WORKSHOP DISCIPLINARY PROCEEDINGS AGAINST JUDGES AND PROSECUTORS IN UKRAINE JUDICIAL DISCIPLINARY PRACTICE: PROVING JUDICIAL MISCONDUCT, HEARING OF EVIDENCE AND DRAFTING INVESTIGATION REPORT KYIV, OCTOBER 21, 2018 JOSÉ MANUEL DURO MATEUS CARDOSO 5/3/2019`1 FOOTER GOES HERE

2 JUDICIAL DISCIPLINARY PRACTICE: PROVING JUDICIAL MISCONDUCT, HEARING OF EVIDENCE AND DRAFTING INVESTIGATION REPORT

3- Disciplinary Proceeding Disciplinary proceeding is specific with regard to the peculiarity of the proceeding which is different from criminal proceedings and any other liability issue, requiring a specific legal framework.

4- Draft Investigation Conclusions Well-established draft conclusions deliver a basis for the development of disciplinary case. Allowing a uniform interpretation and application of the law in order to a fair trial as set out in Article 6 ECHR.

5- Minimum Elements of Draft Conclusions Legal basis; Established facts; Deliberation of evidences; Subsumption.

6- Draft Investigation Conclusions Better the Draft Conclusions of the Disciplinary Inspector are elaborated, the better the ground is prepared for the disciplinary proceeding in the HCJ and well-designed decisions of the HCJ.

7- Draft Investigation Conclusions Structure Complaint Summary of the complaint – circumstances as stated by the complainant as well as evidences presented.

8- Draft Investigation Conclusions Structure Legal Basis Provisions of the Law of Ukraine On the Judiciary and Status of Judges, the applicable Code of Ethics or other laws should be cited which determine the misconduct and gave grounds to initiate the investigation.

9- Draft Investigation Conclusions Structure Summary of Investigation Short report about the tasks carried out (interviews, statements, witnesses, documents collected, etc).

10- Draft Investigation Conclusions Structure Summary of factual findings Facts clearly identified. Basis/evidence(s) for the conclusion. Facts uncontroversial and facts controversial.

11- Draft Investigation Conclusions Structure Summary of factual findings (cont.) When important facts are in dispute must be clearly identified and explained why an evidence is relied on and why it is given more credibility to an evidence over another. This applies to witnesses’ testimonies or documents. Facts, not conclusions.

11- Draft Investigation Conclusions Structure Analysis/Subsumption/Conclusion A legal analysis and assessment will have to be carried out whether a disciplinary offence was committed and which one. Explain why and how the facts do, or not amount to the particular professional misconduct under the respective legal provision. References to other cases already decided by the HCJ to ensure uniform application of the law.

Thank you very much for your attention