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Judicial Error: Criteria for Differentiating Between Abuse (Arbitrariness), Negligence, and Good-Faith Conduct

Judiciary /
The disciplinary responsibility of judges

Analytical Report prepared within the Council of Europe Project “Support for Reform of the Judicial Responsibility System in Ukraine” financed by the Fund for Human Rights

1. International and National Regulation

1.1. International Recommendations A judge’s activity is highly responsible and requires acting in good faith.

A judge can be brought to legal responsibility for violations.

However, the possibility of being subjected to responsibility for judicial errors made during adjudication carries risks for independent and impartial resolution of cases by judges. Having the sword of Damocles of legal responsibility constantly over his/her head will cause fear in a judge, forcing him/her to be indecisive and impeding the issuance of any court judgment. To avoid this, there are number of international standards and recommendations aimed at minimizing these risks.

OSCE Kyiv Recommendations reject the notion of holding judges responsible for judicial errors in connection with the substance of judicial decisions:

– disciplinary responsibility of judges shall not extend to the content of their rulings or verdicts, including differences in legal interpretation among courts; or to examples of judicial mistakes;

– judges shall not be evaluated under any circumstances for the content of their decisions or verdicts (either directly or through the calculation of rates of reversal).How a judge decides a case must never serve as the basis for a sanction.

The Committee of Ministers of the Council of Europe also rejects responsibility for the substance of judicial decisions, while establishing a number of exceptions (emphasized in bold italics):

– the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence;

– the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice.

The Consultative Council of European Judges also believes that criminal liability shall not be imposed on judges for unintentional failings in the exercise of their functions .

How are these international recommendations implemented in Ukrainian legislation?

1.2. Ukrainian Legislation

Ukrainian legislation provides for legal responsibility of judges for violation of the legal requirements in the course of administration of justice. Thus, a judge may be brought to disciplinary responsibility for intentional or negligently caused:

– illegal denial of access to justice (including illegal refusal to accept a claim, appeal, cassation claim, etc. for review on the merits) or other substantial procedural violations in the administration of justice that made it impossible for participants of a trial to exercise their procedural rights granted to them and to perform procedural obligations, or caused violations of the rules of jurisdiction or admissibility of a case;

– failure to specify in the judgment the grounds for accepting or rejecting the parties’ arguments as to the substance of a claim;

– violation of principles of publicity and openness of the trial; – violation of the principles of equality of all participants in a trial before the law and the court, adversarial nature of trial, and freedom of the parties in presenting their evidence and substantiating its persuasiveness to the court;

– failure to ensure the criminal defendant’s right to defense and obstructing the exercise of rights of other participants in a trial;

– violation of the rules on recusal (self-disqualification). A judge may be also brought to disciplinary responsibility for violation of human rights and fundamental freedoms caused intentionally or through obvious negligence.