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10Жамият ва инновациялар -Общество и инновации -
Society and innovations
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The international standards for disciplinary responsibility of judges and the national legislation of Uzbekistan
Odiljon SULAYMANOV1
High School Judges with the supreme judicial council of the Republic of Uzbekistan
ARTICLE INFO
ABSTRACT
Article history:
Received 10 august 2020 Received in revised form 20 august 2020
Accepted 25 august 2020 Available online August 2020
Keywords:
Disciplinary proceedings against judges International standards Experience of foreign countries
National judicial councils Composition of disciplinary bodies.
The article examines international standards and the experience of foreign countries in the field of initiating disciplinary proceedings in relation to judges. Besides, the issues of the implementation of international standards of disciplinary responsibility of judges in the national legislation of Uzbekistan are analyzed.
2181-1415/© 2020 in Science LLC.
This is an open access article under the Attribution 4.0 International (CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Судьяларнинг интизомий жавобгарлигига оид халцаро стандартлар ва Узбекистон миллий цонунчилиги
Калит сузлар:
Судьяларга нисбатан интизомий жавобгарлик ишларини кузгатиш Халцаро стандартлар Хорижий давлатлар тажрибаси
Миллий суд кенгашалари Интизомий жавобгарлик ишларини курувчи органлар таркиби.
АННОТАЦИЯ
Мацолада судьяларга нисбатан интизомий жавобгарлик ишларини кузгатишга оид халцаро стандартлар ва сох,ага оид хорижий давлатлар тажрибаси урганилган. Судьяларнинг интизомий жавобгарлигига оид халцаро стандартларни Узбекистон миллий цонунчилигига имплементация цилиш масалалари тах,лил цилинган.
1 PhD, Associate Professor, Chief Specialist of the High School Judges with the supreme judicial council of the Republic of Uzbekistan, Tashkent, Uzbekistan E-mail: odiljon.sulaymanov@gmail.com
IScience
iArowjA f/W *и</ cpAcc
Международные стандарты дисциплинарной
ответственности судей и национальное законодательство Узбекистана
АННОТАЦИЯ
Ключевые слова:
Возбуждение дисциплинарного производства в отношении судей Международные стандарты
Опыт зарубежных стран Национальные судебные советы
Состав дисциплинарных органов.
В статье рассматриваются международные стандарты и опыт зарубежных стран в области возбуждения дисциплинарного производства в отношении судей. Проанализированы вопросы имплементации
международных стандартов дисциплинарной
ответственности судей в национальное законодательство Узбекистана.
INTRODUCTION
In his preliminary discussions Diego Garcia-Sayan, Special Rapporteur of the UN Human Rights Council on the Independence of Judges and Lawyers, expressed his concern about disciplinary proceedings against judges in Uzbekistan as stated below: the existing grounds for initiating disciplinary proceedings against judges are too general and broad, in particular the one referring to "violation of the rules of ethical judicial conduct". The grounds and procedure for conducting disciplinary proceedings against judges should be regulated by law, and the responsibility for carrying out such proceedings should be vested in an independent authority composed primarily of judges, such as a judicial council or a court. Court chairpersons should be deprived of their power to initiate disciplinary proceedings[1].
According to the statistics from the Supreme Council of Judges of the Republic of Uzbekistan, in 2018 and 8 months of 2019, the Supreme Council of Judges initiated a total of 253 disciplinary cases against judges, according to which 123 (48.6%) judges were "excused". Moreover, 14 (5.5%) judges were subjected to "penal" disciplinary measures, 81 (32%) the disciplinary cases were dismissed, judges were warned, 14 (5.5%) judges were dismissed prematurely, 2 (0.7%) consideration of 19 disciplinary cases that were left without consideration of the decision since the judge's term was expired [2].
DISCUSSION
Although the current legislation provides for the application of severe and penal disciplinary measures against judges, judicial qualification commissions practice warning judges as a disciplinary sanction and file a petition with the Council for early termination of powers. To solve these problems in practice, considering international standards and the experience of foreign countries, it is proposed to create an effective and efficient system of disciplinary proceedings against judges by introducing the following additional disciplinary measures into legislation: warning, restrict qualifications for up to six months, a fine of not more than thirty percent of the average monthly salary, early termination of powers of a judge.
As recorded in international standards, the disciplinary responsibility of judges should be consistent with the basic principles of law. In particular, the occurrence of liability as a result of breach of obligations is clearly defined by law. A fair audit should be conducted and the views of the parties, including the judge, should be heard. Punishment should be clearly defined by law. The application of punishment should be based on the principle of proportionality.
A judge should have the right to appeal a disciplinary sanction to a higher court[3]. In its turn, the procedure for instituting disciplinary proceedings against judges also does not fully comply with the principle of judicial independence. Notably, the law states that disciplinary proceedings against a judge may be instituted by the Council and the Chairman of the Supreme Court. Peculiarly, the law stipulates that disciplinary proceedings against a judge may be instituted by the Council and the Chairman of the Supreme Court. Article 6, paragraph 6 of the Law on the Supreme Council of Judges of the Republic of Uzbekistan clearly stipulates that one of the main tasks of the Council is to consider the issue of bringing judges to disciplinary responsibility, as well as issuing a conclusion to bring them to criminal and administrative responsibility[4]. In accordance with Article 49 of the Regulations on Qualification Boards of Judges, the Chairman of the Supreme Court of the Republic of Uzbekistan has the right to initiate disciplinary proceedings against judges of the courts of the Republic of Uzbekistan.
The authority to review disciplinary proceedings against judges should be vested in an independent body. The independent body may be the Council of Judges or the court itself. International law enforcement mechanisms, including the UN Special Rapporteur on the independence of judges and lawyers, violate the principle of the independence of the judiciary due to the participation of the executive in the work of the body considering disciplinary proceedings against judges[5]. This is to say that the decision of the Council on disciplining a judge is a guarantee of the independence of the judiciary. Accordingly, Article 7 of the Law on the Supreme Council of Judges of the Republic of Uzbekistan defines the powers of the Council to bring judges to disciplinary responsibility. In the above-mentioned law, the Council:
- considers the issue of disciplinary proceedings in relation to judges and sends materials to the appropriate qualification commissions of judges;
- considers the issue of disciplinary proceedings against members of the Council, who carry out their activities on an ongoing basis;
- gives an opinion on the criminal or administrative prosecution of judges [6].
Section 7 of the law defines the powers of the Council with respect to disciplinary
proceedings. The Council considers the issue of disciplinary proceedings in relation to judges, and then send the materials to the relevant qualification boards of judges. In such case, the Supreme Council of Judges decides whether to prosecute the judge or not, and then sends the materials to the appropriate qualification boards. Next, qualification boards apply an appropriate disciplinary action.
Article 70 of the Law of the Republic of Uzbekistan "On Courts" establishes the procedure for bringing a judge to criminal and administrative liability. This means that a criminal case against a judge can be initiated only by the Prosecutor General of the Republic of Uzbekistan. A judge may not be prosecuted or arrested without the conclusion of the Supreme Council of Judges of the Republic of Uzbekistan and without the consent of the Plenum of the Supreme Court of the Republic of Uzbekistan. It is defined that a judge
cannot be brought to administrative responsibility unless the Supreme Council of Judges of the Republic of Uzbekistan concludes so[7].
The conclusion and consent of the judiciary to bring a judge to criminal and administrative liability is in line with international standards. This is an important factor in ensuring the independence of the judiciary. The Supreme Council of Judges of the Republic of Uzbekistan should play an important role in the fulfilment of disciplinary sanctions on judges.
At the same time, in practice, the disciplinary case instituted by the chairman of the Supreme Court is not referred to the Council, but is sent directly to the qualification commissions of judges who decide the issue of disciplinary action against a judge.
In particular, the Chairman of the Supreme Court initiated 23 disciplinary cases against judges in 2018 and 2 in the first 6 months of 2019, and the materials were sent to the qualification boards of the relevant judges[8].
As the experience of foreign countries depicts, the President of the Supreme Court of the Republic of Kazakhstan submits a proposal to the Supreme Council of Judges to consider disciplinary proceedings against all judges, the Chairman of the Supreme Court of Georgia sends materials on disciplinary proceedings in relation to all judges to the Supreme Council of Justice; In the case of lower court judges, only the President of the Supreme Court may initiate disciplinary proceedings against judges of the Supreme Court and send the materials to the Ethics Court, which is a separate body. In Armenia, the Minister of Justice, the chairman of the Court of Cassation and the Disciplinary Commission initiate disciplinary proceedings against judges and send materials to the Council of Justice.
With the aim of eliminating the current contradictions in the legislation, limiting the subordination of judges to the leadership of the Supreme Court and ensuring their true independence in practice, it is proposed to legislate the right of the Chairman of the Supreme Court to submit a disciplinary case to the Council.
In agreement with Article 50 of the Regulations on Qualification Boards of Judges, the Chairman of the Supreme Court of the Republic of Uzbekistan, who initiated a case on disciplinary liability of a judge, must analyze in advance the information on the grounds for bringing a judge to justice and demand a written explanation. A judge against whom disciplinary proceedings have been instituted is acquainted with the case materials before they are sent to the panel of judges. In this case, the judge has the right to provide additional explanations or to request a further investigation[9].
Article 7 of the Law on the Supreme Council of Judges of the Republic of Uzbekistan states that the Council considers disciplinary proceedings in relation to judges[10]. However, this legislation does not state that judge has the right to participate in the process of disciplinary proceedings by the Council or the Qualification Board of Judges, to exercise the right to defense, and to express his opinion.
In the Russian Federation, a judge has the right to participate in the disciplinary proceedings against him, while in Ukraine, Belarus, Georgia, and Kazakhstan, the participation of a judge in disciplinary proceedings is mandatory.
In order to safeguard the observance of the principle of independence of judges in the process of disciplinary proceedings, to ensure impartial and fair consideration of disciplinary cases by the Council and the Judicial Qualifications Commission, it is proposed to establish in law the obligation of a judge.
As pointed out in Article 76 of the Rules of Procedure of the Supreme Council of Judges of the Republic of Uzbekistan, the Council considers the issue of disciplinary proceedings against a judge, including a special ruling against a judge(s)[11].
The statistics from the Supreme Council of Judges demonstrates that in 2018, 40 of the 136 disciplinary cases against judges were initiated as a result of private rulings issued by the courts, while in the first 8 months of 2019, the figure was 60 respectively [12].
It is stated in Article 73 of the Law on Courts, the annulment or modification of a court decision does not in itself constitute liability for a judge who participated in the issuance of a court decision in case he did not intentionally violate the law or cause dishonesty with serious consequences[13].
Kiev recommendations on the independence of the judiciary also point out that disciplinary measures in relation to judges can only be instituted if they have made gross and unforgivable mistakes that could damage the reputation of the entire judicial community.
At the same time, the assessment of judges' professional performance should include an assessment of their professional and social skills. And this should not affect the independence of judges[14].
As recorded in Article 66 of the Council of Europe Committee of Ministers' recommendations, "the application of the law by judges, the assessment of facts and evidence shall not be grounds for civil or disciplinary action, except for acts or omissions committed by them intentionally or as a result of gross negligence[15]."
Nevertheless, there is a practice of making some decisions against judges without observing the above requirements in cases where decisions of lower courts are canceled or amended by higher courts. The main reason for this is that the procedural law does not establish clear grounds and criteria for special decisions against judges.
The main reason for this is that the procedural legislation does not set clear grounds and criteria for issuing special rulings against judges. In particular, the Law of the Republic of Uzbekistan "On Courts", the Administrative Procedure Code and the Economic Procedure Code do not include a special decision regarding a judge. It is difficult to determine whether it is possible to issue a separate ruling on judges from the content of article 496 of the Code of Criminal Procedure, but article 379 of the Code of Civil Procedure provides that the law has been violated to such an extent that there are no grounds for cancellation. It is stated that the courts of appeal, cassation and supervisory jurisdiction believe that violations of the law by the court that examined the case are not grounds for cancellation, amendment or adoption of a new decision[16].
As a result, of the 63 private decisions submitted to the Council for the 9 months of 2019, 42 (66.7%) were deemed suitable for disciplinary proceedings against a judge, and 21 (33.3%) were rejected[17]].
It is proposed to amend the Law on Courts and all procedural codes in order to ensure the independence of judges in the administration of justice, to legislatively regulate the grounds and procedure for making special decisions regarding judges, as well as to unify judicial practice in this regard.
"In accordance with the Regulation on the Qualification Bodies of Judges, appeals against decisions of the qualification collegium of judges are considered by the High Qualification Commission of Judges[18], and appeals against decisions of the Higher Qualification Council of Judges are examined by it.
The lack of impartiality in the trial gave the judges the impression that their decisions were unjust.
In countries such as Kazakhstan, Ukraine and Moldova, appeals against decisions of the qualification collegiums of judges are considered by the High Council of Judges.
Decree of the Supreme Council of Judges of the Republic of Uzbekistan No. 490-III of January 29, 2018 amended and supplemented the Judicial Code of Ethics and approved its new edition. This Code is mandatory for all judges in Uzbekistan, including judges whose powers were suspended on the grounds provided by law. In accordance with paragraph 6 of the decision of the High Council of Judges of the Supreme Council of Judges of January 29, 2018 No. 490-III, judicial officials must also comply with this code[19].
Based on the above-mentioned regulations, with the aim of introducing international standards of judicial discipline into national legislation, the following conclusions and recommendations are accepted:
CONCLUSION
Due to international standards, the powers of court presidents should be limited to representative and administrative functions. They should not participate in the election of judges or in the discussion of disciplinary proceedings against judges; According to international standards, disciplinary proceedings against judges are regulated by law only if they are just and disciplinary in a judicial or other independent body for misconduct established by law, and the responsibility for such proceedings lies primarily with the judges. for example, an independent body, such as a council of judges or a court. Court presidents should be deprived the right to institute disciplinary proceedings;
- ensuring the right of a judge to participate in disciplinary proceedings against himself and to have a representative;
- guaranteeing the right of a judge subject to disciplinary action by a decision of the High Qualification Commission to appeal to the Council;
- warning about the disciplinary system, a decreasing the qualification level for a period of up to six months, suspending a judge's term of office for a specified period or dismiss with an early termination;
- clearly indicate what disciplinary action a judge can apply for certain types of crimes;
- Prohibition of the participation of a person who initiated a disciplinary case or investigation as a "judge" in resolving the issue of disciplinary liability;
- the abolition of the disciplinary procedure against a judge for violation of the "Code of Ethics for Judges";
- revoking the right of the President of the Supreme Court to initiate disciplinary proceedings against judges, giving him the right to submit to the Council a proposal to institute disciplinary proceedings in relation to judges;
- the establishment of standards ensuring the right of a judge to participate in disciplinary proceedings, exercising his right to defense, expressing his opinion and have a representative.
References:
1. Preliminary observations on the official visit to Uzbekistan. United Nations Special Rapporteur on the independence of judges and lawyers Mr. Diego GARQA-SAYAn/
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25043&LangI D=E.
2. Current archive data of the Supreme Council of Judges of the Republic of Uzbekistan.
3. Opinion on the law on Disciplinary responsibility and disciplinary prosecution of judges of common courts of Georgia adopted by the Venice Commission at its 70th Plenary Session (Venice, 16-17 March 2007). https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2007)009-e.
4. Law of the Republic of Uzbekistan "On the Supreme Council of Judges" dated April 6, 2017. // Collection of Legislation of the Republic of Uzbekistan, 2017, No. 14, Article 214.
5. Report of the Special Rapporteur on the independence of judges and lawyers. Human Rights Council Thirty-eighth session 18 June-6 July 2018.A/HRC/38/38, 60paragraph.
6. Law of the Republic of Uzbekistan "On the Supreme Council of Judges" dated April 6, 2017. // Collection of Legislation of the Republic of Uzbekistan, 2017, No. 14, Article 214.
7. Law of the Republic of Uzbekistan "On Courts" of December 14, 2000 in the new edition. / / Bulletin of the Chambers of the Oliy Majlis of the Republic of Uzbekistan, 2019, No. 2, Article 47.
8. Current archive data of the Supreme Council of Judges of the Republic of Uzbekistan.
9. Regulations on Qualification Boards of Judges. // Collection of Legislation of the Republic of Uzbekistan, 2014, No. 17, Article 190; 2017, No. 37, Article 978.
10. Law of the Republic of Uzbekistan "On the Supreme Council of Judges" dated April 6,
2017. // Collection of Legislation of the Republic of Uzbekistan, 2017, No. 14, Article 214.
11. Regulations of the Supreme Council of Judges of the Republic of Uzbekistan, approved by the Resolution of the Supreme Council of Judges of the Republic of Uzbekistan No. 8/17 of May 17, 2017. http://www.sudyalaroliykengashi.uz/uz/lists/view/164.
12. Current archive data of the Supreme Council of Judges.
13. Law of the Republic of Uzbekistan "On Courts" of December 14, 2000 in the new edition. / / Bulletin of the Chambers of the Oliy Majlis of the Republic of Uzbekistan, 2019, No. 2, Article 47.
14. Recommendations of the Kiev Conference on the Independence of the Judiciary in Eastern Europe, the South Caucasus and Central Asia. item 27. https://www.osce.org/en/odihr/73488?download=true.
15. Council of Europe Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies.66 paragraph.https: //wcd.coe.int/ViewDoc.jsp?id=1707137.
16. Code of Civil Procedure of the Republic of Uzbekistan. https://lex.uz/docs/3517337#3525602.
17. Data from the current archive of the Supreme Council of Judges.
18. Regulations on Qualification Boards of Judges // Collection of Legislation of the Republic of Uzbekistan, 2014, No. 17, Article 190; 2017, No. 37, Article 978.
19. The Code of Ethics for Judges was approved by Resolution No. 490-III of January 29,
2018. http://www.sudyalaroliykengashi.uz/uz/lists/view/37.
