1. WORKSHOP DISCIPLINARY PROCEEDINGS AGAINST JUDGES AND PROSECUTORS IN UKRAINE
JUDICIAL DISCIPLINARY PRACTICE: ANALYSIS OF COMPLAINTS ADMISSIBILITY AND OPINIONS ON THE ELEMENTS OF DISCIPLINARY MISCONDUCT
KYIV, OCTOBER 20, 2018
JOSÉ MANUEL DURO MATEUS CARDOSO
7/8/2019`1
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2. 2
JUDICIAL DISCIPLINARY PRACTICE: ANALYSIS OF COMPLAINTS ADMISSIBILITY AND OPINIONS ON THE ELEMENTS OF DISCIPLINARY MISCONDUCT

3. 3- Disciplinary Decisions and Proceedings
The disciplinary decisions can have huge impact, especially in the career of judges and individual and collective special statutory rights provided by the Constitution and by the Law on Judiciary and the Status of Judges must be assured during all the disciplinary proceedings.

4. 4- The work of disciplinary Inspectors and the Rule of Law
An important mechanism to assure transparency and effectiveness in a Rule of Law system, also as a guarantee of independence of Judges, is the existence of an independent and competent body of disciplinary inspectors, acting according the law.
Competent Inspectors enhance better results, giving better chance to more fair disciplinary decisions.

5. 5- A fair balance between speed and quality
Timely and quality of investigation of judicial misconduct is essential
Speed cannot compromise quality because poor investigation can lead to unfair outcomes whether not punishing who must be punished whether punishing who should be acquitted.

6. 6- Performance issue or Misconduct ?
Disciplinary Inspectors, have to separate conducts that are ethically not correct however disciplinary not relevant, and disciplinary relevant misconducts.
No investigation must be initiated if the limitation period for disciplinary misconduct ended or the respective judge, died, retired or resigned.
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.

7. 7- Performance issue or Misconduct ?
Negligence in performance of a judge has to be considered as disciplinary misconduct only if the errors in the delivery of the service are clearly beyond what can normally be expected from an average judge.
Many times, it is very difficult to establish the line dividing independence and liability.

8. 8- Performance issue or Misconduct ?
For the delimitation between performance issues and disciplinary misconduct consider:
extent of negligence,
frequency of occurrence of demerits,
the position of the Judge within the system,
the law area in which he/she is operating,
the probability and the intensity of a damage resulting possibly from the conduct.

9. 9- Facilitating the Delimitation: Performance Issues or Disciplinary Misconducts ?
Has the alleged improper behavior of a judge been conducted in the following manner:
The subject of the complaints has neglected to perform his duty and/or has at least with negligence misconducted himself, taking into account elements like frequency of occurrence of demerits or the law area in which he is operating ?

10. 10- Facilitating the Delimitation: Performance Issues or Disciplinary Misconducts ?
to such a degree as to amount to an abuse of the public's trust in the judicial system, taking into account the position of the judge within the system and the publicity of the occurrence as well as the probability and the intensity of a damage resulting possibly from the conduct ?
without reasonable excuse or justification ?

11. 11- Facilitating the Delimitation: Performance Issues or Disciplinary Misconducts ?
Conclusion:
If none of the above listed boxes is ticked, the conduct will have to be assessed as performance issue which does not amount to a misconduct.
Performance issues will usually have to be addressed in the frame of evaluations and/or by the day to day guidance which court presidents have to provide to the judges in the respective court.

12. 12- Opening an Investigation or Not ?
Do the allegations to which the complaint of information refer to:
Present 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 ?
Ask for legal or other assistance from the HCJ ?
Seek for influence on the proceeding before the court or the prosecutor’s office (speeding up the proceeding, aimed outcome of the proceeding, etc.) ?

13. 13- Opening an Investigation or Not ?
Represent one or more false, offensive, or frivolous complaints stating allegations of one or more various accounts of misconduct without being substantiated by the facts or evidence to corroborate such allegations, i.e. vexatious complaint ?
Present other abuse of the right of complaint, including complaints repeating previously filed complaints or complaints devoid of purpose other than propaganda ?
Relate to a conduct which is not questionable and would - if proved to have occurred – not constitute a disciplinary misconduct ?

14. 14- Opening an Investigation or Not ?
Relate to the conduct of judges with regard to obligations which at the time of the alleged misconduct were not yet in force;
Present some other facts that are out of the scope of work of the HCJ ?
Conclusion:
If from the complaint it is clear that one of the boxes listed above is to be ticked, there is no reasonable basis to believe that a misconduct may have occurred and the complaint will not have to be further processed.

15. 15- Preliminary investigation
The purpose of the preliminary examination is to determine whether there are sufficient facts to justify the investigation.
The Inspector may contact the complainant, his attorney or legal representative, proposed witnesses, etc.
Typically, the subject under investigation will not be contacted at this stage of the proceeding.

16. 16- Preliminary investigation
The complainant may be asked to provide additional data or explanation, i.e. detailed statement on the way and circumstances which lead to the alleged disciplinary misconduct.
If the proceeding before the court office is still underway, the Inspector will evaluate the impact on the court proceeding or the work of the judge.

17. 17- Preliminary investigation
The responsible Inspector may suspend the work on the case if the relevant circumstances so require, such as the existence of the offense will depend on the course of the further proceeding before the court (passing of the decision on the merits or if the appellate proceeding is underway).
Upon the completion of the preliminary steps the Inspector will establish together with the member of the HCJ whether this complaint will have to be further processed with regard to facts that make believe that the alleged misconduct may have occurred or not.

18. Thank you very much for your attention