ETHICAL ISSUES IN THE LEGAL PROCESS BEFORE THE COURT
KONSTANTINOS VARDAVAKIS *
I Preface.
We live today within impressive scientific progress, mostly, in the technical field. On the other hand, though written history of more then four thousand years, philosophy, religion, culture and other elements of civilization point out to what moral principles are for a better world, we are not sure if the application of that progress goes hand in hand with morality. The abuse of achieved possibilities is obvious, either in our public or private behavior. It is no use of building a plane, capable to reach Australia from Crete in few minutes, but we do not dare to board for the fear of terrorist or other behaviors. At the end, our human personality tends to be a simple number in the database of a computerized world, though Christian religion declares that we are icons of the God and should be respected in that sense.
II Introduction.
The following lines presuppose a concept of judicature common to, mostly, the European and other states sharing the democratic system of administration and the principles deriving from the relevant civilization. At the very center of this system is the individual person as a human being and his inalienable human rights, protected by a fully separated and independently functioning judicature. This judicature, though a state authority for achieving state goals, is rather abide by the principles of spiritual, ethical, broader moral and legal civilization of the respective society more and further than other state authorities, the legislature and executive. The courts, as state organizations or mechanism, should exercise their authority in a way not violating certain minimum limits generally accepted as values of justice, especially when implementing bad or unjustified laws. They not enjoy the flexibility of the legislature, or the executive, sometimes obliged to act in another way.
The distinction is clearly stated in article 6 of the European Convention on human rights and fundamental freedoms, demanding fair trial process of the court, irrespective of the substantive law (1). Guidelines for the court's functioning are specified in constitutional and other provisions, but limited to issues regarding the establishment, the competence and the proceedings. This is not our topic to day and the lines to follow should not be taken as lecture in legal science. We are focusing on limits beyond the express words of the relevant laws, the violation of which may give grounds for an implied right to resistance or disobedience against a badly functioning judicature. This right of resistance has not been defined in legal theory and it is not accepted in express words, for the fear of disturbance in the legal order and law enforcement. In practice, however, it exists and appears as conflict between two rival legal orders, that of the natural law and the positive law.
Even though the positive law always prevails in the field of substantive law, the courts should have recourse for inspiration to the natural law at least when interpreting ambiguous provisions or filling gaps of law. The court of the European Union at Luxembourg, in its judgment in the Stauder case (2), declared that rights stemming from legal principles common mostly to European States, with implied reference to their spiritual, moral and legal civilization, are an inherent part of the treaties. Thus the court found itself obliged to safeguard these rights against acts of community organs, despite the silence of the treaties.
But, the first who had foreseen the existence of a such underlying right of resistance against bad laws and bad decisions were the poets in ancient Greece. We recall the words of Sofecleus, in his tragedy-play ANTIGONE, refusing to obey the decision -judgment of her king, face to face with him, as contrary to the divine law (3). We may also point to the field of penal law and the written provisions for granting a pardon or giving amnesty, justified on the same grounds.
On the presupposition that values of the above civilization and moral principles thereafter are involved with our judicature, ethical issues in legal process before our courts seem to be a heritage inherent in the nature of the courts. And what is exactly this nature?. Let us have a quick look at the roots of our judicature for possible clear answers to the above issues.
In the deep past, the center of life and relations among the people was the family, later the small community and in the end the society. Appearing problems or disputes were solved by the paterfamilias and later by the leader of the community, at their own power and wise-will.
The birth of our judicature and first real court in history as independent mechanism for giving justice, in the meaning and as precedent for the courts to day, was the court of Arios Pagos in ancient Athens, founded sometime between 1,600 and 900 BC. According to the legend, the first case was judged by the twelve gods themselves, as an example to the people. It was the dispute between the god Mars (Aris being his Greek name) as defendant, who was accused by the god Poseidon of killing his son, Alirothios. The site of the court was at a place (Pagos) on the hill above the Agora. The presiding judge was the father of all gods (Jupiter or Zeus), but most importantly, the procedure was consistent with all those elements today accepted as elements of a civilized litigation - free hearing and raising of arguments, witnesses, legal assistance to the brutal defendant (by the 'flexible' god Hermes) and a reasoned decision.
From the name of the case (Arios) and the name of the place (Pagos), this court was and is still today named ARIOS PAGOS (the Hellenic supreme court on civil and penal law).
The second case, judged again by the twelve gods as example to the people, was the case of Orestis, accused by Erinnyes for the killing of his mother Klitemnistra. Matricide,was the worst all crimes in the eyes of the gods(4).
In addition to the above legends, we also remember that even in the spiritual world of the dead, philosophy and religion implies the existence of a court and God Himself as uppermost judge for the last judgment (Radamanthys-Christ)(5).
Thus, the court and the litigation we enjoy today were founded and handed down to us by our civilization as our inalienable right, as a divine mechanism in its prevailing spiritual meaning, a gift from the gods to the people. This firm link between the court, as a means, and moral principles must not minimized by the character of the court as state authority in our legal order. As you may know, this is clearly symbolized in the Hellenic courtrooms without flags or other state symbols, but with the icon of Christ. The meaning conveyed is not that of a religious court, but to declare that the court is obliged to safeguard and keep, when exercise of its function, the moral principles of civilization, irrespective of what the substantive law might be.
People turn to legislature as to a power, but to court as to a protector. By maintaining this mixed nature of our courts, distinguished in character from the other state authorities, we preserve an element of our civilization. Consequently, there should be no doubt that ethical issues can always appear in litigation as a heritage inherent in the nature of our courts, as I stated at the beginning of my speech. Let us now come to possible details.
III The judge
All judicial systems are cautious to appoint a qualified person to exercise this duty. The person in question must be of as good and honest as possible character, healthy, and for these states adopting the professional judges system, as the Hellenic one, must be a lawyer well educated in the legal science. Express law provisions safeguard his status and independence from the legislature and executive, whilst procedural law provisions impose on him to abstain in specified circumstances and regulate the way of exercising his duties in others, plus the grounds of his responsibility. These laws seek to achieve impartiality of the judge and secure thereby that the litigants and the community enjoy justice. On the other hand, the behavior, generally, of that person must always promote this common belief of the people. But all the above are limited to what we may call as external impartiality.
Beyond this point, no express law provision can provide for what we may call as internal impartiality of the judge, that is, the distance which must always exists between his judicial duties on the one hand and his personal believes or convictions or instincts or emotions in all circumstances on the other. These circumstances rather fall into the field of judicial psychology (6), than that of legal science, giving grounds for ethical problems and prevent the successful achievement of justice. In fact, there are many parameters, environmental and others, not usually visible and fall in the field of ethical sphere, that may play an important role in a specific case in a specific day. This danger is, of course, higher in the jury system. For the fact that internal impartiality cannot be assessed in specific terms by the law, it is presumed and the litigants have the difficult task to invoke and prove its absence only objectively(7). Let us consider some of these issues with regard to the person of the judge.
Not all people are the same, not all judges are the same, not all cases are the same. A certain case may be extremely difficult in legal issues or in contention to be controlled, it may last long or may be dangerous for the judge and his family. In Greece we have had three public prosecutors killed the last twenty years, one inside the courtroom. So as we cannot avoid the danger of having different decision on the same facts, adjudicated by different judges. The relevant dilemma might be, which judge is capable to deal with a specific case, for the sake of people and justice. In the words of the law, of course, all judges of the court can carry out this task, but this looks rather like a polite assumption. The rising ethical issue is, in what way may judges, beyond egoistic circumstances and for the sake of justice, accept the fact that they are not capable to participate in a certain case and abstain voluntarily?
In fact, in the Hellenic system and in civil law cases, the president of the court, acting at his wise-will and his personal knowledge of the persons of the court, makes the choice. In criminal law cases there was introduced recently appointment by random selection but, indeed, that is recycling the problem. In Greece we recently came across this dilemma in the very difficult criminal case for terrorists. Over one hundred judges of the Athens court of appeal agreed at the end, with opposite arguments of course, to choose by vote ten of them and, by selection among these ten to determined who was to be appointed the president in the case. And he (Judge M. Margaritis) carried out this task successfully. A similar question rises in another way. Beyond medical problems which are dealt by express law provisions, the judge may a certain day face other problems in his private life. His anger, sorrow, agony, anxiety or nervous conditions may play an important role in litigation. When entering the courtroom in such psychology, he is also expected to come across controversies, arguments, noises even fighting and he will be the center of all these. These make his situation more difficult. He may lose the necessary cool and fall in to arguments with lawyers or litigants, pay insufficient attention to the merits and may easily come to a wrong judgment, even if trying to avoid any of these possibilities. It is now for a wise judge to find a polite justification for abstaining.
We cannot avoid the natural fact, that some judges are lenient and others rigorous in character, so that one could again receive different decision in the same case because of that factor. I dare say that lawyers try to postpone cases for this reason, in order to avoid certain judges. Now the practice of the court generally must prevail and any judge, regaining self-control, should try to restrict himself to the middle golden line.
Important dangers may arise in litigation from subjectivism and spite of the judge. This phenomenon usually occur with senior judges and creates the instinctive type of judge. Enjoying power for long time and relying upon their experience, they tent to be selfish or even arrogant and come very early to the conclusion. Then, they regulate the rest of the proceedings to prove that conclusion right for the reason only of their own confirmation or satisfaction, are fixated on it and even try to preclude opposite opinions. Sometimes they let the procedure follow its normal route, appear to the people as cool, but indeed they do not care and simply waiting for the end, irrespectively of what the lawyers or the litigants say.
Situation similar to the above arise when lawyers, moreover the judge himself, cannot resist to the challenge of exploiting their position in court for the sake of their own fame or publicity. In that situation a lot of time and talking is spent on non-important issues, confusion appears and usually, at the end, the important merits of the case are lost. Sometimes, from such a gossip and arguing with the litigants, a judge may be trapped in his own views and lose control of litigation. Closely related is the highly disputed question, of allowing the press and television into courtrooms. Open doors are an essential element of the judicial process. This is for many reasons. Closed doors must be the exception, imposed by the courts only in necessary circumstances, usually on the grounds of harming moral ethics or disturbing public order. Press and television may be accepted as extension of the courtroom for those individuals not capable of being present. The Hellenic law permits their presence only if and for so long all parties and the judge agree.
Another problem rises from feelings, natural to all of us, of sympathy or antipathy to a person at first sight, without having done anything good or wrong to us. The voice, the movements, the dressing, the sorrow and the general figure of a person causes impressions to others in favor or against him. Sometimes these feelings turn out to be strong enough, needing to be controlled to the level necessary to regain full impartiality.
Further, impartiality may be lost due to the use by some judges of the practice of putting themselves into the place of one or the other parties, to find out in what way they would have acted under the same circumstances as those of the case. This situation is almost inevitable in the jury system. If it happens, the personal instincts or emotions of the judge, not the law, are guiding the outcome of the case and the judge in fact imposes his personal convictions to the society through his judgment.
As a conclusion to all the above, we may say that the said underlying the law these problems are, in practice, ethical issues for the judge, dangerous for the level of litigation and the result that should be achieved. The possible remedy can only based on the wisdom, self-consciousness and strength of character of the judge in question.
IV The truth
The functioning of the court and the procedure before it must seek for the truth. But, which truth?
In the field of philosophy, Aristoteles and Plato have pointed out as truth the equivalence of what we believe that exists and that which really exists. Others accept as truth whatever is based on the common consent. Others believe as preposition the coherence of that we suggest we all other things that exist.
Before the courts things differ. There appears as truth, the will or order of the positive law, the principles of natural law and civilization that cannot be totally ignored. Truth on the facts comes to light by the court's procedure (procedural truth) and, at the end, the truth that really objectively exists in the world and may be different. The difference appeared with emphasis and severely, as we all remember, in the arguments between Jesus Christ as defendant and Pilatos as Praetor (judge). Jesus Christ mentioned the fair truth in respect with the natural law. Pilatos looked the issue from the angle of the positive and procedural law, so as chasm appeared.
In the next section, we shall consider the truth in the sense of a relationship between positive and natural law. In this one, we shall try to shed light on ethical issues in regard with the procedural truth of the facts that, ultimately, dominates the litigation.
Procedure before the court is a set of rigid rules on the adjudication of cases, as a venue for realization of rights or obligations acknowledged by substantive law. The trial is accepted as legal relationship between the parties and the court. Therefore, all participants in the litigation must exercise their duties only in accordance with the prescribed procedural way, from the commencement to the end of the trial. Our courts safeguard and satisfy fair hearing but only within a procedural concept. Failure to follow procedural rules may cost the loss of the case, irrespective of what the real truth might be.
In civil law cases the ambit definition doctrine prevails, as rigid rule. This circumscribes the jurisdiction exclusively within the limits as framed by the parties. The court may adjudicate only on the grounds and to the extent it is asked. The judge cannot raise arguments at his own discretion. And further, all the issues of law and principal arguments must be raised by the parties from the beginning and in the way and form prescribed by the procedural law, otherwise they will be rejected, with a few exemptions. Thus, the merits of the case should be carefully prepared by the lawyers beforehand, or the case may be lost irrespective of what the truth might be. Procedural truth prevails in fact, so an ethical problem may arise for the judge in not being able to help the true justice, although he might suspect of what the right result should otherwise be. Simultaneously, in the eyes of people the court may appear as malfunctioning. The risk from the bad lawyer's work is higher before the court of Cassation as it deals only with questions of law and then within specifically prescribed grounds for annulment.
The Hellenic procedural law before the Arios Pagos allows, as escape clause, giving - for the sake of true justice - the judge the right to raise limited grounds of annulment, in addition to those invoked by the litigants. I used this provision once myself. Finding no serious grounds for annulment in a legal decision of 45 and more pages, whilst the legal issues were difficult and the decision of the court of appeal rather wrong, I found myself under ethical pressure to apply this provision and raise the necessary legal questions that I thought should have been raised in deciding the case. But, I received bad comments in a law review magazine for this step, which argued that the litigants are justified to take advantage from the mistakes of the other party, so as the judge should not assist by acting as a lawyer. I never did this again.
In the evaluation of the facts, the judge has to rely solely upon only to what has been presented in the courtroom, with the use of the properly invoked means of proof provided by the procedural law. False witnesses, others altering the facts on purpose, documents carefully prepared to point to wrong facts, sometimes can not be easily proved to be false and rejected in litigation. The judge has the duty to reach a decision in accordance with them, in spite of what the real truth might be or what the judge suspects it to be. He enjoys a margin of evaluation and choice only if means of proof contradict each other. He is not allowed, of course, to consider his private knowledge, he may sometimes have regarding the case, even if he is certain it is truth. It follows that, in the adjudication of civil law cases the judge may find himself in ethical dilemma for being obliged to give decisions following the rigid procedural rules, but at the same time he suspects that it does not comply with the real truth.
In the field of penal law the danger is rather minimized. The judge enjoys a broader margin of appreciation of facts and may convict only if he is absolutely justified for the truth. The ambit definition doctrine does not apply. He may also take in consideration all means of proof existing in practice, with very few exceptions. So he is obliged to declare the innocence in case of the slightest doubt (the vote of the goddess Athena exists here, too). Though, in this scenario he must have a calm conscience as he may now suffer in another way. What if his decision is expected to face severe opposite public opinion?. Such false common sense can easily be established today by the use of press and television as means of information (consider the well known Sunday Times case). Because of these means, the court may even face the anger of the people and sometimes judges have been killed thereafter.(see the three incidents in Greece mentioned above). As I pointed out at the beginning, the icon of Christ exists inside the Hellenic courtrooms, as the sole symbol, not the picture of Pilatos or other kind of symbols. The clear meaning to judges and the people is that, if a really honorable judge comes to the conclusion of innocence while all other people are opposed to it, he must, irrespective of his personal cost or danger, stand between the people and the innocent defendant.
There was a case on these grounds in Greece. A policeman shot dead a young boy trying to set fire to a police car, during a demonstration. A fire could have killed the people inside that police car. A lot of disturbances took place and thousands of people demonstrated in the streets, demanding severe punishment. But the court reached to innocent decision and ignored all the threats. On the other hand, the judge might also suffer in case of conviction. Criminal cases are usually severe enough. The fall of human beings into brutality, the pain and sorrow thereafter and the whole drama, appeared naked before his eyes. Though he is certain in the enforcement of the right decision, a sensitive judge may lose his perspective for a short time.
V The law
Ethical issues may appear not only with regard to the procedural functioning of the court, but also as conflict between court and legislative particularly in case of unjustified laws. The legal order in a given society consists of, in its strict meaning, the whole of positive laws and international obligations and, in its broad meaning, of all the other legal elements such as norms, doctrines, principles, theories, tuitions, movements, customs and ethics that constitute the legal civilization of that society. The legislature, provided that it is acting within the constitutional limits, enjoys full freedom to put in force the necessary laws in a given time. The question now is, as to whether the court, going hand in hand with the real meaning of justice and acting under ethical pressure from its structure, may interfere with the substance of unjustified laws, setting it aside or regulating the things in harmony with the natural law.
First, a court in interfering with any law presupposes its previous enforcement in practice, so as the court should not quash a law in abstracto, even if it is asked to do so. Governing with judges falls outside of the legal order. Law making by a court amount to exploitation of its powers.
Secondly, the court may quash properly voted law only if its content violates express constitutional provisions, especially those which safeguard human rights. In that sense, the law in question is simply illegal. When exercising this constitutional power, the court is not considered to be in real conflict with the legislative or executive, although it stands opposite to them. It rather acts in a coordinating process with them for achieving the principal state goal; that is, the rule of law must prevail.
From this point and further, things become complicated. We cannot even imagine, in our civilized legal order, a legislature seeking on purpose passing laws violating implied moral principles, although we cannot exclude this event happening by ignorance or by mistake. Further, despite the pressure or demand for the court's interference with the content of such laws, the court is abiding by the rule of separation of powers and has no express authority of doing otherwise.
On the other hand, by declaring a legislature as acting against moral principles, the court will come into severe conflict with the latter, which jeopardizes the cohesion in legal order and as other state authorities may then exercise political influence this may reduce the respect of the people for the legal system. The only possibility for the court to interfere comes with the interpretation of ambiguous provisions or to fill gaps in the law, or in order to define the locus standi for the application of a law. Now, in addition to those called objective means of interpretation (for example, broad or strict interpretation; restricted or liberal interpretation; grammatical interpretation based exclusively on the words of the text or liberally adopting the aims of the law in question), there is no doubt that the court may have recourse to additional subjective means of interpretation. That is to turn to moral norms or principles deriving from civilization as a whole.
Aristotle was among the first who suggested the affirmative point of view, arguing that leniency of natural law sometimes must take priority depending on the case, for the character of leniency as a permanent value(8). We also remember the European Union court's decisions in the Stauder and Nold cases. So, if there is no possibility for interpretation, a wise judge may reduce the ethical pressure either by giving time to the executive or legislature to re-examine the issue, or by applying the law to its minimum possible extent (the Roman law principle of Vetustas, let the law sleep ).
In the field of private law, things differ. The recourse to moral principles and ethics is usually accepted by legislation and, in the Hellenic legal order, such process is obligatory rather, then simply allowed task. By contrast to the rule of Roman law "pacta sund servanda" and the law "a contract is a contact", our civil code commences form the point that legal relationships are at the same time human relationships and allow the court to intervene for the sake of civilization.
In its chapter on general principles of private law, it preserves the indefinite principles of bona fide, bona mores and ethics in transactions, so as to oblige the court to follow these elements when interpreting ambiguous issues of private law. It may also prohibit people, when exercising rights, to go further then the limits imposed by the bona fide, bona mores and the social or financial aim of the right in question (Articles 200, 281, 288). Even further, the court may come to a reassessment of whole of the legal relationships on the ground of bona fide, in case of altering the things to the level so as to become oppressive (Article 388). On the other hand, express provisions of our constitution point to the notion of real justice in its general meaning, obliging all state authorities to conform with that notion (Articles 2 par.2 and Article 25 par.2).
VI Conclusion
As a conclusion to all the above, is the necessity of keeping the mixed nature character of our courts as a venue, not only of imposing the legal order and as state power, but of realization too of the ethics and moral principles of our civilization. The more that ethical principles are missing from our life, international, national and private, the more this necessity appears inevitable for all of us. We remain thirsty for safety, dignity, respect to each other and finally for peace in our society and, why not, to this world.
NOTES
* Justice at ARIOS PAGOS (the Hellenic Supreme Court on civil and penal law)
1. Article 6 : In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
2. Stauder case n.29/1969, Nold case n.4/1974, legal determinations between Arios Pagos and Athens Court of Appeal on family allowance issue decisions 37,38/1990 of the former and 1120/1991,4838/1992 of the latter.
3. Sofocles', Antigone. lines 450-490, 692-723
4. Apollodoros the Athenian __ 14.1, Dimoshenes v. Aristokrates 642 and 642.65, Euripidis Ifigenia en Tauris 961, Aishilos Eumenides 221,224,731
5. Mathew KE-31
6. Pr.Ilias Gafos. Piniki Dikonomia (Criminal Procedural Law) 1956 p.28-34.
7. European Court in Hauschild v. Denmark, 1989, Sramek v.Austria, 1984, Piersack v. Belgium, 1982
8. Aristotle's, Ritoriki 1374a, 28-29 and Oratory A-15, 137a, , 30-1375b
Copyright 2004. Greek Legal and Medical Conference