In December last year, the judicial powers of Astara District Court judge Ilgar Mammadov were terminated. The decision was based on the judge's failure to comply with the requirements of the Code of Ethical Conduct for Judges. According to information disseminated in domestic media, the judge spread his robe over his personal car to prevent damage during a hailstorm. Information about the incident was sent by the chairman of the Astara District Court, Bakhtiyar Mammadov, to the chairman of the Judicial-Legal Council.
Neither Astara District Court, nor Judicial-Legal has issued any statement on the matter.
“Tribunat assessed the compliance of the alleged termination of I. Mammadov’s judicial authority with the Code of Ethical Conduct for Judges and the proportionality of the applied sanction.
In accordance with Article 113 of the Law “On Courts and Judges”, premature termination of the authority of judges due to ethical or disciplinary misdemeanor is possible only in two cases: when a disciplinary penalty is imposed twice on the same grounds within a calendar year, or when professional shortcomings are again revealed in the judge’s activities as a result of a re-evaluation conducted in accordance with the Law “On the Judicial-Legal Council”.
Article 111 of the Law lists the grounds for initiating disciplinary proceedings against a judge. In Mammadov’s case, there is no information about any complaints from individuals or legal entities, materials published in the media, or specific decisions of higher courts regarding these cases. Simultaneously, there is no reference to the decision of the ECtHR or the Constitutional Court regarding this judge, or to systematic violations of the law revealed during the assessment of the judge’s performance. The known facts show that the proceedings were initiated solely on the basis of information provided by the court chairman, which corresponds to the “other information obtained by persons with the right to appeal” clause provided for in Article 111.
Nonetheless, the initiation of disciplinary proceedings in itself is not sufficient to hold a judge accountable. Accordingly, the existence of any of the material grounds specified in Article 111-1 must be proven. By that article, a judge may be held accountable only for gross or repeated violations of the legislation, violations of judicial ethics, violations of labor and executive discipline, non-compliance with requirements related to corruption, or actions that bring discredit to the judge. The behavior in question is not related to judicial activity and is not associated with the exercise of procedural powers. In this regard, it may seem theoretically possible to refer only to the concepts of “violation of judicial ethics” or “actions discrediting for the judge”.
The Code of Ethical Conduct for Judges requires that judges, even in their off-duty conduct, remain faithful to their oath of office and demonstrate behavior that enhances respect for the judiciary in society (§§1 and 2). Article 5 of the Code emphasizes that judges must refrain from any behavior that may harm the reputation of the judiciary and the high character of the judge.
However, the provisions of the Code on rules of conduct outside professional activities do not allow for the automatic assessment of every behavior of a judge in his private life as an ethical violation. The main criterion is that such behavior does not cast a shadow on the judge's fairness, objectivity and impartiality (§19).
The only direct provision on clothing in the Code and the Law “On Courts and Judges” stipulates that judges must wear special clothing during court sessions (§16 and Article 6). There is no separate provision expressly prohibiting the use of a judge’s robe for personal purposes outside the court. Together, violations of the Code are taken into account not at the time of the incident, but during the assessment of the judge’s performance (§24).
The evaluation of the performance of judges is carried out with the aim of improvement of the administration of justice, proper organization of the educational process, as well as determination of their suitability for promotion, continuiation of their judicial and presiding activities (Rules for the Evaluation of the Performance of Judges, §1.2). During the evaluation, the ethical behavior of the judge outside his professional activities is taken into account as a separate criterion (paragraphs 2.1 and 2.1.4). The performance of judges appointed to the position for the first time is evaluated following three years. Ilgar Mammadov was also appointed as a judge to the Astara District Court in December 2022.
In accordance §3.5 of the Rules, the decisions that the Judicial-Legal Council can make on performance evaluation are limited to only two options: the suitability of the judge for the position he holds or the presence of professional deficiencies in his activities.
The activities of a judge who has been assessed as having “professional deficiencies in his/her activities” shall be re-evaluated by the Judicial and Legal Council at a time determined by it, but not earlier than 6 months and not later than 2 years. If professional deficiencies are again revealed in the activities of a judge during the re-evaluation, his/her powers shall be terminated prematurely in accordance with the procedure established by the Law of the Republic of Azerbaijan “On Courts and Judges” (§3.7). However, this re-evaluation shall not cover persons who have been appointed judges for the first time (§3.8).
The Recommendation of the Committee of Ministers of the Council of Europe entitled “Judges: independence, efficiency and responsibilities” makes a clear distinction between ethical conduct and disciplinary liability and states that sanctions should be proportionate (§§69 and 72). The Recommendation also stresses that ethical principles should be reflected in a code of conduct for this purpose (§73).
Let us emphasize once again that the Code does not contain a norm that directly prohibits the use of a judge's robe for personal purposes outside of court sessions or characterizes it as a violation of ethical conduct.
The UN “Bangalore Principles of Judicial Conduct” iterate that judges should avoid improper conduct, as well as the appearance of improper conduct, and should accept and comply with personal restrictions that may seem burdensome or restrictive to an ordinary citizen (§§4.1, 4.2). The Commentary on the Principles, however, considers as a criterion for improper conduct cases where such conduct impairs the judge’s ability to perform his duties in accordance with the principles of integrity, impartiality, independence and professionalism, or creates the appearance of such conduct (§112). The fact that Ilgar Mammadov draped his mantle over his new car does not mean that he performed his duties in a manner inconsistent with the principles listed above.
In accordance with the principle of legal certainty, a person's behavior can only give rise to legal liability if there is a predetermined and clear norm. The assessment of ethical behavior should be based on the existing normative framework.
“Tribunat” concludes that since there is no norm explicitly prohibiting the use of a judge's mantle for personal purposes outside the court, assessing Ilgar Mammadov's behavior as an ethical violation and, as a result, terminating his judicial activity is contrary to the principle of legal certainty.
