Naturally, ethical standards must apply not only during the hearing, but also during the “idle time” (e.g. before the hearing, during the break or immediately after the hearing).4 While the usual greeting, goodbye, handshake, etc. between colleagues is obviously not objectionable – indeed, it is expected – I consider it a matter of concern when a lawyer engages in a friendly conversation with a representative of the prosecution in front of his client.

The court has a particular duty to ensure the continued right of contact between the defender and the accused. In this regard, “there is experience that, when called upon, the judge will order a break in irritation, – whereas if the defender complies with the law and does not disturb the proceedings with his conduct, he can, acting in accordance with the law, calmly conduct a quiet conversation with the defendant, which will not disturb the course of the trial.”10 At the same time, I am concerned about an evidentiary procedure in which the possibility of contact with the accused is restricted to an unreasonably narrow range. However, both parties (accused and defence) should give some indication to the court of their intention to do so, and they should also bear in mind that this does not constitute an unlimited procedural right. The rhythm of the trial should not be disturbed by wandering, chatter, arbitrary statements or statements of a reinforcing nature (e.g. “Don’’t be afraid”). However, it is certainly justified to ensure this right if the accused asks his defence counsel for information as to whether or not he may refuse to answer a particular question. I would also note that, from the defence side, I do not consider it fair to ask for a regular break in order to inform the accused or the witness he or she proposes to call as soon as possible of the current state of the proceedings.11

Trial ethics are of course closely related to prosecutorial and defence tactics. Here too, the principle of collegiality requires12 that procedural quirks should not inadvertently lead to a deterioration of the general professional relationship with the court. It should be remembered that the prosecutor and the defence lawyer will presumably only come into contact with the defendant in the course of a single trial, whereas they will have a working relationship with the court that will last for decades. In this context, any working method that aims at deliberately misleading the court, such as the use of obviously unfounded medical certificates or frequent requests for a postponement of the trial on the grounds of short preparation time, can jeopardise this relationship and therefore be counterproductive.

Special mention should be made of the importance of the pleadings, where the court is required to show, or at least appear to show, due diligence.13 It is equally important for the prosecutor and the defence to avoid deliberately misleading references to one anotherin their closing arguments, as this could interfere with the court’s deliberative process.

In addition, the court, the prosecutor14 and the defence must approach the offence charged with sufficient objectivity. This objectivity is of course “has different foundations”, since for each of the three procedural actors there is a “specific” objectivity, expressed in a consistent adherence to a particular legal position. At the same time, “the most important requirement for the judge among the participants in the trial is objectivity. Not only the appearance of it, a formal, rigid adherence to it, but also in the conduct of the whole trial, from the opening of the trial to its conclusion, so that those present feel that their case is being dealt with thoroughly and conscientiously and that a decision is being taken on the basis of the evidence that has been examined. The judge should not be influenced in his decision by his own subjective opinion, which may be motivated by personal animosity, impropriety or other circumstances of the accused or witness.”15

Of course, the defender may also have expectations of the defendant, which he or she may have to put before the interests of the client. For example, he must not, in his comments on the evidence, create an unduly inflammatory public atmosphere or even indirectly make threatening remarks to the court. At the same time, it is also ethical for the judge not to trivialise the actions of the perpetrators of blatantly serious crimes and to show solidarity with the victim’s relatives.16