1. WORKSHOP DISCIPLINARY PROCEEDINGS AGAINST JUDGES AND PROSECUTORS IN UKRAINE
GROUNDS FOR DISCIPLINARY LIABILITY AND SANCTIONS AGAINST JUDGES AND PROSECUTORS: INTERNATIONAL PRACTICE IN LIGHT OF FAIR COURT PROCEEDINGS STANDARDS
KYIV, OCTOBER 20, 2018
JOSÉ MANUEL DURO MATEUS CARDOSO
5/21/2019`1
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2. 2
GROUNDS FOR DISCIPLINARY LIABILITY AND SANCTIONS AGAINST JUDGES AND PROSECUTORS: INTERNATIONAL PRACTICE IN LIGHT OF FAIR COURT PROCEEDINGS STANDARDS

3. Disciplinary Offenses3
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.

4. Opening a Disciplinary Investigation4
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.
The investigation must proceed also in cases of doubts, as long as there is a reasonable basis to believe that a misconduct may have occurred.

5. Opening a Disciplinary Investigation5
Opening a Disciplinary Investigation
The immunity for jurisdictional decisions is one of the most relevant aspects of judicial independence.
Unless a judge, while acting under judicial discretion, behaved intentionally or with gross negligence, disciplinary liability should not be admissible.

6. Performance issue or Misconduct ?6
Performance issue or Misconduct ?
If a decision is wrong because the judge acted with malice or gross negligence, disciplinary liability will be admissible.
And this is no breach of the principle of judicial independence because the punishment will not be a consequence of the decision itself but instead of the undue behavior of the judge while performing his/her professional duties.

7. Performance issue or Misconduct ?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.
Comprehensible human sources of errors and the position of the respective judge shall be taken into account in every single case.

8. Performance issue or Misconduct ?8
Performance issue or Misconduct ?
By a single ‘weak performance’, an occasional ‘oversight’, a one-time ‘delay’ the legal obligation to deliver the service in a loyal, diligent, independent and impartial manner will not be violated.
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.

9. Performance issue or Misconduct ?9
Performance issue or Misconduct ?
For the delimitation between performance issues and disciplinary misconduct, may be considered the:
extent of negligence,
frequency of occurrence of demerits,
position of the Judge within the system,
law area in which he/she is operating,
probability and the intensity of a damage resulting possibly from the conduct.

10. Performance issue or Misconduct ?10
Performance issue or Misconduct ?
Not every breach of a Code of Ethics should as such constitute a disciplinary misconduct and thus, fall within the scope of the application of the relevant legal provision (See CCJE [2002] Opinion No 3, paragraph 48.i. and paragraph 63).
Disciplinary sanctions must be kept to serious misconduct and not to failure to observe professional standards which represent best practice.

11. Category of Misconduct and Basis to Open an Investigation11
Category of Misconduct and Basis to Open an Investigation
Misconduct may arise both as a result of actions taken and of failing to act.
A misconduct may be conducted willfully or with negligence.
A behavior is serious enough as to amount to a misconduct if it proceeded from a dishonest, oppressive, or corrupt motive, under which fear and favour may, generally, be included.
One delay and/or violation of the rules of procedure usually will not constitute misconduct.
A procedural error on its own merits does not constitute grounds for initiation of disciplinary investigation. There has to be an additional factor such as abuse of office, partiality, intent (which is reflected in recurrence of the same error), or some other circumstances.
If procedural errors relate to violation of fundamental rights of the parties in the proceeding (e.g. denying the right to participate in the proceeding), then a procedural error too may constitute grounds for initiation of disciplinary investigations.

12. 12 Common Misconducts Negligence in performing A failure to perform
Abuse of judicial functions
A failure to perform judicial functions independently
A failure to perform judicial functions impartially
A violation of ethics rules

13. 13
Common Misconducts
Abuses his/her function as to gain a (non-material) advantage or to cause a damage
Not observe his oath
Does not disqualify from the involvement in the cases provided for by
the law
Interferes in the trials or cases not assigned to him
Exercises his/her functions and obligations as set out by legal provisions with negligence

14. 14 Common Misconducts Does not state grounds for a judgment
 Delegates his/her powers to non-authorized persons
 Discloses confidential information arising in the judicial function or the judgment before the publication of the sentence
 Belongs to any political party or participates in political activities of parties or is engaged in activities that are incompatible with judicial functions

15. 15
Common Misconducts
Accepts gifts or remuneration from any party or persons involved in the case or any other person for the purpose of improperly influencing the decision or activities of a judge, including also when a gift or remuneration merely creates the appearance of improper influence
 Fails, for unjustifiable reasons, to comply with decisions, written orders or requests of the High Council
 Fails to fulfill mandatory training obligations
 Behaves inside or outside the court in a manner that demeans the integrity of a judge

16. 16
Imposing Sanctions
The application of sanctions must respect the principle of proportionality.
When a sanction can be imposed between a bottom and a top level, the chosen degree must be properly reasoned in the decision.
A punitive system, in order to be fairer and pay effective justice to all judges, must have a wide number of different sanctions for different types of offenses and different degrees of seriousness.
And it is also essential in case of a serial of previous offenses, in order to fit the new sanctions to a past already marked by previous violations.

17. Usual Possible Sanctions17
Usual Possible Sanctions
Warning;
Reprimand;
Fine;
Lost of seniority;
Temporary ban on the exercise of managerial or administrative positions in courts;

18. Usual Possible Sanctions18
Usual Possible Sanctions
Transfer;
Suspension;
Inactivity;
Compulsory retirement;
Dismissal.

19. Thank you very much for your attention