Judicial Discretion, Judicial Errors and Disciplinary Responsibility of Judges: Current Issues

Abstract

This article analyses the concept of miscarriage of justice in the context of disciplinary responsibility of judges. In the first part of the article the author proves the necessity and inevitability of judicial discretion as a tool to ensure the consistency of legal regulation, and also raises the problem of the limits of judicial discretion. It is argued that disciplinary measures should be applied only in exceptional cases, otherwise the independence of the judge will not be ensured. With this in mind, the second part of the article defines the relationship between the concepts of “disciplinary offence” and “miscarriage of justice”. The provisions of the Law of the Russian Federation “On the Status of Judges in the Russian Federation” as well as legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation devoted to this issue are considered in a theoretical-legal and historical-legal key. On the basis of their analysis, the author distinguishes between ordinary and gross miscarriages of justice. The final part of the article examines the objective and subjective sides of a miscarriage of justice and proposes the attributes, if any, which may be grounds for bringing a judge to disciplinary responsibility. Particular attention is paid to analysing the sign of systematicity, which is often used in judicial practice. The definition of a miscarriage of justice is formulated, which is proposed to be enshrined in Article 12.1 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation”.