Disciplinary responsibility of judges in terms of unity of their status

Ivan Marochkin,

 Candidate of Legal Sciences, Professor,

Head of the Department of Organization of Judicial and Law-Enforcement Bodies

National University "Yaroslav the Wise Law Academy of Ukraine"

 

Disciplinary responsibility of judges in terms of unity of their status

 

The Law of Ukraine "On the Judicial System and Status of Judges" stipulates that a professional judge shall be a citizen of Ukraine who, pursuant to the Constitution of Ukraine and this Law, has been appointed or elected to a judicial position, holds a permanent judicial position in one of the courts, and administers justice on a professional basis; professional judges in Ukraine shall have the same status irrespective of the place of the court in the system of courts of general jurisdiction or of the administrative position being held by the judge in the court (Article 51) [1]. Therefore, the legislature envisaged the difference in competence and powers of judges and emphasized the equality of their rights and obligations, and, what is more important, the parity of grounds and procedures for bringing judges to responsibility. The particularity of status of judges, i.e. the exception to the general principle of equality before the law as a guarantee of judges' independence and immunity, call forth the necessity to determine the legal regulation of the procedure of bringing judges to disciplinary responsibility and provide for a judge’s “moral right” to administer justice. As all the cases of termination of powers of judges and bringing them to disciplinary responsibility negatively characterize the judiciary [2; 3].

The purpose of this article is to study the legal nature of the institution of disciplinary responsibility of judges, taking into consideration the declaration by the law of unity of their status; need to establish its completeness and compliance with national legal realities; to analyze the problems of its implementation and propose improvement of existing regulation. Some aspects of disciplinary proceedings against judges were studied by L. E. Vinogradova, V. P Kochan, V. T. Malyarenko, I. E. Marochkin, L. M. Moskvich, S. V. Podkopayev, A. O. Selivanov , etc.

Disciplinary offences byjudgesinflict harm to societyas they distort theidea of ​​the natureof justice,reduce itssocial value, hurt the interests ofparticipants ina trial, which generallyaffects theauthority ofthe court.

Disciplinary penalties can be applied to judge only on the basis of existing law and in accordance with clearly defined procedures [4], every procedure of penalty, suspension or dismissal of a judge must be determined in accordance with the rules and standards of judicial conduct [4, 5, 6, 7]. Mechanisms of disciplinary proceedings against judges are currently regulated by numerous normative acts such as the Law of Ukraine "On the Judicial System and Status of Judges", Law of Ukraine "On the High Council of Justice" [8], regulations on service of disciplinary inspectors [9], Code of Professional Ethics for Judges [10] and so forth. The lawyers reasonably point out that given the fact that judges are public servants of high rank the majority of questions regarding their status should be solved in one and the same way, regulated by one and the same law, regardless of the judge’s place in the hierarchy [17, p. 42]. This is explained by the fact that the legislative regulation of the legal status of judges deals with the justice in general, and not with each part of the system in particular.  Thus, due to the unity of status of judges all matters related to the issue of their status are to be solved in the same way, i.e. to be articulated in a single legal act (and not scattered through the whole set of laws and regulations). This could be a special law on the liability of judges, e.g. the Disciplinary Code of Judges, especially given the fact that there has been a number of proposals for its development and approval, some of which are worthy of support [11].

The nature of disciplinary proceedings requires theoretical analysis and development of legal regulation concerning composition and competence of the body, responsible for its implementation. Today, legal scholars and practicing lawyers touch upon key issues concerning the designated authority that shall carry out proceedings for bringing judges to disciplinary responsibility.

The study of the international standards on the subject has given the following results. The European Charter on the Status Law, the principle VI Recommendation № (94) 12 "Independence , Efficiency and Role of Judges" emphasizes that states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself [12, 13]. The Montreal Universal Declaration (1983) on the independence of justice states that the cases of dismissal or disciplinary punishment of a judge are to be carried out by court or only upon a decision on the proposal, recommendation or consent of the committee or authority, at least half of which are elected judges [6].

The practical difficulty of resolving this issue in Ukraine lies in the fact that according to the Law of Ukraine "On the Judicial System and Status of Judges" there are two state bodies empowered to bring judges to disciplinary responsibility. They are the High Qualifications Commission of Judges of Ukraine (hereinafter - the High Qualification Commission) and the High Council of Justice. The former deals with the cases of judges of local and appellate courts, and the latter considers the cases of judges of high specialized courts and the Supreme Court of Ukraine. This legal norm to some extent violates the principle of unity of legal status of judges as existence of two fundamentally different disciplinary bodies can cause differences in their disciplinary practices [14]. What is more, the legal academic literature emphasizes the fact that differences in disciplinary practices can result from legal discrepancy, such as the lack of an exhaustive list of disciplinary offences and their composition, which, in turn, endorses subjectivity in deciding on particular case. The study of the Supreme Court of the Russian Federation (and the practice of bringing judges to disciplinary responsibility in Russia is as inconsistent as it is in Ukraine) revealed that there are cases when for the same (or similar) misdemeanor a court may decide to fire a judge, to make a reprimand, or declare that there are no grounds for disciplinary proceedings [25]. The preservation of "parallel" procedure for bringing judges to disciplinary responsibility, i.e. dismissal of judges for violation of oath, remains typical for Ukraine, though, according to the practice of all democratic countries, it should be considered as a part of disciplinary proceedings [24].

At the same time, the role of such judicial disciplinary body is fundamentally important not only regarding a particular judge, whose career it can finish, but concerning the whole system of justice, as within any framework judicial and disciplinary authorities take decisions of constitutional value. Thus, it makes sense to consider the possibility of establishing a single disciplinary body [15]. The idea to transfer all powers in disciplinary cases to the competence of the High Qualification Commission of Judges of Ukraine is increasingly common among scholars. In our opinion, such changes may be appropriate and, therefore, deserve support.

But not all and not always adhere to this point of view. In discussions around this issue, the Council of Judges of Ukraine expressed doubts that the Disciplinary Commission of Judges of Ukraine shall be the only body responsible for the exercise of disciplinary proceedings against judges. Firstly, it can not efficiently and fully respond to the disciplinary offenses of judges. Secondly, under current conditions such authority may be used to exert administrative influence on judges [16].

TheRussianscholarD. V. Volodina conducted a research, whichresultsjustifytheinadmissibilityofconcentrationofpowerinthehandsof a singleauthority, suchasthequalificationboardofjudges, andtheneedforsomeothertypeofinstitutionallegalizationofdisciplinaryproceedingsagainstjudges. Theauthorgenerallyagreesthatwithintheframeworkofqualificationinstitutionsthereshouldbe a singlesystem (department, commission, board) empoweredtoinitiatedisciplinaryproceedingsandconductinspectionstodiscovergroundsforbringingjudgestodisciplinaryresponsibility [18]. Whatismore, thescholarstressesthenecessitytotransferfunctionsofbringingjudgestodisciplinaryresponsibilityexclusivelytothebodyofjudicialcommunity. TheproposedmodelcanbeusefulinreformingthejudicialdisciplinarysysteminUkraine, iftheHighQualificationCommissionreceivesthestatusof a singledisciplinarybodyoffirstinstance.

Another possible solution is creating a disciplinary court of special jurisdiction, which would be consistent withthe definition of court ofjusticecontained inthe European Conventionon Human Rights andFundamentalFreedomsand itsinterpretationby the European Courtof Human Rights [19].

The existing legal regulation on the single procedure of disciplinary proceedings against judges requires correction. Specialized disciplinary authority shall proceed from the fact that bringing judge to disciplinary responsibility is the result of a misconduct by a judge, which is contrary to the professional behaviour and, therefore, gives grounds for charging them with disciplinary offence. It is necessary and very important to eliminate the dependence of disciplinary procedures against judges from any circumstances, facts and/ or influences that are not provided for by law. The legislation should include provision for uniformity of these mechanisms, namely, the uniformity of all measures, such as carrying out necessary inspections, adoption of procedural decisions in course of proceedings; unacceptance of unreasonable complication or delay; elimination of inconsistencies in carrying out of such procedures; and their full compliance with constitutional requirements. Judges can be independent and have equal status only under such disciplinary system that is reliable, predictable, fair and protected from abuse. The Consultative Council of European Judges emphasizes the particular importance of "procedural guarantees of protection of all rights" in disciplinary proceedings.

The guarantee of impossibility of its depending on circumstances, which maytake itbeyond the "process", i.e. spread tothe whole procedureof the principlesof publicity, transparency, openness, in combination with the principle ofconfidentiality (if required), reasonability of terms, competition, equality of arms,the right to protection(while distinguishinglogicallyinterrelatedstages ofthe proceedings, limited in time)should beindispensable conditionofthe mechanismof disciplinary proceedings [22]. Thus, to achieve fair results the disciplinary procedure should be almost the same as the court procedure, it should be a kind of "quasi-judicial procedure" [20].

The issue of initial confidentiality of consideration of a complaint against a judge is highly controversial. The mentioned confidentiality is provided for by paragraph 17 of the Basic Principles of judicial independence [5] and needs to be introduced to the legislation on disciplinary responsibility of judges. This fact was also stressed by the Head of the High Qualification Commission. He offered to introduce the principle of confidentiality of disciplinary proceedings and explained that due to the special status and functions of judges, i.e. administration of justice, their publicity should be limited in order to ensure their independence [23]. But not all scholars support this point of view, arguing that transparency is the modern requirement for the openness of proceedings, and limiting publicity is possible only on the grounds specified by procedural law and must be motivated. Consideration of caseswithout followingsuchrequirements do notmeetthe principles ofa fair trial as guarantees for protecting judges may not be less than those for protecting other subjects [19]. So, it is evident that some scholars regard confidentiality as a threat to the transparency of disciplinary proceedings against judges.

Another issue that needs regulation is as follows. According to the law the High Qualification Commission of Judges of Ukraine approves and posts on its official web-site an example of a complaint (application form) on the misconduct of a judge, which can be used to report to the High Qualification Commission of Judges of Ukraine information on violation of requirements regarding their status or official responsibilities by a judge, or on violation of the judicial oath. This provision is positive in view of the unity of the status of judges, and it received the support of Monitoring of judicial independence (2012) experts [24]. Still, after studying the law and the existing system of disciplinary bodies, a logical question arises as to the conduct of a person who has information on grounds for bringing to disciplinary responsibility one of the judges of high specialized courts or the Supreme Court of Ukraine. The Rules ofthe High QualificationCommission of Judges ofUkrainestatethat complaintsonthe judgesofhigh specialized courts andjudges of the SupremeCourt ofUkraineshall be sentto the HighCouncil of Justice. And it is unclear why the relevant law does not provide that the person may appeal directly to the High Council of Justice [26], which, in turn, could potentially reduce the time for reviewing such reports.

The inconsistency between part 4 of Article 87 of the Law of Ukraine "On the Judicial System and Status of Judges" and Article 43 of the Law of Ukraine "On the High Council of Justice" as to the term of application of disciplinary measure to a judge, and between paragraph 13.2.6 of the Regulations of the High Qualification Commission of Judges and Article 41 of the Law of Ukraine "On the High Council of Justice" indicates the mismatching between the terms for bringing judges to disciplinary responsibility and the principle of unity of their status. Thus, paragraph 41 of the Law "On the High Council of Justice" provides that if there are grounds for disciplinary proceedings against the Chairman, Deputy Chairman or a judge of the Supreme Court of Ukraine, or the Chairman, Deputy Chairman or a judge of the high specialized court, the disciplinary proceedings shall be opened by order of the High Council of Justice within ten days after receiving information on the offence by a judge; and if this information needs to be checked, in term not more than ten days after the end of the inspection. In accordance with paragraph 13.2.6 of the Regulations of the High Qualification Commission of Judges the term of such inspection shall not exceed six months from the date of registration of the complaint on such misconduct by a judge, which may impose disciplinary measures. Neither the law, nor the Regulations of the High Council of Justice sets explicitly the terms of the inspection [1, 26]. Further, in accordance with Article 42 of the Law "On the High Council of Justice" the High Council of Justice considers the disciplinary matter at the first consecutive meeting of the High Council of Justice after receipt of the inspection report. The law does not provide for such term in respect to the disciplinary cases that shall be considered by the High Qualification Commission. The following discrepancy is of utmost importance. Article 43 of the Law "On the High Council of Justice" provides that the judge shall be brought to disciplinary responsibility in six-month term after discovery of the offence, excluding the timeoftemporary incapacity or vacation of the judge,but notlater than in one-year term from the date ofcommission ofoffence. Assuming that the day of discovery of misconduct is the day of receipt of a complaint against a judge the discrepancy of this Article to paragraph 4 of Article 87 of the Law of Ukraine "On the Judicial System and Status of Judges" becomes evident, as according to the latter provision the six-month term starts from the date of opening of disciplinary proceedings by the High Qualification Commission. These terms do not apply to dismissal under special circumstances, as the disciplinary responsibility of a judge and dismissal for violation of oath are not legally separated till now. Violation of oath is one of the reasons for dismissal according to paragraph 5 of part 5 of Article 126 of the Constitution of Ukraine. Such violation can be detected by the High Qualification Commission in course of disciplinary proceedings, but the current law does not provide for terms of consideration of such cases. Therefore, it is extremely important to determine the term within which the issue of violation of oath by a judge shall be resolved (except it is regarded as a basis for initiating disciplinary proceedings).

The legal provision, under which as a result of disciplinary proceedings by the High Qualification Commission the recommendation to make a submission on dismissal of a judge shall be sent to the High Council of Justice, is unjustified in terms of the unity of status of judges. Decisions on proposals for dismissal of judges on the grounds specified in paragraphs 1-3, 7-9 of Part 5 of Article 126 of the Constitution of Ukraine, are adopted at a meeting of the High Council of Justice by a majority vote of its members. In the case of an appeal from a judge to resign from office voluntarily the High Council of Justice shall submit a motion to dismiss a judge to the body which appointed him (or elected), after prior ascertainment of the true will of a judge, to exclude external interference on a judge or coercion. The following questions arise: why the High Qualification Commission can not independently decide whether there are grounds for dismissal of a judge, and whether such recommendation to the High Council of Justice is binding or heeds to be re-approved. In our opinion, the decisions of the High Qualification Commission can not be reviewed by any other authority, not only in order to appeal.

The issue of violation of oath deserves our special attention. According to law, consideration of a decision regarding violation of oath is within the exclusive jurisdiction of the High Council of Justice. Therefore, the High Qualifications Commission in case of discovery of such fact is just one of the subjects that initiates consideration [17]. The question of dismissal on the grounds provided by paragraphs 4-6 of Part 5 of Article 126 of the Constitution of Ukraine (the violation by the judge of requirements concerning incompatibility, violation of oath by the judge, entry into legal force of a verdict of guilty against them) are considered by the High Judicial Council after the relevant conclusion of the High Qualification Commission or on its own initiative. If during such consideration he High Council of Justice concludes that there are no grounds for dismissal, but the judge committed actions that may result in disciplinary measures, the High Council of Justice, if dealing with the cases of judges of the Supreme Court of Ukraine or the high specialized courts may decide to bring them to disciplinary responsibility, and if dealing with the cases of judges of other courts the materials shall be sent to the High Qualification Commission. Unfortunately, the law does not regulate how the High Qualification Commission shall act in this situation. It can either submit to the decision of the High Council of Justice (thus, accepting that it has no independence in decision of such cases), or act according to its own judgment and insist on the dismissal of a judge. This, in turn, affects the unity of status of judges.

The next ambiguous question is what to do if within the stated deadline the empowered bodies fail to take a decision because of the lack of authorized staff. As paragraph 3.3 of the Regulation of the High Qualification Commission states that a meeting of the Commission is competent if at least two-thirds of its members are present. If consideration of issues is impossible due to the absence of the required number of members, then the Chairman announces the postponement of the meeting to a specific time or to another day. Thus, there is a possibility of violation of statutory deadlines for bringing judges to disciplinary responsibility that are the legal guarantees of impossibility of imposing penalties after the date of their expiration.

Therefore, there are many uncertaintiesconcerning the issues of procedureandgrounds for disciplinaryproceedings against judges, which require the review of the provisions ofthe relevant legislation andbringing themin line withinternational legal standardsin this area.Nevertheless, allthese measuresshould take place inthe legal field and rely on both domesticand world experience.

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