Curriculum for interactive workshop on professional conduct

Concept of the Training
Rules of conduct and ethical standards for judges and public prosecutors are discussed worldwide. Thus, e.g. in Italy and France, but also in many East European countries as well as in Kosovo, rules of conduct already exist in writing which should be followed by judges and public prosecutors in the execution of their office, but also in their private life.

Against this background, the EU-funded project "Institution Building of the Kosovo Judicial Institute" offered an interactive workshop on this subject in co-operation with the USAID-funded National Centre for State Courts project of the "Justice Reform Activity in Kosovo" which took place on 22 and 23 November 2004 in the Kosovo Police Service School.

Based on the discussion about judicial rules of conduct held in Europe and the experience gathered in the mentioned event, the following discourse is intended to assist the trainers of the KJI in future workshops about this subject.

To come up to the interactive approach of a workshop on the one hand, and at the same time to cover the theoretic background of this issue on the other hand, the following outline generally distinguishes between three work units and two presentation units.

The work units are aimed at supporting the trainers in the preparation of teamwork and discussions. The presentation units are intended to be either presented orally by the trainers or, alternatively, to be handed out to the participants by and by in the course of the training to be read by themselves. They are designed to consolidate the findings achieved within the teamwork and to give impulses and stuff for discussion.

The material is generally structured as to support the trainer in drawing up his/her own concept. It is intended as an inspiration only, but as a matter of fact it may also be taken over completely. In this case, it is advisable for the trainer within his/her preparatory work to work through the concept entirely before the beginning of the event in order to have a secure command of the structured course.

The concept provides approx. a one-day to one and a half-day training unit comprising two to three three-hour units. The trainer may extend the unit and combine it with further elements or abridge it. The concept is laid out for approx. 25 participants.

Preparation of the Workshop
As the issue of "judicial ethics" will be developed within an interactive workshop, it is advisable for the trainer to ensure right from the start of the training that the seating arrangement is conducive to an interaction and discussion among the participants.

It has been found that a seating arrangement with the participants being seated at desks placed one behind the other - like in lecture rooms or school classrooms - has an extremely negative impact on the atmosphere.

It is far more recommendable to ask the participants to arrange the desks in a U or circular shape. It should be ensured that all participants can see each other during the discussion since this substantially increases the participants' attentiveness and concentration.
In the following, it should be ensured that a constructive working atmosphere is constantly maintained. In this context, it is advisable to keep an eye not only on the participants' contributions for discussion but also on the reaction of the other participants, since it can often be told quite reliably from the reaction to the statements whether or not the participants follow the training attentively or are rather bored by it.

From experience, it turns out within a very short time that some participants join in continuously, while others are only reticent observers. In this situation, a trainer may act as a mediator and enhance the participants' attention by addressing the rather passive participants directly, as in this case, each participant reckons with being the next to be addressed by the trainer and with being involved in the discussion.

If individual participants tend to repeatedly make extended contributions and to fly off on a tangent, the trainer should particularly ensure that the other participants' attention and patience are not excessively strained. If necessary, each participant may be given a restricted time for speaking and be cut short. The other participants will be thankful for this.

If it becomes apparent that the participants get exhausted, an adequate break should soon be made. Basically, a unit without break should not take more than 90 minutes.

To give the participants an overview of the timeframe of the training and to ensure a good organisational framework, the agenda and the scheduled breaks should be stated right at the start. In the further course it is helpful to tell the participants before each break how long the break will be in order to ensure that the work will be continued in due time.

It must be decided by every trainer individually how one should respond to ringing mobiles. I have experienced that a trainer took off a ringing mobile without further ado from the participant and only returned it to him/her after the training. It is doubtful whether this is not going too far. Nevertheless, there was no other mobile ringing during this event.

As regards materials, a flipchart and felt pens as well as a sufficient number of copies of the texts printed in the annex should be available.

Work Unit I: Introduction to the Subject
Material: one copy of Annex 1 for each participant, flipchart, felt pens
In order to give the participants a first access to the subject of ethics and not bore them with a theoretical lecture right from the beginning, it is advisable to start with a teamwork. For this purpose, small groups of five participants each should be formed (25 = 5 x 5). This can be easily organised. At first, the copies of the questionnaires of Annex 1 are consecutively numbered five times from 1 to 5. The copies provided with the numbers are then handed out to the participants.

Each participant will now become a member of the group whose number he/she has found on his/her copy. This means that all participants with a "1" on their copy will form group 1, all with a "2" group 2 and so on.

As soon as the copies have been handed out to the participants, they should be informed that the groups are formed according to the numbers on the copies and that the groups should retreat (into a corner of the room or to adjacent rooms) in order to discuss and answer the questions jointly. Each group should also use the time to appoint a spokesperson who will subsequently present the findings of the group.

Group 1 Group 2 Group 3 Group 4 Group 5
Question 1: Where are we faced with ethical questions in our function as judge/public prosecutor? Why is ethics a matter to us?
Question 2: What sources of ethically correct conduct are we aware of? Where do we orient ourselves at in answering ethical questions?
Question 3: Which authorities do we accept in ethical questions?
Question 4: What should we talk about during the event? What do we expect from the further training?

A period of 45 minutes should be scheduled for the teamwork. During the teamwork, the trainer has time to draw a table on the flipchart (see above). It might be useful upon the termination of this period to have a break of 15 minutes. However, the trainer should in all cases tell the participants prior to the teamwork whether or not there will be a break afterwards and at what time he/she intends to continue the common training. The trainer should ensure that the time limit is adhered to and will gather the groups in the lecture room at the end of the teamwork period. As soon as all groups have returned, it can be started with the compilation of the results. For this purpose, the trainer asks the group spokespersons one by one for their results. In doing so, the spokespersons should successively give their answers to question 1). Only after all spokespersons have answered question 1) the trainer should ask for the answers to question 2) and so on. This procedure ensures a higher attention than would be achieved if the spokespersons gave all answers of their group to all questions at once.

The trainer summarises the answers of the group spokespersons in key words and enters these in the four columns of the table prepared during the break (see above). In doing so, a base for the further training and an overview of the participants' previous understanding as well as their needs are thus established by and by.

Lecture Unit I: Judicial Ethics and the State governed by the Rule of Law
Judges are bound to the law and the legislation - no less and no more. Ethics, one could think, is not a topic to deal with in this context at all.

Why, then, should a judge - or more generally a lawyer - deal with ethical questions? The relevance of an ethically correct conduct becomes clear if we are aware of a central concern of the state governed by the rule of law: The rule of law aims to prevent the arbitrary and forcible enforcement of legal claims between private parties. The persons concerned are rather expected to settle their disputes before the courts in a proper procedure and above all in a non-violent manner.

The state governed by the rule of law has assumed the obligation to establish law and order in a monopolising way. From this results the state's duty to grant recourse to the courts. The domestic prohibition of force and the monopoly on coercive powers of the state take shape in jurisdiction, being the starting-point for the fundamental necessity of rules governing:
· the access to the courts,
· the course of procedure,
· the form of regal remedies and
· the necessity of the independence of the judiciary.
The state can only demand from its citizens to refrain from an arbitrary enforcement of their claims if it provides a functioning jurisdiction. A necessary condition to provide such functioning jurisdiction is that legal disputes are decided by independent judges before the state courts. Judges must be capable of passing their decisions as uninvolved neutral third parties.
As a matter of fact, the protection of such independence requires the creation of corresponding outline conditions. In this context, the key words are e.g. proper professional training, an adequate remuneration, the protection of judges and their families etc.

The state, however, has not assumed obligations alone. The persons whom the state appoints as judges also have to make their contribution to safeguard the rule of law. The conduct of every single judge is of substantial relevance for safeguarding a functioning jurisdiction. In this context, the question arises of how the judge can come up to his/her tasks, i.e. how a judge acts correctly in terms of the requirements of his/her office. The discussion about ethical rules of conduct which will be held within this event thus directly serves to safeguard a functioning jurisdiction and consequently serves the rule of law and its pacifying force.

Judges have to come up to a high standard of integrity demanded of them. The proper execution of the judicial profession reflects the degree of esteem evinced for the judge. A mastery of the execution of the judicial office does not only lead to a positive authority but also consolidates the rule of law. A conduct which does not come up to the legal or ethical requirements of the judicial office can cause considerable damage. The persuasive power of judicial decisions does not only rely on the legal quality of their reasons, but to a high extent builds upon the trust shown to the judges by the citizens. Such trust is based on the exterior and interior independence of the judge, his/her neutrality and his/her discernable distance.

To the extent in which for example a single drop of used oil can contaminate several thousands of litres of drinking water, the misconduct of a judge can have a lasting negative effect on the public opinion regarding the judiciary. This, in turn, can give rise to a loss of trust in the judiciary as a whole and as a result can question the rule of law in its entirety: A citizen who has no trust in the judges and in the judiciary will feel let down by the state. Then, the step of taking over the enforcement of one's rights by oneself is not far any more. Then, the parties concerned will possibly consider unrestricted self-help as acceptable and useful.

If the discussion about ethical standards is considered against this background, one will soon find out that the written rules of conduct for correct professional conduct for judges regularly concern only the exterior frame of the execution of office or of the private life.

This also applies to the Code of Ethics and the Professional Conduct for Judges (CoE) of Kosovo Judicial and Prosecutorial Council of 2001.
At first, the CoE states the following general principle:

A judge shall act at all times in a manner that promotes public confidence in the dignity, integrity and independence of the judiciary. This implies that a judge shall observe high standards of professional and personal conduct, respect and comply with the law, perform the duties of office impartially and diligently and avoid any conduct and situation that could lead to a judges professional life but also to certain aspects of a judges private life, when they may impair the judges image in the eyes of the public, thus affecting the judiciary as a whole.
This general principle is shaped by the further CoE regulations by placing specific ethical requirements in section II for (A.) "judicial activities" and for (B.) "non-judicial activities", and by containing special rules in section III which concern (A.) "adjudicative responsibilities" and (B.) "administrative responsibilities" of the judge.

However, all regulations only include relatively general provisions about how a judge is expected to conduct him/herself. In individual questions and problems, these are normally no help, for example section III A 1. - 9. Specific Rules of Professional Conduct, Adjudicative Responsibilities of the CoE which outlines inter alia:

1. A judge has the duty, in exercising his/her judicial responsibilities, to ensure that cases are dealt with fairly and efficiently. This implies, in particular, a duty to ensure that a fair hearing is given to all parties and that the procedural rights of the parties are respected throughout the proceeding, and to avoid any undue delays as well as any forms of absenteeism and negligence at work
…
5. When permitted by law and, if appropriate, a judge shall encourage the parties to reach a friendly settlement. In any event and except where the law or established practice otherwise provides, a judge shall give clear and complete reasons for his/her judgements and, where necessary, explain procedural matters to parties in an impartial manner using language which is readily understandable.
It cannot be derived from this comprehensive body of legislation in which case the judge should attach particular importance to bringing about a friendly settlement, or generally speaking, with which interior attitude and self-conception a judge is supposed to execute his/her task.

This is certainly also due to the fact that it is impossible to prescribe the individual attitude of every single judge to his/her profession by rules of conduct with a binding effect. When it comes to the question of his/her professional ethics, the judge regularly has to rely on him/herself. He/she must ask him/herself how much time he/she will take for an individual case, how far he/she will engage in a case, how much time he/she will spend for the solution of a judicial problem, how comprehensively he/she will give reasons for his/her judgement, how openly he/she will speak to the parties and their counsels, how he/she will deal with the counsels or which case he/she will treat as urgent and which one not.

All these questions circle around judicial self-conception, around professional ethics. The CoE can at best provide a rough orientation. At the same time, there is nobody to release the judge from his/her responsibility related with his/her office and to answer the upcoming questions for him/her. Each judge has an individual notion of what is right and what is wrong.

Work Unit II:
This unit aims to discuss situations with the participants relating to the judge's professional every-day life where ethical questions may come up.

Unit II A. 3. CoE states inter alia:

3. A judge has in particular the following responsibilities:
a) to act impartially and independently in all cases and free from outside influence …
Unit III A. 1 CoE continues :

1. A judge has the duty, in exercising his/her judicial responsibilities, to ensure that cases are dealt with fairly and efficiently.
In the following, it will be debated with the participants on the basis of an exemplary case, whether or not a judge acts impartially in a civil procedure. To illustrate the judge's conduct, a role play should be performed prior to a discussion simulating a hearing before a civil judge. For this purpose, please choose three persons among the participants, who are prepared to take part in the role play. Two actors are needed for the counsels, and one actor for the judge. Ask the three participants to come to the front. The "judge" (J) should sit down at a desk in the front. The "counsels" (A and B) should be seated to his/her right and left.

Now, you explain in short that part of a civil procedure will be played. In this context, you should attach particular importance, just like in the following role plays and cases, to thoroughly explain the case (a) and the applicable regulation (b). The exercises only make sense if the participants have understood the cases well. If it becomes necessary, please write the case (a) and regulation (b) on a blackboard.

Now, hand out the text to the actors which they are expected to read. The judge will read text (R). One participant will play the role of the counsel for the plaintiff (A), and the other one will assume the role of the counsel for the defence (B).

Role Play I: Civil Procedure - A damaged Car
(a) The following case is presented:

The plaintiff has parked his/her car on the public car park in front of his/her house. The defendant has just picked up some friends from the airport and is parking his/her car on the right next to the plaintiff's car. His/her front-seat passenger opens the door, thus damaging the plaintiff's vehicle, causing a damage of € 1,000.

The judge now has to decide whether the plaintiff will be paid € 1,000 from the defendant.

(b) The applicable regulation states:

If a matter is damaged during the operation of a vehicle, the owner of the vehicle is obliged to make up for the damage to the injured person.
The parties are arguing whether or not the plaintiff's vehicle has been damaged during the operation of the defendant's vehicle.

Beginning: Role Play I:
Counsel A: As a matter of fact, the defendant has to pay € 1,000. The case is clear. The damage was caused during the car operation.
Counsel B: No, this is wrong. The defendant has nothing to do with the damage. The damage was not caused during the car operation. The car was already being parked. The damage was caused by the defendant's friend when he/she opened the door. My client has nothing to do with this.
Counsel A: But especially getting in and off is part of the car operation. How, then, should a car be operated otherwise? I stick to my opinion. The defendant has to pay.
Counsel B: The colleague's concept is definitely going too far. I stick to my opinion. The regulation only refers to damages which were caused by driving cars.
Judge R: Distinguished colleagues, you may be interested in hearing the court's view about your dispute. Well, after a preliminary appraisal, I hold the opinion that the defendant's concept appears justifiable. After all, the highest court decided as early as 1975 that a vehicle is only in operation as long as the engine is running. On the other hand, the question arises whether the regulation is not understood too closely, since it is a fact that the law is expected to establish a claim especially for such damages which are typically connected with the operation of a vehicle. Typically, a vehicle cannot be operated without getting in or off it. At the moment, I therefore tend to consider also the getting in or off as an operation within the meaning of the regulation. The consequence of this would be that the defendant would have to pay the damage, i.e. that he/she would lose the lawsuit.
Discussion of Role Play I
Now ask the participants how they would appraise the conduct of the judge. Is the judge's conduct correct pursuant to the CoE? May the judge's conduct cast a doubt on his/her impartiality? Or is the judge partial since he/she informs the parties on how he/she will presumably decide the litigation?
Discuss that especially the judge's open willingness to communicate his/her opinion about the legal problem gives the parties the opportunity to go into the judge's viewpoint.
Answer:
The judge's conduct is correct. He/she is not partial. The judge's conduct towards the parties is neutral. He/she gives his/her opinion on how he/she understands the law. It is in the nature of things that one party likes this better than the other.

The CoE expressly defines in Unit III. A. 5 S. 2:

In any event and except where the law or established practice otherwise provides, a judge shall give clear and complete reason for his/her judgments and, where necessary, explain procedural matters to parties in an impartial manner using language which is readily understandable.
Assume that the judge's legal opinion in the case just played is correct. The highest court, too, has already decided a comparable case as the judge had told the counsels.
Question: Now ask the participants whether they would have assessed the case differently if the judge had had an incorrect legal opinion. Would he/she no longer be neutral and impartial merely because his/her legal opinion was wrong?
Answer: No, the fact alone that a judge expresses an incorrect legal opinion can be no reason for considering him/her as partial. The correction of wrong legal opinions is the task of the next instance. The judge is bound to neutrality and non-discrimination of the parties. This does not mean that he/she is not allowed to hold a view which is rejected by the next instance. The judge's impartiality is only doubted if further reasons are discernible that his/her wrong legal opinion is based on prejudice towards a party or on arbitrariness.
The judge may not be successfully rejected by the parties only because of an incorrect legal opinion.
Question: Now ask the participants how the case would have to be assessed if the judge pointed out that the plaintiff's claim was already time-barred and the defendant only pleaded the defence of limitation upon the judge's remark.
Answer: In this case, too, it is held that the judge's conduct is neutral if he/she points out the limitation. To me, this is going too far. Here, the judge with his/her remark helps one party to a success. This is not the task of the judge.
Role Play II: Civil Procedure - A Judge feels insulted
Now let us assume that the civil procedure of role play I continues as follows:
Counsel (B): I consider the court's opinion to be completely wrong since operation means that the damage has to be caused while the car is moved. I furthermore have the impression that the court has already decided the case for itself. Your opinion is not shared by any other judge I know. I am hearing your opinion for the first time. Your judgement will certainly be set aside in the next instance.
Judge (R): Stop it. I feel insulted by you. I will be deaf to your further comments.
Discussion about Role Play II:
Question: Is the judge's reaction correct? Or is there concern that the judge will no longer decide in this case in an unbiased way?
Answer: Yes, the judge's conduct now gives rise to the concern that the judge will no longer take notice of further reasons with the required distance.
Further to this, the CoE states in section III.A. 8:

In the performance of judicial duties a judge shall avoid words or conduct manifesting bias or prejudice and shall not allow staff, court officials and other subject to the judges direction and control to do so.
You may now dismiss the participants of role plays I and II and ask two other participants to come to the front as counsel and judge in a criminal procedure in role play III.
Role Play III: Criminal Procedure - A Judge for the Dress Code
Now assume that counsel V appears in a criminal proceeding as a counsel for the defence without wearing a white tie, though this is prescribed not by law but pursuant to the regulations of conduct which the counsels have given themselves.
Counsel (V): As you can see, I have unfortunately appeared without a tie today. This, however, is not intended to express any disregard of the court.
Judge (R): You know that a counsel has to wear a white tie at court. What's the big idea to appear without a tie here? We are not on the football ground but in a public hearing. I give you five minutes to secure yourself with a tie.
Counsel (V): I have already asked several colleagues on the court premises but nobody could help me.
Judge (R): If you don't have a tie you cannot act as a counsel for the defence here. I am herewith withdrawing your retainer.
Discussion about Role Play III:
Question: Is the conduct of the judge correct?
Answer: Certainly not. The counsels have prescribed the wearing of a tie in their rules of conduct by themselves. A statutory regulation does not exist according to which counsels are only allowed to appear in court with a white tie. Clothes worth complaining about, however, are no reason to withdraw the retainer from the counsel. The accused is deprived of the counsel of his/her confidence only on the grounds of non-compliance with the dress code. This may give rise to the concern of the accused, for whom much is at stake, that the judge will not take his/her interests sufficiently into account in other respects either. This gives the impression that the judge has assumed an interior attitude towards the accused which affects his/her impartiality and unbiasedness.

Lecture Unit II: Law - Morals - Ethics - Ethos
To enter into the subject in further detail, one should also clarify the meaning of the terms of law and ethics and morals resp. ethos.

Judicial ethics can be understood as a circumscription of a specific extra-legal (i.e. not legally governed) regulatory system tailored to the judge resp. the judiciary.
This system mainly involves the description of different rules of conduct. It is not identical, at least in Germany, with the democratically legitimated regulatory system of the legally governed (judicial) law. Thus, also in the discussion about judicial ethics, we can therefore distinguish between law on the one hand and morals/ethics on the other.

Both regulatory systems can be imagined as two different circles. These circles overlap in more or less large areas. In those areas where they overlap, the legally governed requirements of conduct and the positions considered as right from an ethical point of view are congruent. In the other areas, they deviate from each other.

The following example will make it clearer:

In Germany, there are legal provisions penalising corruption. As a matter of fact, this also applies to judges. But not only in terms of statutory standards, but also in terms of ethical standards, judges are prohibited from accepting any benefits. If a judge comes up to his/her legal obligation of not taking bribes, he or she thus acts at the same time in an ethically correct manner.
The distinction between ethics and law is not a purely academic question since it is of direct relevance to the judicial profession because judges are independent and are principally only subjected to the law. Therefore, there is principally no room for a binding force of other social regulatory systems. For this reason, the concepts of ethical standards developed at international level are in any case not binding to judges per se only because they are considered as right by the majority of judges or by the citizens.

But please do not misunderstand this assumption, since this does not mean that ethical standards would be irrelevant to judges!

Remember the image of the overlapping circles and the fact that the content of ethical and legal standards overlap. From this, it can also be derived that in all cases involving an overlap, judges who are subjected to the law act in factual accordance with the ethical standards when applying the law.

The basic moral concepts, at least in Germany, are expressed in the fundamental rights of the German Constitution, or are indirectly related to them. The same applies, almost specifically tailored to judges and the execution of their office, to Art. 6 para. 1 ECHM. It provides that (lawful) judges are legally committed to hear claims under civil law resp. accusations under criminal law independently and unbiasedly in a fair proceeding in public and within a reasonable period. If the judge comes up to this obligation, his/her conduct will normally be consistent with the respective ethical standards.

Violations of provisions under criminal law by a judge at the same time constitute fundamental violations of the rules of conduct (also of the CoE) laid down in the relevant standards relating to judicial ethics. Numerous further requirements normally also result from the provisions regarding the execution of the judicial office. Thus Sect. 39 DRiG [German Act on Judges] requires German judges for example to act inside and outside their office, including in political activities, in such a way that the trust in their independence is not threatened. Accordingly, judges have to do anything at their own initiative to prevent any threat to the trust of the public in their independence.

Thus, judges have to control themselves in all areas of life. They are expected to display such a conduct in general that the public will have no serious doubts that they rule justly and independently as judges.

In this context, German judges have to orient their conduct at the image of a judge drawn up in the Constitution. Accordingly, they are civil servants and citizens at the same time. Or to put it in other words: they are not forced to display civic abstinence, but are allowed to make active use of their freedoms protected by the Constitution. However, in doing so, they have to ensure that the trust evinced for them is not shaken, since the persuasive power of judicial decisions is not only based on the legal quality of their reasons but to a high extent on this very trust.

A definite dimension of what seems to be justifiable in Germany in terms of social or political activity, however, is provided neither by the Constitution nor by the other legal provisions. It is rather left to the judge to find his/her limits here. At this point, it becomes evident that the mere adherence to the provisions which at the same time correspond to ethical standards does not exhaust the sources and standards of judicial ethics.

After all, the judge him/herself is a decisive and legally expressly legitimated source of judicial ethics. He/she is entrusted with the power of jurisdiction. He/she has to execute the judicial office in Germany according to the Constitution and the law. In doing so, the judge has to rule to the best of his/her knowledge and belief without distinction of person.

Judges are thus committed to nothing less than to subject the execution of tasks conferred upon them and certainly their other conduct to the constant criticism of their conscience and to be answerable for both before themselves. In this context, the individual moral concepts of the respective judge are addressed by the term of "conscience", however, not the concepts found right by the majority of judges. As a result, the law achieves that a multitude of different moral concepts may be accepted. Following the law-sociologic discussion about the pluralism of law (cf. Rehbinder, Rechtssoziologie [Sociology of Law], 5. A., marginal no. 48 ff.) one could therefore speak of a pluralism of ethical concepts.

This shows that judicial standards of conduct such as the CoE only have a limited "range". As already stated, any further specification of the individual professional attitude concerns professional ethics. Each judge also has to decide for him/herself how much political activity he/she deems justifiable - how he/she stands up to attacks to his/her independence and so on. Neither statutory regulations nor ethical standards can offer him/her a general solution to the questions arising in these areas.

The task to "judge to the best of one's knowledge and belief", however, must not be misunderstood as an invitation to the judge to place conscience above the law. Judges must not decide against the law, thus referring to supra-legal moral standards. They must not replace the law by their subjective idea of moral concepts when considering the law to be unjust.

Work Unit III: "Five Cases of Doubt and a Challenge"
In this work unit, present the following cases one by one and discuss with the participants their answers to the questions raised. The answers proposed after each question are consistent with the case-law of the highest German courts where available. However, they should not induce the participants to replace their discussion and should not be read to them like a lecture.

Case 1: "We spare no expense" - Expression of Displeasure by the Judge in the Hearing
The trial in a criminal matter already lasted several months and extended over numerous days of trial. Many witnesses were heard in court and abroad. The presiding judge asked the counsel for the defence after each day of trial whether there were any further witnesses to be heard. The counsel answered this question partly in the negative and partly did not answer it at all.

When it began to show after seven months that the hearing of evidence would soon be completed, the counsel for the defence put forward a motion in two hearings to hear further evidence abroad. In this context, the judge expressed his/her displeasure. He/she asked the counsel for the defence why the motion to hear further evidence had not been put forward earlier though this would certainly have been possible and would also have been cheaper. He/she furthermore said: "If the taxpayers knew what this costs us all, they would attack the counsels and all of us. The taxpayers will love such motions. We spare no expense here." Subsequently, he/she arranged for the applied hearing of witnesses abroad.
Question: Was the conduct of the judge all right? Or does it question his/her impartiality?
Answer: Further to this case, the highest German (specialised) court stated that the conduct of the judge only constituted an expression of displeasure which referred to a discussion about the right to put forward a motion to hear evidence. It did not justify the concern, especially taking account of the fact that the motion was allowed, of considering the judge as being partial.
In my opinion, however, it is generally advisable to be very reticent with statements of displeasure.

Case 2: "Not yet aware of the seriousness of the situation" - Statements of the judge outside the trial
In the accusation, the accused had been charged with having severely injured witness W. by shooting at him/her with a pump gun loaded with buckshot. At the end of the first day of trial on which the accused had not pleaded to the charge, he/she stated upon the termination of the hearing to a witness who was still present that he/she considered witness W. to be a criminal.
The judge who had not yet left the hearing room reacted on this statement and declared correspondingly: "Even if W. were a criminal, this does not give you the right to shoot at him/her. You have obviously not yet become aware of the seriousness of the situation. Your attitude, however, will be reflected in the sentence. You will have to expect a serious prison sentence."
Question: Does the conduct of the judge justify the concern of unbiasedness?
Answer: Yes. From the accused's viewpoint, a mistrust in the judge's unbiasedness was justified due to the remark that the lack of recognition might be taken into account to a sentence-increasing effect, since upon this statement, the accused had reason to suppose that the judge had assumed an interior attitude towards him/her which might have an adverse effect on the required unbiasedness and impartiality. Due to the overall circumstances, the impression is given that the presiding judge is already convinced of the accused's guilt and interpreted his/her statement as an expression of a lacking recognition of the unlawfulness of the deed.

Case 3: The judge and the press
The accused was charged with having acted as a "lawyer" and having called him/herself a "Doctor" without being admitted to practise law and having taken the doctor's degree. The trial called against him/her had to be postponed several times. A hearing scheduled for 12 November was called off at short notice.
As the newspapers got interested in this matter, several reporters called on the competent judge on the following day, the 13 November. The judge provided them with a brief piece of information about the state of affairs based on the records. On the next day, an article appeared in the newspaper stating correspondingly:

"... It could be ascertained so far that the 57 year-old accused has not completed his training as a lawyer."

The accused thereupon rejected the judge on the grounds of his/her concern of bias.
Question: Was the conduct of the judge correct?
Answer: From the viewpoint of a sensible accused, there was reason to mistrust the impartiality of the judge. The accused is not able to check whether and to what extent the information in the article had come from the judge. Therefore, he/she has reason to assume that the "ascertainment" mentioned in the article had already been made by the judge since insofar it had been reported on a fact which could only have come into the paper by an information of the judge. For the judge, however, there must be no firm facts at all prior to the trial. He/she may only establish facts on the grounds of the trial even if these can be established from the records.

It is not the task of the judge to give information to the press which anticipate the result of the trial only in parts. The establishment of press offices is useful especially since the competent judge may get into conflict with his/her official duty to safeguard his/her own unbiasedness, with the public, on the other hand, having a legitimate interest in being informed early. Press offices cannot be alleged so readily of expressing a view which the court had already decided on.

Regarding statements about what the accused is charged with, it is recommendable for the judge to be extremely restrained. The public interest in premature information by the competent judge can generally not be accepted as being justified. As a matter of fact, even the accused, whose own fate is concerned and whose interest in a statement of the judge is far more urgent, has to await the trial.

Case 4: The judge in the church choir
In a civil procedure, a judge states the following to the parties:
"The defendant has been personally known to me for years. With short interruptions, we both sang jointly in the same church choir from 1984 to 2002, in the same voice (tenor). The defendant was a section leader, i.e. the representative of the tenor in the choir council and the internal co-ordinator of the vocal activity of the singers affiliated to the tenor." During the stated period of time, I therefore cooperated with the defendant in numerous rehearsals, church services and concerts. Many times, I also participated in individual rehearsals of the tenor on his private premises and got to know him closely by this."
Question: Do the reported circumstances justify the concern of impartiality?
Answer: The judge stated objective reasons which could give rise to concern from the standpoint of an objectively thinking party in a reasonable consideration that the judge is not unbiased and thus not impartial in this matter. The joint membership in an association, with the same applying to the joint membership in a church choir, is per se not sufficient. But as far as a close acquaintance develops from the joint leisure activity this may give rise to a deviating assessment. In this context, the judge stated that numerous individual rehearsals had taken place on the "private premises" of the director of the defendant. Even if the reason for these visits exclusively were the joint choir activity, the idea suggests itself that the visits gave the judge an insight into an area of life of the party to the procedure which is normally not open to strangers or loose contacts. This is also the meaning of the statement that the judge had got to know the defendant closer "by this", i.e. by the visits on the private premises. Objectively considered, it cannot be denied that there is the possibility that the judge appointed to decide on the case will - unconsciously - base his findings process on the image he thus acquired of the party to the procedure known to him closer or that he will get a restricted view because he intentionally attempts not to make use of his existing concepts about the acquaintance (e.g. in view of his honourableness, reliability etc.).

Case 5: The shorts
It is hot in summer - too hot for judge R. Is it objectionable if he/she comes to the office in shorts? As a matter of fact, he/she wears a suit and a robe during the hearings.
Answer: ?
The challenge: A division under excessive work load
Judge R has recently taken over a division for civil proceedings. The division had for a longer period of time not been attended since the formerly competent colleague had fallen ill. This division has more than 500 cases to be dealt with, 50 cases from 2003, 25 from 2002, 10 from 2001 and 2 from 2000. The handling of one case from 2000 takes as long as the handling of 20 cases from 2003.
Question: How will the judge split his/her work in order to come up to the CoE, since it states in Section III A 1:

A judge has the duty ... to avoid any undue delays as well as any forms of absenteeism and negligence at work.
Solution: In my opinion, the judge should not deal with the new proceedings first, since then the parties of the earlier proceedings would have to wait even longer. However, he/she should not deal with the older files first, since then, the new files will become old as well before being dealt with. He/she should rather develop a system providing at least the potential chance for every proceeding to be completed within a foreseeable period. Here, for example, in each week, one proceeding could be handled each from 2003, in each month, two proceedings from 2002, in each month, one proceeding from 2001 and in every six months, one old proceeding from 2000. The remaining time could then be additionally used to deal with new proceedings. It should only be deviated from this system in urgent cases. Urgent cases always have to be handled immediately.
Question: Should the judge change this order if the counsel tells him/her that his/her client wants his/her case to be dealt with first, since he/she is an influential mayor?
Answer: No. The fact that the party is an influential politician must not lead to a preferential handling of his/her case. In this context, section II. A. 3. a) CoE states inter alia:

A judge has in particular the following responsibilities:
a) to act impartially and independently in all cases and free from any outside influence, and perform judicial duties based on the facts and the law applicable in each case, without any restriction, improper influence, inducements, pressures, threats of interferences, direct or indirect from any quarter.
Question: Should the judge change the order if the court president requests him/her to do so?
Answer: No. As far as there is no statutory regulation, the court president is not allowed to prescribe the judge the order in which he/she has to process his/her files.

Work Unit IV: Summary and Discussion
To close the training, it should be gone back to the initially gathered questions. Ask the participants questions 1) to 3) again. Discuss whether the answer to these questions has changed on the grounds of the training. Finally discuss question 4), whether there is further need of debate. Thereupon, the training is closed.

Annex I: Group no. ___
Questions for the work groups
Question 1: Where are we faced with an ethical question in our function as judge/public prosecutor? Why is ethics a matter to us?
Question 2: What sources for ethically correct conduct are we aware of? Where do we orient ourselves at in answering to ethical questions?
Question 3: Which authorities do we accept in ethical questions?
Question 4: What should we talk about during the event? What do we expect from the further training?

Annex II:
Text of Role Play I:
Counsel A: As a matter of fact, the defendant has to pay € 1,000. The case is clear. The damage was caused during the car operation.
Counsel B: No, this is wrong. The defendant has nothing to do with the damage. The damage was not caused during the car operation. The car was already being parked. The damage was caused by the defendant's friend when he/she opened the door. My client has nothing to do with this.
Counsel A: But especially getting in and off is part of the car operation. How, then, should a car be operated otherwise? I stick to my opinion. The defendant has to pay.
Counsel B: The colleague's concept is definitely going too far. I stick to my opinion. The regulation only refers to damages which were caused by driving cars.
Judge R: Distinguished colleagues, you may be interested in hearing the court's view about your dispute. Well, after a preliminary appraisal, I hold the opinion that the defendant's concept appears justifiable. After all, the highest court decided as early as 1975 that a vehicle is only in operation as long as the engine is running. On the other hand, the question arises whether the regulation is not understood too closely, since it is a fact that the law is expected to establish a claim especially for such damages which are typically connected with the operation of a vehicle. Typically, a vehicle cannot be operated without getting in or off it. At the moment, I therefore tend to consider also the getting in or off as an operation within the meaning of the regulation. The consequence of this would be that the defendant would have to pay the damage, i.e. that he/she would lose the lawsuit.

Annex III:
Text of Role Play II
Counsel (B): I consider the court's opinion to be completely wrong since operation means that the damage has to be caused while the car is moved. I furthermore have the impression that the court has already decided the case for itself. Your opinion is not shared by any other judge I know. I am hearing your opinion for the first time. Your judgement will certainly be set aside in the next instance.
Judge (R): Stop it. I feel insulted by you. I will be deaf to your further comments.

Annex IV:
Text of Role Play III
Counsel (V): As you can see, I have unfortunately appeared without a tie today. This, however, is not intended to express any disregard of the court.
Judge (R): You know that a counsel has to wear a white tie at court. What's the big idea to appear without a tie here? We are not on the football ground but in a public hearing. I give you five minutes to secure yourself with a tie.
Counsel (V): I have already asked several colleagues on the court premises but nobody could help me.
Judge (R): If you don't have a tie you cannot act as a counsel for the defence here. I am herewith withdrawing your retainer.

Annex V:
Code of Ethics and Professional Conduct for Judges (CoE)

Institution Building of the Kosovo Judicial Institute An EU-funded project managed by the European Agency for Reconstruction