Judges face selective disciplinary proceedings
According to monitoring carried out by the Centre for Political and Legal Reform, 28, 839 complaints about judges were received in 2011 and 2012. In statistical terms this means that on average four complaints are received per judge. This only concerns complaints sent to the High Qualification Commission of Judges, not those sent to the High Council of Justice.
As a result 287 judges received reprimands or faced disciplinary proceedings, while 23 judges had submissions lodged to dismiss them for infringement of their oath. This means only one in 100 complaints achieves its aims. Most often judges are penalized for dragging out court examination or procedural infringements.
Those decisions only concerned judges of local courts, a few – courts of appeal.
Roman Kuybida, Deputy Head of the Centre points out that judges are presently overloaded. In order to not risk disciplinary proceedings, they would have to hear between 3 to 6 cases a day from beginning to end. This is impossible without infringements, yet the disciplinary bodies do not take excessive load into account.
He says that this means that the justice system is selective in its treatment of judges as well. If judges work in conditions where the grounds for disciplinary proceedings cannot be avoided, then these grounds can easily be used to place pressure on them. “This is one of the main reasons why in Ukraine judges themselves don’t believe in independent courts.”
The analysts cannot exclude the possibility that the acquittal rate has plummeted to a record low (0.2% in 2011; 0.17 in 2012) because of punishment of judges for acquittals. Despite the more adversarial nature of the new Criminal Procedure Code they doubt that the trend will change.
Based on the results of the monitoring, Mykola Khavronyuk, Director of Scientific Development for the Centre, has formulated a number of recommendations for parliament; the disciplinary bodies; and the judges themselves. He believes that the grounds for disciplinary proceedings, and especially dismissal, must be clearly set out so that judges can foresee what actions will incur such penalties. Moves to dismiss judges for infringement of their oath must take place within the framework of disciplinary procedure. It would be desirable to create a separate disciplinary body dealing with all judges, with the majority of its makeup being judges, mainly those in retirement.
He also calls on the disciplinary bodies to not initiate non-public disciplinary proceedings; to draw up and publish criteria for admissibility of complaints regarding the behaviour of judges. In order to achieve legal clarity reviews of disciplinary practice should be regularly published.
Nina Fadeyeva, a member of the High Qualification Commission of Judges did not fully agree with the results of the monitoring and said that around 70% of complaints were written out of despair or dissatisfaction with the ruling of the first instance court. In her opinion only a small percentage contain real infringements by judges.