Disciplinary Proceedings Against Judges in Ukraine: Current Issues of Legislation

Background: The paper highlights some current issues of the legislation of Ukraine in the field of disciplinary proceedings against judges. Special attention is drawn to the legal regulation of the time limits for imposing disciplinary sanctions on judges and standards of proof in disciplinary proceedings against judges, prerequisites, and tendencies predetermining their formation. This study was carried out to answer the following questions: how did the chosen approaches to reforming the High Council of Justice in Ukraine lead to the crisis of the disciplinary function of this judicial governance body? What were the prerequisites for accumulating a great number of pending disciplinary complaints against judges and the disciplinary body being overloaded? Which legislative provisions on the disciplinary procedure for judges require conceptual substantiation to simplify its procedures? To what extent do the statutory time limits for imposing disciplinary sanctions on judges meet the criteria of a reasonable time for consideration of a case? Is there any uniformity in the legislative approaches to setting such time limits for prosecutors and attorneys as representatives of related legal institutions in the Ukrainian justice system? How have the approaches to the formation of the standard of proof in disciplinary proceedings against judges changed, and what factors have influenced this? What are the tendencies in the development of legislation on disciplinary proceedings against judges? Will they contribute to achieving the aim of simplifying the procedures of such proceedings while guaranteeing reasonable time limits for consideration of such cases and ensuring guarantees of judicial independence? The article aims to provide a conceptual justification for the legislative approaches to the disciplinary procedure for judges in Ukraine, identify the defects in legislation giving rise to the crisis in the disciplinary function of the High Council of Justice, and make proposals for ensuring high performance of this legal institution with due regard for international standards and best practices. Methods: To achieve the research goals, general scientific and unique scientific research methods were applied. The concept of this paper is underpinned by fundamental sources of literature, including scientific papers, legislative acts, international conventions, and judicial practice. To meet the nature of the problem raised in the paper, research works, information, analytical reports, and practice summaries from respective reputable organisations were used. The methodological framework is based on an analysis method, a synthesis method, and a comparative method. The analysis method helped scrutinise relevant legal provisions and case law, while the synthesis method was used as part of the comparative methods. Thus, to meet the objective of the study, the Ukrainian legislation on the specifics of reforming the High Council of Justice at this stage of its development and on the peculiarities of disciplinary proceedings against judges in Ukraine was analysed. This helped outline the approaches entailing the crisis of the disciplinary function of this body, identify the prerequisites for a great number of pending disciplinary complaints against judges accumulated, and highlight the provisions of legislation in this area that require conceptual justification. A comparative legal analysis of disciplinary procedures against judges, prosecutors, and attorneys in Ukraine helped reveal a lack of a unified legislator’s conceptual approach in this regard and the existence of discriminatory features in disciplinary procedures against judges. A legal analysis of the case law of the European Court of Human Rights carried out in the framework of this study leads to the conclusion that the legal position of this court has changed as to the applicability of the Convention's criminal procedural guarantees to cases of disciplinary liability of judges. The study highlights the doctrinal approaches shaping the legal concept of “standards of proof”, the generalisation of which enabled their grouping according to the features inherent in the Anglo-American and continental systems of law. The legal analysis of these approaches helped identify the tendency in the development of legislation on disciplinary proceedings against judges, the controversy of which lies in the statement that Ukrainian law is shifting the approach to the standard of proof towards the distinction between civil and criminal cases, following the model of common law countries, even though, in general, the continental law system is not characterised by such differentiation. The use of the latest empirical data facilitated the proper argumentation of the author's conclusions. For example, the materials of the Summary of the practice for considering disciplinary cases against judges by Disciplinary Bodies were used in the study, the legal analysis of which showed that different standards of proof are applied in disciplinary proceedings against judges and that there is no clear legislative regulation of such a standard. The study employs the statistical data of the High Council of Justice shown in the Annual Report on the Status of Judicial Independence in Ukraine for 2022, as well as in the information and analytical report on the activities of this body in 2023 and 2024, as of the date of this study, which illustrate the quantitative indicators and dynamics of consideration of disciplinary complaints against judges, which enabled testing the hypothesis of whether the legislative provisions contribute to achieving reasonable time limits for consideration of such cases and ensuring guarantees of judicial independence. Results and Conclusions: it has been established that the legislative regulation of disciplinary proceedings against judges in Ukraine currently bears a range of deficiencies that entailed the so-called crisis of the disciplinary body and the accumulation of disciplinary complaints against judges left without consideration. It has been argued that the operative legislation, setting out limitation periods for imposing disciplinary sanctions on judges, necessitates a certain balance to ensure the principle of inevitability of legal liability and the principles of legal certainty and reasonable time limits. It has been ascertained that modern legal regulation of disciplinary proceedings against judges points to the shift in the approaches to the standard of proof toward differentiation of civil and criminal cases, which is predetermined, inter alia, by the impact of the case law of the European Court of Human Rights. The reasonableness of applying the “intime conviction” standard and the highest standards of procedural guarantees to judges in disciplinary proceedings, from the point of view of the judicial independence guarantees ensured, has been brought into focus. The prospective tendencies in developing the legislation on disciplinary proceedings against judges toward simplifying the procedures while simultaneously guaranteeing reasonable time limits for the consideration of such cases, as well as ensuring the guarantees of judicial independence on the pathway of achieving the due standard of proof