CC BY
27Original Papers / Оригинальные статьи
Justice / Правосудие
UDC 347.962.1
DOI 10.37399/2686-9241.2020.3.12-32
New Approaches to Understanding Judicial Ethics in the Information Society
Elena V. Burdina*
* Russian State University of Justice, Moscow, Russian Federation For correspondence: [email protected]
Introduction. The article is devoted to the problems of the essence and content of judicial ethics in the new conditions of the technical revolution and with other social needs for legal regulation. Theoretical Basis. Methods. The work used a systematic, activity-personal approach to the study of moral and ethical standards of the conduct of judges. This made it possible to reveal a new and broader view on judicial ethics, which is not simply a set of moral restrictions and obligations imposed on a judge.
Results. The work has identified and analysed the signs of judicial ethics at the current stage of development. It is argued that ethical regulation is precautionary in relation to the legal regulation of the independence of judges, for they complement ethical rules and reinforce legal norms. The ethical conduct of judges is an instrument guaranteeing judicial independence in all of its manifestations, including in organisational and judicial relations. The new realities of our time recognise the expansion of boundaries and the subject area itself of ethical regulation. A broader view on judicial ethics, which differs from the traditional one, is hereby justified. The latter is defined in two ways - namely both as a system of professional values, as well as a means of judicial administration based on the principle of self-regulation. By its very nature, judicial ethics is the result (and the way) of judicial self-governance, developed on the basis of the experience of functioning bodies of the judicial community.
Discussion and Conclusion. Conclusions are drawn on both the instrumental and the managerial impact of the categories of ethics. The subject of judicial ethics has been defined, which constitutes the rules of conduct of judges in the performance of their professional duties and beyond -namely the set of general principles of work of a judge, as well as the personal qualities of a judge personifying the judicial power. Proposals on the optimisation of the mechanism of ethical influence, differentiation of ethical and disciplinary norms have also been substantiated.
Keywords: judicial ethics, subject of judicial ethics, ethical regulation, judicial self-government, Code of judicial ethics
Gratitudes. The research was carried out with the financial support of the Russian Foundation for Basic Research under scientific project No. 20-011-00672.
For citation: Burdina, E.V., 2020. New approaches to understanding judicial ethics in the information society. Pravosudie/Justice, 2(3), pp. 12-32. DOI: 10.37399/2686-9241.2020.3.12-32.
© Бурдина Е.В., 2020
Новые подходы к пониманию судейской этики в условиях информационного общества
Е.В. Бурдина*
* ФГБОУВО «Российский государственный университет правосудия», г. Москва, Российская Федерация [email protected]
Ведение. Статья посвящена проблемам сущности и содержания судейской этики в новых условиях технической революции и при иных общественных потребностях в нормативном регулировании.
Теоретические основы. Методы. В работе использовался системный, деятельностно-лич-ностный подход к исследованию морально-этических стандартов поведения судей, что позволило выявить новое, более широкое представление о судейской этике, которое не сводится к совокупности моральных ограничений и обязательств, предъявляемых к судье. Результаты исследования. Выявлены и проанализированы признаки судейской этики на современном этапе развития. Утверждается, что этическое регулирование имеет обеспечительный характер по отношению к правовому регулированию независимости судей, этические правила дополняют и укрепляют правовые нормы. Судейская этика представляет гарантирующий инструмент судейской независимости во всех ее проявлениях, в том числе в организационно-судебных отношениях. Новыми реалиями современности признается расширение границ и предметной области этического регулирования. Обосновывается более широкий, отличный от традиционного взгляд на судейскую этику. Последняя определяется в двух плоскостях: и как система профессиональных ценностей, и как средство администрирования судебной деятельностью, основанное на принципе саморегулирования. По своей природе судейская этика является результатом и способом судейского самоуправления, вырабатывается на основе опыта функционирования органов судейского сообщества.
Обсуждение и заключение. Сделаны выводы об инструментальном и управленческом воздействии этических категорий. Определен предмет судейской этики, который составляют правила поведения судей при исполнении профессиональных обязанностей и за их рамками, совокупность общих принципов работы судьи, а также личные качества судьи, олицетворяющего судебную власть. Аргументированы предложения по оптимизации механизма этического воздействия, разграничения этических и дисциплинарных норм.
Ключевые слова: судейская этика, предмет судейской этики, этическое регулирование, судейское самоуправление, Кодекс судейской этики
Благодарности. Исследование выполнено при финансовой поддержке РФФИ в рамках научного проекта № 20-011-00672.
Для цитирования: Бурдина Е.В. Новые подходы к пониманию судейской этики в условиях информационного общества // Правосудие/Justice. 2020. Т. 2, № 3. С. 12-32. DOI: 10.37399/2686-9241.2020.3.12-32.
Introduction
I n today's era of transition to digital society, there is an increasing "demand" for certainty, order of things, stability in the movement towards the development of public and social institutions, which cannot but cause a need for regulation, which is more systemic, expanding the limits and objects of influence.
The basis for the further development of the courts and the system of court administration is the public need for normative regulation, both in le-
gal regulation and through other normative regulators, which are not identified with the law, legal norms.
The higher regulatory effect and, consequently, the fuller achievement of the goals of judicial activity, are associated with the impact on social relations arising in the judicial sphere, simultaneously with several regulatory systems, such as law and morality. These systems have much in common and reveal social unity and value closeness [Maltsev, G.V., 2016, p. 22].
The impact of the technological revolution on legal doctrine and law enforcement has given rise to many new trends and discussions, in particular: legal doctrine has become more sensitive to other branches of knowledge: culturology, sociology, ethics, etc.; discussions have intensified with respect to the basic fundamental essence of law, in particular with respect to the limits and scope of legal regulation. The approaches to regulating social relations are changing. In the opinion of an academician of the Russian Academy of Sciences, Professor T.Ya. Khabrieva, if earlier the legal science had two approaches to such regulation - sectoral and institutional impact on social relations through legal norms, the characteristic of the modern period is modular regulation, combining the possibilities of application of different social regulators: forms of national and international law, acts of technical regulation, ethical and other social regulators1.
Ethical regulators at the information stage of court and justice development form a multilevel system. The modern ethical regulatory system, which defines the proper conduct of a judge, is characterized by a multidimensional regulation and extends to a wider spectrum of social relations than before. It is characterized by a combination of international standards of conduct for judges and the national originality of the content of the moral and ethical values enshrined in them.
The new properties of the ethical and regulatory system necessitate theoretical reflections on the notion and content of judicial ethics in the period of digital revolutions, and therefore it is important to define its role and significance in the further development of the judicial sphere.
Since the 1864 Judicial Reform, the issues of professional ethics of judges have remained relevant for both scholars and practitioners. Their research focused on specific ethical and legal aspects of judges' status and conduct, moral problems arising in different types of court proceedings, professional culture [Kony, A.F., 1967, pp. 33-70; Yakovenko, V., 2008; Tele-gina, V.A., 2008; Noskov, Yu.G. and Noskov, I.G., 2017; Kleandrov, M.I., 2016; Shmatova, E.S. and Fomina, T.S., 2016; Lazukova, A.Yu. and Bozova, K.Yu., 2018; Sharueva, N.V., 2019, p. 19; Vasechko, V.Yu., 2018]. There are scientific works devoted to court and judicial ethics, in which
1 Khabrieva T.Ya. Projections of technological revolution in legal doctrine : report at the plenary session of the VI Moscow legal forum "Russian legal system in the conditions of the fourth industrial revolution", Moscow, April 4, 2019.
their differentiation depending on the subject and content is made, historical stages of formation and development of court and judicial ethics and scientific ideas about them are revealed [Ivanova, L.A., 2015, pp. 58-59; Vladykina, T.A., 2010; Cherevko, A.A., 2013]. In the competition of national judicial systems through independent international ratings, increased attention in science is paid to the comparative analysis of foreign ethical and legal systems governing the behaviourof judges, the evolution of moral values as behavioural standards of judges [Muratov, R.E., 2015, p. 151; Kleandrov, M.I., 2017; Muratov, R.E., 2017].
Problems related to the content of the ethical conduct of judges, including retired judges [Appleby, G. and Blackham, A., 2018], in the digital age are reflected in foreign literature [Anleu, Gh.R., Elek, J. and Mack, K., 2019; Hamm, B. and Esplin, B.S., 2018; Lininger, T., 2018; Mak, E., Graaf, N. and Jackson, E., 2018; McKoski, R., 2010; Abramson, L.W., 2000; Hughes, J. and Bryden, Ph., 2013; Abramson, L.W., 1994; Kalhan, A., 2014].
Despite a sufficient range of sources discussing the problems of ethical behaviour of judges, in modern domestic and foreign legal science, the theoretical issues of judicial ethics, considered as an element of modular regulation of judicial activity in the digital age, are poorly researched and disputed [Kleandrov, M.I., 2008; Kleandrov, M.I., 2011; Kleandrov, M.I., 2019; Burdina, E.V., 2018; Burdina, E.V., 2019]. The lack of scientific conclusions on the subject matter and content of judicial ethics is linked to practical difficulties on a number of topical issues, including the following: the role of opinions of bodies of judicial community, comments to codes of ethics in the mechanism of ethical regulation; the relationship between ethical rules and disciplinary norms.
The purpose of the article is to justify the new idea of judicial ethics, to define its subject matter, forms and means of regulation, meaning and role of judicial ethics in the conditions of the modular type of regulation of judicial activity.
Theoretical Basis. Methods
The subject of this article is the problem of the essence, content and features of judicial ethics in the new conditions of the technical revolution and the information society, with other public needs for legal regulation.
The worldview and methodological basis for most of the works on ethical and legal issues is the value-based approach to the moral standards of the judge's status and personality. By virtue of such approach the samples of behaviour of a judge are revealed, which they should comply with in their official and external activity [Mel'nik, S.V. and Nadtachayev, P.V., 2015; Borovkov, A.V., 2013].
In today's context of expanding ethical boundaries and objects of ethical regulation, this approach, which focuses on ethical standards of conduct
of a judge and is personally valuable, needs to be adjusted by making it more systematic and complete. The present study uses as its methodological basis a systematic analysis of both the value of the personality of the judge and the principles of judicial conduct, as well as the values of judicial activity, thus enabling new knowledge on integrated standards of judicial ethics to be achieved.
A systematic, activity-personal approach to the study of moral and ethical standards necessary in judicial work and determining the behaviour of judges allows to reveal a new, broader view of judicial ethics, which is not reduced to a set of moral restrictions and obligations imposed on the judge.
Results
The nature of ethics is evolutionary as it evolves in the wake of evolving social relations and the needs of society.
Ethical standards play a preventive and educational role, creating a common cultural environment necessary for the realization of the rule of law and justice, preventing situations in which a judge may use his or her official powers to benefit himself or herself or those in his or her immediate environment. The development of ethical standards of conduct is recognized as a measure to combat corruption and implement article 11 of the United Nations Convention against Corruption2.
The evolution of judicial ethics in the modern conditions of the information society is connected with the transition to a new stage of its development, characterized by the following features: 1) formation of arrays of ethical norms at supranational, interstate and national levels; 2) increasing role of self-regulation of judges in defining standards and rules of conduct of judges; 3) increase in the totality of social relations arising in judicial activity and subject to ethical regulation, expansion of boundaries of ethical influence and practice of application of ethical principles and rules; 4) complication of forms of judicial ethics and means of ethical regulation.
Since the beginning of the twenty-first century, the processes of evolutionary change in judicial ethics have been particularly dynamic, with the adoption of many international instruments that define fundamental principles and rules of conduct for judges in their professional and nonprofessional activities. Arrays of ethical standards have increased markedly, and interest in the moral aspects of the conduct of judges has increased many times, including for reasons of the complexity of the competition procedures and requirements for judge candidates, and heightened public sensitivity to the independence and impartiality of judges.
2 Adopted by General Assembly resolution 58/4 of 31 October 2003. URL: https:// www.un.org/ru/documents/decl_conv/conventions/corruption.shtml
At the international level, the most authoritative instrument in the field of judicial ethics is the Bangalore Principles of Judicial Conduct (hereinafter the "Bangalore Principles"), adopted at the Hague on 26 November 2002 and endorsed by the United Nations Economic and Social Council Resolution 2006/23 on 27 July 20063, thus becoming international customary law.
On the European continent, European value standards for the conduct of judges, as expressed in acts adopted within the framework of the Council of Europe4 and the European Union5, are being developed taking these principles into account.
Ethical arrays of norms as written rules of conduct for judges are also being actively developed in national judicial systems.
Most European countries have adopted codes of ethics or other written collections of ethical rules of conduct for judges. On the European continent, only a few States do not have adopted codes of ethics for judges or similar collections of ethical conduct for judges, since legal norms act as ethical regulators. Thus, no code of ethics has been adopted in Germany, but the rules of conduct for judges are contained in the German Judiciary Act of 19 April 1972 and the relevant acts of the German Lands. In Ireland, where there is no code of judicial ethics, judges are required to act under the Public Ethics Act 1995 and the Standards Act 2001. In Croatia, the Code of Ethics for Public Officials6, adopted by the Government of the Republic of Croatia on 25 March 2011, applies, inter alia, to judges.
It can be argued that in today's world an ethical and regulatory system is being formed which defines ethical standards of conduct for judges and develops as a multilevel, hierarchical system. It highlights the international, supranational (global), interstate (regional-local) and national levels.
URL: http://www.un.org/ ru/documents/decl_conv/conventions/Bangalore_prin-ciples.html
See, for example: Recommendation of the Committee of Ministers of 17 November 2010 No. CM / Rec (2010) to 12 Member States on judges: independence, efficiency and responsibility // Russian Justice. 2011. No. 4; Conclusion of the Consultative Council of European Judges to the Committee of Ministers of the Council of Europe No. 3 (2002) "On the principles and rules governing professional conduct of judges, in particular, ethical standards, conduct incompatible with the position and impartiality" // Council of Europe. URL: https://wcd.coe.int; Conclusion of the Consultative Council of European Judges (CCJE) No. 21 (2018) "Prevention of corruption among judges" // Council of Europe. URL: https://wcd.coe.int; London Declaration on judicial ethics (2010) // European Network of Councils for the Judiciary (ENCJ). URL: https://www.encj.eu; European Charter on the Status of Judges, adopted at the Multilateral Meeting of European Judges and Associations of Judges, 8-10 July 1998 in Strasbourg // Russian Justice. 1999. No. 9.
London Declaration on judicial ethics (2010) // European Network of Councils for the Judiciary (ENCJ): [www-site]. URL: https://www.encj.eu
Eticki kodeks drzavnih sluzbenika. URL: https://narodne-novine.nn.hr/clanci/ sluzbeni/2011_04_40_950.Html
3
4
5
At the global level, international standards of ethical conduct for judges are being developed, and States' obligations to enshrine these standards in national acts are being established. At the interstate level, geographically local standards (e.g. European standards) are adopted to provide useful guidance in national regulation.
Codes of judicial ethics (or codes of judicial conduct) are adopted at the national level, which, while based on international standards of judicial ethics, reflect the specific characteristics of the particular society, the national justice system operating in the particular circumstances and social conditions of the country7.
At the global level, judges in many countries are developing basic principles of judicial ethics, enabling assistance to countries and establishing supranational mechanisms to monitor judicial ethics.
For example, the Bangalore Principles set out standards of ethical conduct for judges: the principles of independence, objectivity (impartiality), integrity, ethics, equality, competence and diligence; and provide general guidance to States on the need to adopt national codes of ethics for judges, which would enshrine these standards taking into consideration the specificities of the national legal system and cultural and ethical traditions. In addition to indicating the adoption of codes or other written collections of ethical rules of conduct for judges, international instruments provide general rules for the development and adoption of codes of ethics. These include rules on the development of codes of ethics for judges themselves, on the distinction between codes of ethics for judges and disciplinary rules.
A variety of independent non-profit organizations have been established to assist States in the area of judicial ethics and to monitor States' compliance with international ethical standards of conduct for judges. For example, the Global Judges' Integrity Network, established in April 2018 under the auspices of the United Nations Office on Drugs and Crime, has identified as its priorities the development and implementation of codes of ethics for the judiciary and the establishment of effective oversight, monitoring and accountability mechanisms8. The Network provides an opportunity for judges from different countries to share best practices and experiences, to support each other and to join in the development of new tools and guidelines on ethics to strengthen integrity and prevent corruption in the judiciary9.
7 See: Council of Europe, expert opinion on the project "Strengthening Judicial Ethics in Turkey: expert assessment of relevant European standards and practices". 3 June 2016.
8 URL: https://www.unodc.org/
9 A Global Judicial Integrity Network has been established. URL: https://www.unodc. org/dohadeclaration/ru/news/2018/04/chief-justices-and-senior-judges-launch-unodcs-global-judicial-integrity-network.html
Of interest is the Group of States against Corruption (GRECO), an international organization established in 1999 by the Council of Europe to monitor the compliance of member states' legislation and law enforcement practices with Council of Europe anti-corruption standards. There are 49 States members of GRECO, with membership in GRECO not limited to Europe, but also the United States. GRECO is a reference mechanism for Member States by helping to identify weaknesses in national anti-corruption policies and proposing the necessary legislative, institutional or operational measures, including ethical rules. GRECO provides a platform for exchanging the best solutions in the area of detection and prevention of corruption, and touches upon issues of judicial ethics as a means of combating corruption10.
An important sign of the professional ethics of judges is to enshrine ethical issues in law and not just in ethical instruments. Judge's ethics is traditionally characterized by a close interlacing of moral and legal norms [Cherevko, A.A., 2013, p. 160], contained in the rules of judicial proceedings and fixing the status of judges. In an information society, the independence, impartiality, integrity of judges should be ensured not only by the Constitution and relevant legislation, but also by judges themselves. In this sense, the codes of judicial ethics adopted by judges themselves are tools to protect the independence of judges and provide more or less precise guidance on the conduct of judges in contentious official or non-official situations.
Thus, in the modular type of regulation of the conduct of judges, its effect is achieved through the synergy of law, morality and judicial self-government, where the principles of ethical conduct of judges are designed to strengthen existing legal norms and rules of conduct by which judges are bound11. Ethical regulation is precautionary in relation to the legal regulation of judicial independence, ethical rules complement and reinforce legal norms. Ethics of the judiciary is a guarantee instrument of judicial independence in all its manifestations.
In enshrining the principles of judicial conduct, judicial ethics are based on judicial self-governance, whose bodies develop codes of judicial ethics, modify and supplement them, adopt comments and recommendations to them, give opinions on controversial ethical situations, and monitor the proper conduct of judges in the forms prescribed by acts of the judiciary community. In this regard, it is correct to conclude that the evolution of judicial ethics in the context of the modular type of regulation reinforces and expands the practice of judicial self-government. Judicial ethics are by their nature the result and method of judicial self-governance, have a
10 https://www.coe.int/en/web/greco
11 Bangalore Principles of Judicial Conduct. URL: http://www.un.org/ru/documents/ decl_conv/conventions/bangalore_principles.shtml
self-governed character and are developed on the basis of the experience of the judicial community. And judicial self-governance, in its turn, is ethical, based on the emerging views of judicial practice about its moral values, which shows the inseparable unity of judicial ethics and judicial self-governance.
An analysis of the norms establishing ethical principles and rules at the national, supranational and international levels provides insight into the content of judicial ethics and suggests a significant expansion in the area of ethical impact.
The sphere of ethical regulation includes a variety of aspects related not only to the proper moral conduct of a judge in his or her official and non-official activities, but also to measures to ensure such conduct: advising judges on complex ethical issues, monitoring the ethical conduct of judges, and examining complaints about unethical conduct by judges. Many international instruments defining judicial ethics recommend the establishment of advisory bodies for judges, composed of judges themselves, providing guidance and advice in complex ethical situations and operating on a "peer to peer" basis12. These recommendations have been implemented in many national judicial systems.
The procedure and rules for advising judges on ethical issues in the Russian Federation are set out in a number of acts of judicial self-government. According to the provision of part 5 of article 2 of the Code of Judicial Ethics13, a judge in a difficult ethical situation has the right to make a request to the Commission on Ethics of the Council of Judges of the Russian Federation, which is obliged to explain how the judge should act and make a corresponding opinion on this matter. The establishment of a network of judicial advisory institutions in Russia, designed to provide judges with broad access to the system of delivering advisory assistance on ethical issues, is linked to the adoption by the Presidium of the Council of Judges of the Russian Federation of the Instruction on the organization of advisory services14.
12 See, for example: Global Code of Judicial Ethics, adopted during the International Conference on the Independence of Judges, held at the University of Bologna and Bocconi University of Milan in June 2015, para. 1.4. (Bologna and Milan Global Code of Judicial Ethics, 2015). URL: http://www.jiwp.org/#!global-code-of-judicial-ethics/cldnr; Conclusion of the Consultative Council of European Judges to the Committee of Ministers of the Council of Europe No. 3 (2002) "On the principles and rules governing professional conduct of judges, in particular ethical standards, conduct incompatible with the function and impartiality".
13 Code of Judicial Ethics (as amended on December 8, 2016). Approved by the VIII All-Russian Congress of Judges on 19 December 2012 // Council of Judges of the Russian Federation. URL: http://www.ssrf.ru
14 See: Instruction on the organization of advisory services for judges of general, military and arbitration courts and lay judges on the prevention of corruption, prevention
In Croatia, according to Chapters V-XI of the Code of Ethics of Public Officials15, ethics commissioners and an ethics committee are formed with the right to monitor compliance with ethical principles and to consider complaints about unethical conduct of public officials, including judges.
In the literature, the notion of judicial ethics is traditionally associated with the regulation of professional conduct of judges both in the course of their official activities and in personal life [Gusejnov, A.A., 2004, p. 159], and the subject of judicial ethics is understood as "increased moral restrictions and standards for representatives of the judiciary community" [Cherevko, A.A., 2013, p. 160].
At present, in addition to the traditional issues of judicial conduct, ethical standards and values in the various areas of court administration are being established.
The new realities of our time should recognize the spread of the regulatory impact of judicial ethics on the growing range of social relations arising in the organization and activities of courts, the expansion of the boundaries of ethical regulation.
Thus, the impact of ethical principles with regard to the procedures carried out by judicial self-governing bodies concerning the competitive selection of candidates for vacant judicial positions, certification of judges and promotion of judges in their careers is noticeable.
Ethical regulators of judges' conduct define perceptions of disciplinary misconduct, disciplinary proceedings and disciplinary liability measures. Questions of judges' disqualification and recusal due to doubts about their objectivity, including conflicts of interest, have ethical and legal content.
Ethical problems are found in the organizational and administrative sphere of judicial activity: in the distribution of cases in court among judges, in the resolution of issues related to their specialization, in the exercise of judicial and administrative authority by heads of courts and in other matters related to the organization of court activities.
Evidence of the expansion of the range of public relations that are subject to the regulatory impact of ethical norms can be found in documents of international organizations.
Thus, in the Commentary of the OSCE Office for Democratic Institutions and Human Rights on the Commentary to the Code of Judicial Ethics of the Republic of Kazakhstan dated 27 December 2018, in order to ensure full compliance of this Commentary and the Code with international standards and good practice in the field of judicial ethics, it was recommended to
of conflicts of interest and compliance with ethical requirements for the conduct of judges, approved by Decision No. 689 of the Presidium of the Council of Judges of the Russian Federation of 3 December 2018.
15 Eticki kodeks drzavnih sluzbenika. URL: https://narodne-novine.nn.hr/clanci/ sluzbeni/2011_04_40_950.html
consolidate rules on the procedure and preferred actions of judges in cases of illegal influence, threats or pressure, as well as provisions on possible mechanisms for filing complaints against judges in cases of illegal influence, threats or pressure16.
According to the work plan of the Global Judges' Integrity Network for 2018-2019, the following activities are planned: development of guidelines on the use of social media by judges; revision of the Bangalore Principles of Judicial Conduct and Commentary; improvement of judicial ethics training tools and training of trainers; sharing of best practices in judicial ethics training; development of guidelines on software development for court and case management in line with the Bangalore Principles of Judicial Integrity17.
Thus, the practice of ethical regulation reveals a broader set of social relations arising in judicial activity, which are influenced by ethical norms and rules, where its components are subject to classification into two main groups: relations concerning the professional and out-of-office conduct of judges and relations concerning the organization of judicial activity and judicial self-government.
With this in mind, two types of standards are singled out as forms of judicial ethics: the first set forth the values of a judge's personality and his or her conduct, and the second set forth the principles and values of judicial activity.
According to the London Declaration on Judicial Ethics, "Judicial ethics - principles, values and quality", adopted by the European Network of Judicial Councils (ENCJ) and acting as guidelines for the conduct of European judges, judicial ethics should not only consist of the principles of conduct to which a judge must adhere, but also the values of judicial activity to be implemented.
The expansion of the substantive content and boundaries of ethical regulation leads to a new understanding of judicial ethics, which is developed in the legal science and practice of judicial activity and is not related solely to the definition of the values of the personality of the judge.
In foreign literature, judicial ethics is considered not only in the traditional sense, as a set of rules ensuring the moral conduct of judges [Cur-tin, A.V., Solomon, L. and Lebovits, G., 2008], but also as a means of administration of judicial activity [Simonis, M., 2017].
The new approach defines judicial ethics in two ways: as a system of professional values and as an institutional tool of the judiciary, it is an integral part of judicial administration based on the principle of self-regulation.
16 URL: https://www.osce.org/ru/odihr/410411?download=true
17 URL: https://www.unodc.org/ji/en/about.html
New approaches to judicial ethics, understood in the context of judicial administration, are based on its role in ensuring independent and fair justice.
Ensuring the honesty of judges is not only a moral issue; judicial integrity makes it possible to make justice more qualitative and responsive to the needs of citizens, and judicial activity more effective. This leads to the instrumental and managerial impact of ethical categories.
A broad interpretation of the notion of judicial ethics entails new approaches to defining its subject matter.
The subject of judicial ethics is not only the rules of conduct that must be observed by a judge in the performance of duties established by law and in their free time from direct duties. The subject of judicial ethics also covers a set of general principles of work of a judge as values important for a role and value of court in society, and also personal qualities of the judge personifying judicial authority. According to the London Declaration on Judicial Ethics, "Judicial ethics - principles, values and quality", independence, honesty, impartiality, restraint and circumspection, diligence, respect and listening skills, equality of treatment, competence and transparency are general, fundamental values and principles of the judge's work (Part I of the Declaration). Personal qualities of wisdom, loyalty, humanity, courage, seriousness and reasonableness, ability to work, listening and effective communication are the ethical qualities that a judge is called upon to demonstrate, as they are aware that their professional conduct, their personal life and their behaviour in society influence perceptions of justice and public trust (Part II of the Declaration)18.
Thus, within the framework of new approaches to understanding judicial ethics having managerial influence on judicial and organizational relations, the subject of judicial ethics should be understood not only as a certain set of principles of conduct of a judge, but also as values of judicial activity and moral qualities of judges themselves [Burdina, E.V., 2019].
The expansion of the field of ethical regulation and the strengthening of judicial ethics in the context of court administration raise challenging questions about the forms of judicial ethics and the means of ethical regulation that contribute to its greater effectiveness.
Arrays of ethical norms in the sphere of judicial activity are assessed in legal periodicals as ethical systems or self-regulation systems [Hellman, A.D., 2007]. For effective regulation, an ethical regulatory system must have an internally ordered structure and interaction between elements.
In the literature three classes of existing sets of objects are distinguished: unorganized sets ("summative whole"), unorganized (simply organized systems) and organic systems [Ershov, V.V., 2018, p. 144]. If the system of law refers to a simply organized system, which, along with the organic
18 URL: https://www.encj.eu/articles/82
system, is distinguished by the properties of integrity and the resulting stable structure, then an array of Russian ethical rules is a much less organized system, something between the summative whole and the non-organic system. This conclusion is argued by the fact that in the array of ethical rules, the elements are largely autonomous with respect to each other. The interaction of the elements is poorly organized and there are significant gaps in the acts, which is filled with contradictory and inconsistent practice of determining the proper conduct of judges in different courts and regions.
The norms of judicial ethics enshrined in the Russian Code of Judicial Ethics need further development due to the dynamic nature of social development, as new ethical issues emerge, the solution of which changes the system of ethical principles and values and expands the content of previously known ones. The problem of creating safeguards to prevent conflicts of interest could be cited as an example. Of interest are, in particular, the ethical rules and recommendations adopted in foreign countries (France, Scotland, etc.), which establish the obligation of court managers to prevent the risk of a conflict of interest when receiving from judges the annual information about the place of work of their relatives and not to distribute cases where the parties to a dispute are members of their family. This rule should be implemented in the Russian ethical system, as well as the broader interpretation of the term "member of the judge's family" in accordance with the Bangalore Rules of Judicial Conduct should be enshrined in the Code of Judicial Ethics. We consider less successful the use of the term "persons related to the judge" in the conclusions of the Commission on Ethics of the Council of Judges of Russia for the mentioned cases19.
Despite the differences in the codes of ethics between countries, they are all based on international human rights provisions. Judges, like other citizens, have the right to privacy, to freedom of speech and religion and to freedom of association. It is important to strike a balance between the interests of judges and the public interest in ensuring the integrity of the judge by establishing certain restrictions and prohibitions, placing greater ethical responsibilities on judges. It seems that there is a problem of not allowing excessive restrictions on the rights of judges in their nonprofessional activities, as well as in the resignation of a judge.
The useful experience of ethical regulation in foreign countries expanding the system of ethical standards could be used in Russia. Thus, in Article 7 of the Lithuanian Code of Judicial Ethics adopted on 28 June 2006, we find: "According to the principle of respect and loyalty to the State, a judge shall
19 See: Conclusion of the Commission of the Council of Judges of the Russian Federation on Ethics of 5 December 2018 №16-KE "On the exclusion of the situation of conflict of interest in the arbitration court regarding a separate dispute in insolvency (bankruptcy)". URL: http://www.ssrf.ru/page/30584/detail/
use an official identification card, gown, and symbols only when performing his duties in accordance with the requirements of legal acts, and appreciate and protect them"20. It is believed that the establishment of such principles of ethical conduct of a judge as respect and loyalty to the state and respect for colleagues in the Code of Judicial Ethics will not only be useful for the practice of ethical regulation, but will also strengthen the independence and autonomy of the judiciary.
Given the amorphous and general nature of the wording of the Russian Code of Judicial Ethics, there is a wide range of unresolved complex ethical situations that judges face. At the same time, there are more and more ethical issues to discuss.
Thus, the Code of Judicial Ethics does not provide guidance on how judges behave in social media. Given the importance of social networks as a means of expression and communication, and the impact of the statements published on them, ethical rules and recommendations on the topic should be formulated, since the right to freedom of expression and the use of social networks as a means of communication clearly applies to all judges21.
It is very difficult to answer the following questions: what behaviour on social networks is acceptable and appropriate; the circle of friends on Facebook and similar social networks (whether it generates a conflict of interest); the type of information that a judge can only share with a narrow circle of friends; and the possibility that one of them will also share this information and it will become public knowledge. Judges need to know what is permissible and what is not permissible with regard to other issues related to social media behaviour. For example, can a judge examine the factual circumstances of a case through Facebook (or similar networks, provided that this is made public in court), leave supportive or disapproving comments under online publications (which, depending on the situation, may call into question the objectivity of the judge)?
A number of international instruments, such as the Global Code of Ethics for Judges 2015, as well as national ethical acts of several European countries (France, Scotland, Lithuania) provide recommendations and rules in this regard that could be used to develop a national ethical system.
The upstream impact of ethical rules would be more effective if the national ethical system had a commentary on the Code of Judicial Ethics as well as advisory opinions from the commissions of judges' councils on ethically complex situations as regulatory tools. The commentary, as an ap-
20 Code of Ethics of the Judges of the Republic of Lithuania. URL: https://www.teismai. lt/en/self-governance-of-courts/judicial-ethics-and-discipline-commission/about-commission/667
21 The Global Code of Judicial Ethics, adopted during the International Conference on the Independence of Judges, held at the Universities of Bologna and Milan (June 2015). URL: http://www.jiwp.org/#!global-code-of-judicial-ethics/c1dnr
pendix to the Code of Judicial Ethics, could provide guidance to judges on appropriate behaviour in complex professional or non-official situations. Such appendices (comments) have been adopted in France, Scotland, USA, Kazakhstan and other countries. They contain comments on ethical standards and examples of how a judge should behave in specific situations. The adoption in Russia of an appendix to the Code of Judicial Ethics (or recommendations on conduct in specific situations) will make the latter more understandable and efficient, ensure more effective ethical regulation and administration of judicial activities, which in turn will lead to a system of ethical rules to greater unity and integrity.
This appendix could cover in more detail the following topics and complex ethical issues: the judge and his close circle; extrajudicial activities of the judge; the judge and social networks; the judge and his previous work; the judge and the staff of the court administration; the judge, his specialization and the distribution of cases in court; other topics of interest. Some of these topics are not reflected either in the Code of Judicial Ethics or in the conclusions of the Commission on Ethics of the Council of Judges of Russia and are subject to discussion.
The expectations of judges are matched by such an ethical impact mechanism where the normative and value content of the Code of Judicial Ethics is explained in its appendices and supplemented by consistent conclusions of the Commission on Ethics of the Council of Judges of the Russian Federation and relevant commissions of regional councils of judges. The regulatory impact of the said instruments is enhanced provided that they are available on the Internet.
We believe that comments on the Code of Judicial Ethics or other recommendations on its application adopted by the bodies of the judiciary community, as well as advisory opinions of the ethics commissions, which contain interpretations of ethical principles and values, should be published on the official websites of the councils of judges, and should be constantly systematized for the convenience of judges.
Thus, an important role in the mechanism of ethical impact in modern times is assigned to such tools as comments on the code of ethics of judges, advisory opinions of bodies of judicial community, documents of qualification boards of judges on various issues of their activities related to ethical aspects, materials of judicial practice. Their importance in the ethical and legal regulation of judicial activity will undoubtedly increase in the context of the growing role of judicial self-government. On the basis of the above circumstances, the place of the said self-governing instruments in the mechanism of ethical regulation has been fixed in the ethical codes of individual countries. Thus, Article 10 of the Estonian Code of Ethics for Judges establishes the following provisions: "The requirements of professional ethics shall be interpreted in accordance with the law, the decisions of the Disciplinary Board, the established
practice and practice of the judiciary as well as the opinion of a senior colleague and the conscience of the judge. These principles are the basis for choosing the conduct of a judge in matters not covered by the Code of Ethics"22.
In modular regulation, legal and ethical norms, closely interacting and intertwined, do not lose their own nature and attributes. Despite the fact that ethical regulation expands its boundaries and substance, it would be wrong to link violation of ethical norms with disciplinary (legal) responsibility.
The Code of Judicial Ethics is not a collection of disciplinary rules. Violation of the Code of Judicial Ethics does not in itself lead to the initiation of disciplinary proceedings and does not constitute a disciplinary offence. Meanwhile, the definition of a disciplinary offence, enshrined in part 1 of Article 12.1 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation" of 26 June 1992, No. 3132-1, makes it possible to identify the violation of the Code of Judicial Ethics with the commission of a disciplinary offence. Since disciplinary measures may be taken in the event of gross and unforgivable offences committed by judges which are detrimental to the reputation of the judiciary, it is necessary at the level of federal law to distinguish between violation of ethical duties and disciplinary misconduct, indicating that disciplinary liability may be imposed only for gross, unforgivable or repeated violations of judicial ethics incompatible with judicial status.
Discussion and Conclusion
Based on the above, the following conclusions are justified in the paper.
The modern stage of development of judicial ethics is characterized by the following features: 1) formation of arrays of ethical norms at supranational, interstate and national levels; 2) increasing role of judicial self-regulation in defining standards and rules of conduct of judges; 3) expansion of boundaries of ethical influence and practice of application of ethical principles and rules; 4) complication of forms of judicial ethics and means of ethical regulation.
The expansion of the substantive content and boundaries of ethical regulation has led to a new understanding of judicial ethics. Judicial ethics is defined in two ways: as a system of professional values and as an institutional tool of the judiciary, it is an integral part of judicial administration based on the principle of self-regulation.
22 Kohtunike e etika koodeks (Estonian Code of Ethics for Judges). Adopted by the Third Ordinary Congress of Estonian Judges on 13 February 2004, amended on 8 February 2019 by the eighteenth Ordinary Plenary Session of Judges. URL: https://www.riigikohus.Ee/et/kohtunikuamet/kohtunike-eetikakoodeks
Based on the understanding of judicial ethics having managerial influence on judicial and organizational relations, the subject of judicial ethics is not only a certain set of principles of conduct of a judge, but also values of judicial activity and moral qualities of a judge himself.
Two types of standards are distinguished as forms of judicial ethics: the first one, which enshrine the values of a judge's personality and his or her conduct, and the second one, which refer to the organization of judicial activity and enshrine the principles and values of judicial activity.
It is recognized that such mechanism of ethical impact is optimal where the normative and value content of the Code of Judicial Ethics is explained in the comments to it and supplemented by consistent conclusions of the Commission on Ethics of the Council of Judges of the Russian Federation and the relevant commissions of regional councils of judges. An important role in the ethical impact mechanism is assigned to such tools as the documents of qualification panels of judges and the materials of judicial practice.
In modular regulation, legal and ethical norms interact and intertwine closely, but do not lose their own nature and attributes. The Code of Judicial Ethics is not a collection of disciplinary, legal by nature, norms. Disciplinary liability may only be incurred for gross, unforgivable or repeated violations of judicial ethics incompatible with judicial status.
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Information about the author
Elena V. Burdina, Dr. Sci. (Law), Associate Professor, Head of Organization of the Judiciary and Law Enforcement Department, Russian State University of Justice (69 Novocheremushkinskaya ul., Moscow 117418, Russian Federation).
Бурдина Елена Владимировна, доктор юридических наук, доцент, заведующий кафедрой организации судебной и правоохранительной деятельности ФГБОУВО «Российский государственный университет правосудия» (117418, Российская Федерация, г. Mосква, ул. Новочеремушкинская, д. 69). E-mail: [email protected]
