publications_unodc_commentary-e

2.4 A judge shall not knowingly, while a proceeding is before,or could come before, the judge, make any comment thatmight reasonably be expected to affect the outcome ofsuch proceeding or impair the manifest fairness of theprocess. Nor shall the judge make any comment in publicor otherwise that might affect the fair trial of any personor issue.CommentaryWhen is a proceeding “before a judge”?70. A proceeding is before a judge until the appellate process has beencompleted. A proceeding could also be regarded as being before the judgewhenever there is reason to believe that a case may be filed; for example, when acrime is being investigated but no charges have yet been brought, when someone hasbeen arrested but not yet charged, or where a person’s reputation has beenquestioned and proceedings for defamation threatened but not yet commenced.Example of an improper statement71. An announcement by judges that they have agreed to sentence to prison alloffenders convicted of a particular offence (without making any distinction betweena first offence and a subsequent offence), would, depending on the circumstances,usually entitle a defendant to disqualify a judge on the ground that he or she hasannounced a fixed opinion about the proper sentence for the offence with which thedefendant is charged. This remains true even if the judges state that the length of thesentence would be left to the individual judge’s discretion and depend on the factsand the law applicable to that offence. The announcement would appear improperbecause it suggests that judges are swayed by public clamour or fear of publiccriticism. It would also be an impermissable public comment about pendingproceedings. 39Permissible statements72. This prohibition does not extend to public statements made in the course ofthe judge’s official duties, to the explanation of court procedures, or to a scholarlypresentation made for the purposes of legal education. Nor does it prohibit a judgefrom commenting on proceedings in which the judge is a litigant in a personal39 See United States of America, Advisory Committee on the Code of Judicial Conduct, NewMexico, Judicial Advisory Opinion 1991-2.65