Department of Scientific-methodical support
High Qualification Commission of Judges of Ukraine
National School of Judges of Ukraine
The article analyzes the experience of legal regulation of judicial disciplinary liability of Republic of Poland. The grounds for disciplinary action, the procedure for disciplinary proceedings, the types of disciplinary sanctions are specifically considered.
Keywords: disciplinary liability, disciplinary proceedings, disciplinary sanctions, judicial ethics.
Problems of quality of judicial corps are relevant to every state. Disciplinary responsibility of a judge is one of the tools to ensure the quality of the judiciary and efficiency of justice. Hence, at the stage of developing and improving legal regulation of disciplinary responsibility of judges in Ukraine it is important to study the international legal instruments and borrow positive developments on this issue.
Continuing the series of publications on international regulations of disciplinary liability of judges [1, p. 160-167; 2, p. 14-20], this article considers the experience of the Republic of Poland.
Grounds for disciplinary action
The legal definition of grounds for bringing judges to disciplinary liability is quite vague in the Republic of Poland. These are the actions that discredit position of the judge and gross violations of legal norms [3, p,88, 4]. Judges of the Constitutional Tribunal, which decides on the constitutionality of legal regulations and international agreements, are brought to disciplinary liability for law violations and actions incompatible with the high status of judicial position, unethical behavior that undermines the confidence in a judge (Article 8 of the Constitutional Tribunal Act ).
By the way, such broad definition and absence of the clear list of grounds for bringing judges to disciplinary liability corresponds to the approach of the Consultative Council of European Judges (CCJE). Thus, paragraph 63 of the Opinion № 3 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality states that CCJE does not consider it necessary or possible to specify what can give rise to disciplinary action. The CCJE believes that the essence of disciplinary proceedings lies in conduct fundamentally contrary to that to be expected of a professional in the position.
Instead, Ukrainian scholars emphasize the problem of definition of judicial misconduct and positively assess the presence of comparatively large number of disciplinary misconduct determination [6, p. 7; 7, p.5].
The first interesting peculiarity of Polish law enforcement practice is that a judge in Poland shall bear disciplinary liability not only for misconduct in judicial office, but also for their behavior before they acquired this status. In particular, for improper performance of their duty as a public servant, or in case it is found that a judge is not worthy to occupy their position (paragraph 2 of Article 107 of the Law of the Republic of Poland “On the organization of courts” ).
The Law of the Republic of Poland “On the Organization of Courts” provides for the following types of disciplinary sanctions (Article 109):
- disciplinary reproof;
- removal from the performance of official duties;
- transfer to another place of work;
- dismissal from office.
In case of disciplinary proceedings with the imposition of sanctions in the form of removal from the performance of official duties or transfer to another place of work, a judge is deprived of the right to be promoted, to take administrative positions and consider disciplinary cases in court for five years term.
Polish legislation explicitly provides that a judge dismissed for disciplinary offence shall never be able to become a judge again. Ukrainian legislation does not contain such direct indication, though removal of a judge due to some misdemeanor may be regarded as a non-compliance with requirements for high personal and moral qualities of a judge set in the selection process .
What is more, according to the Law of the Republic of Poland, in case of a minor disciplinary misdemeanor the court may decide not to impose disciplinary sanctions.
Only three types of disciplinary sanctions are imposed on the judges of the Constitutional Tribunal, including:
- removal from office.
The decision of removal from office of a judge of the disciplinary court shall be approved by the General Assembly of the Constitutional Tribunal (Article 11 of the Constitutional Tribunal Act).
Disciplinary proceedings against a judge may not be initiated after three years have passed from the date of the offence. Moreover, disciplinary sanction may be imposed only within five years after the commission of the offence. If the disciplinary case is not closed within the three-year term, the court shall render a decision on the fact of disciplinary offence and terminate the proceedings.
Ukrainian legislation provides for considerably shorter time limits. Thus, according to part 4 of the Law of Ukraine “On the Judiciary and Status of Judges”, a disciplinary sanction may be applied upon a judge not later than six months after the High Qualification Commission of Judges of Ukraine opened the disciplinary proceedings but not later than a year after the offence, not counting the time of the judge’s temporary incapacity to work or vacation.
In the Republic of Poland the following courts serve as disciplinary courts for judges of courts of general jurisdiction:
In the first instance – courts of appeal; in the second instance – the Supreme Court.
Cases of judges of the first instance shall be considered by the relevant court of appeal. If a judge of the court of appeal is suspected of the commission of disciplinary offence, then the case shall be considered by a different court of appeal defined by the Chairman of the Supreme Court.
The disciplinary court shall hear the case in composition of three judges. The composition of the court may not include the head and deputy heads of the court as well as disciplinary commissioners. The disciplinary court is elected from judges of the relevant court, but the necessary condition is that one of them shall be a judge who specializes in criminal cases.
Disciplinary proceedings against judges of general courts of first instance shall be heard in regional courts if this does not contradict the interests of the judge against whom the case is heard.
The key subject of disciplinary proceedings against judges is the disciplinary commissioner, a judge elected for four years term from among candidates nominated by the general meeting of the relevant courts of appeal and works at the National Council of Judges. Disciplinary commissioner is the subject that decides whether to open disciplinary proceedings against a judge.
By their status a disciplinary commissioner is the party of prosecution in disciplinary court for judges of courts of appeal, heads and deputy heads of regional courts. In all other cases the party of prosecution is represented by the assistant of disciplinary commissioner, who is elected from among the judges by the chiefs of the corresponding regional court or court of appeal for two years.
Disciplinary cases against the judges of the Constitutional Tribunal are considered by the judges of the Constitutional Tribunal. Cases at the level of first instance are heard by the composition of five judges, while cases at the level of second instance are considered by the composition of all the judges of the Tribunal. Judges to sit in the disciplinary court and the person to raise disciplinary charges are determined by the General Assembly of the Constitutional Tribunal by lot (Article 9 of the Constitutional Tribunal Act).
Disciplinary cases against judges of administrative courts are considered by the Supreme Administrative Court. The Disciplinary Prosecutor of the Supreme Disciplinary Court shall raise disciplinary charges in these cases (Article 9 of the Law of the Republic of Poland “On the System of Administrative Courts” from July 25, 2002 ).
Thus, disciplinary offences by judges are in fact considered by judges.
Disciplinary proceedings against judges of general courts
If a disciplinary commissioner finds grounds for initiating disciplinary proceedings against a judge he/ she opens the proceedings and sends a written accusation to the judge.
The National Council of Judiciary, the Minister of Justice, the First Chairman of the Supreme Court, heads of appellate and district courts, governing bodies of appellate and district courts have the right to appeal to the Disciplinary Commissioner for bringing judges to disciplinary action. What is more, a disciplinary commissioner may on one’s own initiate the disciplinary proceedings [11, p. 89].
Individuals or legal entities that became aware of the disciplinary offence may not on their own turn to the disciplinary commissioner. Therefore, there is a kind of “legal filter”.
In addition, the so-called visitation takes place in courts once in two years. It involves verification of the judicial decisions conducted by the judge-visitator, who is the representative of the supreme court with extensive experience in treating certain categories of cases. The visitator draws up an act which displays all detected shortcomings in the work of each judge. According to the results of such verification the judge may be subject to disciplinary action .
When a case involves a judge of the appellate or regional court, the commissioner along with initiating disciplinary proceedings shall send a request to the Chairman of the Supreme Court for determining the disciplinary court to consider the matter. The decision shall be taken within seven days.
Within fourteen days after receiving the accusation a judge may give explanations and supply evidence. After expiration of the stated period, the disciplinary commissioner refers to the corresponding disciplinary court with a demand to consider the disciplinary case.
The head of the disciplinary court shall determine the date and time of the proceedings, which should take place no later than one month after submission of the demand by the commissioner. For comparison, in Ukraine a disciplinary sanction may be applied upon a judge not later than six months after the High Qualification Commission of Judges of Ukraine opened the disciplinary proceedings (part 4 of the Law of Ukraine “On the Judiciary and Status of Judges”).
In case if the disciplinary commissioner does not find grounds for disciplinary proceedings against a judge he/ she refuses to open the case. Within seven days the body which initiated the case may appeal such decision to the relevant disciplinary court. The complaint shall be considered within fourteen days.
In fact, disciplinary cases are considered by corresponding disciplinary courts. Therefore, in the Republic of Poland there is the separation of powers between the subject responsible for initiating the disciplinary proceedings and that responsible for its consideration.
In general, disciplinary proceedings against judges are open to the public. However, the hearing shall be closed if it is caused by the requirements of morality, public security and public order, or the need to protect the privacy of participants. In any case the decision of the disciplinary court shall be public.
If other disciplinary offences are discovered during the proceedings the court may take decision on them, but only with the consent of the disciplinary commissioner and the accused judge. If there is no such consent, the disciplinary commissioner shall initiate the new disciplinary proceeding.
The consideration of the disciplinary proceedings against the judge shall continue in case if the powers of the judge terminate during the process of such consideration. In case when the judge, whose term of office terminated, begins to work as a public servant (in General Public Prosecutor of the State Treasury, in particular), a lawyer, a legal adviser or a notary, the court decision in the disciplinary case shall be sent to the higher authority, to which subordinates the organization, where the former judge got the position.
If the disciplinary offence committed shows signs of a criminal offence, the disciplinary court hears the case of ex officio and may grant an order to impose criminal liability upon the judge.
After the completion of criminal proceedings the court or state prosecutor shall send the materials of the case to the corresponding disciplinary commissioner.
If the court issues the accusatory sentence that is the ground for removal of the judge, the court shall notify the Minister of Justice, who takes a decision to remove the judge, even if the more lenient sanction was imposed on them in the result of the disciplinary proceedings.
The Head of the disciplinary court shall send the court decision to the National Council of the Judiciary, the Minister of Justice and to the head and board of judges of the court where the disciplined judge holds an office.
The disciplinary court decision on transfer or dismissal of the judge shall be executed by the Minister of Justice; the decision on removal from functions shall be executed by the heads of regional and appellate courts.
Procedural issues of disciplinary proceedings that are not regulated by the Law on the judiciary shall be settled according to the Criminal Procedure Code.
The judge, disciplinary commissioner, National Council of the Judiciary and Minister of Justice have the right to appeal the decision of the disciplinary court. The appeal may be filed to the disciplinary court of the higher instance within two months from the date of the decision.
The decision of the disciplinary court of the higher instance may not be appealed by way of cassation.
Temporal removal of a judge as a precautionary measure
Disciplinary court may suspend a judge from exercising the powers of his office, if the disciplinary proceeding is initiated against them.
If the judge is detained for committing an intentional offense or an offence degrading the authority of the court, the head of the court or the Minister of Justice may issue an order for the immediate removal of the person from duty prior to the disciplinary decision of the court, but for not more than one month.
If the offence is committed by the head of the court the corresponding order shall be issued by the Minister of Justice.
The head of the court or the Minister of Justice shall report on the issued order to the disciplinary court within three days, and the court immediately, but not later than the end of the period for which the judge is removed from the exercise of their duties, shall issue a ruling on the removal of the judge or dismiss the order.
If the disciplinary court decides to bring a judge to criminal liability the judge shall be removed from the exercise of their official duties ex officio. For the period of removal the salary of the judge is reduced by 25-50 percent.
In case of justification or termination of disciplinary proceeding, the judge shall be compensated the withheld salary.
Renewal of disciplinary proceedings
The decision on bringing a judge to disciplinary liability is attached to their personal record. If within five years from the day the disciplinary sanction was applied the judge is not subjected to a new disciplinary sanction, the decision on bringing them to disciplinary liability shall be withdrawn by the order of the Minister of Justice. All decisions on imposing disciplinary sanctions to the judge shall be removed simultaneously.
The disciplinary proceedings may be renewed at the initiative of the National Council of the Judiciary, the Chairman of the Supreme Court and the Minister of Justice.
Disciplinary proceeding against the accused may be restored after it was suspended; if the decision was made in the result of violations or if within the five years term the new circumstances or evidence are discovered that may be the grounds for issuing an accusatory decision or assigning more severe punishment.
Disciplinary proceeding in favor of the accused may be restored after the death of the judge, if the new circumstances or evidence are discovered that may be the grounds for justification or assigning less severe punishment.
In case of death of the disciplined judge, the petition to renew the proceedings may be submitted by the spouse of the judge, direct relatives, brothers and sisters, adoptive parents, adopted children and disciplinary commissioner.
The review of legal regulations for bringing judges to disciplinary liability in the Republic of Poland allows making the following conclusions.
In the republic of Poland disciplinary bodies are responsible for the consideration of cases against judges of different jurisdictions. What is more, the grounds for initiating the disciplinary proceedings are also different. This is not possible in Ukrainian reality, as it does not ensure the unity of disciplinary practices.
We can also observe the separation of powers of bodies entitled to open disciplinary proceedings, and bodies responsible for consideration of disciplinary cases.
Noteworthy is the provision of the law concerning the time limit for imposition of judicial liability. In the Republic of Poland it shall be three years which is more appropriate in comparison to the Ukrainian legal regulation.
Disciplinary review procedure is clearly defined for the judges of general courts. Procedural issues that are not expressly regulated by legislative acts shall be settled according to the criminal procedure law and, therefore, the consideration of disciplinary cases is quasi-judicial in nature, which advantages have been repeatedly stressed by scholars [13, p.10].
The advantages are as follows:
- the law explicitly limits the possibility to obtain a judicial position by a person who has been dismissed from the post of a judge;
- the law provides for continuation of disciplinary proceedings after termination of judicial powers.
The issues of visitation, temporal removal of a judge from the exercise of their duties and that of renewal of disciplinary proceedings require further legal assessment.
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