Disciplinary defence of judges

Defence of judges in disciplinary proceedings.

Disciplinary proceedings against a judge do not follow the axis by which criminal proceedings are understood: there is neither a notice of suspicion, nor a preventive measure, nor a judgment. The structure is different — grounds, consequences and the limits of challenge. This page offers no advice on conduct during the proceedings: its reader knows the procedure from within. The provisions are identified for orientation; an advocate verifies them.

Grounds

Proceedings commence on a disciplinary complaint or on the initiative of the body conducting them (Article 107 of the Law of Ukraine “On the Judiciary and the Status of Judges”); they are conducted by the Disciplinary Chambers of the High Council of Justice (Article 108 of the same Law; Article 131 of the Constitution of Ukraine). The grounds are listed in Article 106 of the Law: they range from breaches of procedural law in the administration of justice to rules on judicial ethics and declaration requirements. The legal characterisation applied to the conduct defines the subject matter of the review — and, with it, which material is relevant.

A decision set aside and the judge’s liability This issue is regulated separately in the same Article 106, together with the exceptions. The limit comes to the fore when the complaint originates from a body that was a participant in or initiated proceedings adjudicated by the judge.

A complaint is not yet a case Between the complaint and consideration of the case lie a preliminary review and a decision to open a disciplinary case; the review is carried out by a disciplinary inspector of the High Council of Justice. The complainant is not a bystander: the law gives the complainant procedural opportunities of their own, including in relation to challenges — so proceedings on a complaint by a public body may continue even after a decision in the judge’s favour.

Consequences

Types of disciplinary sanction They are listed in Article 109 of the Law: from a warning to a submission for dismissal from office. The same Article identifies what is taken into account when a sanction is selected — the nature of the misconduct, its consequences, the degree of guilt, the existence of other sanctions — and the principle of proportionality. It is this part of the Article, rather than the list of sanctions, that defines what is at issue. The ground for dismissing a judge is framed separately: not in the list of sanctions, but in the Constitution of Ukraine (Article 126).

Suspension is not a disciplinary sanction Temporary suspension of a judge from the administration of justice in connection with criminal proceedings is a separate legal mechanism, as is the consent of the High Council of Justice to the detention of a judge or the judge’s being held in custody (Article 126 of the Constitution of Ukraine). The two tracks may proceed in parallel; Article 61 of the Constitution prohibits a person from being held legally liable twice for the same offence under the same type of liability.

Limits of challenge

Within the system and before the courts A decision in a disciplinary case may be challenged in the manner prescribed by law (Article 111 of the Law); consideration of the complaint is governed by the Law of Ukraine “On the High Council of Justice”. The next level is the courts: challenges to acts of the High Council of Justice and the High Qualification Commission of Judges of Ukraine have particular features under Article 266 of «Кодекс адміністративного судочинства», the code governing procedure in the administrative courts (Article 55 of the Constitution of Ukraine). The Supreme Court hears the case, and the Grand Chamber of the Supreme Court conducts the review; procedural law sets the limits of that review, which do not coincide with consideration of the disciplinary case on its merits. The law separately defines the grounds on which a court may set aside such a decision; that list is the structure of the judicial level — it determines which arguments can be addressed there.

European Court of Human Rights An application may be made after domestic remedies have been exhausted and within the time limit running from the final domestic decision (Article 35 of the Convention); the length of that time limit has changed. Questions may arise under Articles 6, 8, 10 and 13 of the Convention; whether a professional dispute falls within Article 8 is assessed separately by the Court — the judgment in Denisov v. Ukraine addresses that issue. The Court is not an additional instance: it does not reconsider cases on their merits or set aside domestic decisions. The best-known judgment against Ukraine is Oleksandr Volkov v. Ukraine; the institutional framework has changed since then, and what remains material from it today is a question for an advocate.

What is determined by structure, not the strength of an argument

Each level has its own subject matter A Disciplinary Chamber, the High Council of Justice, a court and the European Court of Human Rights decide different questions; an argument not raised at the level where it belongs has a narrower path available thereafter; the time limit at each level is calculated separately from the substance of the arguments.

Procedure and the public sphere do not replace one another These are different spheres (Article 34 of the Constitution of Ukraine; Article 10 of the Convention): the case is decided through the procedure and on the materials. A judge’s notification of interference with judicial activity (Article 48 of the Law) is also a separate procedure, not a means of defence in the case.

The outcome of a disciplinary case is determined by the body hearing it, and the outcome of a challenge by the court. No advocate can guarantee either.

What the association does in this practice area

Disciplinary defence of judges is a distinct practice area of the association: twelve proceedings before the High Council of Justice.

The names of the judges and the circumstances of the proceedings are not disclosed here — and will not be. A judge’s disciplinary case concerns the judge’s professional life, and an advocate who recounts it on their own website will not be entrusted with the next such case.

Accordingly, what follows is not a list of cases, but the procedural outcomes of these proceedings:

• a Disciplinary Chamber’s refusal to hold a judge disciplinarily liable on a complaint by the National Anti-Corruption Bureau of Ukraine, left unchanged after the Bureau challenged it;
• the High Council of Justice setting aside a Disciplinary Chamber decision holding a judge disciplinarily liable, and refusing to hold the judge disciplinarily liable.

The outcome of each proceeding is determined by the High Council of Justice.