Today, it is not uncommon for parties to try to influence the outcome of a dispute, consideration of which is pending in one way or another. One of the ways of such influence is to file a complaint about the actions or omissions of a judge to the Supreme Council of Justice (hereinafter referred to as the “SCJ”).
I propose to consider the grounds for filing complaints against judges and the relevant practice of the SCJ, as well as the procedural response of judges to such complaints.
Prerequisites for filing complaints against judges
The Law of Ukraine “On the Judicial System and the Status of Judges” (hereinafter referred to as the “Law on the Judicial System”) contains more than 20 grounds on which a judge can be held disciplinarily liable.
The most common reasons for applying to the SCJ of parties to the case, the consideration of which is pending, are:
- unjustified delay in the consideration of the case;
- significant violation of the procedural rules when administering justice;
- violation of the principles of equality of all parties to the proceedings before the law and the court, adversarial nature of the parties and freedom in providing them with their evidence to the court and in proving their credibility to the court;
- admission by a judge of behaviour that discredits the title of a judge or undermines the authority of justice;
- the judge’s admission of a violation of human rights and fundamental freedoms or other gross violation of the law, which led to significant negative consequences.
The legislation practically does not restrict the right of individuals to file complaints against judges to the SCJ. At the same time, the Law on the Judicial System provides for the inadmissibility of abuse of the right to file complaints against a judge, including as a means of putting pressure on a judge in connection with the administration of justice.
Particular attention should be paid to the cases when a party to the case, the consideration of which is pending, applies to the SCJ with a complaint against a judge.
Thus, until March 2019, it was considered that “Submission by a party to proceedings of a complaint against the actions of a judge to the SCJ before the end of the trial of the case has signs of influencing the court, which establishes criminal liability under Article 376 of the Criminal Code of Ukraine“. This provision was recognized by the decision of the Judicial Council of Ukraine No. 34 of 08/06/2017. That is, it was extremely risky for the parties to the case to file a complaint against the judge before the end of case consideration by the latter.
However, by the decision of the Judicial Council of Ukraine No. 13 of 01/03/2019, this approach was changed. The Judicial Council of Ukraine explained that “submission by a party to proceedings of a complaint against the actions of a judge to the SCJ before the end of the trial of the case may indicate influence on the court, in the case when this is carried out as pressure on a judge, in particular, to prevent judges from performing their professional duties or persuade them to make an illegal decision, etc., which may have signs of a criminal offense set out in Article 376 of the Criminal Code of Ukraine“.
So, if earlier filing complaints about the actions of a judge before the end of the judicial review of the case was actually considered pressure on the court, currently, such a complaint can only indicate an influence on the court. Therefore, since 2019, the number of complaints of participants in court cases to the SCJ against judges who have not yet finished considering the case has significantly increased.
However, these are not the only changes that have made it easier to appeal against judicial actions or omissions to the SCJ. Thus, in November 2019, the regulation was excluded from the Law on the Judicial System, which provided for that if a person repeatedly submits obviously groundless disciplinary complaints, the SCJ has the right to make a decision on leaving the further complaints of this person without consideration for one year.
Good faith in the exercise of the rights of parties to proceedings when filing complaints against judges
Often, the purpose of complainants may be, for example, psychological pressure on the judge or creating grounds for disqualification of a judge.
Judges who are challenged on the basis of filing a complaint against them in the SCJ, as a rule, come to the conclusion that filing a complaint does not indicate the judge’s bias during the consideration of the case, and therefore cannot be grounds for disqualification. At the same time, the judges note that the application for a judge’s disqualification is a procedural right of the parties to the case. This position of judges also corresponds to decision of the Judicial Council of Ukraine No. 34 of 08/06/2017, which establishes that the existence of a complaint against a judge in the proceedings of the SCJ does not generate a conflict of interest in the activities of a judge in respect of the consideration of a specific court case.
So, filing an objection is a procedural right of a person, and the fact that the basis for such a challenge is a complaint against a judge in the SCJ, as a general rule, does not entail a conflict of interest.
However, courts sometimes regard the fact of filing a complaint against them to the SCJ or threats to file a complaint against the SCJ in combination with other circumstances as an attempt to put pressure on the court and abuse of procedural rights.
It is worth noting that the systematic and repeated application for unmotivated and far-fetched disqualifications to the judge, in particular, on the grounds of filing complaints to the SCJ, may indeed indicate an abuse of procedural rights. The court must respond to such cases independently. However, in practice, courts do not always actively respond to the abuse of their procedural rights by participants in the process, although they have procedural mechanisms for this. Thus, in cases of abuse of procedural rights, the court may return or leave without consideration the application of a party to the case, issue a ruling on the imposition of a fine, as well as a separate ruling in respect of such a party to the proceedings.
The practice of the SCJ in respect of complaints of parties to proceedings against judges considering the case
In its recent decisions, the SCJ systematically emphasizes that any complaint against the actions of judges cannot be regarded as interference or pressure on a judge, since such treatment is an inalienable constitutional right. The current legislation does not provide for any restrictions on the right of any person to appeal to the SCJ with a complaint about a disciplinary offense of a judge, including restrictions on the appeal of a party to proceedings with a disciplinary complaint before the end of the case consideration.
It is worth noting that the SCJ holds judges accountable for delaying the consideration of a case that is pending. An example of this position of the SCJ is Decision No. 2542/1дп/15-20 of September 4, 2020. The SCJ brought the judge to disciplinary responsibility for violating the terms of commencement of proceedings and violating the terms of consideration of the case, and applied to him a disciplinary penalty in the form of a strict reprimand with deprivation of the right to receive additional payments to the official salary of a judge for three months.
At the same time, pursuant to the current practice of the SCJ, when considering a case, a judge can only be held liable for violating the terms of consideration of the case. Such conclusions were set out by the SCJ in decision of the Disciplinary Chamber No. 830/1дп/15-21 of April 14, 2021, noting that any actions aimed at verifying the presence in the actions of a judge of signs of disciplinary misconduct, except for groundless delay or failure by a judge to take measures to consider it within the time limit prescribed by law, can be regarded as pressure on the judge and interference with the administration of justice. In such circumstances, the SCJ decided that the arguments of the complaint about the admission of illegal actions by the judge during the consideration of the case cannot be subject to verification, since the consideration of the case is pending.
So, filing a complaint against a judge is a person’s right, which, as a general rule, does not create a conflict of interest and does not put pressure on the court. However, the submission of numerous unsubstantiated complaints to the SCJ and the application for judge disqualification on these grounds can be regarded as an abuse of procedural rights, to which judges shall respond properly.
During the direct consideration of a court case, a judge may be brought to disciplinary responsibility by the SCJ for unjustified delay or failure to take measures to consider the case within the time period established by law. Other violations committed by the judge during the consideration of the case (for example, significant procedural violations), generally, cannot be the subject of a SCJ’s verification if the case is pending.
Partner, Head of Litigation and Dispute Resolution practice, Attorney at law
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