The Status of Judges and Statutes on the status of judges is an issue that that has been dealt with in various committees and meetings of experts in the framework of the United Nations and of the Council of Europe. The conclusions and recommendations originating from these bodies have never claimed to be of binding force for Member States, but expressed the hope that Member States would take these recommendations into account when working on national statutes for judges or enacting legislation pertinent to the matter. Austria has not laid down, by specific law, a formal statute on the status of judges, considering the pertinent rules contained in the Constitution or in simple laws as sufficiently covering this issue. In contrast, the Austrian Association of Judges which has no official character and has not been empowered by law to enact rules concerning the status of justice has nevertheless felt compelled to elaborate a Declaration that was adopted in the city of Wels in 2007, and is accordingly referred to as the Wels Declaration. It contains ethical principles which avowedly are guiding the Austrian judges in their work but which in fact spills over also the private conduct of the judges, curtailing, inter alia, their rights to take political positions or to engage in political activities. The present paper criticizes this stance taken by the Austrian Association of Judges, arguing that judges, being part of the more informed sector of society, are better suited than others to speak up in the political discourse, and that it is not for a private association to interfere with the civic rights and duties of its member. Therefore, political activities of judges in conflict with the rules laid down in the Declaration must not be used against them in procedures concerning their career.

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Does the Wels Declaration of Ethics, Adopted by the Association of Austrian Judges on 8 November 2007, Infringe upon the Freedom of Expression for Judges Within the Framework of Respect for the Principles of Judicial Ethics?

  • Heribert Franz Koeck

摘要

The Status of Judges and Statutes on the status of judges is an issue that that has been dealt with in various committees and meetings of experts in the framework of the United Nations and of the Council of Europe. The conclusions and recommendations originating from these bodies have never claimed to be of binding force for Member States, but expressed the hope that Member States would take these recommendations into account when working on national statutes for judges or enacting legislation pertinent to the matter. Austria has not laid down, by specific law, a formal statute on the status of judges, considering the pertinent rules contained in the Constitution or in simple laws as sufficiently covering this issue. In contrast, the Austrian Association of Judges which has no official character and has not been empowered by law to enact rules concerning the status of justice has nevertheless felt compelled to elaborate a Declaration that was adopted in the city of Wels in 2007, and is accordingly referred to as the Wels Declaration. It contains ethical principles which avowedly are guiding the Austrian judges in their work but which in fact spills over also the private conduct of the judges, curtailing, inter alia, their rights to take political positions or to engage in political activities. The present paper criticizes this stance taken by the Austrian Association of Judges, arguing that judges, being part of the more informed sector of society, are better suited than others to speak up in the political discourse, and that it is not for a private association to interfere with the civic rights and duties of its member. Therefore, political activities of judges in conflict with the rules laid down in the Declaration must not be used against them in procedures concerning their career.