ROLE OF JUDICIAL ETHICS IN REGULATION OF JUDICIAL PROFESSIONAL STANDARDS: THEORETICAL AND PRACTICAL ASPECTS
Candidate of Legal Sciences,
Department of Judicial and Law Enforcement Authorities
National University "Yaroslav the Wise Law Academy of Ukraine"
The author analyzes ethical standards of judicial profession. International legal acts regulating the issues of judicial ethics and relevant international experience are reviewed. Provisions of the Code of Judicial Ethics, approved by the XIth Congress of Judges on February 22, 2013 are studied. The mechanism of subjecting judges to responsibility for violation of moral and ethical principles of judicial conduct is analyzed.
Key words: judge, Code of Judicial Ethics, judicial oath, judicial liability.
The issue of mandatory ethical principles for Themis servants arouses a lively debate in academic legal literature. For example, the German scholar R. Tsyppelius states that ethical norms should be considered apart from legal constraints, as they are social regulators of no legal value and thus do not have peremptory force [1, p. 17]. The same point of view is replicated in the international legal recommendations. In particular, the need not to confuse ethical and disciplinary issues is highlighted in paragraph 6 of the Opinion of the first expert commission of the International Association of Judges regarding the code of judicial conduct, its implementation and principles (2004) [2, p.74].
At the same time legal scholars widely believe that ethical standards of judicial conduct are an important tool for ensuring accountability and integrity of the judiciary. Paragraph 5 of the Opinion states that ethical principles exist to exempt the figure of a judge from any suspicion and to encourage a judge to seek the highest standards. As the Russian scholar T. M. Neshtaeva notes, creating ethical principles of judicial conduct activates the internal mechanisms of self-regulation and self-control of every judge, which determines the need for their development by judicial community (judicial councils, associations of judges, etc.) without any involvement of legislative power [3, p. 259].
The Law of Ukraine “On the Judiciary and Status of Judges” from July 7, 2010 (hereinafter the Law) established that the issues of ethics of judges are determined by the Code of Judicial Ethics, approved by the Congress of Judges of Ukraine (Article 56) . This document, approved by the 11th Congress of Judges of Ukraine on February 22, 2013 (hereinafter the Code), contains a number of recommendations as to judicial conduct at work and outside of the office .
An important provision of the Law is the duty of a judge to follow the oath, which text contains the standard of administration of justice by a judge according to the principles of fairness, legality and rule of law. At the same time, the text of the oath stresses that a judge must strictly follow ethical principles of conduct, which prohibit actions that discredit the judiciary and degrade the judicial authority (Articles 54, 55 of the Law) . Interpretation of the above-mentioned legal requirements is not possible without reference to generally accepted moral imperatives and regulations (including international) that govern various aspects of proper judicial conduct.
The questions of judicial ethics were studied by both Ukrainian (I. L. Samsin [6, p. 35-38], V. V. Gorodovenko [7, p. 164], S. V. Podkopaiev [8, p. 20-25] etc.) and Russian legal scholars (O. S. Koblikov , N. V. Radutna , T. M. Neshataieva [3, p. 258-313]). However, the judicial reform gradually establishes new approaches to normative regulations of the professional ethics of judges. In connection with the adoption of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine to prevent abuse of the right to appeal" the judges’ responsibility for the violation of ethical norms was intensified in May 2010 . The new Code of Judicial Ethics emphasized that judges voluntarily assume more significant limitations to ethical conduct in course of administration of justice and in extrajudicial behavior. Given the constitutional provisions on the grounds for dismissal, one of which is a violation of oath (Part 5 of Paragraph 5 of Article 126 of the Constitution of Ukraine) , it is relevant to determine the actual mechanism for bringing judges to liability for unethical action or inaction. Thus, the aim of our research is to determine the sources of regulatory consolidation of judicial ethics standards, and to study the prerequisites of judicial responsibility for violation of these standards.
Sources of consolidation of judicial ethics standards.
Professional ethics of judges is primarily based on universally recognized norms of morality. The latter is legally defined as a system of ethical norms, rules of behaviour that exist in society and are based on traditional spiritual and cultural values, concepts of good, honour, dignity, social responsibility, conscience and justice . Moral norms are applicable in situations where legal regulations do not establish specific rules for judicial conduct corresponding to public image of judiciary and its carriers. As L. S. Haldeiev rightly emphasized, only a person aware of their civic and professional duty, displaying sincere and deep respect for law and intolerance to legal nihilism, respectful to person’s honour and dignity, persistent in their desire to seek and achieve the truth is apt for judicial activity [14, p. 234]. Only this will contribute to strengthening the authority of the court.
Current legislation is an important source of judicial ethics standards. Thus, the Law of Ukraine "On the rules of ethical conduct" from May 17, 2012 defines the rules governing the conduct of persons authorized to perform the functions of state or local government during the exercise of official duties and procedure for bringing them to liability for violation of such rules. This Law shall apply to all judges, people's assessors and jurors, members of the High Qualification Commission of Judges of Ukraine (hereinafter HQCJU), the High Council of Justice (hereinafter HCJ) and staff of the Secretariats thereof. The rules is a legal basis for the codes or standards of ethical conduct and their violation entails disciplinary, administrative and criminal liability allowing for peculiarities of legal status of these persons defined by the Constitution and laws of Ukraine. Assistance in strengthening public confidence in the government, securing its integrity, impartiality and efficiency are also among the tasks of power authorities of Ukraine . The Law of Ukraine “On the Judiciary and Status of Judges” (hereinafter the Law) defined the following official duties of judges: (a) promptly, fairly and impartially consider and decide legal cases according to the law in compliance with the principles and rules of court procedure; (b) follow the rules of judicial ethics; (c) show respect for participants in a trial; (d) follow the judicial oath; (e) not disclose information that is confidential, protected by law, including the secret of deliberation room and closed sitting of the court; (f) fulfill the requirements and adhere to restrictions established by the Law of Ukraine "On the Principles of Preventing and Combating Corruption"; (g) submit annually, before April 1, a declaration of assets, income, expenses and financial obligations for the previous year in the form and manner established by law; (h) pass regular in-service training at the National School of Judges of Ukraine (for judges appointed for the first time once in a year, for judges appointed for permanent terms once in three years) (Article 54) . Judicial duties specified by the Law are reflected in procedural law, anti-corruption acts, and other legislative prescriptions on the judiciary. They are also supported by the international legal standards incorporated into domestic law, including the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) . Obeisance to these standards is not only official, but a moral duty of a judge. In the United States and several European countries ethical principles of judicial activity are developed and approved by the judicial bodies. For example, the provisions of the model Code of Judicial Conduct, adopted by the Judicial Conference of the United States in 2007, became a reference point for the codes of judicial conduct in other US states. While in European countries the main aspects of judicial conduct are regulated primarily by law (Germany, France, Austria, Belgium, Finland, Ireland, Iceland, Norway, Portugal), and codes of judicial ethics are adopted only in some countries (Estonia, Lithuania, Italy, Slovenia) [3, p.260-313; 17, p.75-109].
In post-Soviet countries, the question of judicial ethics has traditionally received considerable attention, which is related to the necessity of proper functioning of the judiciary and to the increased public attention to the issues of the judicial independence in conditions of legal state construction.
According to Part 3 of Article 4 of the Code of Judicial Ethics of the Russian Federation from December 19, 2012, compliance to its provisions must be inner conviction of a judge, the rule of their life, that strengthens public confidence and certainty in competence, independence, impartiality and fairness of the judiciary. According to Part 3 of Article 2 of this document, in case if any question is not regulated by the Code, a judge must comply with generally accepted principles of moral and ethical conduct, and international standards of justice and judicial conduct .
International legal regulation of judicial ethics standards
Sources of consolidation of judicial ethics standards at international level can be divided into several groups. To the first group thereof belong international agreements of regional and universal character that regulate generally accepted criteria of proper administration of justice. The peculiarity of these documents is that they do not suggest comprehensive rules of ethical behavior. They only contain some criteria for evaluation of judges’ performance of their duties, which, however, become the basis for development and adoption of national ethical requirements.
An important source of regulation of the judicial ethics standards is the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which is a part of national legislation of most European countries, including Ukraine. The Convention lists the following duties of judges: (a) observance of the principle of openness and transparency of judicial process, providing media access to court proceedings, while ensuring the rights of participants in the process (Article 6, Article 10); (b) ensuring a fair, independent, objective and thorough case consideration within a reasonable time (Article 6); (c) avoiding any form of discrimination in court proceedings (Article 14) .
Main principles of judicial independence, approved by the UN General Assembly resolution in 1985 do not contain direct prescriptions as to judicial ethics, but indicate that the principle of judicial independence requires a fair trial, observance of the rights of participants in a trial and proper judicial conduct [19, p.168-170].
The second group of international legal documents regulating the issue of judicial ethics comprises international legal acts adopted by the international and European judicial community. Belonging to the so-called rules of international "soft law", these provisions are of recommendatory nature and accumulate the generalized national regulations of judicial ethics. However, some of them can be taken as a criterion for assessment of Ukrainian judges in terms of generally accepted moral norms.
The Bangalore Principles of Judicial Conduct, approved by the Economic and Social Council of the United Nations Resolution № 2006/23 from July 27, 2006, rather minutely regard the issue of ethical norms violation. Paragraph 4 of this document states that observance of ethical norms and demonstration of their observance is an integral part of the judicial activity [2, p. 28-34]. As mentioned T. M. Neshtaeva, for the first time at the international level the Bangalore principles focus on the active role of judges in the development of and adherence to appropriate standards of conduct and performance of professional functions, rather than on institutional guarantees of judicial independence. According to the scholar, the success of this document is proved by the active use of the Bangalore principles by national and international courts proves [3, p. 266].
Certain regulations relating to the issues of judicial ethics are provided for by such documents as Universal Charter of the Judge, approved by the Central Council of the international Association of Judges in 1999 (Art. 6, 7) [2, p. 35-38], Recommendation of the Committee of Ministers № R (94)12 “On judges: independence, efficiency and responsibilities” (2010) (Art. 59-65, Art. 72, 73) , European Charter on the Law “On the Status of Judges” (1998) , Opinion 3 of the Consultative Council of Judges to the Council of Europe (2002) on the principles and rules governing judges conduct, in particular ethics, incompatible behavior and impartiality [2, p. 130-147].
Judicial duties under the judicial ethics: international standards and national legislation
Analysis of the above referenced international legal acts and national legislation regulating the issues of judicial ethics allows classifying the relevant ethical principles. Ethical standards of judicial activity constitute the largest group. Among them judicial duties connected to the administration of justice should be primarily singled out. Thus, all international legal acts, as well as the Code of Judicial Conduct establish that judges in consideration and decision of cases must act independently and impartially, which should be manifested in thorough examination of all circumstances of a case, in developing relations with lawyers and other participants in court procedure, based on the avoidance of any display of favour or inequity, polite and considerate attitude. Prohibition to judges to enter in non-procedural relations with any of participants in court procedure or their representatives in the absence of other participants in the procedure also aims at ensuring the independent and impartial consideration of a case. Judges must avoid any illegal influence on their activities relating to the administration of justice and be independent of their colleagues in decision-making.
They have to act in accordance with the principles of legality and rule of law, consistently complying with the provisions of current legislation. Judges shall not show disrespect to people based on their race, sex, nationality, religion, political beliefs, socio-economic status, disability, etc., and shall not allow this to others.
Observance of the principle of openness and transparency of a court procedure is an important ethical duty of a judge. Thus, a judge shall provide media representatives access to information according to the established procedure, whilst avoiding violations of human rights and freedoms, humiliation of their honour and dignity, and undermining of authority of justice. A judge shall abstain from public statements or comments in the media on cases that are being considered in court. A judge shall not question court decisions which entered into force and may not disclose information which has become known to them in connection with the case [3, p. 28-34; 5].
In the context of analysis of judicial professional activity it is worth mentioning one example from the American judicial practice. In 2013 in the US state of Indiana a 52-year-old judge Lisa Traylor-Wolff was suspected of violating professional ethics. She was accused of sexual fondling with a 26-year-old Scott Uompleru convicted of committing a series of serious crimes, including thefts and robberies. The woman, who combined work as a judge with advocacy, defended the man in court, during which they began a love affair. For “prison petting” Lisa Traylor-Wolff was presented with four counts of breach of professional ethics: the attorney-client sex, personal interest in his fate, undermining confidence in the justice and unworthy to judge behavior. The case will be decided by the Supreme Court of Indiana and if the judge is found guilty according to the American law she will lose her judicial robes .
Rules regulating the out-of-service conduct constitute the second group of judicial ethics. According to the Code of Judicial Ethics (2013), a judge shall make every effort to ensure that, in the opinion of reasonable, law-abiding and informed person, their behavior is impeccable (Article 3). Such a broad formulation sets very high standards of out-of-service judicial conduct, which requires them to respect the basic moral imperatives prevalent in the society.
Section 3 of the Code (Articles 16-20) contains more specific rules of out-of-service judicial conduct. It provides, in particular, that a judge:
(a) may not be a member of political parties or trade unions, or take part in political activities, hold any other paid offices, perform other remunerated work except for research, teaching, or creative activities;
(b) may participate in social activities, public events, if they do not harm their status, authority of the court and can not affect the administration of justice, but shall avoid relationships that may affect the independence and impartiality of judges;
(c) shall be aware of their property interests and take reasonable steps to be aware of property interests of their family;
(d) shall take into account that family, social or any other relationships, and interference by the public authorities may not influence the behavior of a judge or judicial decision-making;
(e) may participate in social networks, on-line forums and other forms of Internet communication, but they may post and comment only that information that does not harm the authority of the judiciary and the court.
In our opinion, the most important rule regulating the out-of-service judicial conduct is that they shall give priority to justice over all other activities (Article 16 of the Code) . The Bangalore Principles of Judicial Conduct also emphasize that a judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge's family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties (Paragraph 4.9) [3, p. 28-34].
An interesting precedent occurred in the Russian Federation. In December 2012 the Head of the Berdsk City court in Novosibirsk region V. Verkhovskyi was arrested for drunk driving. When stopped the judge resisted traffic police and refused to pass medical examination. At the beginning of 2013, V. Verkhovskyi was brought to disciplinary liability and deprived of the status of a judge . Undoubtedly, this example is a vivid illustration of the fact that in everyday life a judge should not forget about their status and observe the law along with other citizens.
Restrictions related to performance of official duties constitute the third group of ethical principles. According to Paragraph 4.2 of the Bangalore Principles of Judicial Conduct, as a subject of constant public scrutiny a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly [3. P. 28-34].
Mostly, these restrictions are associated with the rights to freedom of speech and freedom of religion. According to Paragraph 4.6 of the above mentioned Principles, a judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly. But in exercising such rights, a judge shall always conduct oneself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. This restriction is fixed in the current legislation and complies with the practice of the European Court of Human Rights. According to Article 10 of the Code of Judicial Ethics a judge shall refrain from any actions or statements that may cause any doubt as to equality of professional judges, people’s assessors or jurors in the administration of justice .
There was a bright precedent of manifestation of religious activities incompatible with exercise of judicial duties in the practice of the European Court of Human Rights. In December 1999, the Court refused to satisfy the complaint of G. Pitkevich against Russia, in which the former judge appealed her dismissal from the judicial office of the Noyabrsk City District Court of the Yamalo-Nenets Autonomous Area of Russia. The ground for such decision was the fact that G. Pitkevich actively manifested her religious beliefs in performance of her judicial functions. In particular, the judge prayed publicly during court hearings and attempted to recruit as Church members several officials of the court.
After studying all the complaints and other circumstances of G. Pitkevich judicial activity, in February 1998 the Judiciary Qualification Panel dismissed the applicant from the office on the ground that she had “damaged her reputation as a judge and impaired the authority of the judiciary”. The case was appealed to all judicial bodies of Russian Federation, after which the former judge filed an application to the European Court of Human Rights.
The European Court of Human Rights found that G. Pitkevich was dismissed in accordance with the applicable legislation of the Russian Federation. The Court emphasized that the restrictions envisaged by Russian legislation being consistent with those under which the rights to freedom of religion and freedom of speech can be limited in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms, they were considered “necessary in a democratic society”. The Court concluded that G. Pitkevich’s complaint on violation of her rights to freedom of speech and freedom of religion was not justified; as an opinion by a judge concerning the morality of a party may justify an appearance of bias by the judge, unless the opinion was necessary to resolve the case and substantiate the judgment .
The next important restriction related to performance of judicial duties is their obligation to observe the anti-corruption legislation. According to the Bangalore Principles of Judicial Conduct, a judge and members of the judge's family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties. Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to appearance of partiality (Paragraphs 4.14, 4.15) [3, p. 28-34]. The Law of Ukraine "On the Principles of Preventing and Combating Corruption" establishes similar requirements and prohibitions to all state officials, including judges (financial control, a prohibition to receive gifts, requirements to avoid conflict of interest, etc.) .
Another important restriction is that on multiple office holding set forth in international regulations and current Ukrainian legislation. Thus, it is accepted that a judge while in office may not engage in other paid activities (with some exceptions). The corresponding norm is fixed in Article 53 of the Law of Ukraine “On the Judiciary and Status of Judges”. Holding a judicial position shall be incompatible with holding a position in any other body of state power, body of local self-government or with a representative mandate. No judge shall have the right to engage, in parallel with their work, in entrepreneurship or practice of law, or do any other paid work (except for teaching, scholarly, or creative activities during off-court hours), or be a member of a governing body or supervisory board of a for-profit enterprise or organization. No judge may be a member of a political party or trade union, openly sympathize with them, or take part in political actions, rallies, or strikes .
Violation of judicial ethics as the grounds for bringing to liability
According to Paragraph 4 of Part 1 of Article 83 of the Law of Ukraine “On the Judiciary and Status of Judges” systematic or gross one-time violation of rules of judicial ethics, which undermines the authority of justice is the ground for disciplinary proceedings. This provision gives reasonable grounds to believe that any gross violation of the new Code of Judicial Conduct will result in disciplinary action against a judge. However, according to Article 4 of the Code, violation of the set rules can not be regarded as the grounds for bringing judges to disciplinary liability and determining the degree of their guilt. As rightly noted by Ya. Romaniuk, the Deputy Chairman of the Supreme Court of Ukraine, a judge may be brought for liability in case of systematic or gross one-time violation that undermined the authority of justice . As stated above, violation of ethical principles of judicial conduct is the ground for constitutional responsibility of a judge, i.e. their dismissal from office (Paragraph 5 of Part 2 of Article 32 of the Law of Ukraine “On the High Council of Justice”) .
Analysis of the given provisions indicates that the current legislation does not clearly delineate which of the above violations constitute grounds for disciplinary action, and which for dismissal. Thus, it may result in double punishment of a judge. Solution of these issues is within the competence of the High Council of Justice (HCJ) and the High Qualification Commission of Judges of Ukraine (HQCJU, the Commission). According to Part 5 of Article 8 of the Law of Ukraine “On the Judiciary and Status of Judges” based on the results of disciplinary proceedings the HQCJU may decide to send a recommendation to the HCJ to submit a motion for the removal of a judge if there are grounds for doing so. Hence, there is a need for separation of powers of the stated bodies.
Summary of the practice of the HQCJU and HCJ shows that the following actions are considered violations of judicial ethics: (a) alcohol abuse and alcoholism in the workplace; (b) creating conflicts in the workplace; (c) non-procedural relations (communication) with the parties in the case; (d) lifestyle that does not meet the financial status of a judge (i.e. the expenditure obviously exceeds the declared income). Sometimes violations of procedural rules and internal court regulations can contradict the standards of judicial ethics. If a judge systematically delays producing procedural documents, is rude to participants in a procedure, violates procedural terms, these actions may be grounds for bringing a judge to liability. Attitude towards violation of ethical principles outside the workplace should be different. If, for example, a judge appears drunk in a public place and does not violate the rights of others this, certainly, does not contribute to strengthening the authority of the judiciary and violates the judicial ethics. However, this does not constitute grounds for disciplinary actions against a judge.
International experience proves that violations of judicial ethics are not unconditional ground for liability of a judge. For example, in the United States the issue of disciplinary sanctions is decided by taking into account such factors as reasonable application of the US Code of Judicial Conduct, gravity of violation, a judge’s intent and impact of misconduct on other judges and the court system. Violation of the above Code may be grounds for initiating disciplinary proceedings against a judge [3, p.291].
Bearing this in mind, we consider that violation of the Code of Judicial Ethics may be the ground for bringing a judge to disciplinary liability or constitutional liability if there is a simultaneous violation of procedural law or judicial duties established by law. The HQCJU and the HCJ shall assess the actions or inaction of a judge, taking into account a judge’s intent and their impact. Negative consequences for human rights and fundamental freedoms of participants in the procedure as a result of their unethical conduct shall be the starting criterion for liability of judges. Failure by a judge to observe ethical rules in out-of-service activity if it is not related to the administration of justice and does not violate the rights and legitimate interests of third parties can not be considered a ground for bringing a judge to liability.
The HQCJU has developed rather interesting practice regarding ethical requirements for judicial candidates. According to Paragraph 2 of Article 70 of the Law of Ukraine “On the Judiciary and Status of Judges” the qualification examination of judges shall involve evaluation of the candidate’s personal and moral qualities. It should be emphasized that during the procedure of selection the Commission conducts special inspection whether the applicant meets the established requirements and rejects those who do not meet high moral requirements advanced to the judge.
For example, in July 2012, the HQCJU rejected to recommend S. Korenev for the position of the judge of Berezovsky District Court of Odessa Region and excluded him from the reserve list as his conduct did not meet the standards of the Code of Judicial Ethics. During the special inspection it was found that S. Korenev was charged for intentional crime against property. By decision of the Court of Appeal of the Odessa region from June 21, 2002 he was released from punishment by amnesty act. Based on the formal requirements of Paragraph 3 of Article 88 of the Criminal Code of Ukraine S. Korenev is not considered to have a criminal record. The decision of the Supreme Administrative Court of Ukraine (SACU) on the appeal of the former judicial candidate against the decision of the HQCJU emphasized that "a person previously convicted of an intentional crime, may not strengthen the public confidence in the integrity, independence, impartiality and fairness of the court and can not be an example of law-abiding". Refusing the claim of S. Korenev, the SACU admitted the legitimate position of the HQCJU. The court did not take into account the plaintiff's arguments that he was released from punishment by amnesty act, because it is not a rehabilitation ground .
Prospects for the development of current legislation on judicial ethics
In some countries of the EU and CIS special committees and commissions successfully operate in the respective bodies that control the observance of the provisions of judicial ethics and provide appropriate responses to requests from judges on proper behavior in complex situations. Thus, according to Paragraph 5 of Article 2 of the Code of Judicial Ethics of the Russian Federation from December 19, 2012, if the judge has difficulty in determining whether his conduct in a particular in-work or out-of-work situation meets the requirements of professional ethics and status of judges, or if the judge is not sure how to proceed in a difficult situation to maintain independence and impartiality, he may file a request to the Commission on the judicial ethics, which can not be denied . This Commission is the permanent working body of the Council of Judges of the Russian Federation. It consists of 14 judges of different jurisdictions. Once in four years the composition of the Commission is renewed along with the composition of the Council of Judges of the Russian Federation (acts between the all-Russian Congresses of judges). The Commission on the judicial ethics is entitled to make conclusions that are approved at its meetings held at least twice a year. The Chairman of the Commission T. K. Andreeva states that during three years of its operation (2009 – 2011) the Commission considered 20 requests and provided 8 opinions. Most requests come from retired judges and concern the possibility to engage in some kind of activity after a judicial career (Russian legislation on the status of judges and the Code of Judicial Ethics imposes restrictions on that). The scope of its activities also encompasses acceptance of international judicial awards and honorary decorations .
The activity of the Russian Commission on the judicial ethics despite the large number of judges and the vast territory of the country is not very active. However, the existence of such body, clear regimentation of its functions and possibility to a judge to appeal to it in the event of a complicated situation related to the application of the Code of Judicial Ethics is a significant achievement in the sphere of securing judicial independence.
As rightly remarked the chairman of the High Council of Justice V. Kolesnitchenko, for the effectuation of the national Code on Judicial Ethics it is necessary to create special bodies on the issues of ethics and moral conduct of judges, responsible for the implementation of the Code and control over its performance . This idea is supported by the judicial community. The final clauses of one of the draft codes on judicial ethics assumed that to provide consulting assistance to judges as to correspondence of their judicial and private activities to the norms of judicial ethics an advisory body (the Commission on Judicial Ethics) shall be established at the Council of Judges of Ukraine. According to this draft code, the members of the Commission on Judicial Ethics shall be elected by the Council of Judges of Ukraine from among the judges who have significant experience and are trusted and respected within the judicial community. It should be headed by a member of the Council of Judges of Ukraine. The Commission on Judicial Ethics shall act under provisions approved by the Council of judges. Conclusions of the Commission shall be adopted by decisions of the Council of Justice of Ukraine . In our opinion the proposed solution seems to be successful and can be used in the process of reforming the national judicial system.
One of the main tasks of the Commission on Judicial Ethics shall be the provision of advice on the choice of the alternative ethical conduct of a judge in certain circumstances. Violations of judicial ethics standards fall within the competence of the HQCJU and the HCJ, i.e. bodies that decide on bringing judges to disciplinary liability and constitutional liability.
In conclusion, it must be pointed out that rules of judicial ethics, developed and approved by the judicial community bodies are an important guideline in professional and out-of-service judicial conduct. Compliance with ethical requirements is an essential duty of a judge dictated by their constitutional and legal status. Judicial Ethics, which is based on universal moral imperative, is an effective internal corporate mechanism to ensure judicial accountability to civil society.
Sources strengthening the ethical standards of judicial profession depending on their degree of imperativeness can be divided into: (a) constitutional rules that govern the legal status of judges; (b) laws that determine the duties of a judge; (c) acts of the judicial community, which adopt codes of judicial ethics. International legal standards on judicial ethics, the Bangalore Principles of Judicial Conduct in particular, play an important role in practice of bodies responsible for bringing judges to liability.
Violation of the Code of Judicial Ethics may be the ground for bringing a judge to legal liability if there is a simultaneous violation of procedural law or judicial duties established by law. The HQCJU and the HCJ shall assess the actions or inaction of a judge, taking into account a judge’s intent and their impact. Negative consequences for human rights and fundamental freedoms of participants in the procedure as a result of their unethical conduct shall be the starting criterion for liability of judges.
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