Foreseeability of legal grounds for disciplinary liability of judges: a general theoretical aspect

Abstract

The purpose of introducing disciplinary measures against judges is to ensure that the judges are competent, appropriate, and that they have public trust. In view of their functional role, the means of disciplinary liability may interfere with the sphere of judicial independence, sometimes legitimately, sometimes not. The legal challenge is how to strike a fair balance between these two principles – judicial accountability and independence – for the benefit of the public. This issue arises, first of all, in the context of substantive law. The matter can be examined both at the level of drafting legal rules and at the level of their application.As regards drafting rules of substantive law by describing the grounds for disciplinary liability of judge, they should provide a certainty for the public on the question of what judicial misconduct is. This function of substantive law is translated into the requirement of legal foreseeability: there is a need for a precision and accuracy in substantive rules describing disciplinary misconduct. A certain degree of generalization is necessary if we want the legal rule remains applicable to various similar facts. This has been acknowledged in the soft law of the Council of Europe as well as in the case-law of the European Court of Human Rights. The latter has stated that the level of precision required of domestic legislation depends to a considerable degree on the content of the considered instrument, the field it is designed to cover, and the number and status of those to whom it is addressed. However, unjustified vagueness of legal rules may produce the risks of arbitrary interpretation and abuse by disciplinary authority and threaten judicial independence. Therefore, on the law-drafting level, it is appropriate to enumerate an exhaustive list of specific disciplinary offences, limiting as much as possible the use of general and vague terms. The practice of giving a general definition with vague and ambiguous terms, which still exists in many countries, should be avoided. In any event, the question of how to ensure the legal foreseeability on the law-drafting level cannot be examined in isolation from the level of law enforcement. At this second level, the further foreseeability may be attained by means of adjudicatory interpretation which should be restrictive, consistent and sufficient. Cumulatively, keeping in line with the above requirements will ensure an appropriate degree of legal certainty in the area of judicial discipline and its harmonious interaction with the principle of judicial independence.Article received 18.02.2019