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Political Points for 9 – 16 July 2018

16.07.2018

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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Solving the problem of judicial impunity and dependence is impossible without unification of disciplinary practice with regard to judges: results of a study


1. CPLR expert opinion

Last year, the institute of disciplinary liability of judges was reformed in Ukraine. The changes were aimed at improving the efficiency of this institution and minimizing its use for pressure on judges.

The CPLR publicized results of the study of the new disciplinary practice of the High Council of Justice (HCJ) and its bodies. Attention was made to the decisions of the HCJ disciplinary chambers in 2017, as well as the subsequent practice of reviewing these decisions in the HCJ and in the Supreme Court (as of July 10, 2018).

Key findings of the study:

1. Disciplinary chambers of the HCJ are overloaded with complaints about judges. On average, in 2017, one member of the HCJ disciplinary chamber had to prepare about 500 decisions in disciplinary matters. Disciplinary chambers and different members of the HCJ consider complaints about judges with varying degrees of diligence.

2. A serious problem of disciplinary practice is the lack of unified approaches of various disciplinary chambers in imposing disciplinary penalties for similar offences. Different sanctions for similar disciplinary offenses also occur within the same disciplinary chamber. The HCJ is inconsistent in assessing the same data that characterizes a judge’s personality. There are widespread cases of apparent inappropriateness of disciplinary offenses committed by judges and penalties imposed by disciplinary chambers of the HCJ.

3. The practice of the HCJ and its disciplinary chambers demonstrates a noticeable tendency towards lenient treatment of the chairs of courts as compared to other judges.

4. Various approaches of the disciplinary chambers and the disproportionate nature of imposing disciplinary penalties for the most part can not be corrected at the level of the HCJ, since disciplinary chambers do not grant applicants the right to appeal – even in those cases where the speaker proposed to apply to a judge another penalty rather than being elected by a disciplinary chamber.

5. The HCJ has withdrawn from checking judges’ declarations (property, family relations, integrity) within disciplinary procedures, although false information in these declarations forms the basis for disciplinary liability.

6. Judges successfully appealed against the decisions of disciplinary chambers to the HCJ. In almost every second case (25 out of 54) the HCJ agreed with the arguments of the judges and satisfied or partially satisfied their complaints about the decision of the chambers on bringing them to disciplinary responsibility.

7. As a result of the consideration of claims by judges against decisions of the HCJ, adopted in 2017, the Supreme Court satisfied 23% of such claims (as of July 10, 2017).

2. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.

Based on the results of the study, the following recommendations for the High Council of Justice have been developed:

1. Development of an online system for submitting disciplinary complaints about judges via the Internet. Introduction of such a system will reduce the time expenditures of employees of the office and members of the HCJ for the processing of disciplinary complaints, and in the long run will reduce the number of improperly executed disciplinary complaints.

2. Working out and publication of the criteria for the inadmissibility of disciplinary complaints based on the practice of returning disciplinary complaints and decisions to decline opening of disciplinary proceedings. In the future, clear, unified and accessible criteria will reduce the number of non-motivated disciplinary complaints.

3. Generalization of disciplinary practice and working out and publication of legal positions on the application of the law for the resolution of such cases. Unification of approaches to assessing the same data that characterize a judge’s personality and the application of the principle of proportionality.

4. Demonstration of the same attitude to judges who committed similar offenses, regardless of their administrative position or the level of court in which they implement justice. Prevention of the use of disciplinary liability mechanisms with an illegitimate purpose (both for the avoidance of liability of judges and for the prosecution).

5. Granting to the complainants the right to appeal against a decision to bring a judge to disciplinary liability in the event that the disciplinary sanction applied to the judge is not related to removal from post, especially in cases where the speaker proposed to apply to the judge another penalty rather than the one elected by a disciplinary chamber.

6. Use of the possibilities provided by the law to verify complaints related to non-declarations or improper declarations within the framework of a disciplinary procedure.

7. Formulation of a consistent disciplinary practice, in particular, regarding the imposition of one or another type of disciplinary punishment for similar misconduct. In the case of a departure from previous practice – thorough justification of the reasons.