Article title Disciplinary Liability vs Independence of a Judge: Searching for the Balance
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 3/2018
Сторінки [110-122]
DOI https://doi.org/10.33498/louu-2018-03-110
Annotation

Independence of judges is one of the fundamental guarantees for a fair trial and, accordingly, an essential guarantee for the rule of law, and such independence s ensured by a range of statutory provisions. The mechanism through which the concept of independence of judges is implemented is a complex structure comprising a set of elements which differ in their contents and nature. In its foreground there is a special procedure for bringing judges to liability. However, respective indicators in this connection reflect not only the level of judicial independence in the country, but also the efficiency with which the judiciary functions and the level of trust which society has in it. Such trust requires a reasonable balance between independence and accountability of members of the judiciary, and such accountability is manifested in the form of a judge’s legal, in particular, disciplinary liability. The updates to the judiciary-related legislation demonstrated a change of approaches to the application of disciplinary liability to judges. Since there is always a delicate line between disciplinary liability of judges and assurance of their independence, a genuine concern arises about the availability of proper precautions against making such liability an instrument of pressure. As the purpose of this article, the author, drawing upon a systemic analysis of the provisions of current law, attempts at finding the answer to the question whether at the present stage of the judicial reform a balance has been achieved between assurance of the independence of judges and bringing them to disciplinary liability. It is established that as compared with preceding periods of the judicial reform, the current stage is characterized by the “severity” of the changes introduced to statutory regulations subject to which judges are brought to disciplinary liability. In particular, based on the logical structural and systemic methods of analysis of certain provisions of the current Law of Ukraine “On the Judicial System and the Status of Judges”, the author has arrived at the conclusion that the grounds upon which a judge may be brought to disciplinary liability are inexhaustible and also that most of them may entail the strictest type of a disciplinary punishment – a motion to dismiss a judge from office. The study provides the classification of disciplinary sanctions: 1) by structure: simple and complex sanctions; 2) by a degree of influence on the ability to exercise the powers of a judge: those which have no effect on the administration of justice by a judge, and those which bring about the consequences making a judge unable to administer justice. Particular attention is drawn to the disciplinary sanction in the form of a motion to transfer a judge to a lowerlevel court which the author believes to be contrary to the regulations on the uniform status of a judge. The model of disciplinary liability of judges introduced in Ukraine involves high risks of a threat to a judge’s independence. Therefore, the search for the balance needed in this domain is still underway.

 

Keywords disciplinary liability of a judge; independence of a judge; disciplinary sanctions; disciplinary proceedings; grounds for making a judge liable
References

List of legal documents

Legislation

1. European Charter on the statute for judges, Strasbourg, 8–10 July 1998. URL: https:// rm.coe.int/16807473ef (accessed: 15.02.2018) (in English).

2. Opinion no 3 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality. URL: https://rm.coe.int/168070098d (accessed: 15.02.2018) (in English).

3. The Bangalore Principles of Judicial Conduct 2002. URL: https://www.unodc.org/ pdf/crime/corruption/judicial_group/Bangalore_principles.pdf (accessed 15.02.2018) (in English).

4. Konstytutsiia Ukrainy [Constitution of Ukraine]: Zakon Ukrainy [the Law of Ukraine] vid 28 chervnia 1996 r. № 254k/96-VR. URL: http://zakon0.rada.gov.ua/laws/ show/254%D0%BA/96-%D0%B2%D1%80 (accessed: 15.02.2018) (in Ukrainian).

5. Pro sudoustrii i status suddiv [On the Organization of Courts and the Status of Judges]: Zakon Ukrainy [the Law of Ukraine] vid 2 chervnia 2016 r. № 1402-VIII. URL: http:// zakon3.rada.gov.ua/laws/show/1402-19 (accessed: 15.02.2018) (in Ukrainian).

6. Rekomendatsiia № (94) 12 “Nezalezhnist, diievist ta rol suddiv” [Recommendation № R (94) 12 “Independence, Efficiency and Role of Judges”] (ukhvalena Komitetom Ministriv Rady Yevropy na 518 zasidanni zastupnykiv ministriv 13 zhovtnia 1994 roku) v Dokumenty Konsultatyvnoi rady yevropeiskykh suddiv (Vydavnychyi Dim “In Yure” 2017) (in Ukrainian).

Bibliography

Edited books

7. Moskvych L, Orhanizatsiia sudovykh ta pravookhoronnykh orhaniv: navchalnyi posibnyk [Organization of judicial and law enforcement agencies: training manual], ch 1 “Osnovy sudoustroiu Ukrainy” (Moskvych L red, Pravo 2016) (in Ukrainian). 8. Pohoreckii M ta Janovska O (red), Sudoustrii Ukrainy: pidruchnyk [The Judiciary of Ukraine: Textbook] (Jurinkom Inter 2014) (in Ukrainian).