SPECIF ASPECTS OF DISCIPLINARY PROCEEDINGS CONCERNING JUDGES INTERNATIONAL CONFERENCE DISCIPLINARY LIABILITY OF JUDGES AND PROSECUTORS IN UKRAINE SPECIF ASPECTS OF DISCIPLINARY PROCEEDINGS CONCERNING JUDGES PREPARATORY WORK IN DISCIPLINE PROCEDURE: PRELIMINARY SCREENING OF COMPLAINTS AGAINST JUDGES KYIV, OCTOBER 19, 2018 JOSÉ MANUEL DURO MATEUS CARDOSO 5/13/2019`1 FOOTER GOES HERE

2 DISCIPLINARY LIABILITY OF JUDGES IN UKRAINE: PRELIMINARY SCREENING OF COMPLAINTS AGAINST JUDGES

Disciplinary Offenses 3 Disciplinary Offenses The disciplinary offense by a judge is a culpable violation of his professional duties to such a degree that leads to a loss of confidence in the judicial system or by means of reduction or violation of legitimate rights and interests of people involved in legal proceedings, or blocking access to justice, or violating legal restrictions. Includes acts and omissions in public or private life, in the latter case if reflected in his public life, contrary to the behavior universally recognized as appropriate.

Opening a Disciplinary Investigation 4 Opening a Disciplinary Investigation The general basis for opening an investigation is a ‘reasonable basis to believe’ that a judge may have engaged in a misconduct. No investigation must be initiated if the limitation period for disciplinary misconduct ended or the respective judge, died, retired or resigned. If the decision is wrong it can be modified or annulled following an appeal.

Opening a Disciplinary Investigation 5 Opening a Disciplinary Investigation When it is obvious that the complaint is motivated only by a disagreement over the decision, it should be immediately rejected and no disciplinary proceedings should take place. If a decision is wrong because the judge acted with malice or gross negligence, disciplinary liability will be admissible.

Performance issue or Misconduct ? 6 Performance issue or Misconduct ? Comprehensible human sources of errors and the position of the respective judge shall be taken into account in every single case. The disciplinary relevance is not assumed in cases where the breach of the service obligations consists only in formal errors of performance in the area of organization and, as such, does not constitute an ethical issue.

Not opening a Disciplinary Investigation 7 Not opening a Disciplinary Investigation Not opening a Disciplinary investigation when complaint: Presents dissatisfaction with judicial decision and aim at correcting any eventual mistake made during the decision process that may be corrected within the courts system through regular or extraordinary remedies; Asks for legal or other assistance from the High Council; Seeks for influence on the proceeding before the court or the prosecutor’s office (speeding up the proceeding, aimed outcome of the proceeding, etc.);

Not opening a Disciplinary Investigation 8 Not opening a Disciplinary Investigation Represents one or more false, offensive, or frivolous complaints stating allegations of one or more various accounts of misconduct by a subject under investigation, without being substantiated by the facts or evidence to corroborate such allegations; Presents other abuse of the right of complaint, including complaints repeating previously filed complaints or complaints devoid of purpose other than propaganda;

Not opening a Disciplinary Investigation 9 Not opening a Disciplinary Investigation Relates to a conduct which is not questionable and would - if proved to have occurred – not constitute a disciplinary misconduct; Relates to the conduct of judges with regard to obligations which at the time of the alleged misconduct were not yet in force; Presents some other facts that are out of the scope of work of the High Council.

Preliminary investigation 10 Preliminary investigation The purpose of the preliminary examination is to determine whether there are sufficient facts to justify the investigation. When further information and evidence is needed to decide about the initiation of a disciplinary Investigation.

Thank you very much for your attention