The scientific-practical Law Journal
“Almanac of Law” Volume 12 (2021), 300-305 p
Malashenkova T. M. The importance of law practice in achieving legal certainty regarding the grounds for disciplinary liability of a judge
In order to overcome the relevant problem, the Law of Ukraine «On the Judiciary and the Status of Judges» significantly changed both the grounds for bringing a judge to disciplinary responsibility and the grounds for applying the most severe measure of such responsibility – dismissal of a judge. The level of detailing of such grounds is quite high, both in terms of the certainty of such grounds, and in terms of proportionality between the type of disciplinary misconduct and the type of penalty to be applied for it.
At the same time, the results of the analysis of the relevant legal provisions shows that they are not devoid of evaluative, vague concepts, such as «gross disregard for the duties of a judge», «gross violation of the law», «gross negligence», «significant negative consequences». Thus, the question arises whether the problem of uncertainty of the grounds for disciplinary liability of a judge has been conceptually resolved, or whether the relevant problem continues to exist despite significant legislative detail of the relevant grounds. Resolving this issue is the purpose of this article.
The existence of wording in the legislation that does not meet the requirements of legal certainty, such as «gross negligence», «gross violation of the law» carries certain risks to the independence of judges, but the existence of such risks can not be considered a reason for the law refused to use them. This is due to the objective impossibility of formulating in the law an absolutely exhaustive list of grounds for disciplinary liability in general and grounds for dismissal of a judge in particular.
Critical is the issue of forming a consistent practice of the disciplinary body, which would, firstly, form the criteria for understanding vague concepts, and secondly, would not allow different approaches to responding to the same misconduct of a judge.
Keywords: disciplinary liability of a judge, grounds for disciplinary liability, legal certainty, evaluation concepts.
1. Joint opinion by the Venice Commission and the Directorate of Human Rights of the Directorate General of Human Rights and the Rule of Law on the Law on the Judiciary and the Status of Judges and amendments to the Law on the High Council of Justice of Ukraine, adopted by the Venice Commission at its 102nd Plenary Session (Venice, 20-21 March 2015) https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)007-e
2. Shevchenko A. V. Disciplinary liability of judges of Ukraine: dis. Ph.D. 12.00.10, K. 2013. 260 p.
3. Ivanishchuk A. A. Administrative and legal support of the judiciary in Ukraine : author’s ref. dis. Ph.D. 12.00.07, K.,2017. 38 p.
4. Pashuk T. I. Predictability of normative bases of disciplinary responsibility of judges: general theoretical aspect // Scientific notes of NaUKMA. Legal sciences. 2019. Volume 3 pp. 100-108.
5. Tantsyura L. O., Semenyaka V. V. Some issues of disciplinary responsibility of judges. Bulletin of commercial litigation. 2011. ¹ 4. S. 108–113.
6. Ovcharenko O. M. Legal responsibility of judges: questions of theory and practice: author’s ref. dis. : 12.00.10 / Olena Mykolayivna Ovcharenko; Nat. University Odessa. Jurid. Acad. – Odessa, 2018. – 550 p.
7. Pyvovar I. V. Legal status of judges of courts of general jurisdiction of Ukraine in 1991-2014 (historical and legal research): dissertation abstract. ... cand. jurid. Sciences: 12.00.01 / I. V. Pyvovar ; Science. ker. RV Guban; Ministry of Education and Science of Ukraine, Nat. ped. Univ. MP Dragomanova. – Kyiv, 2016. – 16 p.
8. OSCE / ODIHR Opinion on the Law of Ukraine «On the Judiciary and the Status of Judges» of 30 June 2017 ¹ JUDUKR/ 298/2017. Access mode: https://www.vkksu.gov.ua/userfiles/doc/perelik-dokumentiv/visnovok_osce.pdf
9. Conclusion ¹ 10 (2007) of the Advisory Council of European Judges Judiciary in the service of society. Access mode: https://court.gov.ua/userfiles/visn_10_2007.pdf.
10. Decision of the Second Disciplinary Chamber of the High Council of Justice of February 24, 2020 ¹ 568 / 2dp / 15-20. Access mode: https://hcj.gov.ua/doc/doc/2122
11. Recommendations of the Kyiv Conference on the Independence of the Judiciary in Eastern Europe, the South Caucasus and Central Asia «Judicial Management, Selection and Accountability of Judges» (Kyiv Recommendations), Access mode: http://www.osce.org/ru/odihr/71179