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Since August 2021, the High Council of Justice (HCJ) has not considered disciplinary complaints against judges, as Law 1635-IX provided for the creation of the Service of Disciplinary Inspectors (SDI), as a division of the Secretariat of the HCJ, which prepares disciplinary proceedings. Despite this, the HCJ continued to receive disciplinary complaints against judges, which, however, could not be considered. As of the end of 2022, there are already almost 8,000 such complaints in the HCJ. The law established that the SDI should be formed after the integrity check of the members of the HCJ has been completed. From February 22, 2022, until January 8, 2023, the HCJ was not operational, so the process of forming the SDI did not begin.
After the formation of the operational composition of the HCJ, the restoration of its disciplinary function became one of the key tasks. It is noteworthy that the law gives the right to disciplinary inspectors to return complaints without consideration by a one-person decision without the involvement of members of the HCJ. According to statistics, complaints are returned without consideration in more than 80% of cases. Thus, the fate of the absolute majority of complaints will depend on the decisions of inspectors, and only about 20% of complaints will be considered with the participation of members of the HCJ. However, there are currently problems for the effective functioning of the SDI and the implementation of disciplinary proceedings, including the following:
1. The status of the SDI and the inspectors themselves does not ensure adequate independence for their activities
The SDI is an ordinary structural division of the Secretariat of the HCJ, its head is the deputy head of the Secretariat of the HCJ. Disciplinary inspectors are civil servants and employees of the Secretariat of the HCJ. The only feature of the SDI compared to other structural subdivisions of the Secretariat of the HCJ is that the head of the SDI is appointed and dismissed by the HCJ, and disciplinary inspectors must pass a check for integrity and compliance with the ethical standards set for judges. However, such checks do not apply to the head of the SDI. Under such conditions, disciplinary inspectors will be completely dependent on the head of the Secretariat of the HCJ, and he, in turn, on the head of the HCJ, who, in accordance with the law, exercises general management of the Secretariat of the HCJ. This in no way can guarantee the proper independence and impartiality of the SDI and non-interference in disciplinary proceedings. The appointment of the head of the SDI by the HCJ itself in no way changes the fact that, as the deputy head of the Secretariat, he must be subject to the instructions of the head of the Secretariat, which makes him dependent on the latter.
2. The procedure for selecting disciplinary inspectors does not ensure the transparency of the process and the professionalism of the selected persons
Competitive procedures for the positions of disciplinary inspectors and the head of the SDI take place in the general procedure defined for all civil servants in accordance with the Law "On Civil Service" with features determined by the Law "On the Judiciary and the Status of Judges". According to the provisions of these laws, the head of the SDI belongs to category “Б” of civil service positions, and the disciplinary inspectors themselves belong to category “В”. Thus, the competition for filling these positions will be conducted by the head of the Secretariat of the HCJ, which reports to the head of the HCJ. The law does not establish any features of this competition that could guarantee its transparency and the professionalism of the winners. It is important to keep in mind that during martial law, civil service competitions are not held and according to information from the HCJ, there are intentions to recruit the SDI without a competition. The only thing is that the law established a requirement that the winners of the competition must pass an integrity check and compliance with the ethical standards established for the judge. The law does not establish who exactly should conduct such a vetting. It will probably be carried out by the head of the Secretariat of the HCJ.
Therefore, the control of the head of the Secretariat of the HCJ, who in turn will carry out the instructions of the head of the HCJ, over the competition for the positions of disciplinary inspectors will not allow ensuring a transparent selection of the most qualified and decent persons for the positions, and the martial law will allow it to be done without competition at all.
3. Inadequate level of financial support and unreasonably high qualification requirements for disciplinary inspectors
As of now, an employee of the Secretariat of the HCJ of category “B” receives a salary of about USD 500 per month. The amount of the remuneration will also largely depend on the head of the Secretariat, as it consists of a basic salary and a bonus, the amount of which will be determined by him. This will create an additional tool of dependence of disciplinary inspectors on the head of the Secretariat of the HCJ. Given that disciplinary inspectors will review disciplinary cases against judges, a low level of financial support will encourage corruption and will not solve the problem of fair and impartial consideration of disciplinary complaints.
According to the Law, disciplinary inspectors can be persons whose professional experience in the field of law is at least fifteen years, including at least eight years of cumulative experience in the positions of a judge, prosecutor, or lawyer. Such qualification requirements are commensurate with the requirements for members of the HCJ, but the status of disciplinary inspectors (civil servants of category “B” of the Secretariat, subordinate to its management), as well as the monetary remuneration do not meet such requirements at all.
It is difficult to imagine a lawyer with such significant professional experience, decent and independent, who would agree to participate in the competition for the positions of disciplinary inspectors, institutionally dependent on the head of the Secretariat and with such a low level of remuneration.
4. Complete removal of members of the HCJ from the analysis and preparation of materials for disciplinary proceedings
The law provides that the disciplinary inspector prepares the materials for the disciplinary proceedings independently. Disciplinary cases are not distributed among the members of the HCJ, that is, at the meetings of the chamber / plenary meetings, the members of the HCJ will be guided exclusively by the information presented to them by the disciplinary inspector at the meeting. The law gives the right to a member of the HCJ to make requests and collect information only in cases where he is the rapporteur. Since, under the current law, the rapporteur among the members of the HCJ is not determined, it becomes impossible. It is doubtful that, in this case, the members of the HCJ will have the opportunity to fully investigate the case materials and make a balanced decision.
5. Impossibility of consideration of disciplinary complaints until the formation of the SDI
Formation of the proper SDI is a long process that will take at least several months. During this time, the HCJ, which is already operational, will not be able to consider disciplinary cases. In less than a year and a half, while the HCJ could not consider disciplinary complaints, more than 8,000 complaints were accumulated. Delaying the process of their review for an indefinite period will lead to a significant increase in this number. On the other hand, there is a risk of rapid recruitment of inspectors without competition and thorough inspection, which is no less dangerous and creates additional corruption risks.
Moreover, there is a risk that the time frame for prosecuting many complaints may slip before the new mechanism is fully operational. Thus, the law specifies that disciplinary action against a judge is applied no later than three years from the date of the commission of the violation. However, the HCJ does not agree on whether the running of the term has stopped from the moment of receipt of complaints to the HCJ. Therefore, it is important to clearly establish in the law that from the moment the complaint is filed, the running of the term stops - in this case, many judges who have committed violations will not be able to avoid responsibility.
6. Members of the HCJ cannot effectively perform their functions due to the impossibility of hiring personal assistants
Before the adoption of amendments to the law, which provided for the creation of the SDI, the positions of inspectors were provided in the Secretariat of the HCJ, who actually performed the functions of assistants of the members of the HCJ and were appointed to the positions at the request of a member of the HCJ. After the establishment of the SDI, the members of the HCJ lost the opportunity to have personal assistants and to independently select such persons. At the disposal of the members of the HCJ remained only the employees of the Secretariat of the HCJ. Thus, a member of the HCJ cannot independently form a team of people who will help him effectively exercise his powers.
Proposals
Amendments to the Law should be adopted, which would comprehensively solve the abovementioned problems. Such changes, in particular, should introduce the following:
Since August 2021, the High Council of Justice (HCJ) has not considered disciplinary complaints against judges, as Law 1635-IX provided for the creation of the Service of Disciplinary Inspectors (SDI), as a division of the Secretariat of the HCJ, which prepares disciplinary proceedings. Despite this, the HCJ continued to receive disciplinary complaints against judges, which, however, could not be considered. As of the end of 2022, there are already almost 8,000 such complaints in the HCJ. The law established that the SDI should be formed after the integrity check of the members of the HCJ has been completed. From February 22, 2022, until January 8, 2023, the HCJ was not operational, so the process of forming the SDI did not begin.
After the formation of the operational composition of the HCJ, the restoration of its disciplinary function became one of the key tasks. It is noteworthy that the law gives the right to disciplinary inspectors to return complaints without consideration by a one-person decision without the involvement of members of the HCJ. According to statistics, complaints are returned without consideration in more than 80% of cases. Thus, the fate of the absolute majority of complaints will depend on the decisions of inspectors, and only about 20% of complaints will be considered with the participation of members of the HCJ. However, there are currently problems for the effective functioning of the SDI and the implementation of disciplinary proceedings, including the following:
1. The status of the SDI and the inspectors themselves does not ensure adequate independence for their activities
The SDI is an ordinary structural division of the Secretariat of the HCJ, its head is the deputy head of the Secretariat of the HCJ. Disciplinary inspectors are civil servants and employees of the Secretariat of the HCJ. The only feature of the SDI compared to other structural subdivisions of the Secretariat of the HCJ is that the head of the SDI is appointed and dismissed by the HCJ, and disciplinary inspectors must pass a check for integrity and compliance with the ethical standards set for judges. However, such checks do not apply to the head of the SDI. Under such conditions, disciplinary inspectors will be completely dependent on the head of the Secretariat of the HCJ, and he, in turn, on the head of the HCJ, who, in accordance with the law, exercises general management of the Secretariat of the HCJ. This in no way can guarantee the proper independence and impartiality of the SDI and non-interference in disciplinary proceedings. The appointment of the head of the SDI by the HCJ itself in no way changes the fact that, as the deputy head of the Secretariat, he must be subject to the instructions of the head of the Secretariat, which makes him dependent on the latter.
2. The procedure for selecting disciplinary inspectors does not ensure the transparency of the process and the professionalism of the selected persons
Competitive procedures for the positions of disciplinary inspectors and the head of the SDI take place in the general procedure defined for all civil servants in accordance with the Law "On Civil Service" with features determined by the Law "On the Judiciary and the Status of Judges". According to the provisions of these laws, the head of the SDI belongs to category “Б” of civil service positions, and the disciplinary inspectors themselves belong to category “В”. Thus, the competition for filling these positions will be conducted by the head of the Secretariat of the HCJ, which reports to the head of the HCJ. The law does not establish any features of this competition that could guarantee its transparency and the professionalism of the winners. It is important to keep in mind that during martial law, civil service competitions are not held and according to information from the HCJ, there are intentions to recruit the SDI without a competition. The only thing is that the law established a requirement that the winners of the competition must pass an integrity check and compliance with the ethical standards established for the judge. The law does not establish who exactly should conduct such a vetting. It will probably be carried out by the head of the Secretariat of the HCJ.
Therefore, the control of the head of the Secretariat of the HCJ, who in turn will carry out the instructions of the head of the HCJ, over the competition for the positions of disciplinary inspectors will not allow ensuring a transparent selection of the most qualified and decent persons for the positions, and the martial law will allow it to be done without competition at all.
3. Inadequate level of financial support and unreasonably high qualification requirements for disciplinary inspectors
As of now, an employee of the Secretariat of the HCJ of category “B” receives a salary of about USD 500 per month. The amount of the remuneration will also largely depend on the head of the Secretariat, as it consists of a basic salary and a bonus, the amount of which will be determined by him. This will create an additional tool of dependence of disciplinary inspectors on the head of the Secretariat of the HCJ. Given that disciplinary inspectors will review disciplinary cases against judges, a low level of financial support will encourage corruption and will not solve the problem of fair and impartial consideration of disciplinary complaints.
According to the Law, disciplinary inspectors can be persons whose professional experience in the field of law is at least fifteen years, including at least eight years of cumulative experience in the positions of a judge, prosecutor, or lawyer. Such qualification requirements are commensurate with the requirements for members of the HCJ, but the status of disciplinary inspectors (civil servants of category “B” of the Secretariat, subordinate to its management), as well as the monetary remuneration do not meet such requirements at all.
It is difficult to imagine a lawyer with such significant professional experience, decent and independent, who would agree to participate in the competition for the positions of disciplinary inspectors, institutionally dependent on the head of the Secretariat and with such a low level of remuneration.
4. Complete removal of members of the HCJ from the analysis and preparation of materials for disciplinary proceedings
The law provides that the disciplinary inspector prepares the materials for the disciplinary proceedings independently. Disciplinary cases are not distributed among the members of the HCJ, that is, at the meetings of the chamber / plenary meetings, the members of the HCJ will be guided exclusively by the information presented to them by the disciplinary inspector at the meeting. The law gives the right to a member of the HCJ to make requests and collect information only in cases where he is the rapporteur. Since, under the current law, the rapporteur among the members of the HCJ is not determined, it becomes impossible. It is doubtful that, in this case, the members of the HCJ will have the opportunity to fully investigate the case materials and make a balanced decision.
5. Impossibility of consideration of disciplinary complaints until the formation of the SDI
Formation of the proper SDI is a long process that will take at least several months. During this time, the HCJ, which is already operational, will not be able to consider disciplinary cases. In less than a year and a half, while the HCJ could not consider disciplinary complaints, more than 8,000 complaints were accumulated. Delaying the process of their review for an indefinite period will lead to a significant increase in this number. On the other hand, there is a risk of rapid recruitment of inspectors without competition and thorough inspection, which is no less dangerous and creates additional corruption risks.
Moreover, there is a risk that the time frame for prosecuting many complaints may slip before the new mechanism is fully operational. Thus, the law specifies that disciplinary action against a judge is applied no later than three years from the date of the commission of the violation. However, the HCJ does not agree on whether the running of the term has stopped from the moment of receipt of complaints to the HCJ. Therefore, it is important to clearly establish in the law that from the moment the complaint is filed, the running of the term stops - in this case, many judges who have committed violations will not be able to avoid responsibility.
6. Members of the HCJ cannot effectively perform their functions due to the impossibility of hiring personal assistants
Before the adoption of amendments to the law, which provided for the creation of the SDI, the positions of inspectors were provided in the Secretariat of the HCJ, who actually performed the functions of assistants of the members of the HCJ and were appointed to the positions at the request of a member of the HCJ. After the establishment of the SDI, the members of the HCJ lost the opportunity to have personal assistants and to independently select such persons. At the disposal of the members of the HCJ remained only the employees of the Secretariat of the HCJ. Thus, a member of the HCJ cannot independently form a team of people who will help him effectively exercise his powers.
Proposals
Amendments to the Law should be adopted, which would comprehensively solve the abovementioned problems. Such changes, in particular, should introduce the following:
- the status of the SDI as an independent structural unit of the Secretariat of the HCJ, which reports exclusively to the HCJ and not to the head of the Secretariat;
- disciplinary inspectors must be appointed based on the results of an open competition despite martial law, which will be carried out by a selection commission formed by the HCJ with the involvement of the Public Integrity Council to carry out integrity checks;
- qualification requirements for disciplinary inspectors should be reduced, in particular, professional experience in the field of law should be at least seven years, judges and retired judges should make up no more than half of the composition of inspectors of the SDI;
- disciplinary inspectors must belong to civil servants of category “Б” with financial support at the level of an appellate judge;
- the head of the SDI must be elected by disciplinary inspectors from among its members, be responsible for organizing the activities of the SDI and report to the HCJ, and may be dismissed from his position at the initiative of the majority of disciplinary inspectors or at least a third of the members of the HCJ;
- the SDI must have a unit to support its activities, which reports directly to the head of the SDI;
- the complainant must have the right to appeal the inspector's one-person decision to return the complaint without consideration if such a decision makes it impossible to re-submit the complaint due to the expiration of the judge's term of responsibility;
- the foreseen mechanism of control of the High Council of Justice over individual decisions of inspectors and the mechanism of their responsibility;
- among the members of the HCJ, a rapporteur is determined who studies the materials of the disciplinary case prepared by the disciplinary inspector, each member of the HCJ has the right to make relevant requests and collect information, regardless of who is the rapporteur;
- until the creation and start of operation of the SDI, disciplinary proceedings are carried out by the disciplinary chambers of the HCJ in accordance with the procedure that was in effect before the adoption of Law 1635-IX. Since the preparation and coordination of a new model of the formation and functioning of the SDI may take considerable time, a temporary procedure for considering disciplinary complaints may be introduced by a separate law, but such a procedure should be in effect no more than one year from the date of adoption of such a law;
- the patronage (support) service operates as part of the Secretariat of the HCJ. Assistants of a member of the High Council of Justice are employees of the patronage service, appointed and dismissed by the head of the Secretariat on the proposal of the corresponding member of the High Council of Justice. A member of the HCJ may have from one to three assistants. Each member of the HCJ has at his disposal a fund for financing the activities of assistants, which he distributes among them at his own discretion.