PREVENTION OF THE PROFESSIONAL DEFORMATION OF JUDGES PROBLEMS

Associate Professor,
Department of Judicial and Law-Enforcement bodies System
NationalUniversity "OdessaLaw Academy",
Odessa 

 

PREVENTION OF THE PROFESSIONAL DEFORMATION OF JUDGES PROBLEMS

 

The strength and independence of the judicial system as well as the high quality and efficiencyof justicedepend, to a great extent,on the individuality of ajudge, their worldview, sense of justice,legal training, professionalism and ethicalqualities.Nowadays, taking into considerationthe hugeand sometimesexcessiveworkload of judges it becomes clear that the issueof minimizing ofeffectsof professionaldeformation of judgesis of utmost importance.

It is clear that judge’s ability to resist numerousattemptsof illegal interferencein a trial,the right of “telephoning” or “rallying” as well as a great number of other illegal means to influencecourt decisions depends on business, personal and moral qualities of ajudge. Thus, highmoralityand sense of justice, deep knowledge and properapplication oflaws,striving to get to the truth, strong will, endurance, ability to analyze and understandcomplex issues, courage, honesty, incorruptibility and fairness do not at allexhaust the list ofqualitiesnecessary for ajudge.

The issues of selection of judges according to their psychologicalqualities and possible methods to preventprofessionaldeformation of judges were studied by such scholarsas M.Alieskerov, G. Bannikov, K. Bershedov, V. Yenhalychev, M. Kleandrov, I. Samsin, L. Skomoroha.However,the absence oflegislative provision for psychologicaltesting of candidatesfor judicial office, as well as the problems of professionaldeformationin process of administration of justicerequire the in-depthstudy ofthe issue.

Certain factors lead to worsening of the problem of psychological stability of a judge, such as great complexity of mastering professional skills in a new field, and psychological impact of authorities, including senior government officials and more recently even representatives of certain social groups.

Judges work under particular psychological pressure when they consider high-profile cases, such as the elections, reviews of decisionsonland use andreconsideration of criminal procedure decisions involvingformerhigh stateofficialsand so forth. Mass protests outside thecourt, broadcasting from the courtroom, aggressiveness of the parties are also among the factors that affect the psychological well-being of a judge.

Hence, the conclusion follows that to preventprofessionaldeformation of a judge they need special psychological support. TheRussian scientists, M. Alieskerovand V.Yenhalychev, mention that in the developed Western countries the successful operation of the judiciary to a great extent depends on the effective systemof psychological support. In accordance with the special education programs inlegal psychologyand forensic psychologyeach year universitiespreparehundreds of qualified psychologists whospecialize inassistingjudicial personnel. Russian scientists point out that such psychological supportaims atperforming a number offunctions, including information-analytical work, forensic psychologicalassessment, counseling for psychologicalproblemsof judges andcourt officials, psychological adjustment training, psychological appraisal, public relations and so forth [1, с. 11].

In Ukraine psychological services function in the Ministry of Internal Affairs, the Ministry of Emergency Situations and Chornobyl Affairs of Ukraine and in some other departments and agencies. Thus, thedecree of the Ministry of InternalAffairs ofUkraine"On further developmentof psychologicalservicesto ensurethe operational activitiesof the law enforcement agencies" [2] from July 28, 2004 № 842 approved the Regulation on the service of psychological support to operational performance of personnel of the law enforcement bodies ofUkraine. The Regulation defines psychological support "as a system of organizational and psychological measures aimed at improving the work and performance of personnel of the law enforcement agencies of Ukraine" (paragraph 1.1.). The main tasks of psychological support are as follows: assistance to managers at all levels in strengthening of discipline and the rule of law in the law enforcement agencies of Ukraine; creation of effective system of ensuring of psychological and psycho-physiological security of personnel; professional orientation and professional psychological selection of candidates for training in educational establishments of Ukraine to prepare them for service in the law enforcement agencies; psychological training of law enforcement officers of Ukraine to perform their duties in everyday and extreme conditions; psychological preventive training of personnel of law enforcement bodies of Ukraine, optimization of socio-psychological climate at workplace, counseling the departmental heads, administrators and their families, psychological support of operational performance of law enforcement agencies of Ukraine.

This demonstrates the urgency of the need to provide the organization of psychological service within the judicial system of Ukraine responsible forthe selection of qualified judicial personnel that resisted professional deformation (such as the goal to obtain judicial position only to ensure one’s enrichment) and are able to withstand it in the future.

The UN General Asembly Resolution № 40/146 fromDecember, 13 1985 adoptedthebasicprinciplesontheIndependenceoftheJudiciary. InaccordancewithParagraph 10 of the Resolution,persons selected for judicial office shall be individuals of integrity and ability, with appropriate training or qualifications in law. Unfortunately, the Law of Ukraine "On the Judicial System and Status of Judges" does not demand that the candidates for post of the judge posses certain psychological traits that ensure their ability to withstand professional deformation. The legislature confined to the statement that the post of professional judge can not be recommended for persons "who have chronic mental or other diseases that interfere with performance of judicial duties" (paragraph 2 of part 2 of Article 64 of the Law). However, the list of such specific diseases has not been approved yet.

V. Boyko, the former Head of the Supreme Court of Ukraine, stays on the same position. He states that "the great drawback in the selection of candidates for the post of a judge is the lack of verification of psychological and emotional character of a judge ... There are cases when the  judge lacks self-control, and then the courtroom turns into the “market place”, where the loudest screamer is the judge” [3, с. 21].

In our opinion, the Regulations on substitution of deputy prosecutors and investigators of the city public prosecutor’s offices, district public prosecutor’s offices and other  public prosecutor’s offices fromMarch 18, 2009[4](nowinvalid), whichprovided for the"psychological study" aimed at "detection of individuals withantisocialbehavior,selfishorientation..." and so forth, can be taken as an example for creation of systematic list of requirements to the psychological stability of candidates for judicial office.

Neurotic and, especially, psychopathic traits, tendency to inappropriate behaviour, both in and out of the workplace, are the greatobstacle tojudicial practice.Persons withweaknervous system are unable tobe full-fledgedjudges,although they maybe valuablein other spheresof legal practice.

It is worth noting that thedetermination of the candidate’s psychological suitability to occupythe post ofthe judge faces the problem oflack ofstandards and necessary requirements on that score. In fact,the issue ofofficial development andapproval of aprofessiogram of ajudge is unsettled.Although, there are some attempts of its development, but theyare found mainlyin literature onlegal psychology.

According to V. Vasiliev, the profession of a judge is one of the most complex legal professions, as it includes and has to put into effect a large number of special qualities and skills that are an essential part of personality of a judge and determine their creativity and individual style of action [5, с. 230].

Some drafts on the professiogram of ajudge are found through literature. Typically, the list includes such necessary characteristics as social (high responsibility for their actions, impartiality, etc.), reconstructive (general and special intelligence, memory, imagination, analytical thinking, intuition of a judge), communicative (sensitivity, emotional stability, listening and speaking ability), organizational (commitment, concentration, determination, persistence, etc.), and educational (general and special culture of writing, skills in preparing of written documents, etc.) [6, с. 312].

Unfortunately, these qualities are mostly of abstract or evaluative nature, which significantly complicates the practical implementation of the professiogram. It is worth implementing a comprehensive psychiatric diagnosis of people who wish to become judges. But the final decision is up to the experts.

The relevance of developments in this area has increased in connection with the adoption of the Concept of improvement of the judiciary for establishment of just trial in Ukraine according to the European standards, which states that " the decision to recommend a person for a judicial position must be accepted by the High Qualification Commission of Judges depending on the results of the psychological ... examination ... of a candidate" (paragraph 3 of Section 4: Selection and qualification of judges). However, there is no such provision in the Law of Ukraine "On the Judicial System and Status of Judges". Only the Code of Professional Ethics for Judges, adopted by the XI Congress of Judges of Ukraine on February 22, 2013 [7], states that a judge must be an example of strict observance of the rule of law and oath, as well as maintaining high standards of conduct in order to strengthen the public confidence in the integrity, independence, impartiality and fairness of the court (Article 1).

The issue of selecting mentally healthy and mentally stable candidates for judicial positions is somewhat better regulated in the Russian Federation. Upon recommendation of the Ministry of Health, the list of illnesses and handicaps thathinder the appointment for a judicial position was approved in 2002 [8]. Still, its imperfection is stressed even in the Russian scientific sources. In particular, M. Kleandrov mentioned that "the Ministry for some reason disregarded the issue of the mental health of a judge and did not included in the list of illnesses and handicaps the requirement for absence of any physical and/ or mental disease, that influence the state of mind of a judge" [9, p. 528]. In agreement with this and similar statements, on April 15, 2010, the Council of Judges noted that this list needs clarification, particularly on "cardiovascular, cancer, mental, infectious and other diseases that could hinder the administration of justice" [10]. However, there are some attempts to oversee the implementation of candidate’s psychological examination procedure in the Russian Federation. In particular, the relevant order was approved in Lipetsk regional court in 2003 [11]. Moreover, there was also an attempt to approve the professiogram of a judge. [12] We believe that similar acts shall be adopted in Ukraine in the nearest future.

The fact that judicial profession is one of the most complex human activities which requires mental and physical strength as well as the ability to evaluate and analyze does not require any substantiation. Thus, psychological unloading and even psychological rehabilitation should be an important aspect of prevention of professional deformation of judges.

We can not, but agree with V. Vasilyev, who stated that "creation of good emotional atmosphere in the courtroom by the effort of a  judge is very important for a fair trial ... Increased nervousness when considering cases ... and inability of some judges to cope with stress reduce the quality of a trial, and can lead to serious mistakes" [5, p. 238].

Therearenumerousattemptstofindsolutiontotheseproblems. OnOctober 31, 1997, theCouncilofJudgesoftheRussianFederationapprovedthespecialinterdepartmentalscientificandpracticalprogram "Medicalandpsychologicalsupport, preventionofpsychologicalimpactofoccupationalstressandrehabilitationofjudges." ItwasfoundnecessarytocontinueapplicationoftheprogramattheArkhangelskregionalcourt, andtoimplementitsresultsinallcourtsoftheRussianFederation [1, p. 12].

In our opinion, the following measures should be taken in order to maintain psychological stability and prevent professional deformation of judges:

1. to introduce psychological service to the judiciary andprovide forhiring of sufficient number of court psychologists depending on the number of judges;
2. to develop programs and methods of psychological unload and psychological rehabilitation taking into account the specifics of judicial activity;
3. to allocate premises, if the conditions allow, and create special rooms of psychological unload for judges;
4. to provide judges with decent working conditions (including separate offices and equipped courtrooms);
5. to determine the optimal scientifically-grounded level of workload of judges depending on the number and complexity of cases.

The first step to providing judges with special rooms for psychological unloading has already been taken. Given the fact that for a long time there were no national design codes for court premises in Ukraine, on March 17, 2005 the Council of Judges of Ukraine approved the departmental building codes "Design of local courts buildings". The document not only provides for allocation of space for the rooms of social and psychological rehabilitation, but also states that they are obligatory in courts, in which the number of judges exceeds 8. They are to be arranged in the most "quiet zone" of the building, separate from the main human flows and not facing highways [13]. However, unfortunately this decision of the Council of Judges of Ukraine is not implemented in practice.

In the event of introduction of psychological service in courts of general jurisdiction many issues will have to be solved. For example, the conduct of judges in case if a psychologist recommends them to refrain from work due to mental exhaustion, fatigue, death of a close relative, etc., as no Procedure Code provides for such reasons to postpone the trial. At the same time it is necessary to work out such mode of cooperation that would prevent the abuse by a psychologist.

The issue of excessive workload of judges deserves particular attention, which is constantly emphasized by experts when dealing with the problem of prevention of the professional deformation of judges.

The survey on the state of justice in 2011 confirms the acuteness of the problem. The document is available on the "Judiciary of Ukraine". In particular, the survey states that in 2007-2011 local and appellate courts received 43.2 million cases. In 2011 the average monthly workload per judge of local general courts increased by 15.3% and amounted to 139.6 cases (121.1 cases in 2010); the average monthly workload per judge of district administrative and appellate courts amounted to 38 and 216.7 cases, respectively; and each judge of local commercial and appellate courts received 31.2 and 14.1 cases per month [14].

The problem is under control of the high judicial authorities, the proof of which is found in the decision of the regular XI congress of Judges of Ukraine from February 22, 2013, saying that "the problem of the excessive workload of judges requires urgent solution with a view to ensuring the effective exercise of the right to a fair trial within a reasonable time" [15].

On February 21, 2012 YaroslavRomaniuk, the First Deputy President of the Supreme Court of Ukraine, the Chairman of the Council of Judges of Ukraine, and representatives of the Council of Judges of Ukraine, met with Elizabeth Wiggins, U.S. expert on the judges’ caseload issues. As mentioned above, experts use different methods to assess the workload of judges, but all of them are based on the concept of "load factor" that determines the amount of time spent by a judge to solve a case. In the U.S., such research is carried out for courts of each jurisdiction (e.g., every ten years for judges of lower courts). As to Ukrainian courts, the US expert proposed to combine two common methods for calculating the load factor: evaluation of time needed to solve a particular type of case and surveys of judges. Elizabeth Wiggins highlighted the fact that Ukrainian Judges have to deal with various types of judicial cases, and therefore, the expenditure of time and efforts by a judge are different, correspondingly [16].

For now, there is no official method to determine the ultimate workload of judges in Ukraine. But even if such scientifically-based methods are introduced, it rests unknown what to do when courts receive the so-called "extra" cases that do not refer to any category of classification. As a result, the right of citizens to access to justice may be limited, due to the fact that neither the law on judiciary nor procedural law provides for such reason for a refusal in the case. The reducing of workload of judges by increasing the number of judges in courts, even though it is an alternative for some time, does not significantly help to change the situation in practice. In any case, the problem of excessive workload of judges requires radical solutions.

Thus, the study of the issue of professional deformation prevention allows us to make several conclusions.

Professional deformation of a person is a negative impact of the occupation on personality (including, changes in values, character, ways of communication and behavior, stereotypes etc.) that becomes evident in the professional activity or private life. The proven methods of prevention and counteraction to professional deformation include the following:

1. Appointment for the judicial position of such persons who are psychologically stable and have greater resistance to the professional deformation. Development and implementation of the professiogram (set of the required skills depending on the activity) can facilitate the solving of the problem.

2. Introduction of psychological support to the judicial system, namely:

a) comprehensive psychological assessment of persons who wish to become judges, which is provided for by the Concept of improving the justice system to ensure fair trial in Ukraine in line with European standards (approved in 2006);

b) allocation of premises in courthouses for special rooms of psychological unload (provided for by the departmental building codes "Design of local courts buildings" approved by the Council of Judges of Ukraine on March 17, 2005).

3) Solving the problem of excessive workload of judges by:

a) introducing advanced information technology which will result in automation of (technical) work and allow to free judges’ time;

b) introducing scientifically-based methods of determination of the ultimate workload of judges;

c) reasonable increase in the number of judges in courts, which may lead to reducing of workload of judges.

References:

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