N15.T9 – New Code of Judicial Ethics: revised format, old dilemmas remain
HRA NEWSLETTER 15 – TOPIC 9
The Conference of Judges of Montenegro adopted a new Code of Judicial Ethics at its session held on 28 October 2025. The Code was published in the Official Gazette of Montenegro on 25 November the same year. The new Code does not introduce substantively new ethical rules; instead, it condenses existing standards into a shorter normative text, while their more detailed explanations and practical application are set out in accompanying guidelines. At the same time, the Code does not resolve previously identified problems, as descriptions of breaches of ethical principles and the related guidelines continue to significantly overlap with descriptions of disciplinary offences.
The new Code of Judicial Ethics consists of eight articles and covers the core ethical principles of the judicial function, including independence, impartiality, integrity, competence, professionalism and accountability, freedom of association, as well as rules on compliance with the Code and the procedure for establishing breaches.
Unlike the previous Code of Judicial Ethics, issues that were previously regulated directly by its provisions—such as equality, relations with the public and the media, and relations with colleagues and court staff—are now addressed through the Guidelines for the Application of the Code of Judicial Ethics. These guidelines serve as additional clarification of ethical principles and their application in specific situations.
Taking into account the new provisions of the Code and the accompanying guidelines, a clear distinction between breaches of the Code of Judicial Ethics and judges’ disciplinary accountability has still not been established.
In the section on integrity, the Guidelines provide that a judge is “required to refrain from any conduct that creates the appearance of corruption within the court.” The same section states that a judge is “required to refrain from accepting gifts and free services from parties and other participants in proceedings, as well as from any other benefits that could cast doubt on their independence, impartiality, and objectivity,” and that a judge “must not use their judicial office, official position, or reputation to obtain material benefit for themselves or others, or to advance their private interests, the interests of family members, or the interests of any other persons.”
At the same time, Article 108 paragraph 3 of the Law on the Judicial Council and Judges classifies the same conduct as serious disciplinary offences, providing that a judge bears disciplinary responsibility if they “use the judicial function to pursue their private interests or the interests of their family or closely related persons” (item 11), or if they “accept gifts or knowingly fail to disclose data on assets and income in accordance with regulations on the prevention of conflicts of interest, with the intent to conceal assets and income” (item 12). As a result, issues related to gifts and private interests of judges are regulated both as ethical breaches under the Guidelines and as grounds for disciplinary accountability under the law.
Overlap is also evident in the area of relations with parties to proceedings and court staff. The Guidelines provide that a judge is required to behave “professionally, with dignity, respect, and consideration” when dealing with parties, other participants in proceedings, and court employees. At the same time, Article 108 paragraph 3 item 9 of the Law defines as a serious disciplinary offence a situation in which a judge “behaves inappropriately towards participants in proceedings and court staff.”
A similar overlap exists in the area of confidentiality and relations with the public. The Guidelines explicitly state that a judge is “required to safeguard confidential information obtained in the course of performing the judicial function and must not disclose it or use it for other purposes,” while Article 108 paragraph 3 item 10 of the Law classifies the same conduct as a serious disciplinary offence.
The Guidelines also state that a judge is “required to refrain from providing information to the media and interested persons about specific cases unless authorised to do so.” Article 108 paragraph 3 item 14 of the Law on the Judicial Council and Judges provides for disciplinary sanctions where a judge “comments on a court decision, proceedings, or a case in the media in a manner contrary to the law and the Court Rules of Procedure.”
It should be recalled that the consequences of breaching the Code of Judicial Ethics are significantly milder than those arising from disciplinary proceedings. Disciplinary offences may result in sanctions such as a warning, a fine, a ban on promotion, or dismissal, while a breach of the Code of Ethics may affect the evaluation of a judge and thus indirectly their career advancement.
At the same time, the Law on the Judicial Council and Judges does not allow for parallel proceedings for a breach of the Code of Judicial Ethics and a disciplinary offence based on the same conduct. If the Commission for the Code of Judicial Ethics assesses during its proceedings that there are elements of a disciplinary offence, the ethics procedure is suspended and the case is referred to the competent body for the initiation of disciplinary proceedings. If disciplinary responsibility is established in those proceedings, the procedure before the Commission is terminated; otherwise, the procedure for determining a breach of the Code of Judicial Ethics may continue.
Given that the new Code of Judicial Ethics has not eliminated the existing overlap between ethical breaches and disciplinary offences, and that the current Law on the Judicial Council and Judges does not provide sufficiently precise distinctions between these two accountability regimes, it is of particular importance to initiate amendments to that law in the forthcoming period. In this context, it is necessary to establish a working group tasked with clearly separating disciplinary offences from breaches of the Code of Judicial Ethics, in order to ensure legal certainty, consistent practice, and a more effective system of judicial accountability.
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