DISCIPLINARY LIABILITY OF JUDGES UNDER PARAGRAPH 2 OF ARTICLE 106 OF THE LAW OF UKRAINE “ON THE JUDICIAL SYSTEM AND STATUS OF JUDGES”

Abstract

The purpose of the article is to analyze the disciplinary practice regarding the liability of judges using specific examples (in particular, the practice of the Grand Chamber of the Supreme Court), and on the basis of this analysis to generalize and provide recommendations for assessing such offenses of judges which are qualified under paragraph 2 of Article 106 of the Law of Ukraine “On the Judicial System and Status of Judges” (unreasonable delay or failure by a judge to take measures to consider an application, complaint or case within the time limit established by law, delay in issuing a reasoned court decision, untimely provision of a judge’s opinion). Methods. The methodological basis of the study is based on general scientific and special legal methods, in particular, dialectical, systemic analysis, and theoretical generalization. Results. Based on specific examples from the practice of the High Council of Justice, the Disciplinary Chambers and the Grand Chamber of the Supreme Court, the author analyzes the offenses of judges which were qualified under paragraph 2 of Article 106 of the Law of Ukraine “On the Judicial System and Status of Judges”. It is stated that the different practice of application of paragraph 2 of Article 106 of the Law “On the Judicial System and Status of Judges” is caused by different understanding of the evaluative concepts of “reasonableness of terms”, “unreasonable delay in consideration”, “failure to take measures for timely consideration”, “delay in issuing a reasoned court decision”. The author emphasizes the controversial issues of application of this ground of disciplinary liability. The author establishes that there are no uniform criteria for assessing “excessive judicial workload”. The author explains why not every violation of the deadline should necessarily be grounds for disciplinary liability of a judge. The article will help to understand which violations are promising in terms of appealing against a judge’s behavior to the High Council of Justice under paragraph 2 of Article 106 of the Law of Ukraine “On the Judicial System and Status of Judges”. It will be useful not only for disciplinary inspectors and complainants, but also for judges, as it will help to form a reasonable legal position when providing explanations in a disciplinary case. Conclusions. The mere fact that a judge violates procedural deadlines is not an unconditional ground for bringing him or her to disciplinary responsibility. It is necessary to establish the “groundlessness” of noncompliance with such deadlines. To qualify a judge’s actions under clause 2, it is required that the judge’s violation of procedural deadlines was not due to “valid reasons”. The existence of “valid reasons” is determined based on the specific individual circumstances of each case. Excessive workload of the judge and other objective reasons that led to the delay of procedural deadlines do not automatically exclude disciplinary liability. They are evaluated in conjunction with other circumstances of the case and are taken into account when the judge objectively could not ensure the case is heard within a short time. If a judge has systematically and unreasonably postponed a case, for example, by using his or her right to vacation contrary to the interests of justice, the existence of “good reasons” does not justify “delay”. A judge may postpone an administrative offense case at the request of the participants, but such postponements should not allow a person to avoid liability due to the expiration of the time limits for imposing an administrative penalty.