MykolaMelnik,
Doctor of Law,
Member of the High Qualification Commission of Judges of Ukraine
Summary of the disciplinary practice of judges as a source for legislation improvement
Amendment to the Law of Ukraine "On the Judicial System and Status of Judges" was precipitated by the necessity to ensure the implementation of the right to a fair trial and access to justice, and to guarantee that court procedure is based on principles of independence, impartiality and legality, arising from the European Convention on Human Rights and Fundamental Freedoms (1950). In this context and in accordance with the Laws of Ukraine "On the Judicial System and Status of Judges" [1] and "On the High Council of Justice" [2] the prescriptions concerning disciplinary responsibility of judges are the legal guarantee of judicial obeisance to law and contribute to creating confidence in state as an institution capable of protecting the rights, freedoms and legitimate interests of citizens. At the same time it should be noted that the effective legal regulation of procedure of bringing judges to disciplinary liability and strict observance of law during the processare important factors of influence on the implementation of international standards of justice as a guarantee of judicial independence.
Thus, legal regulation of disciplinary responsibility of judges has two interrelated objectives, i.e. to ensure the legitimacy of administration of justice and guarantee judicial independence. Therefore, special attention should be paid to the analysis of enforcement practices of the High Qualification Commission of Judges of Ukraine as the subject of disciplinary legal relations, which results not only reveal violationsof the established requirements by judges, but can become asource of legislation improving. Summary results of disciplinary practices should be used to increase requirements for judicial candidates (including their personal qualities), and thus to prevent professional violations by judges. In this respect, the priority should be given to the decisions of the High Qualification Commission of Judges of Ukraine on the recommendation for removal of judges on grounds of violation of oath. At the same time, one can not disregard the fact that Ukrainian legislation needs to be improved in terms of classification of actions such as violation of oath by the judge. The list of such actions in accordance with paragraph 2 of Article 32 of the Law of Ukraine "On the High Council of Justice" includesactions that discredit the judiciaryor can raise doubts as to a judge'sfairness, impartiality, honesty, and inintegrity and incorruptibility of the judiciary, including violations of ethical principles of the profession.
The decision of the Constitutional Court of Ukraine from 11.03.2011 № 2-rp/2011 "In the case upon the constitutional petition of 53 People's Deputies of Ukraine regarding the conformity to the Constitution of Ukraine (constitutionality) of certain provisions of the Law of Ukraine "On the High Council of Justice", which recognized the constitutional requirements of paragraph 2 of Article 32 of the Law of Ukraine "On the High Council of Justice" should be taken into accountwhen emphasizing the need for improved legislation and establishing criteria for liability for actions that are qualified as a violation of oath by the judge. It should be noted that the sole body of constitutional jurisdiction recognized the constitutionality of the law establishing the list of actions that are recognized as violation of oath by the judge, but did not give legal assessment of the quality requirements, as this is not within the competence of the Constitutional Court of Ukraine. The Decision stated that a violation of oath by the judge is one of the reasons for their dismissal from office in accordance with paragraph 5 of Part 5 of Article 126 of the Constitution of Ukraine. Legal regulation of judges liability for a violation of oath in the form of dismissal complies with the European Charter on the Law "On the Status of Judges" (1998), according to which sanctions may be applied to judges for failure (inadequate performance) of one of the duties expressly defined by law (paragraph 5.1). Thus, when defining the legal criteria for liability for actions that are qualified as a violation of oath by the judge, the VerkhovnaRada of Ukraine acted within the authority and in the manner prescribed by the Constitution and laws of Ukraine; and the provisions of paragraph 2 of Article 32 of the Law of Ukraine "On the High Council of Justice" that define actions that are qualified as a violation of oath by the judge, are not inconsistent with the Constitution of Ukraine[3].
It is reasonable to refer to the results of the disciplinary practices of the High Council of Justice to support the conclusion on the need to improve legislation, which regulations define actions that are qualified as a violation of oath by the judge. In particular, in 2011the High Council of Justice approved the results of 228 inspections, and found no grounds for removal of judges forviolation of oath. After reviewing 100 submitted proposalson removal of judges for violationof oath the High Council of Justice adopted 9 relevant decisions concerning 7 judges (52 decisions concerning 39 judges in 2010). There were taken decisions on 45 inspections and there were no grounds to open disciplinary proceedings concerning 131 judges [4]. In the first quarter of 2013,the High Qualification Commission of Judges of Ukraine adopted two decisions (from 01.17.2013 and 02.21.2013) on the provision of recommendations to the High Council of Justice to consider such reason for removal of judges as a violation of oath. The High Qualification Commission of Judges of Ukraine proved the intentional nature of violationof the Procedure Law regulationsin case of consideration of the application, complaint or case beyond the period prescribed by law (i.e. delayingproceedingsbeyondlegal time limit by a judge), and committing actions that discredit the judiciaryor can raise doubts as to a judge'sfairness, impartiality, honesty and inintegrity and incorruptibility of the judiciary. Such violations by a judge ofthe Procedural Law are identified as essential violations that substantially limit the right of citizens to judicial protection, involve creating barriers to access to justice, and undermine the authority of justice. Gross violations of law were revealed in another case, the reasons and consequences of which indicate that judge’s actionsdishonour the judicial office, cause doubt as to his fairness, impartiality,honesty, and integrity, indicate negligence of duty and give grounds to conclude there was a violation of oath. These actions consisted in violation of civil procedural law in terms of the procedures for obtaining evidence and proof, and revision due to new circumstances.
The analysis of complaints concerning the conduct of judges, which is regarded as violation of judicial ethics, argues for legislationimprovement in terms ofdefining the violationof ethicalprinciples of human conduct as the violation of oath by the judge. The stated research was conducted by V. Kosenko, the head of the service of disciplinary inspectors at the High Qualification Commission of Judges of Ukraine. From April 2011 to November 2012 (as of 12.11.2012) the High Qualification Commission of Judges of Ukraine received 709 complaints on the behavior of judges. Violation of judicial ethics was one of the reasons for bringing judges to disciplinary responsibility stated in the appeals. According to V. Kosenko,practically it is very difficult to establish and prove violations of rules of judicial ethics by the judge. Thus, in most casesthe High Qualification Commission of Judges of Ukraine makes a decision not to initiate disciplinary proceedings. Disciplinary proceedings were opened in only 13 cases (out of 709 complaints). Only four cases resulted in prosecution of judges of local and appellate courts for disciplinary offenceswith the imposition ofa disciplinary sanction in the form of reprimand. V. Kosenkostates that two or more violations of rules of judicial ethics can be regarded as a systematic violation, but there is no such notion as a single gross violation of judicial ethics, as the very nature of such notion is highly evaluative and subjective. In any case, it should be an action incompatible with a high rank of a judge.
The legal position of the Constitutional Court of the Russian Federation in case of dismissal of a judge for errors committed in the administration of justice should be taken into account in view of consideration of improving legal regulationfor disciplinary responsibility of judges. The referenced decision of the court mentioned the possibility of punishing the judge for such errors that resulted in distortion of the fundamental principles of justice and gross violation of the rights of participants in the process. Ordinary unintentional errors that are not related to disregard of professional obligations are not the basis for judicial accountability. The Constitutional Court of the Russian Federation emphasized the necessity to follow the established procedure for punishing judges (to provide that the legality of a judicial act shall be considered by the higher court and judicial conduct shall be evaluated by the Judicial Qualification Committee) and highlighted the exceptional character of early termination of powers by a judge [5].
Definition of the term “disciplinary offence by a judge”, which is currently unavailable, and introducing scientific criteria for assessment ofjudicial work are among the areas of national legislation improvement. S. Prilutskiysuggests considering the results of research conducted by the International Association of Judges. In particular, only competent judicial authorities should be responsible for carrying out such assessment; it should be based on pre-defined principles and conditions ensuringits objectivity; the assessment of judge’s merits should not depend on the matter of cases considered; judge’s behaviouris assessed in the process of administration of justice;assessment of judge’s behaviour on the previous post should be taken into account;any interference to the assessment by other authorities is strictly forbidden; assessment of the quality of judge’s decisions is forbidden;jurisdiction of a judge should be established by the person responsible for the organization of the court; there should be no dependence between the assessment of a judge, reasons for judge’s dismissal and remuneration of a judge [6, с. 151-153].
The main point of the statements listed byS. Prylutskiyis the necessity to conduct assessment of the courts and judges only within the judiciary, and thereby emphasize its self-sufficiency and independence, the manifestation of which is the ability to solve the existing problems related to the assessment of judges. Furthermore, it is important to take into account the characteristic of continuity in the implementation of assessment, which suggests the potential and actual ability of a judge to perform duties, assigned by the Procedural Law.The list of criteria for assessment of judges should include the obeisance to the rules of judicial ethics.
Thus, the following conclusions have been reached in this study. In terms of establishing the procedures of disciplinary responsibility of a judge, the current legislation involves the use of categories that need further evaluation in defining the actions that are qualified as violation of oath by the judge. This is confirmed by the practice of bringing judges to disciplinary liability by the High Qualification Commission of Judges of Ukraine and the High Council of Justice, which shows that in case of determining the judge’s action as violation of oath, the priority is given to the Procedure Law. The referenced legal position of the Constitutional Court of the Russian Federation shows that it is possible to single out such reason for bringing judge to disciplinary liability as intentional judicial error that resulted in distortion of the fundamental principles of justice and gross violation of rights of participants in the process. The author suggests several improvements of the national legislation, such as defining the term “disciplinary offence by a judge” and introducing scientific criteria for assessing judicial work. The latter is based on the list proposed by S. Prilutskiy and is expanded by including such criterion as the obeisance to the rules of judicial ethics.
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