Romania, any complaint,
regardless of its obvious inconsistency, may bring about the opening
of a procedure which includes a visit to the court against which the
complaint is addressed. A reasonable procedure should consist of an
internal gathering of data, a report stating whether the complaint
lacks merit or not, and its subsequent rejection or acceptance.

f. Handling of complaints regarding the

contents of the judicial decision
All checked systems are unanimous on this issue. This kind of
complaints can be rejected without further proceeding. However, in
many systems it is possible to deal disciplinarily with serious and
deliberate breaches of rules of procedure by magistrates, or with
cases of absolute lack of reasoning, which seems consistent with
paragraph 63 Opinion 10 CCJE: a judge who neglects his/her cases
through indolence or who is blatantly incompetent when dealing with
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them should face disciplinary sanctions. However, under paragraph

69 Opinion 1 CCJE, court inspection systems, in countries where they
exist, should not concern themselves with the merits or correctness of
decisions.

g.Breaching of standards of conduct

In some countries, the mere breach of the Code of Ethics constitutes a
disciplinary offence. This collides with the principle of legal certainty.
Indeed, as the CCJE declares under Opinion 3, paragraph 60, it is
incorrect to correlate breaches of proper professional standards with
misconduct giving rise potentially to disciplinary sanctions.
Professional standards represent best practice, which all judges
should aim to develop and towards which all judges should aspire. It
would discourage the future development of such standards and
misunderstand their purpose to equate them with misconduct
justifying disciplinary proceedings. In order to justify disciplinary
proceedings, misconduct must be serious and flagrant, in a way which
cannot be posited simply because there has been a failure to observe
professional standards.
As in Romania infringements of the Code of Ethics just entail
aftermaths on the evaluation level, it seems appropriate even if the
procedural guarantees are not clearly established in the legal system.
Amendments should be made in order to provide clearer remedies,
both regarding decisions on the violation of ethic rules and periodical
evaluations which take into consideration the aforementioned
declaration of violation of ethic rules.

h.Disciplinary sanctions record

In general, disciplinary decisions are recorded in the personal file of
the concerned judge. Differences are found regarding the erasure of
these records after a period of time has elapsed. Some countries
consider the record indelible.
As a suitable rule to enhance legal certainty, the Twinning team
proposes that recorded punishments be deleted after a period of time
has elapsed, provided the concerned magistrate has not committed a
new disciplinary offence.

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