Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido 22/07/22 Aceptado el 12/09/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
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Co mi té Edi tor
Eduviges Morales Villalobos
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Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 74 (2022), 456-473
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Guarantees of an independent tribunal
in administrative proceedings in the
context of the implementation of the
human right to a fair trial
DOI: https://doi.org/10.46398/cuestpol.4074.25
Iryna Sopilko *
Diana Timush **
Anastasiia Vynohradova ***
Yevhenii Zubko ****
Vitalii Gordieiev *****
Abstract
The purpose of the article was to identify problem areas to
ensure an independent court in administrative proceedings
in the context of the implementation of the human right to a
fair trial. The research was conducted using general scientic
(induction, analysis, synthesis) and special legal (formal-logical, dogmatic,
comparative-legal) methods. The authors have determined relevant areas of
court stang, such as: providing judicial power; providing administrative
positions for the court and judicial stang. It is stated that the improvement
of legislation in the judicial sphere must be carried out from the
inadmissibility of its exclusively positivist interpretation. It is concluded
that, in order to guarantee the immunity of a judge in a broad context, it is
important to prevent cases of unjustied disciplinary proceedings against
judges. An important guarantee of the legality of the disciplinary liability of
a judge is the observance by the subject of disciplinary liability of the due
process established by law. It is emphasized that this is an assessment by the
administrative court of the circumstances on which the plainti bases his
claims in cases of appeal against these acts of the High Council of Justice.
Keywords: human rights; right to a fair trial; administrative proceedings;
independent tribunal; immunity.
* Doctor of Juridical Sciences, Professor, Dean of the Faculty of Law, National Aviation University, Kyiv,
Ukraine. ORCID ID: https://orcid.org/0000-0002-9594-9280
** PhD student, National Aviation University, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-
8555-1770
*** PhD student, National Aviation University, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-
5429-2702
**** PhD student, National Aviation University, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-
2110-512X
***** Doctor of Law, Associate Professor, Sub-Department of Procedural Law, Department of Law,
Chernivtsi Yuriy Fedkovych National University, Chernivtsi, Ukraine. ORCID ID: https://orcid.
org/0000-0002-1778-0432
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Garantías de un tribunal independiente en los
procedimientos administrativos en el contexto de la
implementación del derecho humano a un juicio justo
Resumen
El propósito del artículo fue identicar áreas problemáticas para
garantizar un tribunal independiente en procedimientos administrativos
en el contexto de la implementación del derecho humano a un juicio
justo. La investigación se llevó a cabo utilizando métodos cientícos
generales (inducción, análisis, síntesis) y jurídicos especiales (lógico-
formal, dogmático, jurídico-comparativo). Los autores han determinado
áreas relevantes de dotación de personal de los tribunales, tales como:
proporcionar el poder judicial; proveer puestos administrativos para la
corte y dotación de personal judicial. Se arma que el perfeccionamiento de
la legislación en el ámbito judicial debe realizarse desde la inadmisibilidad
de su interpretación exclusivamente positivista. Se concluye que, para
garantizar la inmunidad de un juez en un contexto amplio, es importante
prevenir casos de procesos disciplinarios injusticados contra jueces. Una
garantía importante de la legalidad de la responsabilidad disciplinaria de un
juez es la observancia por parte del sujeto de la responsabilidad disciplinaria
de los debidos procedimientos establecidos por la ley. Se destaca que se
trata de una apreciación por parte del tribunal administrativo de las
circunstancias en que el actor fundamenta sus pretensiones en los casos de
apelación contra estos actos del Consejo Superior de Justicia.
Palabras clave: derechos humanos; derecho a un juicio justo;
procedimiento administrativo; tribunal independiente;
inmunidad.
Introduction
Ensuring an independent court is a necessary condition for exercising
the right to a fair trial in accordance with paragraph 1 of Art. 6 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms of 04.11.1950 ETS No 005 (European Convention on Human
Rights, 1950: 6). The peculiarities of the current stage of development of
the national justice system dictate the specics of the measures needed to
ensure an independent judiciary.
Therefore, the selection of relevant areas of an independent judiciary
in administrative proceedings in the context of the implementation of the
human right to a fair trial in view of the legal status of judges as a subject
of the judicial power, as well as its functions, is the scientic task of this
article.
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Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
The results of this study correlate with the areas of improvement of the
justice system, dened in the Strategy for the Development of Judiciary and
Constitutional Justice for 2021-2023: “ensuring the independence of the
judiciary through the development of guarantees of legality and validity of
judicial acts; development of provisions on the immunity of a judge in the
context of bringing him to justice and some other areas”.
As a result of this study, both the categories of the general part of
administrative law and process (administrative procedure, subject of public
administration) and individual institutions of the special part (stang
of public authorities, public administration in the eld of justice) are
developed. Therefore, this study develops the conceptual and categorical
apparatus of the theory of administrative law and process, as well as
strengthens the links between the institutions of administrative law and
administrative process.
In the science of administrative law and procedure, the following
issues remain unresolved: stang of the court in a broad sense (training,
placement, etc.), features of stang certain categories of administrative
court positions (e.g., court clerk, judicial protection sta), immunity ratio
and immunity of a judge. These problems are related to the subject.
1. Methodology of the study
The normative-legal regulation of legal relations in the eld of the
judicial system on ensuring an independent court in the context of the
implementation of the human right to a fair trial has been worked out.
The research was performed using both general scientic and special
legal methods of scientic knowledge, as well as in accordance with the
requirements of scientic objectivity.
The application of a systematic approach in the study allowed to study
of the administrative-legal relations regarding the subject of research as
a system, which in turn became the basis for establishing its elements
and links between them (immunity of the judge, court sta, etc.). Using
the formal-logical method, the key concepts of work were developed and
applied: “immunity of a judge”, “stang”, “an administrative procedure”,
etc.
At the same time, the application of the synthesis method allowed
to generalize the current issues of ensuring an independent court and to
create a basis for determining measures to address them. The application
of the formal-dogmatic method made it possible to strictly adhere to the
terminological meaning of the developed and obtained categories and
concepts. The application of the dialectical method allowed to take into
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account the general principles of construction and development of the
judicial system.
The normative basis of this study is the regulations in the eld of the
judiciary. Materials of judicial practice of consideration of disputes arising
from administrative-legal relations in the eld of ensuring an independent
court have been worked out. A survey of 15 respondents was conducted
among employees of the Territorial Departments of the State Judicial
Administration of Ukraine (Kyiv, Chernivtsi, Khmelnytskyi regions) and
employees of some other subjects of plenary power whose competence
includes administrative-legal relations on the organization of the judiciary.
2. Results and Discussion
2.1. Ensuring an independent court in administrative
proceedings and Ukraine’s international obligations
Global political, economic, social, and legal transformations that are
taking place in Ukraine against the background of numerous reforms in
all spheres of the society, directly aect the entire national legal system
(Denysyuk, et al., 2021). At the same time, the legal issues are often
embedded in a cluster of other problems that can aect many areas of life,
including housing, employment, education, health and access to justice.
This makes it very important to address these problems as early as possible
(Teremetskyi et al., 2021). Besides, the European integration aspirations
of state development chosen by Ukraine requiring the introduction and
application of European values into various spheres of human activities,
in particular in the sphere of justice, also facilitate this (Teremetskyi et al.,
2020).
The development of legal means of regulating the judiciary is one of the
main activities of the judiciary in cooperation with other branches of public
authority. The activities of the judiciary are directly related to all processes
of public administration. Therefore, ensuring the sustainable development
of the state in a democratic direction is impossible without the eective
operation of the judiciary.
Disclosing the content of the right to a competent, independent, and
impartial tribunal established by law, the Oce for Democratic Institutions
and Human Rights notes that “competence” usually presupposes compliance
with the following three requirements: the competence of individual judges;
jurisdiction of the court to make legally binding decisions and jurisdictional
jurisdiction of the court (Kovalchuk et al., 2021: 961).
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Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
International standards for the organization of the judiciary indicate
the importance of stang not only for judges but also for support sta
represented by administrative positions, as well as positions of the
judiciary. In particular, in the Supplementary Agreement No 1 between the
Government of Ukraine and the European Commission, acting on behalf of
the European Union, on amendments to the Financing Agreement for the
program “Support to Reforms in the Rule of Law in Ukraine (LAW)” (ENI
/ 2016 / 039-835 & ENI / 2020 / 042-827) dated 02.09.2020, training
of court sta is recognized as an important area of budget allocations to
ensure the eciency of the judiciary, as well as their independence and
eciency (Ocial Gazette Of Ukraine, 2021).
In the context of judicial reform in the formation of the judiciary,
important changes have been made to the Constitution of Ukraine on the
procedure for appointment (election) to the position of a judge. Previously,
the rst appointment to the position of professional judge for a term of
5 years was made by the President of Ukraine. All other judges, except
for judges of the Constitutional Court of Ukraine, were elected by the
Verkhovna Rada of Ukraine indenitely, in accordance with the procedure
established by law (Article 128 of the Constitution of Ukraine).
Now the procedure for appointing a judge has been signicantly
simplied and brought closer to European standards. According to Art. 128
of the Constitution, the appointment of a judge is made by the President of
Ukraine on the proposal of the Supreme Council of Justice in the manner
prescribed by law. Such an appointment is made by competition. As for the
Head of the Supreme Court, he is still elected and dismissed by secret ballot
by the Plenum of the Supreme Court in the manner prescribed by the law.
Thus, in the context of judicial reform, the Decree of the President
of Ukraine “On the Strategy for Reforming the Judiciary, Judiciary and
Related Legal Institutions for 2015-2020” an action plan to reform the
judiciary was approved. This Strategy identies priorities for reforming the
judicial system, judicial proceedings, and related legal institutions in order
to implement the rule of law and ensure the functioning of the judiciary
in line with public expectations of an independent and fair judiciary and
European values and human rights standards.
Undoubtedly, the partial deprivation of political inuence on the
formation of the judiciary should be considered a positive development in
the reform of the justice system. The outlined priorities were implemented
in the further reform of the judiciary, which was reected in the provisions
of the Strategy for the Development of Judiciary and Constitutional Justice
for 2021-2023.
However, the catastrophic shortage of judges remains a problematic
issue today. Thus, in the Kharkiv Court of Appeal with 60 full-time judges,
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only 14 judges actually work, and this court is the largest among the appellate
general courts in terms of workload (Judicial and Legal Newspaper, 2021).
The shortage of sta is currently due to factors of both general and
specic nature. Thus, a general factor is the presence of gaps in the legislative
regulation of the principles of stang the courts. This is largely due to the
lack of elaboration on this topic in the scientic literature, and insucient
consideration of the international experience in determining the principles
of stang courts in national research.
In particular, A.V. Shevchenko, based on the results of foreign experience
of personnel work in the eld of justice, evaluates the advantages and
disadvantages of the electoral model of forming the judicial corps. As for
the principles of stang the courts, the coverage is only the principle of
independence of the judiciary as a starting point for the development of
labor legislation in the eld of personnel work in court (Shevchenko, 2020:
84-85).
2.2. The administrative-legal content of ensuring an
independent court in administrative proceedings
Taking into account Ukraine’s international obligations in rule-making
work today is axiomatic. However, the mentioned above position of S.P.
Holovatyi on the prevalence of positivist principles of legal understanding
in the science of administrative law, which creates a limited perception of
the values of the rule of law, developed by the world community, continues
to be relevant.
This, in turn, creates signicant gaps and conicts in the administrative-
legal regulation of legal procedures for stang courts. Therefore, the
provisions set out by the Venice Commission on the criteria of the rule
of law, in particular on the rule of law, have to be recognized as system-
forming for the further development of the rule of law as a principle of
stang the courts.
Factors such as the re-launch of the HCJC of Ukraine, which is still
closed, the “ceremonial function of the President in appointing judges”
should be identied, as there are cases of unjustied failure to issue decrees
by the President for a long time, unjustied and unexplained return from
the Presidential Administration of Ukraine submits materials of the High
Council of Justice on the appointment of judges.
Another category of positions in the court, without which it is impossible
to imagine the administration of justice, are administrative positions: a
chairman of the court, a deputy chairman of the court, and a secretary of the
court chamber. The administrative-legal principles of the relevant activities
have not received much attention in the pages of scientic literature.
462
Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
One of the most detailed studies that reveal this issue is the work of O.V.
Ul’ianovska, devoted to the development of administrative-legal bases for
the implementation of the right to judicial protection in the national legal
system. Within the subject of the research, the scientist deals in particular
with the issue of the essence of stang the courts in the context of ensuring
the exercise of the right to judicial protection.
Especially, the author’s concept of state-service relations in the eld of
justice, the denition of administrative position in court, and its features.
Thus, state-service relations in the eld of the judiciary are dened as
internal organizational relations by nature, arising in connection with their
parties’ professional activities in accordance with the law and aimed at
implementing the tasks and functions of the state in the eld of justice. Such
relations are governed by the rules of administrative law, both substantive
and procedural (Ul’ianovska, 2019: 230-231).
This position of the author is based on the development of an established
understanding of state-service relations in administrative law as those
that are part of the regulation of administrative law, both substantive and
procedural, can be regulated by acts of both legislative and bylaw and arise
in connection with public service (public) ocers. The value of the scientic
position of O.V. Ul’ianovska is in proving the expediency of extending the
general principles of state-service relations to internal organizational
relations arising in connection with the activities of the judiciary.
An administrative position in a court is dened as a structural unit of
a specic judicial body, determined by its sta list, which according to
the law is entrusted with a certain area of administrative (organizational-
administrative and advisory) powers. A person appointed to such a position
receives remuneration exclusively from the state budget.
Signs of an administrative position are:
A type of public service; functions of consulting and advisory and organizational
and administrative nature; the procedure for holding a position provides for the
election procedure, but the basis for holding an administrative position is the
issuance of an administrative act of an individual nature; may be combined with
the functions of the administration of justice by an ocial; is marked by the state-
authoritative nature of powers and their focus on the organization of justice; the
ocial receives a salary exclusively at the expense of the State budget (Ul’ianovska,
2019: 230-231).
Outlined conclusions O.V. Ul’ianovska (2019) are consistent with current
national legislation in the eld of justice, the practice of its application, as
well as current international standards for the organization and operation
of the judiciary. In addition, the Strategy for the Development of Judiciary
and Constitutional Justice for 2021-2023 states the expediency of
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introducing an alternative procedure for stang these positions, if due to
various circumstances the usual procedure (election by the relevant court)
is not eective.
Especially, the subject of appointment to such positions should be
the High Council of Justice, which will make appointments from among
the candidates considered at the meeting of judges of the relevant court
(paragraph 4.2.1).
The outlined provisions are consistent with the provisions expressed by
O.V. Ul’ianovska (2019). In particular, limiting the number of candidates
from which the High Council of Justice will appoint only judges who have
been elected corresponds to the organizational-administrative nature of the
position, as the chairman of the court must be able to eectively manage the
work of a particular court.
On the positive side, the denition of both the subject of appointment
and the additional nature of the relevant procedure, in general, should be
noted. Therefore, the scientic positions expressed by O.V. Ul’ianovska
(2019) lays the foundations for further improvement of the administrative-
legal status of ocials in administrative positions of the court.
Stang of courts in a broad sense involves the implementation of a
signicant number of functions of personnel work: recruitment; analytical
work on preservation, strengthening, placement, selection of personnel;
personnel needs planning; formation of the structure of a particular judicial
institution; monitoring the implementation of personnel decisions.
Attributes of the functions of personnel work within the judiciary
are: objective (dependence on the needs of society as a system of higher-
order and the judiciary in particular); managerial nature, as carried out
in the order of implementation of management activities; subjective, as
the subjects of execution are public ocers; targeted, as they are aimed
exclusively at fullling the tasks of the judiciary; continuous nature.
The role of personnel work in the judiciary is reected in the broad
limits of its legal regulation: from the Constitution of Ukraine as an act of
direct action to bylaws, including acts of judicial self-government and local
regulations. This view is defended by A.V. Shevchenko based on the results
of a study of administrative-legal guarantees of the quality of court sta as
an element of personnel work.
At the same time, the scientist proceeds from the established concept
of function as a combination of the external form of manifestation of a
certain phenomenon and its target orientation, consistently exploring the
categorical series of “judicial power functions”, “public administration
personnel functions” (Shevchenko, 2020: 107-143-144).
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Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
This scientic approach deserves to be supported. Acquisition of
positions in courts, appointments, and dismissals are the key to the proper
functioning of courts in particular and the judiciary in general. Therefore,
the scientic approach of A.V. Shevchenko, despite the fact that it does not
refer to the stang of courts, but to the stang of the judiciary as a complex
phenomenon, should be used as a basis for this work to reveal ways to
optimize current legislation in the eld of stang of courts.
A broad understanding of the stang of the courts involves the
performance of such a function as stang: the distribution of available sta
according to the functions that can be performed most eectively by specic
employees. In this context, the position expressed in Recommendation
No. R (86) 12 of the Committee of Ministers of the Council of Europe to
member states on measures to prevent and reduce excessive workload in
the courts remains relevant.
This position concerns the need to avoid, if possible, the performance
of functions not related to the judiciary by judges: holding wedding
ceremonies; concluding agreements related to family property; resolving
issues related to the promulgation of prohibitions imposed on marriage,
and some others. In particular, non-judicial functions include the collection
of court fees (Supreme Economic Court of Ukraine, 2014).
Analysis of the provisions of the current legislation, both in the eld
of justice and procedural law shows that these requirements are generally
implemented in national law and implemented in practice. At the same time,
the approach to the collection of court fees by judges is well-established.
In accordance with Art. 8, 9 of the Law of Ukraine “On Judicial Fee”
of 08.07.2011 No 3674-VI (Law of Ukraine, 2011) can be distinguished
the following functions of a judge to pay court fees: postponement or
installment payment of the court fee, reduction of its amount or release
from the obligation to pay it, taking into account the property status of the
party; verication of the fact of crediting the paid court fee to the special
fund of the State Budget of Ukraine before opening (initiating) proceedings
in the case.
Resolving issues of postponement, installment, reduction of the
amount, and exemption from the obligation to pay court fees involves a
comprehensive assessment of the circumstances of the case according
to the evaluation criteria, which can be performed only by the court. But
verifying the fact of crediting the amount of court fees paid by appointment
is a technical action that is not directly related to the administration of
justice in the case. Given the current workload on judges, it is important to
transfer this power to the competence of other court ocials.
A broad understanding of the stang of courts involves the performance
of such functions as training, motivation of public ocers, and some others.
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Therefore, an important condition for proper stang of the court sta is the
nancial support of its activity.
2.3. Judges’ disciplinary liability institute development as a
direction of ensuring an independent court in administrative
proceedings
Judicial disciplinary liability is understood as a type of legal liability,
which is manifested in the imposition of disciplinary sanctions on a judge
in connection with his violation of the law, including the Code of Judicial
Ethics (The Great Ukrainian Legal Encyclopedia, 2016). Nowadays, there
is a signicant practice of bringing judges to disciplinary responsibility
in general and with the application of this type of disciplinary action in
particular. Moreover, in 2020 there is a signicant decrease in the number
of judges subject to such disciplinary liability as to the application for
dismissal of a judge (53 judges in 2019 and 14 judges in 2020) (Information
and analytical report, 2021).
The specics of a judge’s disciplinary liability are determined by: the
eld in which the judge operates; the special status of a judge as a subject
of disciplinary liability.
The disciplinary responsibility of a judge is aimed at ensuring that
judges perform their duties properly, thus ensuring the right to a court.
Disciplinary proceedings are the only form in which the issue of bringing
a judge to disciplinary liability is resolved. Disciplinary proceedings are
dened as a procedure for consideration by an authorized body of an appeal
that contains data on a judge’s violation of requirements due to his status;
his job responsibilities; the oath of a judge.
At the same time, the immanent features of disciplinary proceedings
should be considered: condential (at the initial stage) consideration
of a disciplinary complaint; the right of a judge to independently review
a decision in a disciplinary case; special procedure for forming a board
of persons who will make decisions on the merits in a disciplinary case;
availability of appeals on the initiation of disciplinary proceedings for each
person (Marochkin et al., 2013).
The essence of disciplinary liability is “the obligation of the oender
to provide a report on their own wrongdoing and, at the same time, the
authority of the authorized entity to require such a report, to enforce their
duties” (Minka et al., 2017: 212). On the other hand, one of the principles
of independence of a judge is the provisions of Part 3 of Art. 48 of the Law
“On the Judiciary and the Status of Judges”, according to which a judge
is not obliged to provide explanations on the merits of cases that are in
his proceedings. “A judge is not obliged to give explanations in the cases
already considered” (Marochkin et al., 2013: 54).
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Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
In view of the above, the decisions made by the judge on the merits of
the case cannot be a direct basis for disciplinary liability of the judge. The
grounds for disciplinary liability of judges may be, in accordance with Part
1 of Art. Of the Law “On the Judiciary and the Status of Judges” only certain
acts of a procedural nature, or failure of a judge to perform duties related
to his status.
In this case, the application of disciplinary liability in the form of a
petition for dismissal of a judge may take place only in those specied in
Part 8 of Art. Of the Law “On the Judiciary and the Status of Judges” in
the following cases: 1) materiality of disciplinary misconduct, rudeness,
or systematic neglect of duties, provided that this is incompatible with the
status of a judge or inconsistent with the judge’s position; 2) violation of the
obligation to conrm the legality of the source of property.
The procedure for conducting disciplinary proceedings against a judge
is characterized by certain specics because the stage of initiation (opening)
of disciplinary proceedings is preceded by the stage of verication of data
on the existence of factual grounds for bringing a judge to disciplinary
responsibility. This view is defended by A.V. Shevchenko on the basis of a
study conducted in 2013 on the implementation of disciplinary liability of
judges (Shevchenko, 2013).
An analysis of the current provisions on the procedure of disciplinary
proceedings against a judge (Chapter 4, Article 2 of the Law on the High
Council of Justice) shows, in general, the preservation of the relevance of
such a staged division, with one exception. Thus, two more must be added to
these stages: appeal against the decision of the Disciplinary Chamber to the
High Council of Justice (Part 1 of Article 51 of this Law); appeal against the
decision of the High Council of Justice, adopted as a result of the complaint,
to the court (parts 1, 2 of Article 52 of this Law).
Guarantees against unjustied prosecution of judges are an important
element of the system of guarantees of judicial independence. Under
current national law, bringing a judge to disciplinary responsibility is not
covered by the notion of the immunity of a judge.
At the same time, the category of a judge’s immunity can be considered in
a broader context, as unjustied disciplinary action against a judge directly
aects his or her legal status, which can worsen the quality of a judge’s
administration of justice. An important guarantee of the legality of bringing
a judge to disciplinary liability is the subject’s disciplinary compliance with
the procedures established by the legislation.
Jurisdictional administrative procedures for ensuring the immunity
of a judge (consideration of complaints and other appeals of a judge) are
characterized by all general principles of administrative procedures, such
as: legality; equality of subjects of the administrative procedure before the
law; the proper purpose of the exercise of authority and others.
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At the same time, certain specic features of individual procedures
make it possible to highlight the specics of the composition and content
of the principles of such procedures. For example, the formal nature of the
grounds for revoking the High Councils of Justice decision to temporarily
remove a judge from justice or the decision to extend the judge’s temporary
suspension from the administration of justice in connection with criminal
prosecution (Article 65 of the Law on the High Council of Justice) that
the presence of the judge in respect of whom the relevant issue is being
considered is not mandatory.
On the other hand, the principle of the rule of law in disciplinary
proceedings against a judge is particularly relevant for further research,
given both the special status of judges as subjects of these proceedings and
the lack of a clear denition in the Law on the Judiciary and the Status of
Judges of certain grounds of disciplinary liability for the judge.
Detailed regulation of administrative and judicial forms of protection
of the rights of judges in the legislation, and many years of experience in
their application cannot protect against the unequal practice in this area,
which is the subject of discussion. Thus, in the Annual Report for 2020
“On the state of ensuring the independence of judges in Ukraine” the High
Council of Justice states the existence of case law when in order to resolve
a lawsuit to appeal the High Council of Justice decision to dismiss a judge
for violating the oath of a judge, the court determines the presence or
absence of disciplinary misconduct in the actions of judges, contrary to the
provisions of the legislation (Annual Report, 2020: 101).
At the same time, in such cases, there are other approaches of the
administrative court that are the assessment of the disputed decision of the
High Council of Justice only within the limits provided for in Part 1 of Art.
52 of the Law “On the High Council of Justice”: the powers of the High
Council of Justice; signing of the decision by all the High Council of Justice
sta; notication of the judge about the High Council of Justice meeting;
the existence of references to the statutory grounds for disciplinary liability
of judges and the reasons on which the High Council of Justice reached the
relevant conclusions.
In this case, the court assumed that the assessment of the legality of
the decision of the High Council of Justice Disciplinary Chamber in the
material context was already provided during the resolution of the plainti’s
complaints, pre-trial, and therefore the court cannot assess it a second time
and is limited to assessing the to satisfy the claim (Supreme Court: Decision
of 13.09.2021 No 9901/79/21, 2021).
Thus, in the rst case, the judicial review includes both substantive
and procedural aspects of the contested decision, and in the second it
includes only procedural ones. In accordance with Part 2 of Art. 124 of the
468
Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
Constitution of Ukraine, “the jurisdiction of the courts extends to any legal
dispute”. The element of public law dispute as a subject of the jurisdiction
of the administrative court is its ground as a set of legal facts that indicate,
in particular, the existence of reasonable claims of one of the parties to
the dispute (Kataieva, 2016: 15). Therefore, the subject of consideration
of the administrative court inherently includes the assessment of the
circumstances in which the plainti substantiates his claims.
In accordance with paragraph 3 of Part 2 of Art. 2 of the Code
of Administrative Proceedings of Ukraine one of the principles of
administrative proceedings in cases of appeal against acts of subjects
of power is the assessment of the administrative court, in particular, the
validity of these acts, id Est their implementation taking into account all
important circumstances for the adoption of the act. According to the Venice
Commission, “judges should have the opportunity to appeal disciplinary
action to an independent court” (Venice Commission, 2015: 40).
In view of the mentioned above, the option of full judicial control over
the High Council of Justice decisions on the application of disciplinary
sanctions in the form of dismissal of a judge appears promising.
As a general rule, the decision of the subject of power enters into
force immediately after its adoption (Halunko et al., 2020). However, in
some cases, this situation may cause unjustied complications for both
the complainant and the authorities. We believe that one such case is the
exceptional signicance of the nal decision for the complainant. It is an
unacceptable situation when a decision has been made, has entered into
force, and has already been implemented, but after all these stages it is
revoked.
One cannot disagree with O.M. Ovcharenko, who considers the
disciplinary liability of a judge as an element of his legal status, which
reects his position as a holder of judicial power. The scholar distinguishes
two types of disciplinary liability of a judge according to the criterion of
grounds and consequences: “ordinary (a judge continues to perform his
duties, he is a subject to only certain restrictions); incompatible with the
high rank of the judge, which makes it impossible for him to submit to the
post” (The Great Ukrainian Legal Encyclopedia, 2016: 171-173).
Norms of Part 1 of Art. 35, part 2 of Art. 52 of the Law “On the High
Council of Justice” establishes the right of a judge to appeal the court
decisions of the High Council of Justice. In this case, in accordance with
Part 3 of Art. 35 of the said Law, an appeal against the High Councils of
Justice decision does not suspend its execution, except in cases specied
by law.
Analysis of the practice of application of these norms shows that
the High Council of Justice has decided to refuse to satisfy the judge’s
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complaint against the decision of the Disciplinary Chamber to bring him
to disciplinary responsibility, and dismisses the judge without clarifying
whether its decision is appealed to the Grand Chamber of the Supreme
Court and what decision would be made by it. And this is despite the fact
that there are repeated cases of cancellation of the High Council of Justice
decisions by the Grand Chamber of the Supreme Court.
Thus, according to the results of the analysis of the activity of the Grand
Chamber of the Supreme Court in 2020, out of 66 complaints against the
High Council of Justice decisions in terms of its disciplinary powers, 4
decisions were revoked (Judiciary of Ukraine, 2020).
In addition, there is another problem that is a long time of consideration
of these complaints in the Grand Chamber of the Supreme Court. Thus, the
decision of the High Council of Justice on July 4, 2019, to leave the judge’s
complaint against the decision of the Disciplinary Chamber of the High
Council of Justice was rejected without satisfaction by the Grand Chamber
of the Supreme Court only on November 21, 2019 (Supreme Court: Decision
of 24.06.2021, No 11-777sap19, 2021).
In another case, the complaint was led on March 3, 2021, and the
decision was made on September 9, 2021 (Grand Chamber of the Supreme
Court: Decree of 09.09.2021. No 11-85sap21, 2021). This does not contribute
to the certainty of the legal status of the judge.
In accordance with the provisions of Part 2 of Art. 35, part 1 of Art. 52 of
the Law “On the High Council of Justice” the Grand Chamber of the Supreme
Court cannot assess the circumstances of a disciplinary misdemeanor, and
the subject of revision is only the High Council of Justice’s compliance with
certain procedural requirements: consideration of the judge’s time and
place, proper composition of the High Council of Justice references to the
statutory grounds for disciplinary action against a judge and the reasons for
applying these grounds, the High Council of Justice decision was signed by
all the High Council of Justice members. Therefore, we consider the actual
deadlines for consideration of complaints of judges of the Grand Chamber
of the Supreme Court to be unreasonably long.
The key nature of the legal status of judges of these decisions of the
High Council of Justice and Grand Chamber of the Supreme Court, the
real possibility of ensuring prompt consideration of the Supreme Court’s
complaints of judges against the High Councils of Justice decisions in
disciplinary cases determine the relevance of changes to current legislation
to increase the immunity of judges in disciplinary proceedings dismissal of
him from oce, consisting in the suspension of the High Councils of Justice
decision until the relevant complaint of Grand Chamber of the Supreme
Court.
470
Iryna Sopilko, Diana Timush, Anastasiia Vynohradova, Yevhenii Zubko y Vitalii Gordieiev
Guarantees of an independent tribunal in administrative proceedings in the context of the
implementation of the human right to a fair trial
To this end, it is necessary to amend Article 52 of the Law “On the
High Council of Justice”, supplementing it with part 2-1 of the following
content: “Appealing the decision of the High Council of Justice stops its
execution”. It is also necessary to take measures to actually reduce the
time for consideration of relevant complaints by the Grand Chamber of the
Supreme Court.
Conclusions
Nowadays, the following are problematic areas of ensuring an
independent court in administrative proceedings in the context of the
implementation of the human right to a fair trial: stang of courts; ensuring
the immunity of a judge in a broad context.
Current areas of stang of courts in its administrative-legal dimension
are: providing the judiciary; providing administrative positions for the
court; stang the court sta. Stang of courts in modern conditions can be
considered in a broad sense: recruitment; analytical work on preservation,
strengthening, placement, and selection of personnel; personnel needs
planning; formation of the structure of a particular judicial institution;
monitoring of the implementation of personnel decisions, etc.
In the context of providing the judiciary, it is urgent to ll vacant
positions of judges in courts of all specializations. At the same time, the
improvement of national legislation in the eld of the judiciary should
be carried out taking into account the position of S.P. Holovatyi about
the inadmissibility of his exclusively positivist interpretation, the need to
develop the principles of the rule of law in this area.
In the context of providing administrative positions for the court, it
is worth mentioning the need to increase the role of the High Council of
Justice in stang such positions, in particular, in the appointment to these
positions.
An important condition for the proper stang of the court sta is the
nancial support of its activity.
To ensure the immunity of a judge in a broad context, it is important to
prevent cases of unjustied disciplinary action against judges. An important
guarantee of the legality of bringing a judge to disciplinary liability is the
observance by the subject of disciplinary action of the proper procedures
established by the law.
In order to ensure the stability of the legal status of judges in matters
of disciplinary action, it is necessary to: reduce the time of consideration
of judges’ complaints against relevant acts of the High Council of Justice,
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prevent the entry into force of relevant acts until the decision on complaints
against them.
The introduction of full judicial control over the High Council of Justice
decisions on the application of disciplinary sanctions in the form of dismissal
of a judge is promising. This involves an assessment by the administrative
court of the circumstances in which the plainti substantiates his claims in
cases of appeal against these acts of the High Council of Justice.
Prospects for further research are the development of specic measures
necessary for the implementation of these areas.
The results of this paper are of scientic interest (development of the
theoretical basis for ensuring an independent court in administrative
proceedings in the context of the implementation of the human right to a
fair trial). Some results are of interest to practitioners (ocials responsible
for the administrative relations that are the object of this study).
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Vol.40 Nº 74
