INTERNATIONAL CONFERENCE DISCIPLINARY LIABILITY OF JUDGES AND PROSECUTORS IN UKRAINE INTERNATIONAL AND EUROPEAN STANDARDS AND BEST PRACTICES ON THE DISCIPLINARY LIABILITY OF JUDGES AND PROSECUTORS KYIV, OCTOBER 19, 2018 JOSÉ MANUEL DURO MATEUS CARDOSO 5/27/2019`1 FOOTER GOES HERE

2 DISCIPLINARY LIABILITY OF JUDGES: INTERNATIONAL AND EUROPEAN STANDARDS AND BEST PRACTICES

Justice Before the European Citizens 3 Justice Before the European Citizens They aspire a clear, visible, simple, effective and accessible Justice; They want to have confidence in Justice; We must be in condition to assure a quality justice to cope with those hopes; For the purpose, a fair system of Disciplinary Liability of Judges play an essential role.

4 Disciplinary Liability- a private matter of employment or a matter of public interest ? Disciplinary liability is not a private matter of an employment relationship and concerning only the interests of a judge and the Judicial Council. It is a matter of public interest, related to the values of quality, transparency and accountability inherent to the principle that Justice is one of the sovereign State powers exercised in the name of the people to ensure the rule of law.

5 Main declarations and entities stating general principles in disciplinary liability - UN Basic Principles on the Independence of the Judiciary, adopted by the United Nations General Assembly in November 1985; - European Convention on Human Rights; - Bangalore Principles of Judicial Conduct and respective Comments; - European Statute for Judges - MEDEL (1993); - European Charter on the Statute Judge - Council of Europe (1998); - Magna Carta of Judges - Advisory Council European Judges (2010);

6 Main declarations and entities stating general principles in disciplinary liability - European Court of Human Rights decisions; - Opinions and recommendations of the Consultative Council of European Judges; - Recommendations of the Committee of Ministers of the Council of Europe; - Recommendations and opinions of the European Network of Judicial Councils; - Opinions of the Venice Commission (European Union and Council of Europe), concerning several countries; - Recommendations and opinions of the United Nations Office on Drugs and Crime (2011).

7 General fundamental principles, guiding the judicial disciplinary procedures - Principle of legality; - Principle of equality before the law; - Principle of presumption of innocence; - Principle "in dubio pro reo"; - Principle of proportionality; - Principle of independence and impartiality; - Publicity principle; - Principle of confidentiality.

8 International Recommendations The conduct of judges in their professional activities is understandably seen by members of the public as essential to the credibility of the courts.

International Recommendations 9 International Recommendations In the event of disciplinary offences, all necessary measures which do not prejudice judicial independence should be taken . The scale on sanctions which may be imposed is set out in the statute. The application of sanctions must be proportionate. The Council for Judiciary ensures the task of disciplinary matters fulfilled in an independent manner, preferably by the Council itself or in cooperation with other bodies.

International Recommendations 10 International Recommendations Proceedings must ensure the full hearing of the parties Procedural guarantees that must be observed: right to obtain the communication of its file and material of the preliminary investigation charged judge may be assisted by a counsel adversarial principle must be respected accused judge is to be invited to provide his or her own explanations and means of defense on the facts which he or she is accused for The hearing must be public, the decision must be reasoned, kept proportion with the seriousness of the offence and be made publicly

International Recommendations 11 International Recommendations There must be judicial remedies against the disciplinary decisions. The appeals must be carried out before a superior national court. The procedures of disciplinary proceedings against any judge must be operated guaranteeing the full defense of rights. Disciplinary cases should be heard within a reasonable time.

International Recommendations 12 International Recommendations Must be established time limitations to initiate a disciplinary proceeding and to impose a disciplinary sanction. Court inspections systems shall not serve to prejudice the independence of judges. The disciplinary proceedings must be carried in accordance with the constitutional principle of independence of the judicial activity.

International Recommendations 13 International Recommendations Disciplinary proceedings cannot have any assessment of the judicial acts of the judges which can only be criticized by the exercise of the means of appeal provided by law for the litigants. There must be a filter to treat complaints without merit. it is not correct to correlate breaches of proper professional standards with misconduct giving rise potentially to disciplinary sanctions. Disciplinary sanctions must be kept to serious misconduct and not to failure to observe professional standards which represent best practice.

International Recommendations 14 International Recommendations Permanent removal of judge can only happen with valid reasons such as commission of criminal offenses or serious infringements of disciplinary rules. The proceedings shall be determinate in accordance with established standards of judicial conduct.

International Recommendations 15 International Recommendations Complainants cannot have a right themselves to initiate or insist upon disciplinary action but they must be informed as to the final outcome of their complaints. A specific body must have the responsibility to receive complaints, obtain representations of the judge and consider whether or not is a sufficient case against the judge to call for the initiation of disciplinary proceedings to be determined by an independent authority or tribunal.

International Recommendations 16 International Recommendations In order to avoid conflicts of interest, disciplinary procedures in first instance, when not addressed within the jurisdiction of a disciplinary court, should preferably be dealt with by a disciplinary commission composed of a substantial representation of judges elected by their peers, different from the members of the Council for the Judiciary.

International Recommendations 17 International Recommendations Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.

International Recommendations 18 International Recommendations Disciplinary sanctions against magistrates must be clearly foreseen by the Law and disciplinary procedures conducted before the High Councils, and must be fair, respecting the contradictory principle and without any possibility of interference from other state powers. The disciplinary regime must display the necessary guarantees to avoid the risk of being used as a system of political control of the content of judicial decisions. Definition of conducts amounting to disciplinary offenses and penalties applicable, procedure with safeguards, in special rights of defence and possibility of challenging the disciplinary decisions, constitute a set of essential guarantees for the safeguard of independence of judiciary

Some good European practices 19 Some good European practices In the European Union, in the countries where Inspection Services exist, they are mainly composed by magistrates (judges or prosecutors) with experience in the jurisdiction. The minimum time of relevant experience required to become an inspector is, in France, 10 years; in Belgium, 10 years; in Italy, 12 years; in Spain, 15 years; in Portugal, 15 years; in Bulgaria, 12 years. The proceedings for inspectors’ appointments must be transparent as possible, enhancing quality, merit and capacity of candidates.

Some good European practices 20 Some good European practices In general, it is convenient that the Inspector has more seniority and higher rank than the Judge subject to disciplinary proceeding to ease the task of the inspector and ensure quality work (like in Portugal, France, Turkey). In Italy they must be, at least, Judges from the Court of Appeal. The analyses of the elements obtained during the disciplinary investigation must be exhaustive, rigorous and objective. The opinions delivered by the Inspectors in their reports must be motivated, and any shortcoming must be identified, accurately described and qualified in order to propose a sanction (or the closing of the case).

Some good European practices 21 Some good European practices The disciplinary record of a Judge is not automatically erased in Denmark, England and Wales, France, Italy, Portugal and Slovenia. In Norway, disciplinary decisions are made public only in an anonymous form. In Portugal, disciplinary cases are confidential until final decision.

Thank you very much for your attention