The issue of holding judges disciplinarily liable in Ukraine traditionally lies at the intersection of society's demand for justice and the need to preserve the independence of the judicial branch. Following the resumption of work of the Service of Disciplinary Inspectors (SDI), the processes within the High Council of Justice have acquired a new dynamic. How to build an effective defense strategy at each stage of the proceedings and what lawyers should pay attention to is analyzed in the article.
Disciplinary inspectors and complaint filtering
The modern disciplinary proceeding de facto begins during the processing of applications and complaints by disciplinary inspectors. This autonomous unit performs the lion's share of preparatory work: the inspectors study materials, request documents (even those with restricted access), and formulate conclusions regarding the presence or absence of grounds for punishing a judge.
At this stage, it is important not to take a passive stance. Although the procedure does not always require active involvement of the parties, submitting written explanations and objections even before the issue of initiating proceedings is referred to the Chamber for consideration can be a decisive factor in refusing to institute proceedings.
Disciplinary Chamber and standards of proof
If the case is opened, it proceeds to the Disciplinary Chamber (DC). Here, the standard of proof becomes key. For a long time in Ukraine, there have been discussions regarding which standard should be applied to judges: the criminal one («beyond a reasonable doubt») or the civil one («balance of probabilities»).
Currently, legislation and practice establish that the standard of «clear and convincing evidence» applies in disciplinary proceedings. This means that a disciplinary body cannot base its decision on assumptions or exclusively on the materials of covert investigative (search) actions from a parallel criminal proceeding, because disciplinary liability is autonomous and requires its own evaluation of evidence, independently of the criminal process. The ECHR also consistently emphasizes that disciplinary proceedings are not «criminal» within the meaning of the Convention; therefore, equating these processes is an inadmissible violation of the presumption of innocence.
Procedural opportunities and recommendations
The judge has the right to provide any materials that refute the elements of the misconduct. It is important to remember that the disciplinary body cannot review the substance of a court decision—this is the prerogative of the appellate and cassation instances. The defense should emphasize the boundary between a «judicial error» and a «disciplinary offense.».
At this stage, it is useful to know that the Grand Chamber of the Supreme Court has established certain restrictions for disciplinary authorities:
1. Cancellation of a decision is no reason for punishment. The Grand Chamber of the Supreme Court has repeatedly emphasized that the mere cancellation or modification of a court decision by a higher instance court does not entail disciplinary liability for the judge. Punishment is possible only in cases where the error was the result of an intentional violation of legal norms or gross negligence.
2. Prohibition on assuming the functions of the court. The disciplinary body has no right to evaluate the validity of procedural appeals (for example, investigators' motions for search or seizure of property) or the correctness of the judge's assessment of evidence. This is the exclusive competence of judicial authorities.
3. Clear distinction between ethics and process. The High Council of Justice sometimes tries to classify procedural violations as conduct that «discredits the honor and dignity of a judge» (Clause 3, Part 1, Article 106 of the Law). The Grand Chamber of the Supreme Court has recognized this approach as flawed. An ethical violation must be assessed exclusively through the prism of a judge's moral qualities (for example, driving under the influence or justifying armed aggression) and should not substitute for liability for the misapplication of legal norms.
4. Use of criminal proceedings materials. If a judge is a suspect in criminal proceedings, although the High Council of Justice is not a judicial review body, this has a significant impact on the subjective conviction of the HCJ members. Therefore, it is worth simultaneously developing a position regarding the evidence provided by the investigative or prosecutorial body and explaining your position on the substance of the suspicion and the validity of the evidence.
In addition, it is worth preparing questions for the disciplinary inspector that would confirm the erroneousness or illogic of the disciplinary inspector's report and the position presented by him before the High Qualification Commission of Judges.
Do not neglect the right to call witnesses and request documents. If the state enterprise refuses to grant a reasoned motion, this automatically becomes a ground for further appeal due to a violation of the adversarial principle.
Appeal in the High Council of Justice: what you need to know
Appealing a decision of the Disciplinary Chamber to the full composition of the High Council of Justice is a mandatory step before applying to court.
There are only 10 days to appeal. However, practice shows frequent delays in the preparation of the full texts of decisions. In such a case, a motion for reinstatement of procedural deadlines must be filed, referencing ECCT practice, since it is impossible to substantiate an appeal without seeing the authority's reasoning.
After the request for the restoration of the deadline, the High Council of Justice will schedule a separate meeting to determine whether the reasons for missing the appeal deadline are valid. If the High Council of Justice unreasonably refuses, such a refusal is subject to a separate appeal in court.
An appeal is also necessary because the High Council of Justice does not have the right to apply a stricter penalty than the one determined by the Chamber.
Grand Chamber of the Supreme Court. The final instance
The Grand Chamber of the Supreme Court exercises judicial control over the decisions of the High Council of Justice. This is not a peculiar type of cassation, but a verification of the legitimacy of the procedure.
What the Court pays attention to:
- Motivation: Did the High Council of Justice provide answers to all the key defense arguments?
- Proportionality: Is the penalty (e.g., dismissal) proportional to the gravity of the offense?
- Procedure: Was the quorum met and was there no conflict of interest among the Council members?
If the HCJ violated these key principles in its decision, the Grand Chamber will provide its assessment of the HCJ's decision, which will be the final decision in the case concerning the disciplinary liability of the judge.
Conclusions
Effective defense in disciplinary cases requires moving away from formal boilerplate responses. Every stage—from the inspector to the Grand Chamber—requires the active use of motions, the recording of procedural violations, and appeals to the standards of judicial independence. As experience shows, success often lies not in denying facts, but in proving the violation of the «rules of the game» by the disciplinary body itself.
Source: Legal newspaper.
