Russian Federation: Independence and impartiality; Judicial integrity and accountability

Respect for the rule of law is founded on public trust of the judiciary and, to maintain that trust, judges must uphold the highest standards of independence, impartiality and integrity, and must be accountable to those standards.

The guarantee of judicial decisions by independent tribunals means that judges must be free to “decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.{{1}} Thus, both state actors and non-state actors alike must respect the independence of the judiciary and refrain from action aimed at improperly influencing members of the judiciary, undermining their independence and impartiality. While respecting the hierarchy between the courts of first instance and higher courts, international standards clarify that other judges must also respect the independence of their colleagues within the scope of the exercise of judicial functions: “No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts”.{{2}}

In the course of the exercise of judicial functions, judges must be impartial, and be seen to be impartial. Judges “must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.” Further, even where an individual judge might in fact be able to ignore a personal relationship to one of the parties to a case, he or she should step aside from the case to protect against an apprehension of bias: “the tribunal must also appear to a reasonable observer to be impartial”.{{3}}

Judges must also ensure that their conduct is above reproach in the view of a reasonable observer. They must avoid impropriety and the appearance of impropriety in all their activities. Their behaviour must reinforce the people’s confidence in the integrity of the judiciary.{{4}}

A judicial code of conduct, drafted primarily by judges and members of the legal profession and consistent with international standards,{{5}} can help to safeguard judicial integrity and protect against conflicts of interest.{{6}} Pursuant to international standards, such a judicial code of conduct, which should be enshrined in the law, should serve as the basis for the determination of cases of alleged judicial misconduct within a fair disciplinary system.{{7}} The Council of Europe has recommended that this code of conduct should not only include duties that may be sanctioned by disciplinary measures, but should also offer guidance to judges on how to conduct themselves.{{8}}

Complaints about judicial misconduct must be processed expeditiously and fairly under an appropriate procedure that is subject to independent review.{{9}} The judge in question has the right to a fair hearing before an independent and impartial body. The body responsible for discipline of judges should be independent of the executive,{{10}} plural and composed mainly (if not solely) of judges and members of the legal profession.{{11}} The judge’s rights to a fair proceeding, including to notice of the accusations against him or her, to adequate time and facilities to prepare and present a defence including through counsel, to challenge the evidence against him or her and present witnesses must be respected.Decisions must be based on established standards of judicial conduct, and sanctions must be proportionate. Decisions to suspend or remove a judge must be limited to cases in which the incapacity or behaviour of a judge renders the individual unfit to discharge his or her judicial duties.{{12}} Decisions and sanctions in disciplinary proceedings should be subject to independent judicial review (although this may not apply to decisions of the highest court or the legislature in impeachment proceedings).{{13}}

In order to safeguard the independence of the judiciary, individual judges should also enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.{{14}}

In the Russian Federation, judges remain prone to undue influence. A 2010 ICJ mission learned that the phenomenon of “telephone justice” remained widespread: reportedly, judges are often – as a matter of routine – directly instructed by the court president how to resolve a specific case. The ICJ’s interlocutors also stressed the fact that as judges are aware of the expectations of a particular outcome in a case over which they preside regardless of the evidence, there is often no need to give direct instructions. Furthermore when such expectations are not met, a judicial decision may be overturned or not implemented and the judge may face discipline as a result of having issued an “erroneous” decision. Two types of cases, in which “telephone justice” is particularly prevalent, were singled out: criminal cases for conduct considered to be terrorism-related and cases related to the exercise of the rights to freedom of expression or peaceful assembly.{{15}}

In successive missions to the Russian Federation between 2010 and 2014, the ICJ has consistently been told that the judges’ mind-set can also be an obstacle to their independence: partially for historical reasons – Soviet courts were notoriously an extension of the communist party and criminal trials had a strongly accusatory character – criminal trials rarely concluded with an acquittal of the accused. The ICJ has heard, including from judges themselves, that many judges continue to see themselves as agents of the State whose goal is to protect its interests, in Soviet tradition. Coinciding with the legacy of the Soviet system, it is clear that the current system of judicial selection and promotion and the way in which disciplinary proceedings are used and conducted, demonstrate that excessive deference to the Executive remains part of the system.{{16}}

Furthermore, the prosecution services – said to be the least reformed institution in Russia since Soviet times – retain undue influence in criminal proceedings. Reportedly, as a matter of course more weight is given to the prosecution’s arguments than to the defence’s and judges may face consequences, including dismissal, if they are not perceived as being “attentive” enough to the prosecution’s demands. Likewise, judges reportedly may face consequences if they refuse to order pre-trial detention and/or grant too many acquittals. Also pressure emanating from law enforcement agencies remains strong.{{17}}

Moreover, allegations of corruption within the judiciary persist. Allegedly, some judges provide “services” to organizations and individuals, for example accepting bribes to expedite the consideration of a case or to make a particular decision. Judges are said to be vulnerable before powerful interests.{{18}}

Hence, a number of undue influences potentially affect judicial decision-making, serving to undermine the judiciary’s independence and the judge’s impartiality and the appearance thereof.

However, while outside pressure on the judiciary is often visible, the internal mechanisms have been most significant in undermining judges’ independence. In particular the disciplinary system can and does operate to undermine judicial independence.{{19}} As noted above in Section 1, the quality of the representatives in the Qualification Collegium is deemed problematic and concerns persist regarding the unofficial role of court presidents in the determination of the composition of Qualification Collegiums. Furthermore the procedures themselves do not guarantee the rights of judges who are accused of misconduct.

A disciplinary offence is defined (overly) broadly as a violation of the norms of the Law on the Status of Judges or the Code of Judicial Ethics.{{20}} Under the law, three types of disciplinary sanctions can be imposed: a warning, a reprimand and the early termination of a judge’s office (i.e., dismissal).{{21}} Dismissal results not only in termination of office and judicial salary but also in the individual’s loss of judicial pension and other social benefits.{{22}}

Disciplinary processes against judges start with a recommendation made by a court president or a Body of the Judicial Community judicial body to the local Qualification Collegium to initiate proceedings against a judge.{{23}} The court president or Body of the Judicial Community that makes the recommendation does not appear to be required to present a legal assessment of the facts.{{24}}

Court presidents and the Qualification Collegiums appear to enjoy considerable discretion when deciding whether or not to initiate disciplinary proceedings. The extent of discretion may facilitate arbitrariness and enable abuses of power by court presidents.{{25}}

If the Qualification Collegium decides to proceed with the complaint, it holds a hearing in the matter. As a general rule, hearings in such proceedings against judges are public, although exceptions to this rule are possible.{{26}} The attendance, with the right to express an opinion, of the court president{{27}} who submitted the motion for disciplinary action against the judge has been challenged, but the Constitutional Court has decided that this is not contrary to the Constitution.{{28}}

The burden of proving the case against a judge lies with the person who signed the recommendation for disciplinary action (i.e., the court president or body of the judicial community).{{29}} Doubts in proving the commission of an act of disciplinary misconduct should be interpreted in favour of the judge.{{30}}

At the hearing, the Qualification Collegium’s Chair or rapporteur sets out the essence of the case,{{31}} after which the Collegium’s members can ask the rapporteur questions{{32}} and hear the explanations of the judge under scrutiny, persons who possess information about the materials considered and the opinions of an expert.{{33}} Next, a number of exhaustively listed persons{{34}} are asked for their opinion{{35}} and the participants in the session make final statements, before the Collegium begins its deliberations.{{36}}

Many of the ICJ’s interlocutors during a 2012 mission to Russia made unfavourable comparisons between the disciplinary procedure before the Qualification Collegiums and court procedures that adequately safeguard the right to a fair trial. The judge under investigation has the right, inter alia, to be informed of the complaint,{{37}} has the right to a representative{{38}} and to familiarize him or herself with the materials and present objections and remarks.{{39}} However, at the disciplinary hearing, sitting judges can and do{{40}} represent the body that initiated the proceedings, while the judge under investigation cannot be represented by another judge. In light of the influence of sitting judges, especially those of higher courts, depriving one party to the proceedings of this opportunity constitutes a serious imbalance. There is no provision in the law that sets out the right of the judge accused of misconduct to call and question witnesses in the course of a disciplinary hearing. Thus, whether to call or question a witness is left to the discretion of the Collegium. Furthermore, the judge under investigation always has to carry his or her own costs.{{41}}

The admission of evidence is virtually unregulated, and left to the discretion of the Qualification Collegium. Sometimes, in the absence of a prescribed standard of proof, obviously flawed evidence that would not be permitted in other legal proceedings is considered admissible and ultimately, it is left to the Qualification Collegium to decide if the evidence is sufficient to prove misconduct.{{42}}

Following a hearing and finding of misconduct, a Qualification Collegium can impose a warning, it can reprimand a judge, or it can terminate the judge’s tenure in office. If the Qualifications Collegium is considering termination of a judge’s tenure, it does so by vote, taken in secret; and a decision to do so must be reasoned. Even in cases where it does not impose a disciplinary penalty, the Collegium can still draw the judge’s attention to the legal and ethical norms it considers that the judge has violated, if it considers that there is sufficient reason to do so.

Decisions of a Qualification Collegium to dismiss a judge on disciplinary grounds can be appealed to the Disciplinary Judicial Presence, by either the judge concerned or by the president of the Supreme Court.{{43}} The procedure before the Disciplinary Judicial Presence is regulated in much greater detail than that of the Qualification Collegiums, and is similar to that before ordinary courts.{{44}} However, the vagueness of the disciplinary grounds makes it very difficult to prove that a dismissal was illegitimate or illegal.{{45}}

A Supreme Court study pointed to a lack of consistency in the application of disciplinary action against judges. The study indicates that it is common for the same or similar behaviour of judges to lead to very different outcomes, depending on which Qualification Collegium decides the case. There appears to be no common understanding or interpretation of the grounds for disciplinary responsibility by Qualification Collegiums throughout the Russian Federation, and application of sanctions may often be arbitrary.{{46}} Arbitrariness can be explained in part by the fact that eighty different Qualification Collegiums are interpreting and applying the legal provisions on judges’ discipline and the Code of Judicial Conduct, without an effective mechanism in place that aims to ensure consistency.{{47}}

In the past, the lack of a statute of limitations on bringing a disciplinary complaint against a judge facilitated abusive resort to the disciplinary system, and created insecurity for judges.{{48}} However the law now requires{{49}} that disciplinary action must be taken within two years of the time of the alleged misconduct or six months from the moment the misconduct became known, provided that this knowledge is attained within two years of the alleged misconduct.{{50}}

On a number of issues, however, the Russian judicial disciplinary system remains at odds with international standards. Most importantly, the composition of the Qualification Collegium, in combination with the role of the court president therein and the flawed procedure that does not guarantee equality of arms, entail that the right of a judge accused of misconduct to a fair hearing before an independent and impartial body is not always respected. The lack of a common understanding or interpretation of the grounds for disciplinary responsibility, which in any case are too vague, and the often-arbitrary application of sanctions undermine legal certainty.{{51}}

[[1]] 1. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principles 1-7,”]

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

[/expand] in particular Principle 2; Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 11,”]

The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law. Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts.[/expand] [expand title=”Article 22;”]The principle of judicial independence means the independence of each individual judge in the exercise of adjudicating functions. In their decision making judges should be independent and impartial and able to act without any restriction, improper influence, pressure, threat or interference, direct or indirect, from any authority, including authorities internal to the judiciary. Hierarchical judicial organisation should not undermine individual independence.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Articles 2-8;”]

2. Judges individually shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. In the decision-making process, judges shall be independent vis à-vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of the judge to pronounce his judgment freely. Judges, on their part, individually and collectively, shall exercise their functions with full responsibility of the discipline of law in their legal system.

4. The Judiciary shall be independent of the Executive and Legislature.

5. (a) The judiciary shall have jurisdiction, directly or by way of review, over all issues of a judicial nature, including issues of its own jurisdiction and competence.

(b) No ad hoc tribunals shall be established to displace jurisdiction properly vested in the courts.

(c) Everyone shall have the right to be tried with all due expedition and without undue delay by the ordinary courts or judicial tribunals under law subject to review by the courts.

(d) Some derogations may be permitted in times of grave public emergency which threatens the life of the nation but only under conditions prescribed by law, only to the extent strictly consistent with internationally recognized minimum standards and subject to review by the courts.

(e) In such times of emergency, the State shall endeavour to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts, and, detention of persons administratively without charge shall be subject to review by courts or other independent authority by way of habeas corpus or similar procedures so as to ensure that the detention is lawful and to inquire into any allegations of ill-treatment.

(f) The jurisdiction of military tribunals shall be confined to military offences. There shall always be a right of appeal from such tribunals to a legally qualified appellate court or tribunal or a remedy by way of an application for annulment.

(g) No power shall be so exercised as to interfere with the judicial process.

(h) The Executive shall not have control over the judicial functions of the courts in the administration of justice.

(i) The Executive shall not have the power to close down or suspend the operation of the courts.

(j) The Executive shall refrain from any act or omission which preempts the judicial resolution of a dispute or frustrates the proper execution of a court decision.

6. No legislation or executive decree shall attempt retroactively to reverse specific court decisions or to change the composition of the court to affect its decisionmaking.

7. Judges shall be entitled to take collective action to protect their judicial independence.

8. Judges shall always conduct themselves in such a manner as to preserve the dignity and responsibilities of their office and the impartiality and independence of the judiciary. Subject to this principle, judges shall be entitled to freedom of thought, belief, speech, expression, professional association, assembly and movement.

[/expand] Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 1;”]Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 1-4.”]

Art.1
Independence

Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them.

The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.

Art.2
Status

Judicial independence must be ensured by law creating and protecting judicial office that is genuinely and effectively independent from other state powers. The judge, as holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure, and independently from other judges and the administration of the judiciary.

Art.3
Submission to the law

In the performance of the judicial duties the judge is subject only to the law and must consider only the law.

Art.4
Personal autonomy

No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.

[/expand][[1]]

[[2]] 2. Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 23;”]

Superior courts should not address instructions to judges about the way they should decide individual cases, except in preliminary rulings or when deciding on legal remedies according to the law.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 10;”]

In the exercise of their function to administer justice, judges shall not be subject to any order or instruction, or to any hierarchical pressure, and shall be bound only by law.

[/expand] Consultative Council of European Judges, Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges, [expand title=”para. 64;”]

The fundamental point is that a judge is in the performance of his functions no-one’s employees; he or she is holder of a State office. He or she is thus servant of, and answerable only to, the law. It is axiomatic that a judge deciding a case does not act on any order or instruction of a third party inside or outside the judiciary.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 4;”]

[/expand] Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 72.”]

To sum up, the Venice Commission underlines that the principle of internal judicial independence means that the independence of each individual judge is incompatible with a relationship of subordination of judges in their judicial decision-making activity.

[/expand][[2]]

[[3]] 3. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 21;”]

The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

[/expand] UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 2;”]The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 60;”]

Judges should act independently and impartially in all cases, ensuring that a fair hearing is given to all parties and, where necessary, explaining procedural matters. Judges should act and be seen to act without any improper external influence on the judicial proceedings.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 25;”]

A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

[/expand] and [expand title=”Value 4;”]

Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 5.”]

Impartiality and restraint. In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.

[/expand][[3]]

[[4]]4. Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 3″]

Integrity is essential to the proper discharge of the judicial office.

[/expand] and [expand title=”Value 4;”]

Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

[/expand] European Charter on the Statute for Judges, [expand title=”para. 4.3;”]

Judges must refrain from any behaviour, action or expression of a kind effectively to affect confidence in their impartiality and their independence.

[/expand] Consultative Council for European Judges, Opinion No. 3 (2002) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality, [expand title=”para. 50(i)-(iv);”]

As regards the rules of conduct of every judge, the CCJE is of the opinion that:

i) each individual judge should do everything to uphold judicial independence at both the institutional and the individual level,

ii) judges should behave with integrity in office and in their private lives,

iii) they should at all times adopt an approach which both is and appears impartial,

iv) they should discharge their duties without favouritism and without actual or apparent prejudice or bias,

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 5-7.”]

Art.5. Impartiality and restraint.

In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.

Art.6. Efficiency.

The judge must diligently and efficiently perform his or her duties without any undue delays.

Art.7 Outside activity.

The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge. The judge must not be subject to outside appointments without his or her consent.

[/expand] See Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 62.”]

Moreover, judges should not put themselves into a position where their independence or impartiality may be questioned. This justifies national rules on the incompatibility of judicial office with other functions and is also a reason why many states restrict political activities of judges.

[/expand] Also see ECtHR, Fey v. Austria (Application No. 14396/88), para. 30: “What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused.”[[4]]

[[5]]5. See Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 73;”]

These principles should be laid down in codes of judicial ethics which should inspire public confidence in judges and the judiciary. Judges should play a leading role in the development of such codes.

The CCJE is of the opinion that:

i) judges should be guided in their activities by principles of professional conduct,

ii) such principles should offer judges guidelines on how to proceed, thereby enabling them to overcome the difficulties they are faced with as regards their independence and impartiality,

iii) the said principles should be drawn up by the judges themselves and be totally separate from the judges’ disciplinary system,

iv) it is desirable to establish in each country one or more bodies or persons within the judiciary to advise judges confronted with a problem related to professional ethics or compatibility of non judicial activities with their status.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 18;”]

Deontological principles, distinguished from disciplinary rules, shall guide the actions of judges. They shall be drafted by the judges themselves and be included in their training.

[/expand] Bangalore Principles of Judicial Conduct; International Bar Association, Minimum Standards of Judicial Independence, para. 35-42.[[5]]

[[6]]6. See Bangalore Principles of Judicial Conduct, Preamble and ‘Implementation’.[[6]]

[[7]]7. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 19;”]

All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 19.”]

In each State, the statute or the fundamental charter applicable to judges shall define the misconduct which may lead to disciplinary sanctions as well as the disciplinary procedure.

[/expand][[7]]

[[8]]8. Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 72.”]

Judges should be guided in their activities by ethical principles of professional conduct. These principles not only include duties that may be sanctioned by disciplinary measures, but offer guidance to judges on how to conduct themselves.

[/expand] Also see Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, Article 18: “Deontological principles, distinguished from disciplinary rule, …”.[[8]]

[[9]]9. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 17″]

A charge or complaint made against a judge in his-her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

[/expand] and [expand title=”Principle 20;”]

Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 69;”]

Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.

As regards disciplinary liability, the CCJE considers that:

i) in each country the statute or fundamental charter applicable to judges should define, as far as possible in specific terms, the failings that may give rise to disciplinary sanctions as well as the procedures to be followed;

ii) as regard the institution of disciplinary proceedings, countries should envisage introducing a specific body or person with responsibility for receiving complaints, for obtaining the representations of the judge and for considering in their light whether or not there is a sufficient case against the judge to call for the initiation of such proceedings;

iii) any disciplinary proceedings initiated should be determined by an independent authority or tribunal, operating a procedure guaranteeing full rights of defence;

iv) when such authority or tribunal is not itself a court, then its members should be appointed by the independent authority (with substantial judicial representation chosen democratically by other judges) advocated by the CCJE in paragraph 46 of its Opinion N° 1 (2001);

v) the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a court;

vi) the sanctions available to such authority in a case of a proven misconduct should be defined, as far as possible in specific terms, by the statute or fundamental charter of judges, and should be applied in a proportionate manner.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 28.”]

The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.

[/expand][[9]]

[[10]]10. Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]

The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

[/expand] Human Rights Committee, Concluding Observations on Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]

The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]

The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

[/expand][[10]]

[[11]]11. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29.”]

28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

[/expand] See Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 27;”]

Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.

[/expand] European Charter on the Statute for Judges, [expand title=”para. 1.3″]

In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.

[/expand] and [expand title=”para. 5.1;”] The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 13;”]

To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.

[/expand] Consultative Council of European Judges, Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges, [expand title=”para. 60(b);”]

The CCJE considered …

(b) that the intervention of an independent authority, with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and…

[/expand] Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 32;”]

To sum up, it is the Venice Commission’s view that it is an appropriate method for guaranteeing for the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges. Owing to the richness of legal culture in Europe, which is precious and should be safeguarded, there is no single model which applies to all countries. While respecting this variety of legal systems, the Venice Commission recommends that states which have not yet done so consider the establishment of an independent judicial council or similar body. In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges. With the exception of ex-officio members these judges should be elected or appointed by their peers.

[/expand] Venice Commission, Judicial Appointments, CDL-AD(2007)028, para. 27-34, 48-51.[[11]]

[[12]]12. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 16;”]

Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

[/expand] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 50″]

The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.

[/expand] and [expand title=”Article 69;”]

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 20[expand title=”Article 20;”]

Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]

[/expand][[12]]

[[13]]13. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 17-20;”]

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

As regards disciplinary liability, the CCJE considers that: …

(v) the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a court; …

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 26-31; Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8″]

Security of office.

A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.

[/expand] and [expand title=”Article 11.”]

Administration and disciplinary action.

The administration of the judiciary and disciplinary action towards judges must be organized in such a way, that it does not compromise the judges genuine independence, and that attention is only paid to considerations both objective and relevant. Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation. Disciplinary action against a judge can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.

[/expand][[13]]

[[14]]14. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 16;”]

[/expand] Magna Carta of Judges, Consultative Council of European Judges CCJE (2010)3 Final, [expand title=”Article 20;”]

Judges shall be criminally liable in ordinary law for offences committed outside their judicial office. Criminal liability shall not be imposed on judges for unintentional failings in the exercise of their functions.

75. As regards criminal liability, the CCJE considers that: …

ii) criminal liability should not be imposed on judges for unintentional failings in the exercise of their functions.

76. As regards civil liability, the CCJE considers that, bearing in mind the principle of independence:

i) the remedy for judicial errors (whether in respect of jurisdiction, substance or procedure) should lie in an appropriate system of appeals (whether with or without permission of the court);

ii) any remedy for other failings in the administration of justice (including for example excessive delay) lies only against the state;

iii) it is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to any personal liability, even by way of reimbursement of the state, except in a case of wilful default.

[/expand] Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, [expand title=”para. 61;”]

It is indisputable that judges have to be protected against undue external influence. To this end they should enjoy functional – but only functional – immunity (immunity from prosecution for acts performed in the exercise of their functions, with the exception of intentional crimes, e.g. taking bribes).

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 20;”]

[/expand] Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]

Civil and penal responsibility.

Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.

[/expand] Also see Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, [expand title=”Article 67″]

Only the state may seek to establish the civil liability of a judge through court action in the event that it has had to award compensation.

[/expand] and European Charter on the Statute for Judges, [expand title=”para. 5.2.”]

Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.

[/expand][[14]]

[[15]]15. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 27.[[15]]

[[16]]16. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 29-30.[[16]]

[[17]]17. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 27-28; International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 27.[[17]]

[[18]]18. International Commission of Jurists, The State of the Judiciary in Russia (November 2010), p. 28.[[18]]

[[19]]19. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 44.[[19]]

[[20]]20. Law on the Status of Judges in the Russian Federation, Article 12.1.[[20]]

[[21]]21. Law on the Status of Judges in the Russian Federation, [expand title=”Article 12.1(1).”]

1. For committing a disciplinary offence (a violation of the norms of the present Law, as well as of the provisions of the Code of Judicial Ethics approved by the All-Russia Congress of Judges), upon the judge, with the exception of the judges of the Constitutional Court of the Russian Federation, may be imposed a disciplinary punishment in the form of:

– a reprimand;

– a warning;

– a pre-schedule termination of the judge’s powers.

[/expand][[21]]

[[22]]22. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 31. See International Commission of Jurists, Russian Federation: Draft Law Amending the Law on the Status of Judges – Comment by the ICJ, p. 5.[[22]]

[[23]]23. Regulations on the Operation of the Qualification Collegium of Judges, Article 28.1.[[23]]

[[24]]24. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 33.[[24]]

[[25]]25. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 35.[[25]]

[[26]]26. Regulations on the Operation of the Qualification Collegium of Judges, Article 4.1-4.2.[[26]]

[[27]]27. Law on the Bodies of the Judicial Corps in the Russian Federation, [expand title=”Article 21(6).”]

The meetings of the judicial qualification assemblies may be attended, with the right to express their opinion on issues of the agenda, by chief judges and deputy chief judges, heads of the Judicial department under the Supreme Court of the Russian Federation and of bodies incorporated within its system, chief judges and deputy chief judges of judicial councils, other judicial qualification assemblies or their representatives.

[/expand][[27]]

[[28]]28. Decision of the Constitutional Court (28 February 2008), N 3-, para. 5.4; International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 36.[[28]]

[[29]]29. Regulations on the Operation of the Qualification Collegium of Judges, Article 28.4.[[29]]

[[30]]30. Regulations on the Operation of the Qualification Collegium of Judges, Article 28.5.[[30]]

[[31]]31. Regulations on the Operation of the Qualification Collegium of Judges, Article 16.6.[[31]]

[[32]]32. Ibid. [[32]]

[[33]]33. Regulations on the Operation of the Qualification Collegium of Judges, Article 16.7.[[33]]

[[34]]34. The presidents and deputy presidents of the courts; heads of the Judicial Department under the Supreme Court and the bodies within its system; chairs and deputy chairs of the Councils of Judges; and chairs and deputy chairs of other Qualification Collegiums or their representatives.[[34]]

[[35]]35. Regulations on the Operation of the Qualification Collegium of Judges, Article 16.9.[[35]]

[36]]36. Regulations on the Operation of the Qualification Collegium of Judges, Article 16.10.[[36]]

[[37]]37. See Regulations on the Operation of the Qualification Collegium of Judges, Article 28.3.[[37]]

[[38]]38. Regulations on the Operation of the Qualification Collegium of Judges, Article 16.4.[[38]]

[[39]]39. Law on the Bodies of the Judicial Corps in the Russian Federation, [expand title=”Article 21(2);”]

A judge against whom proceedings have been initiated by the judicial qualification assembly shall have the right to familiarize himself with materials available with the judicial qualification assembly and submit his objections and remarks.

[/expand] Regulations on the Operation of the Qualification Collegium of Judges, Article 28.3.[[39]]

[[40]]40. See Aulov, Procedural Equality of Arms as an Anti-corruption Component of the Disciplinary Process (2011), cited at: International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 39.[[40]]

[[41]]41. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 37-39.[[41]]

[42]]42. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 38.[[42]]

[[43]]43. Law on the Bodies of the Judicial Corps in the Russian Federation, Article 26.[[43]]

[[44]]44. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 20, 42-43.[[44]]

[[45]]45. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 28-29.[[45]]

[[46]]46. Y.V. Romanets, Generalisation of the Practice of Application by Qualification Collegiums of legislation on disciplinary responsibility of judges, cited at: International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 27.[[46]]

[[47]]47.International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 27-28.[[47]]

[[48]]48. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 29-30.[[48]]

[[49]]49. Law amending the Law of the Russian Federation on the Status of Judges in the Russian Federation, N 179 FZ, 2 July 2013.[[49]]

[[50]]50. Law on the Status of Judges in the Russian Federation, Article 12.1(4).[[50]]

[[51]]51. International Commission of Jurists, Securing Justice: The disciplinary system for judges in the Russian Federation(December 2012), p. 44-47.[[51]]

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