Is copying passages from other judgements an infringement of the judicial ethics?
The Helsinki Foundation for Human Rights was approached by the attorney for X.Y., a litigant in several commercial proceedings pending before the Circuit Court in Z. The initial analysis of two rulings made in these proceedings shows that their wording, to a major extent, repeats the content of two earlier cases decided by other adjudication panels of the same Court. The only differences are details such as case numbers or dates of events.
Consequently, the attorney, acting on behalf of his client, filed a notification on suspicion of an offence being committed by the judges deciding the cases, alleging that they are responsible for a gross professional misconduct. The District Prosecutor’s Office in X.Y. said that no crime had been committed and thus refused to launch an investigation.
The attorney for X.Y. filed the complaint against the prosecution decision with the District Court. The Court affirmed the Prosecutor Office’s decision, holding that ‘where, in deciding a case, a given adjudicating panel of the court uses passages from the justification of a decision of the same court entered in a different case, then, regardless of how extensive such passages are, the court does nothing but follows the same line of reasoning as was adhered to by other adjudication panels’.
The HFHR asked the National Council of Judiciary to take a position on the ethical issue of copying passages from justifications for other rulings and resolve whether or not judges doing so contravene the ethical code of conduct.
The Foundation does not intend to receive an assessment of the described judicial practice from the perspective of criminal liability of judges and does not seek to obtain the Council’s opinion on the facts of the above case. The HFHR’s request is only a signal that the practice of copying statements of reasons actually exists. Furthermore, in the above-mentioned cases the practice involved several judges rather than a single person repeating arguments from his own previous rulings.
Pursuant to the jurisprudence of the ECtHR, the right to a reasoned decision is an integral part of the right to a fair trial. The Strasbourg Court reiterated that Article 6 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms obliged the court to issue reasoned decisions. In Assanidze v. Georgia, the ECtHR emphasised that the role of the justice system did not end at the moment when a decision is issued. Only a reasoned decision may lead to the execution of the social control over the justice system.
The address to the National Council of Judiciary was prepared as part of the Strategic Litigation Programme.