Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina
with Commentary
CONTENTS
III PRINCIPLES OF PROFESSIONAL ETHICS AND STANDARDS OF CONDUCT
III 4. COMPETENCE AND DILIGENCE
III 5. INTEGRITY AND PROPRIETY
IV. APPLICATION OF THE MODEL CODE OF ETHICS
FOREWARD
Dear legal associates and advisors in courts and prosecutor's offices in Bosnia and Herzegovina,
In performing your duties, independently or under supervision and instructions of judges and prosecutors, you have an opportunity to give a significant contribution to the functioning of the judicial system and the strengthening of public confidence in their and your work.
The public and individuals in contact with the judicial institutions accept judicial and prosecutorial decisions because they have confidence in the fairness and impartiality of the judiciary. In order to build and maintain this confidence, in the exercise of your duties, you, as members of judiciary, should always remember that you are accountable for your conduct, which should, at all times, be responsible, ethical and professional. Inform yourselves about the principles and rules contained in this Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in BiH, which require each legal associate and advisor to:
· Respect and promote independence and integrity of judiciary
· Avoid any improper conduct or conduct which may be perceived as such
· Observe and promote professional standards in the exercise of their duties
· Avoid any situation of potential, real and perceived conflict of interest
· Refrain from any political activities
Abide uncompromisingly by these principles and all other rules related to your duties and conduct. Do not presume that good intentions suffice.
Th Association of Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina expresses gratitude for the overall support provided by USAID Justice Prjectin Bosnia and Herzegovina in developing the Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina.
I INTRODUCTION
In the process of accession to the European Union, Bosnia and Herzegovina undertook to perform a comprehensive reform of the judicial sector. In that process, Bosnia and Herzegovina is committed to establishing and ensuring an independent, impartial, professional, responsible, transparent and efficient judicial system which should guarantee the rule of law and equality of all citizens before the law.
One of the main objectives of judicial reform is to strengthen public confidence in institutions, processes and individuals it comprises. Institutional integrity is a critical prerequisite for the strengthening of public confidence. Achieving institutional integrity requires that individuals who are part of an institution act responsibly, ethically and professionally. It is not always possible to separate official duties from other life activities, therefore, those who perform these duties must have high awareness about their overall conduct, both in and outside judicial institutions.
Judges and prosecutors, as judicial officeholders, bear the greatest responsibility for achieving and maintaining the mentioned commitments and goals, but they are not the only ones. Legal associates and advisors significantly contribute to the exercise of judicial authorities. Their contribution is reflected in performing complex legal and other tasks which require earnestness and commitment, while at the same time, their actions and conduct, both professional and private, should comply with the highest ethical standards. Legal associates and advisors, except legal associates and advisors in municipal courts in the Federation of BiH, act within discretionary authorities and under supervision of judges and prosecutors and thus perform a range of tasks. Probably the most important function of legal associates and advisors is to support judges and prosecutors in the decision making process, because legal associates and advisors identify key elements and issues in a case, analyze and summarize facts and evidence and based on that give a recommendation for adjudication of a case. By providing sound analysis and recommendations, legal associates and advisors can have a constructive impact on judicial and prosecutorial adjudication and decisions. In addition to the described cognitive process they go through while they work on a case, legal associates and advisors also play a vital role in organization and “administration” of the process they are involved in. Although it is very difficult to enumerate all duties performed by a legal associate or advisor, which primarily depend on the judicial institution and on the relationship between a legal associate or advisor and a judge or prosecutor, especially on the level of confidence between them, the contribution of legal associates and advisors to the improvement of all judicial processes is beyond doubt.
Due to their direct and indirect involvement in the process, there is a corresponding need to highlight the importance of their ethical and professional conduct. Like it is the case with judges or prosecutors, what they do or fail/avoid to do may often result in consequences for the process, the judge or prosecutor, judicial institution, entire judicial system and even their future careers. While exercising their duties, legal associates and advisors have an opportunity to improve and perfect their knowledge through practical work enjoying the benefit of a privileged transfer of knowledge from their mentors, judges or prosecutors. Judges and prosecutors, on the other hand, “benefit” from the vigor and unbiasedness of promising and independent minds.
Due to this relationship and the importance of their role, legal associates and advisors enjoy the status of persons of confidence with judicial officeholders. In that sense, all standards of ethical and professional conduct that apply to judges and prosecutors essentially also apply to legal associates and advisors. Therefore, the Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in BiH inevitably and to a great extent builds on the codes of ethics for judges and prosecutors and the HJPC Guidelines for the Prevention of Conflict of Interest in Judiciary.
At the same time, because legal associates and advisors do not act independently (except legal associates in municipal courts in the Federation of BiH), but they assist judges and prosecutors in their work, under their direct supervision, codes of judicial and prosecutorial ethics state that judges and prosecutors are responsible for the actions and conduct of legal associates and advisors (except legal associates in municipal courts in the Federation of BiH). This circumstance indicates the interdependent nature of their relationship and the professional duty of judges and prosecutors to supervise legal associates and advisors.At the same time they prepare them for their future potential role as judicial officeholders.
The heterogeneous status of certain specific categories of legal associates and advisors and in particular the fragmented normative framework regulating ethical rules applicable to them gave rise to the need for the Model Code of Ethics for Legal Associates and Advisors in Courts and Prosecutor's Offices in Bosnia and Herzegovina („Model Code of Ethics“) which should serve as a proposal of the Association of Legal Associates and Advisors in the Courts and Prosecutor’s Offices in Bosnia and Herzegovina (the Association) to the relevant institutions to regulate the rules applicable to legal associates and advisors in a uniform manner and thus overcome the existing normative fragmentation.
As a first step, the Association urges the relevant institutions to align the rules applicable to certain categories of legal associates and advisors with the Model Code of Ethics.
As a second step, we propose that, in the context of the coming alignment of the rules regulating the status of legal associates and advisors with the EU acquis, this Model Code of Ethics be used as a basis for the preparation of a uniform code of ethics for legal associates and advisors in courts and prosecutor’s offices in BiH.
In that context, the Model Code of Ethics was formulated by the Association (and adopted by its members) to create the basis for uniform code of ethics for all categories of legal associates and legal advisors in judicial institutions in our country and thus establish standards of integrity and proper conduct of legal associates and advisors based on compliance with personal, professional and organizational ethical principles and rules. Establishment of such standards and obligatory compliance with them are prerequisites for the improvement of authority, independence and effectiveness of the judiciary and for strengthening public confidence in the work of courts and prosecutor's offices.
Principles and rules of this Model Code of Ethics, which is the result of activities of the Association of Legal Associates and Advisors in Courts and Prosecutor's Offices in BiH, define minimum standards of conduct legal associates and advisors should comply with in both in their professional and private lives.
In addition to representing a reference point for legal associates and advisors, which ensures that the conduct of legal associates and advisors complies with the values of an independent and impartial judicial system, this Model Code of Ethics also.
ensures better understanding of the judicial system by demonstrating to the public the model of conduct they may expect from legal associates and advisors in the courts and prosecutor's offices in Bosnia and Herzegovina.
Since the public confidence plays a significant role in the judicial system of a country, legal associates and advisors in courts and prosecutor's offices have to strive to maintain this confidence by always acting in accordance with the judicial ideals and values, such as honesty, integrity, impartiality, fairness, accessibility, accountability and effectiveness. Principles and rules contained in this Model Code do not derogate the rules of ethical conduct which will be, or which are, prescribed by the law and by-laws.
The rules of ethical conduct should be interpreted in the context of the role of legal associates and advisors in the judicial system as regulated by applicable laws. Comments to the principles and rules provide a context for application of the principles and rules and are intended to facilitate their better understanding and efficient application. The Model Code of Ethics also contains exemplary questions for self-evaluation intended to help identify and resolve some ethical dilemmas in private and professional life related to the function performed by a legal associate or advisor.
The Model Code of Ethics does not represent a finite set of moral and ethical principles and rules applicable to all those who work in the judicial system, since no human activity can ever be fully defined by regulations. The principles and rules contained in the Model Code of Ethics represent a framework for ethical conduct of legal associates and advisors in courts and prosecutor's offices.
II GENERAL PROVISION
This Code applies to legal associates and advisors in courts and prosecutor’s offices in BiH.
Duties of legal associates and advisors include the following activities:
- taking specific actions in court proceedings and during investigation with the approval and under supervision and instructions of judicial officeholders in accordance with applicable laws (certain actions in minor offence, enforcement, extrajudicial proceedings, probate proceedings, civil proceedings – small value disputes, interviewing witnesses and suspects during investigation, and other actions in accordance with applicable laws;
- preparing drafts of judicial and prosecutorial decisions, and other legal documents;
- preparation of judicial decisions by judicial associates in municipal courts in the Federation of Bosnia and Herzegovina, in accordance with applicable laws;
- analyzing legal matters, case law and legal literature, preparing draft legal interpretations;
- preparing cases for trials or taking other actions by judicial officeholders, and
- performing, independently or under supervision and instructions of judicial officeholders, other legal tasks as defined by applicable laws.
III PRINCIPLES OF PROFESSIONAL ETHICS AND STANDARDS OF CONDUCT
III 1. INDEPENDENCE
A legal associate or advisor shall respect and promote the principle of judicial independence. They shall actively participate in achieving, maintaining and implementing the principle of independence and in strengthening public confidence in the independence and integrity of the judiciary.
1.1 A legal officer or advisor shall be independent in relation to legislative and executive authorities, the public, media and other institutions, and in relation to the particular parties to the proceedings.
1.2 A legal officer or advisor shall be independent in relation to his/her colleagues. He or she may consult his/her colleagues without allowing them to inappropriately influence the performance of his/her work duties.
1.3 A legal associate or advisor shall refrain from any conduct that may compromise the public perception of judicial independence.
1.4 A legal associate or advisor shall not allow public clamor or fear of criticism to interfere with the performance of his/her duties.
1.5 A legal associate or advisor shall not convey or permit others to convey the impression that any individual or organization is in a special position to influence the legal associate or advisor.
1.6 A legal associate or advisor shall reject any attempt to influence his/her performance of duties and immediately report any such attempts to his/her supervisor.
Commentary
Judicial independence is a pre-requisite to the rule of law, democracy and respect of human rights. It ensures administration of justice without unnecessary involvement of any other branch of government. Judicial independence has two aspects: institutional and individual independence. Institutional independence is related to division of power in the state and judicial/prosecutorial ability to be free from any pressure coming from legislative or executive power. Judiciary must be independent and impartial. This is one of the pillars of a democratic society and the government is responsible to ensure and guarantee division of power into judicial, legislative and executive and prevent their mutual interference, unless such interference is defined by the Constitution and laws.
Individual independence is related to the independence of judges/prosecutors as individuals in the exercise of their professional duties. Judges/prosecutors must be independent and impartial. These requirements are integral to the basic democratic principle of division of power: judges/prosecutors must not be susceptible to political influence and judiciary must always be impartial.
The requirement of individual independence does not apply only to judges and prosecutors, but also to legal associates and advisors in courts and prosecutor's offices in BiH, whether they act independently or under supervision and instructions of judges and prosecutors. This is so not only because legal associates and advisors are a part of the BiH judicial system and their conduct may contribute to the achievement of this principle, but also because their conduct may compromise it, as well as public confidence in the independence of judiciary.
Since legal associates and advisors, whether they manage proceedings independently and make decisions, whether they prepare draft decisions and assist judges and prosecutors in their work, are intricately involved in the decisionmaking. Therefore it is important that they are independent from legislative and executive power, public, media and other institutions, as well as from particular parties to the proceedings. Furthermore, legal associates in municipal courts of the Federation of BiH, who act independently, must be independent in their work, their opinions and decisions in relation to judges. For other legal associates and advisors, their degree of independence depends on authorizations of judges and prosecutors who direct and monitor their work.
Legal associates and advisors shall personally adhere to high standards of conduct so that the integrity and independence of judiciary may be preserved. Legal associates and advisors must require observance of these standards by persons they direct and control.
Also, to ensure full achievement of the principle of independence, a legal associate and advisor must at all times be aware that certain conduct or contacts, private or professional, may convey the impression that the legal associate and advisor is not independent in the performance of his/her duties or that he/she is or may be under someone's influence, even in situations when such conduct or acquaintance do not actually qualify as influence i.e. breach of the principle of independence. This is exactly the reason why the Model Code of Ethics stresses the obligation of legal associates and advisors to not only promote and observe the principles of independence, but also to refrain from any conduct which may compromise the perception of individuals or the public about judicial independence.
Judiciary cannot be truly independent if judges, prosecutors and legal associates and advisors are not perceived as independent by the parties addressing the court or prosecutor's office seeking protection of their rights.
Examplary questions for self-evaluation:
1. Do I have any contacts (with the representatives of legislative or executive power, media and other social institutions, parties to the proceedings, etc.) that might influence independent performance of my duties?
2. Does public clamor, in general or in a particular case, influence independent performance of my duties?
3. Do any of my colleagues have an inappropriate influence on the independent performance of my duties? Does my conduct influence the independent performance of my colleague’s duties?
4. Does my conduct in any way compromise the public perception of judicial independence?
III 2. IMPARTIALITY
2.1 In performing his/her duties, independently or under supervision and instructions of a judge or prosecutor, a legal associate or advisor shall comply with the law and other applicable regulations and act impartially, fairly and without bias.
2.2 A legal associate or advisor shall ensure that his/her conduct, both in and out of judicial institution, at all times maintains, promotes and enhances the confidence of the public, society and parties regarding the impartiality of the legal associate or advisor and the judiciary.
2.3 A legal associate or advisor shall not, in the performance of their duties, by conduct, words, gestures or display of symbols, manifest bias or prejudice towards any person or group.
2.4 A legal associate or advisor shall refrain from making any qualifications or comments with regard to judicial decisions.
2.5 A legal associate or advisor shall refrain from membership in groups and organizations which would undermine confidence in the impartiality of the legal associate/advisor and judiciary.
2.6 A legal associate or advisor shall not be engaged in political activity i.e. shall not be a member of any political party, attend political gatherings or comment or in any other way promote them in and out of the judicial institution.
2.7 A legal associate or advisor shall not meet with parties to the proceedings in his/her office or engage in any communication with them that might affect the confidence of the public and other parties in the impartiality of the legal associate or advisor.
2.8 A legal associate or advisor shall refrain from any conduct on social media that might adversely affect the confidence of the public and parties in the impartiality of the legal associate or advisor and the judiciary.
2.9 A legal associate or advisor shall inform his/her supervisor of any improper communication or external influence aimed at affecting the impartiality of that legal associate.
2.10 A legal associate or advisor shall inform his/her supervisor about the existence of any circumstances that might raise doubts in the eyes of the public or of the parties as to the impartiality of that legal associate or advisor, or when he/she believes this might be the case, and ask for his/her disqualification from a particular task.
Commentary
Along with principle of independence, with which it is inextricably linked, the principle of impartiality represents a critical prerequisite for the rule of law and justice in a society. The right of every citizen to a fair trial is a cornerstone of democracy and without judicial independence and impartiality, this right would be compromised.
Article 2 of the Basic Principles on the Independence of the Judiciary prepared by United Nations in 1985 prescribes that “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.
An impartial legal associate or advisor who promotes public confidence in the judicial system of this country is also part of an independent and impartial judiciary.
An impartial legal associate or advisor is free from personal interests and influences, as well as from any relationship, bias or prejudice that affect or may be perceived as affecting, his/her ability to perform his/her duties impartially.
A legal associate or advisor has his/her own unique attitudes, opinions and personal philosophy, however in performing his/her duties and in all professional activities, a legal associate or advisor must be inspired by values of neutrality, independence and impartiality and act impartially in all circumstances ensuring that the public has no valid reason to suspect any bias. Therefore, impartiality of a legal associate or advisor should be obvious, both in the performance of his/her duties and in other activities.
Examplary questions for self-evaluation:
1. Do I comply with the law and other applicable regulations in the performance of my duties?
2. Do I act impartially, fairly and without bias in the performance of my duties?
3. Does my conduct, in or outside my judicial institution, compromise my or my institution’s impartiality?
4. In my contacts with third parties, do I make inappropriate comments with regard to pending cases or judicial/prosecutorial decisions?
5. Can my membership in a particular group or organization adversely affect my impartiality or the impartiality of judiciary in general?
6. Do my political opinions in any way influence the impartiality of my actions?
7. Does my conduct on social media compromise my or my institution’s impartiality?
III 3. EQUALITY
3.1 In performing his/her duties, independently or under supervision and instructions of a judge or prosecutor, a legal associate or advisor shall treat all citizens, parties, legal counsels, staff of judicial institution and other individuals with whom he/she has professional contact equally and with equal level of respect regardless of their race, color, sex, religion, ethnic origin, social status, disability, age, marital status, sexual orientation, social and economic status and other like matters.
Commentary
The principle of equality, together with the principle of non-discrimination, represents the essence of human rights. Article 26 of the International Covenant on Civil and Political Rights states that “all persons are equal before the law and are entitled without discrimination to the equal protection of the law.” The European Court of Justice points out that “the right of all persons to equality before the law and protection against discrimination represent a universal right”.
In the context of this principle, equality implies the duty of a legal associate or advisor to treat equally and with equal level of respect all citizens parties, legal counsels, staff of judicial institutions and other individuals with whom he/she has professional contact in order to eliminate any form of discrimination in the performance of his/her duties.
The term “discrimination” means any unjustified and unequal treatment, including exclusion, restriction or preferential treatment, on actual or assumed basis, of a person or a group of persons, including their family members and persons close to them based on their race color, language, religion, ethnic affiliation, disability, age, national or social origin, affiliation with an ethnic minority, political or other opinion, material status, membership in unions and other organizations, education, social standing and sex, sexual orientation, gender identity, sexual characteristics, and any other circumstance aimed at or resulting in preventing or compromising the recognition and enjoyment of or access to rights and freedoms on equal basis in all spheres of life.
In performing their duties, legal associates and advisors should be aware of and informed about all rights and restrictions prescribed by the applicable Anti-discrimination Law and other relevant legislation.
The principle of equality and non-discrimination may be violated in various ways: derogatory names, negative stereotypes, humor based on stereotypes, threats, intimidation or negative treatment, comments related to race, ethnic origin or nationality, allusions to personal characteristics, and other ways. Even face and body language directed at parties, counsels employed at the court and other individuals may convey the impression of prejudiced and biased conduct and discrimination.
By violating the principle of equality, a legal associate or advisor compromises the confidence of the public, society and parties in the judiciary.
Examplary questions for self-evaluation:
1. Do I understand the importance of equal treatment of the parties to the proceedings and do I treat the parties equally?
III 4. COMPETENCE AND DILIGENCE
A legal associate or advisor shall maintain a high level of professional competence and perform his/her duties professionally, conscientiously, diligently and efficiently.
4.1 A legal associate or advisor shall act in accordance with the Constitution, laws and other applicable regulations, including this Code.
4.2 A legal associate or advisor shall perform his/her duties professionally and be patient, dignified, fair and courteous in relation to parties and other individuals with whom he/she has professional contact.
4.2.1 A legal associate or advisor shall cooperate with his/her supervisors and other judicial or prosecutorial staff in administration of judicial institution's operations.
4.3 A legal associate and advisor shall respect professional confidentiality during and after employment in judicial institutions and maintain as secret confidential information acquired in the performance of his/her duties.
4.4 A legal associate and advisor shall continuously improve his/her theoretical and practical knowledge, skills and personal qualities in order to be able to adequately perform his/her duties.
4.5 Duties of a legal associate and advisor, as defined by the law, shall take precedence over any personal and additional activities of the legal associate and advisor.
4.6 A legal associate and advisor shall report any inappropriate and/or irregular conduct of certain participants to the proceedings to the competent person or institution, and cooperate with the competent disciplinary bodies.
Commentary
To be able to act in accordance with the Constitution, laws and other applicable regulations, including this Code, legal associates and advisors in courts and prosecutor's offices of Bosnia and Herzegovina should have good knowledge of applicable regulations relevant for the performance of their duties. This does not relate only to the knowledge of material and process laws, but also to their interpretation and application. Continuous efforts to maintain and improve knowledge and competence are necessary for successful discharge of duties. This also implies continuous learning through education programs, but also independent learning. Legal associates and advisors have to keep themselves informed about amendments of the national legislation and relevant international law, as well as about national case law and the case law of the European Court of Human Rights.
Legal associates/advisors shall support and promote transparency in the functioning of judicial institutions as one of the core values. Associates and advisors should make their best efforts to contribute to the achievement of goals of their judicial institution. They should care about the institution's well-being and interests. In the performance of his/her duties, a legal associate/advisor has the duty to protect his/her personal reputation, the reputation of judicial institutions and public confidence in judicial institutions.
Legal associates and advisors who are in possession of information classified as confidential should protect the confidentiality of such data, which means that they should not disclose information obtained in the performance of their duties without authorization or provide this information to third parties, unless required by the law, other regulations or institution's rules and procedures. In their private activities, legal associates and advisors should not use information obtained in their official capacity for their personal gain or the gain of others. During the performance of their duties, legal associates/advisors may not request access to information that is not necessary for the performance of tasks and must use information available to them in accordance with the rules.
Professional duties of legal associates/advisors in their parent judicial institution take precedence over any other allowed professional duties. This means that legal associates/advisors should organize their other activities in such a way so as to be able to dedicate sufficient time to their duties. In performing their duties, they should be accurate and expeditious in order to ensure the confidence in the judicial institution. Legal associates and advisors shall always protect the rights of the parties to the proceedings and act in a way so as to avoid any possibility of abuse of proceedings, as well as any delays and unnecessary costs.
As opposed to the codes of judicial and prosecutorial ethics, rule 4.6 MCE prescribes the duty to report any inappropriate and/or irregular conduct of certain particiapnts to the proceedings. Aware of the fact that this duty is already prescribed by applicable legislation regulating the conduct of both judges and prosecutor on one hand and associates and advisors on the other, it is necessary to highlight here the context of the judiciary in Bosnia and Herzegovina which, in terms of reporting colleagues and other parties to the proceedings, is characterized by existence of fear from reporting such conduct due to retaliation and lack of efficient mechanism of protection, loyalty and self-censorship. Aware of the fact that efficient application of this rule depends on raising the awareness of all participants to the proceedings about the importance of integrity of the proceedings itself, as well as on the efficient protection mechanisms and existence of institutional and systemic culture in which such conduct is not acceptable and should be reported in order to build and preserve a judicial system that enjoys public confidence, by prescribing this rule MCE intends to prompt its application and thus support the achievement of the previously defined objective.
Therefore, legal associates or advisors are responsible, in accordance with their authorizations, for conducting the proceedings in such a manner to ensure proper conduct of all participants in the proceedings. In case of inappropriate and/or irregular conduct on the part of participants in the proceedings (a judge, attorney, expert witness, interpreter), a legal associate or advisor have the duty to take appropriate measures which may include reporting such conduct to a responsible person or authority. Ignoring or tolerating ethically unacceptable conduct among colleagues or members of legal profession undermines the efforts aimed at building an independent, responsible, efficient and professional judiciary.
Examplary questions for self-evaluation:
1. Do I invest enough effort and time in my professional training?
2. To what degree am I vigilant in performing my duty not to disclose information obtained in the course of the performance of my duties?
3. Would I take appropriate measures in case I learned about a colleague’s inappropriate and irregular conduct and/or actions?
III 5. INTEGRITY AND PROPRIETY
In his/her professional and private life, a legal associate or advisor shall act with moral uprightness, dignity and in accordance with the dignity of the function he/she performs and the dignity of the institutions where he/she works contributing thus to the preservation and strengthening of the reputation, independence and integrity of the judiciary.
5.1 A legal associate or advisor shall freely and willingly accept the restrictions imposed by the nature and character of the function he/she performs.
5.2 A legal associate or advisor shall conduct himself or herself in a manner that contributes to the strengthening of the public confidence in the integrity of the judiciary.
5.3 In his/her private life, a legal associate or advisor shall refrain from any conduct that might compromise the public confidence in the functioning of the judiciary.
5.4 A legal associate or advisor shall engage in activities that:
a) promote ethical conduct of judicial officeholders, judicial staff and individuals related to legal profession,
b) support and promote professionalism in legal profession, and
c) promote equal access to judiciary and access to related human rights for all persons, without discrimination.
5.5 In exercising his/her rights to freedom of expression, thought, belief, consciousness, religion, association and assembly, a legal associate or advisor shall always conduct himself or herself in such a manner as to preserve the dignity of the function he/she performs and the institution where he/she works, impartiality and independence of the judiciary.
5.6 A legal associate or advisor shall not express any religious, political, ethnical or other affiliation in the course of performance of his/her duties.
5.7.A legal associate or advisor shall not allow his/her fiduciary interests, or the fiduciary interest of his/her family members, to influence his/her personal and professional integrity.
5.8 A legal associate or advisor shall not allow his/her family, social or other relations to influence the performance of his/her duties.
5.9 A legal associate or advisor shall not use the prestige of his/her function in the judiciary to advance his/her private interests, nor shall a legal associate or advisor permit others to do so.
5.10 A legal associate or advisor may form or join associations of legal associates and advisors or participate in other organizations representing the interests of this category of judicial staff.
5.11 A legal associate or advisor shall not give other persons with whom he/she has professional contact legal advice, free of charge or for remuneration, except instructions he/she is obliged to give to such persons in accordance with the law.
5.12 A legal associate or advisor shall use material resources that are available or entrusted to him/her for the purpose of performing his/her duties solely for the performance of those duties.
5.13 A legal associate or advisor shall be properly dressed both in the course of his/her duties and in any other occasion.
5.14 A legal associate or advisor shall maintain a high standard of communication with the public, participants in the proceedings before the prosecutor's office and the court, prosecutors, judges, colleagues and all other individuals with whom he/she has professional contact i.e. a legal associate or advisor shall treat them with politeness, fairness and respect and in a manner that does not offend their human dignity.
Commentary
Integrity means wholeness, undividedness, purity of manners, honesty. When referring to integrity in the sense of personal integrity, then it means to have unconditional and firm duty towards moral values and obligations.
Integrity may be viewed in its psychological, ethical and moral sense, and in the sense of professional conduct. In its psychological and ethical sense, integrity represents wholeness and firm coherence of personality traits and implies compatibility of competencies, values, interests, habits and motivation of an individual. In moral sense, integrity implies honesty, consistency, predictability and responsibility. In professional conduct, integrity implies existence of and adherence to developed rules which regulate the implementation of professional standards in institutions, authorities and organizations. Therefore, integrity includes honesty, reason, caution and other moral values of an individual. Integrity also includes personal development, work on full personal development. Integrity also includes ability to control own emotions and impulses so as not to allow them to overpower reason. According to one of the definitions, integrity is also ability to maintain personal dignity and not to violate the dignity of others.
When we speak about the integrity of legal associates and advisors, it implies that a legal associate or advisor maintains required knowledge and skills, conducts himself or herself ethically, in accordance with the rules and moral values, and that he/she is not susceptible to unethical or immoral (corruptive) pressures. Therefore, this principle implies the existence of a particular system of values of a legal associate or advisor as an individual, especially moral values, as well as particular, proper conduct in line with that system of values.
Principles contained in this Code are specifically aimed at preservation of the integrity, independence and reputation of the judiciary through the existence of these values in each legal associate and advisor. Although they are not holders of judicial office, and as such they are not subject to the same level of public scrutiny (except legal associates in municipal courts in the Federation of Bosnia and Herzegovina), legal associates and advisors perform duties that are, to a large extent, similar to or interrelated with those performed by judicial officeholders. In that sense, duties of legal associates and advisors are inextricably linked to judicial officeholders who are their supervisors, therefore, the work of judicial officeholders is also viewed, especially in the public, through the personality and work of legal associates and advisors.
The principle of integrity implies that the conduct of legal associates and advisors has two components: 1) conduct that does not compromise their personal integrity and thus the integrity of judicial officeholders, institutions where they work, and judiciary in general, and 2) conduct which affirms, strengthens and promotes their personal integrity and thus the integrity of judicial officeholders, institutions where they work, and judiciary in general. This implies that a legal associate and advisor should conduct himself or herself properly, which means that he/she should avoid any conduct that may be perceived by the public as improper.
A legal associate and advisor shall not conduct himself or herself, in his/her private or professional relationships, in a manner as to compromise his/her integrity i.e. he/she shall not conduct himself or herself improperly (failure to observe high standards of communication, inappropriate dress, inappropriate comments related to issues falling within the domain of the judiciary, expressing any political, religious, ethnic or any other affiliation in the course of performance of duties, etc.) and shall not abuse his/her function in judiciary (use of function to obtain personal gain, corruptive behavior, etc.).
On the other hand, they shall conduct themselves in a manner as to strengthen and develop their own integrity through professional and personal development. They shall conduct themselves in a manner that promotes and affirms moral and ethical values underlying the principle of integrity by promoting and supporting those values in legal profession (association for the purpose of protection of rights of certain categories in the judiciary, participation in activities that contribute to the public confidence in the judiciary, promotion of ethical and professional conduct in legal profession, etc.).
In the conduct of private business, a legal associate/advisor shall not use his/her official insignia or authority of his/her position in the judiciary.
It goes without saying that these activities of a legal associate and advisor should not be contrary to other principles contained in this Code i.e. their conduct, must also comply with other principles of this Code.
Examplary questions for self-evaluation:
1. Am I aware of the restrictions imposed by my function as a legal associate or advisor?
2. Does my actual or pereceived conduct compromise public confidence in the judiciary?
3. Does my conduct contribute to the strengthening of public confidence in the integrity of the judiciary?
4. Do I engage in activities that compromise or appear to compromise the dignity of my function and my institution?
5. Do I, in any way, use the prestige of my function in the judiciary to advance my private or fiduciary interests?
III 6. CONFLICT OF INTEREST
6.1 A legal associate or advisor shall avoid any situations that might give rise to conflict of interest, shall not undertake activities which may favor one of the parties, legal representatives or attorneys in proceedings before courts and prosecutor's offices, shall not take advantage of their official function to obtain any personal gain or advance interests of other persons, shall not influence or attempt to influence decisions of prosecutors or judges, and shall not allow his/her personal, social or other relations to influence the performance of his/her official activity.
6.2 A legal associate or advisor shall refrain from performing any duties that are incompatible with the function of a legal associate or advisor.
6.3 A legal associate or advisor shall not use his/her function to promote business entities, promote investment in business ventures and fund-raising for activities of business entities.
6.4 A legal associate or advisor may be a member of non-profit civil organizations, but shall carefully consider the goals of such organizations, their interests, and relationships with governmental authorities, judicial institutions or political organizations.
6.5 A legal associate or advisor may engage in activities that are not directly related to their duties in the judiciary, if such activities do not detract from the dignity of their function in the judiciary or the dignity of the institution where they work, or otherwise interfere with the performance of the duties of the legal associate or advisor in accordance with this Code:
a. write, lecture, teach and participate in scientific, cultural and professional activities
b. serve as a member of government commissions, committees and advisory bodies, if such membership is not inconsistent with the perceived impartiality and political neutrality.
6.6 A legal associate or advisor shall not demand, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by the legal associate or advisor, nor knowingly permit others to do so.
6.7 A legal associate or advisor shall refrain from using his/her influence to obtain for a member of his family or another person employment or another benefit in the same or another institution or organization, and shall not participate in procedures related to employment of his/her family members.
6.8 A legal associate or advisor shall not chose expert witnesses for members of his/her family, or their business partners, nor influence his/her colleagues to do so.
6.9 A legal associate or advisor shall not advise the parties in his/her cases, or cases of his/her colleagues, to use services of institutions, companies or organizations in which his/her family members have financial or other interests.
6.10 A legal associate or advisor shall consistently apply the rules of disqualification from cases in which a member of his/her family or another related person appears as a party.
6.11 A legal associate or advisor shall seek his/her disqualification from all cases where there is actual, potential or perceived conflict of interest, and shall report this to his/her supervisor for further relevant action.
Commentary
OECD Guidelines for Managing Conflict of Interest in the Public Service and the Recommendation to EU Member states on codes of conduct for public officials define conflict of interest as a situation in which the public official has a private interest which is such as to influence, or appear to influence, the impartial and objective performance of his or her official duties.
The purpose of regulating the conflict of interest is to avoid giving priority to own personal interests, or interests of others, over public interest. A legal associate or advisor shall not allow any interest, direct or indirect, to influence the performance of his/her duties and shall not be involved in activities, employment, transactions, etc. that are in conflict of interest with his/her duties.
A legal associate or advisor may often find himself or herself in a situation giving rise to conflict of interest. It is important that they are able to manage conflict of interest honestly and responsibly, which includes recognizing actual, potential and perceived conflict of interests, reporting the conflict of interest to their supervisors or managers and avoiding acting in all matters which involve conflict of interest.
The purpose of the rules defined above is to prevent situations that give rise to conflict of interest which might ultimately result in disciplinary liability of a legal associate or advisor and therefore compromise the public confidence in the judiciary.
In addition to managing the conflict of interest, legal associates and advisors shall avoid any situations that are incompatible with or that obstruct the performance of their duties, regardless of whether these are duties related to their work post or additional activities. Activities that are incompatible with the duties of a legal associate or advisor include any business activities which include promoting or favoring business entities in a manner that puts those entities in a more favorable position than other entities. Also, a legal associate or advisor shall refrain from any activity that may be perceived by the public as supporting a certain political activity or idea. This means that a legal associate or advisor shall not be a member of political parties or attend political gatherings, contribute to political parties or take part in political discussions that are not related to the functioning of the judiciary.
Although he/she currently performs a function in the judiciary, a legal associate or advisor should take into consideration all duties and activities he/she performed prior to his/her duty as a legal associate or advisor. This means that a legal associate shall not give favorable treatment to a party or any other interested person with whom he/she had a professional or any other relationship prior to taking up his/her duties as a legal associate.
Legal associates and advisors may take part in or be members of civil organizations. However, they should be aware of activities that are absolutely forbidden – association, but also participation in activities, as well as their tacit approval of associations or activities that may compromise the impartiality and independence of the judiciary. Furthermore, the awarenees should include activities such as collecting funds, recruiting members, giving legal advice, ex parte communication, commenting specific court cases, using the prestige of function to obtain any gain, and activities that would require his/her disqualification in judicial/prosecutorial proceedings.
Legal associates and advisors may engage in additional activities, if such activities do not detract from the dignity of the institution and their function. This means that they may engage in certain educational and teaching activities (aimed at improving the knowledge and skills of lawyers and other interested persons), cultural activities, and serve as members of certain government commissions related to the functioning of the judiciary and legal system, providing that they observe the principles of impartiality and political neutrality, while they are entitled to receive certain remuneration for their work.
Legal associates and advisors shoul explain to their family members the restriction on accepting or soliciting gifts or other benefits related to the performance of duties of a legal associate or adviser. This includes restriction on accepting or soliciting gifts or other benefits from parties in cases, their attorneys, family members of parties and any individual who offers gifts or other benefits related to particular action or omission in the performance of duties. Gifts received from relatives or close friends that are not related to performance of duties are not problematic, as well as certain informative materials and professional literature common in the work of judicial officeholders.
A legal associate and advisor should not use his/her function among his/her colleagues to procure employment for his/her family member, even if that employment is in a different judicial or any other institution or organization. This includes references.
Exemplary questions for self-evaluation:
1. Do I have sufficient knowledge of the HJPC Guidelines for the Prevention of Conflict of Interest in the Judiciary and of other relevant rules?
2. Do my activities favor one of the parties or participants in the proceedings?
3. Do I take advantage of my official function to advance my personal interests or interests of other persons?
4. Do I influence my colleagues to advance my personal interests of interests of other persons?
5. Do my personal, family, social or other relations in any way influence the performance of my official duties?
6. When becoming a member of an organization, do I carefully consider their goals and activities, and do I put them in the context of the interests of the judiciary that are primary duty?
7. How would I act if someone offered me a gift or another advantage due because of my function as a legal associate or advisor?
8. Am I able to recognize situations giving rise to actual, potential or perceived conflict of interest and act appropriately?
9. Would I inform my supervisor or the manager of the institution in case there is an actual, potential or perceived conflict of interest?
IV. APPLICATION OF THE MODEL CODE OF ETHICS
Since the Model Code of Ethics represents the Association’s proposal for uniform regulation of ethical rules which would, at some time in future, be applicable to all categories of legal associates and advisors in courts and prosecutor’s offices in Bosnia and Herzegovina, it is clear that there are no institutional mechanisms that would guarantee its implementation. Until such mechanisms are introduced, potential application of the Model Code of Ethics relies exclusively on the willingness of the relevant institutions to align the existing rules with the rules contained in the Model Code of Ethics on one hand and on individual recognition and acceptance of the Model Code of Ethics as a source of rules for ethical conduct that comply with the existing rules and supplement them.