Monitor��������������������������������������������������������������������������������
ing�����������������������������������������������������������������������������
����������������������������������������������������������������������������
pointed to������������������������������������������������������������������
a number of troubling ethical practices that appear to have been
influenced by the legacy of state supremacy in criminal proceedings����������������������
, such as the greater
consideration and deference ����������������������������������������������������
that������������������������������������������������
judges gave
����������������������������������������
prosecutors as compared to ��������
defence
lawyers.
During the monitoring, prosecutors’ attitudes and actions reflected prejudgement of the
defendant’s guilt. Public prosecutors have used the expression “criminal” in reference to
defendants during court hearings with no reaction from the presiding judge. Judges actively
engaged in prosecutorial questioning, calling the impartiality of the state into question.
In some instances the inadequate protection of a defendant’s fair trial rights was attributable
to the actions or inactions of defence lawyers, including substandard performance and
unethical behaviour. Defence lawyers sometimes displayed of a case and/or questionable
courtroom manners. Monitoring concluded that legal aid lawyers160 gave particularly poor
performances compared with privately retained lawyers. However, privately contracted
lawyers were also noticeably ill prepared. In several instances, lawyers contributed to
prejudice against their clients by referring to them in a disrespectful manner.
Despite encouraging exceptions, judges typically do not serve as guardians of the fairness
of criminal proceedings. Notably judges, contrary to the Superior Council of Magistrates’
proscription of ex parte communication, allow public prosecutors or defence lawyers to
enter their offices before hearings, without explanation to the opposing side.
Monitoring has evidenced disrespect of the rights of non-professional trial participants.
Judges often do not clearly explain the procedural rights of parties and do not take positive
steps to ensure them. Judges have ignored allegations of torture and pressuring of witnesses.
On occasion, judges failed to react to threats made in the courtroom against victims and
witnesses. Judges consistently failed to consult witnesses and victims about rescheduling
postponed hearings.
On occasions judges apply, and permit public prosecutors and defence lawyers to apply,
inappropriate pressure while questioning witnesses and victims. Judges ask, and permit
other officials to ask, inappropriate questions about the intimate life of victims that are
irrelevant to the case. Judges use, and allow others to use, improper language and make,
and allow others to make, inappropriate comments toward the parties. Judges do not
ensure due concentration, order and solemnity in the courtroom. The
�������������������������������
rights to a fair trial are
broader than the sum of the legally defined guarantees and depend on the entire conduct
of the trial. The cumulative
����������������������������������������������������������������������������
effect ����������������������������������������������������������
is procedural unfairness and weakening of public trust in
the judicial system.�
Internationally accepted standards of judicial ethics require that judges avoid situations
which reasonably might be perceived as raising doubts about their independence and
impartiality. During hearings, they should act diligently and expeditiously to maintain order
and they should remain patient and courteous toward all participants. In particular, judges
should exercise vigilance in controlling the manner of questioning of witnesses and victims
160 Ex-officio lawyers as used in the first two TMP Reports. As stated in the present Report, the monitoring
overlapped only for two months with the entry into force of the Law on State Guaranteed Legal Aid.
Therefore no conclusions can be made about changes in the quality of legal aid after the entry into force
of this law.
81
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