Disciplinary Liability Research Articles

Principles of disciplinary liability of a judge in the case law of the European Court of Human Rights

The article analyzes the key decisions of the European Court of Human Rights in cases against Ukraine in order to implementthe principles of disciplinary liability of judges.Particular attention should be paid not only to the procedural but also to the substantive aspects, as the applicant’s dismissal inthe case did not comply with the rule of law. This concerned the disclosure of the content of such grounds for disciplinary liability as“violation of the oath of a judge”, the content of which was not disclosed by law at the time of the decision to dismiss the applicant.According to the ECtHR, in the context of the institution of disciplinary action, a reasonable approach should be used to assess theaccuracy of the law, as there is an objective need for the objective side of such offenses to be formulated in general terms. At the sametime, the legal role of the judiciary in ensuring the predictability of legislative provisions cannot be underestimated in the systems ofcontinental law. It is these bodies that interpret the exact meaning of the general provisions of the law consistently and eliminate anydoubts about the interpretation. Thus, while recognizing in general the admissibility of the use of general wording in determining thegrounds for disciplinary liability of a judge, the ECtHR stated that legislative uncertainty should be compensated by a law enforcementinterpretation.The analysis of these decisions showed that non-compliance with the generally accepted principles of disciplinary liability inbringing a judge to this type of liability leads to a violation of the provisions of the Convention. At the same time, compliance with therelevant principles should be ensured both in legislative activities on reasonable and clear definition of disciplinary liability and the procedurefor disciplinary proceedings by an independent and impartial body, and in law enforcement activities to provide uncertain legalrequirements.

WHISTLEBLOWING IN HIGHER EDUCATION – REMARKS DE LEGE LATA AND DE LEGE FERENDA

The purpose of this article is to provide external and internal legal protection against adverse employment-related activities available to employees of higher education institutions in Poland, who disclose information of public significance to which they have access, risking this disciplinary and professional liability. The article focuses on the consequences of a particular type of behavior, which is commonly referred to as „reporting irregularities“ or „whistleblowing.“ Since an academic teacher‘s employment relationship in Poland is such that the employer, when terminating the employment relationship, must state the reason for such a decision. Although academic teachers are required to comply with the Act on Higher Education and Science of 2018 and the Labor Code in the unregulated area, it should not be forgotten that there are additional legal requirements specific to their status.

Evolution of the Concept of «Disciplinary Misconduct» in the Context of Digitalization of the Economy

The article discusses the impact of the process of digitalization of the economy on the legal regulation of disciplinary liability of employees in the context of the development of the concept of «disciplinary misconduct» as the actual basis for applying this type of legal liability.

Interaction of investigation procedures and disciplinary proceedings in student’s disciplinary cases (selected issues)

The article is devoted to presenting connections between interaction of investigation procedures and disciplinary proceedings as two stages of proceedings in student’s disciplinary cases. Considerations included in this article are subordinated to assumption, according to which the actual shape of the interaction mentioned above is determined by the way in which the issue of the scope of the interaction of investigation procedures is resolved as well as the impact of the actions taken in these proceedings on the examination of the case in disciplinary proceedings. The analysis of the first of the issues mentioned above gives ground for statement that regulation included in the Act on Higher Education and Science (according to which – returning the petition for punishment in order to complementing the investigation procedures) leads directly to increasing the burden of proof of the investigation procedures in terms of substantive examination of the student’s disciplinary case. The legal solution indicated above determines the wide scope of consolidation of evidences for the Disciplinary Board during the investigation procedures; in fact subject to disproportionate expansion and prepares a disciplinary case for resolution by this committee. This assessment is supported by regulating the impact of the evidence that was perpetuated in investigation procedures on the examination and adjudication of the case in disciplinary proceedings. It resulting in a wide-ranging possibility of using this evidence as a basis for a judgment on disciplinary liability.

Disciplinary liability of students: legal basis and its limits

The main aim of the paper is to discuss legal frames of disciplinary liability of students under the Higher Education and Science Act of 20 July 2018. Assuming that disciplinary liability constitutes a type of sensu largo penal liability, the stress is put on the shortcomings of current regulations in terms of the limits of this kind of legal responsibility. Since the definition of ‘disciplinary misconduct’ is partial, the author concentrates on whether the provision requiring disciplinary bodies to apply – mutatis mutandis – the provisions of the Code of Criminal Procedure in matters not governed by the Higher Education and Science Act, enables (or even obliges respective authorities) to apply provisions contained in chapters I-III of Criminal Code.

Prohibition of discrimination and violation of the student’s dignity

The article deals with the subject of disciplinary responsibility of female and male students from the perspective of discriminatory behaviour. Anti-discrimination legislation in Poland, apart from the employment sphere, does not provide protection against discrimination. The Act on the implementation of certain provisions of the European Union in the field of equal treatment introduces broad protection of only some legally protected features. Universities, in the sense of responsibility for the safety and protection of the academic community, introduce internal anti-discrimination regulations, emphasizing important values and principles that every male and female student should follow. Socio-political conditions may influence the disciplinary proceedings of male and female students. Assessment of the breach of the student’s dignity as one of the premises of disciplinary liability encounters many difficulties and more and more often may refer to the conflict of freedom of speech and the right to equal treatment.

In search of an ideal model of disciplinary proceedings against students in Poland

The purpose of the article is to present the rights and obligations of participants in the proceedings, a model of disciplinary proceedings against students, the functions of disciplinary proceedings and its stages in proceedings before the disciplinary ombudsman and the disciplinary commission. The author analyzes statistical data of disciplinary matters at the Jagiellonian University. The author indicates that this procedure is extremely formalized and it is very often difficult to hold a student disciplinary liability. In addition, the analysis of the rulings leads to the conclusion that the penalties imposed in this disciplinary proceedings are not detrimental to the accused.

Административно-правовые аспекты привлечения служащих органов прокуратуры к дисциплинарной ответственности

The scientific article analyses issues related to the practical implementation of legal norms governing the procedure for disciplinary liability of prosecutors. A theoretical analysis of the interpretations of disciplinary responsibility in the public service formulated by leading legal scholars was carried out. A comparative legal analysis has been carried out of the regulations governing the procedure for the imposition of disciplinary penalties in State bodies, including law enforcement agencies and the legal documents governing these issues in the prosecutor’s office.

Violation of the Regulations in Force at the University as a Ground for the Student’s Disciplinary Liability

Abstract Violation of the regulations in force at the university is one of the basis of student’s disciplinary liability. The law does not specify a catalogue of these regulations, which contributed to discrepancies in the scientific works and jurisprudence of disciplinary commissions. The article aims to determine the normative content of this basis. The considerations include changes introduced by the Higher Education and Science Act, as well as statements of the representatives of science and jurisprudence. The analysis leads the author to the position that the considered basis includes the abovementioned Act, as well as the internal law of the university issued on its basis, in particular its statute and study regulations. Although internal acts can not be indicated exhaustively, in order to establish the disciplinary offence it is necessary to determine that the infringed obligation was legally binding for the student.

Obniżenie policjantowi nagrody rocznej w przypadku popełnienia przewinienia dyscyplinarnego stwierdzonego w prawomocnie zakończonym postępowaniu dyscyplinarnym

Public service is characterized by a number of restrictions. A police officer must submit to a special type of regime resulting from the character of the service he performs. He is obliged to perform binding orders and service commands issued by his superior. Non-performance or improper performance of orders and service commands may cause consequences of a service nature, i.e. disciplinary liability. Establishing during disciplinary proceedings that a police officer has violated service discipline or has not followed the rules of professional ethics may result in them being subjected to disciplinary punishment. However, there are also other consequences that may cause a violation of service discipline or non-compliance with the rules of professional ethics confirmed in the final ruling of disciplinary proceedings. One of these is the necessity of reducing the annual award given to a police officer. This paper is entirely devoted to the issues related to the legal structure of reducing the annual award based on Art. 110 (5) (2) Act on the Police. This issue is of significant importance for Police authorities obliged to apply the legal provisions of service pragmatics as well as for police officers themselves because causes consequences in the financial sphere of a police officer. Violation of service discipline established in the final ruling of disciplinary proceedings is the most common reason for the need to reduce a police officer’s annual award. The application of this legal institution requires establishing that the final ruling of disciplinary proceedings confirming the violation of service discipline or non-compliance with the rules of professional ethics by a police officer exists in legal circulation. Attention is focused on the prerequisite of reducing the annual award. It is also indicated which entity is obliged to issue a decision on reducing the annual award, and procedural issues related to this institution are discussed. Discussion of this matter is preceded by a discussion of the issues related to the institution of the annual award, because such a reduction may only take place if a police officer previously obtained a right to this award.

La responsabilité médicale des accidents de la circoncision en Tunisie : à propos de trois affaires judiciaires

Circumcision is the most frequently performed surgical procedure worldwide, mainly as part of religious rituals. It may lead to serious complications. Although there is no specific law relative to circumcision accidents in Tunisia, the occurrence of complications of this act is likely to engage the penal, civil and disciplinary liability of the doctor. Prevention involves respecting the principles of the Medical Deontology Code, raising awareness about the need to practice circumcision in a medical environment and the promulgation of specific legislation regulating this act. The new Tunisian law on medical liability seems to offer a solution to solve the legal complaints concerning circumcision accidents by providing more opportunities for amicable settlement and at the same time guaranteeing adequate and rapid compensation of the prejudice. In this article, we discuss the medical liability of circumcision accidents through three medicolegal cases carried out at the Department of Legal Medicine of Ibn El Jazzar University Hospital, Kairouan, Tunisia.

General Theoretical Characteristics of the Institution of Disciplinary Liability in Labor Law

It has been specified that disciplinary liability should be understood as the employee’s obligation to stand surety to the employer, who is endowed with the disciplinary authority, for his violation of labor discipline in the form of non-performance or improper performance of his labor duties due to the employee and as the result, bear negative consequences provided by labor law.
 It has been substantiated that the purpose of disciplinary liability has two aspects: the first is to ensure proper discipline in order to ensure the further effective functioning of the enterprise (organization, institution, etc.), and therefore its presence is an important preventive measure of disciplinary offenses’ commission. The second aspect is to apply negative measures to the offender, which, in turn, allows to restore the violated labor (including official) rights, to avoid the negative consequences of the offense and to educate the employee in the spirit of legality and discipline.
 The main tasks of disciplinary liability include: to ensure the compliance with labor discipline by each employee in performing their duties; to create comfortable working conditions for each employee (state official); to create a favorable, friendly atmosphere in the team; to punish the employee who committed a disciplinary offense; to prevent situations, when an employee may commit a disciplinary offense.
 It has been argued that the functions of disciplinary liability are: educational, punitive, protective, stimulating, renewing, informative, preventive and staffing.
 It has been generalized that the essence and content of disciplinary liability as an institution of labor law are as follows: first of all, despite the fact that disciplinary liability, is although a kind of legal liability, it has its own characteristics inherent in labor law; secondly, the employer is not obliged to apply penalties to the violator of labor discipline, such application is his right; thirdly, the employee, in turn, is responsible to the employer and not to the state for non-compliance with labor discipline, i.e. for culpable improper performance of obligations imposed by the employment contract.

Stosowanie leków poza wskazaniami — przesłanki oraz refundacja

Off-label use of drugs is one of the most important elements of the work of doctors and, unfortunately, it still raises a great deal of controversy and doubt. This is because of the lack of explicit, detailed legal regulations on this. On the one hand, physicians should follow the dosage regimen and indications for use specified in the Summary of Product Characteristics (SPC), while on the other hand, for some patients, in particular regarding paediatrics and oncology, there may be a lack of therapy that would be characterized for such use as in the SPC. When prescribing off-label therapy, doctors must primarily be guided by current medical knowledge and due diligence. Despite the lack of legal regulations, several criteria can be distinguished that justify the off-label use of drugs, e.g. the need to save the patient’s life or the unsatisfactory result of the therapy recommended to date. Before prescribing a particular drug, the patient should be informed, for instance, about the risk of the unregistered use of the medicine. Only after the patient has been properly informed can informed consent for treatment be received. The doctor’s failure to satisfy these obligations can expose him to civil, criminal or disciplinary liability. Polish law also allows for therapy conducted in indications other than those arising from the SPC to be publicly financed. Although this requires compliance with the statutory requirements, this often constitutes the patient’s key opportunity to actually undergo treatment.

THE DEVELOPMENT OF SPORTS DISCIPLINARY LIABILITY AND ITS PRACTICAL APPLICABILITY IN HUNGARY

Legal liability has various forms, including the various distin-guishable forms of liability related to the world of sport and disciplinary li-ability in sports in particular, which can also be discussed by comparing it with aspects of criminal law and labour law. Disciplinary liability in sports emerges in the case of accountable, delinquent infringement of the related regulations. The burden of production of evidence lies with the sports federa-tion. Every sports federation is authorised to conduct disciplinary proceed-ings against an athlete, sports specialist and sports organisation involved in the competition system of the given sports federation.The disciplinary regulations defi ne what disciplinary offence the athlete, sports specialist or sports organisation is likely to have committed, for theinvestigation of which the proceedings will start. Both the legal standards of the country concerned and the rules of national sports federations include detailed regulations necessary for disciplinary proceedings to be conducted properly. The knowledge of thereof is essential in terms of practical applica-bility, as presented by this study in detail.

ASSESSING THE ACTIVITIES OF THE POLICE AS A PART OF THE NATIONAL SECURITY SECTOR:

The relevance of the article is conditioned by the need to ensure the effective activity of the subjects engaged in ensuring the national security, one of which is the police. Taking into account the fact that one of such tools is the assessment of police performance, the issue of studying the experience of the countries in this area is important to find the most optimal models for assessing the performance of these structures, which will contribute to their better fulfillment of the tasks assigned to them by law. The purpose of the article is to investigate the features of evaluating police performance, which will allow identifying advanced practices, to intensify the search for ways to improve the evaluation of police performance. The goal has been achieved using dogmatic, statistical, comparative legal methods, and systemic-structural approach. The authors revealed the specifics of the evaluation of police performance in Ukraine, the USA, Canada, France, and Great Britain. Emphasis is placed on evaluating police performance based on the level of trust of citizens and statistics. It is concluded that the trust of citizens in the police is necessary for the effective accomplishment of the tasks by the latter. It is noted that the use of statistical data to formulate an objective conclusion on the effectiveness of police performance is questionable because of the ability of the police management to manipulate the data. The areas for minimizing such manipulations are as follows: (1) introduction of administrative or disciplinary liability for manipulation of statistics on police performance; (2) conducting an independent review of the statistics provided by the police about their activities; (3) use of latent crime as a criterion for evaluating police performance. It is concluded that each of these areas needs considerable improvement. The findings complement previous research and have implications for improving the evaluation of the Ukrainian police and police of foreign countries.

НОРМИ ТРУДОВОГО ПРАВА ЯК РЕЗУЛЬТАТ УКЛАДЕННЯ КОЛЕКТИВНИХ ДОГОВОРІВ

The article proves that as a result of concluding collective contracts (agreements), some of their terms can be defined as labor law norms. This is due to the fact that such conditions correspond to the following characteristics: they have a general character, formal certainty, the fulfillment of conditions is ensured by the force of state coercion, and they also have features of system and regulation. However, the terms of collective agreements shall meet a number of requirements defined by the law. First, the terms of collective contracts and agreements are binding on the enterpreneuerships that they apply to and the parties that have entered into them. Second, the terms of collective contracts or agreements that worsen the situation of employees in comparison with the current legislation are invalid, and therefore they cannot be included in their contents. Third, it is prohibited to include in employment contracts conditions that worsen the situation of employees in comparison with the current legislation, collective contracts and agreements. It should be noted that the current legislation of Ukraine also prohibits any interference that may restrict the legal rights of employees and their representatives or prohibit their exercise by the representative and executive authorities as well as commercial management, political parties, and employers in the conclusion and execution of these acts of a contractual nature. These and other rules for the adoption of collective contracts and agreements are enshrined in labor legislation and require mandatory compliance. However, their individual conditions may improve and establish new guarantees for employees in comparison with those defined by the labor legislation. Besides that, liability is also set for persons, who represent employers, trade unions or other accredited by workforce bodies. The liability goes to action in case information, needed for collective negotiations and implementing rightful control over collective negotiations, is not provided. It is done through agreements of disciplinary liability or fines amounting to 5 tax-free minimum incomes of citizens. The terms and order of applying fines are foreseen in the Code of Ukraine on Administrative Offences. Cases of this kind are considered if one of the parties or relevant commision sued collective agreement. Thus, implementing the conditions of collective agreements is secured by state coercion which is another feature of the rule of law. In addition, the author justifies the expediency of using the single term "collective agreements" instead of the terms "collective agreement and collective contracts", since the latter are essentially all agreements.

Perspectives of Further Reform of Judicial System

The main directions of appropriate judicial system reform in Ukraine in order to make it effective and equitable are investigatedin the article. The most important direction of judicial system reform is creating an independent judicial system from the other branchesof power. To this end, the other branches of power and President of Ukraine should be entirely excluded from judiciary forming. Theauthor persists that judges should have a disciplinary liability for unjust decisions, which not match or contradict to material norms. Forthis goal, it is worth to create jury trial for judges from the level of appeal. This jury trial should consist of lawyers of the highest ca -tegory and scientists in the sphere of law and be chosen for every case separately by occasional computer programmer in quite signi -ficant amount (for example 12 persons).To the other main directions of judicial system reform, the author relates:1) Creating a reliable mechanism of judges’ prosecution for his unjust decisions and corruption offences;2) Creating a balanced interconnection between judicial and law enforcement branches of power;3) Creating more reliable lever arm for litigators’ rights guarantying;4) Judicial practice unification and creating a steady mechanism of legal gaps and collisions overcoming;5) Improvement of the system of enforcement of judgements;6) Publicity and society access to the legal proceedings.Every direction has it’s peculiarities.Amongst the main reforms in these spheres are the following. Attorney General should be assigned by the Parliament opposition,it will provide court decisions against influence from the side of Parliamentary majority because Attorney General has right to prosecuteagainst judges.It is also important in the criminal proceedings to enact independent investigative authorities from the structure of prosecutionand national police. To provide enforcement of judgements it’s worth to improve financial stimulation of the officers for their positivework and to anticipate ban for criminal outpost in any case of corruption crimes. Also in order to fight against corruption it is worth toallow using any kind of video or audio records including hidden ones when they can be proves in the crimes committed by the publicofficers.

International and foreign experience of control over the activity of courts (judges)

This article, based on the analysis of scientific views of scholars, summarizes the foreign experience of control over the activity of courts (judges). After summarizing the experience of Germany, it is stated that the legal mechanism of control over judges in this country is characterized not only by the differentiation of the distribution of supervisory powers at the federal and regional levels, but also by the active involvement of executive and legislative bodies. It is established that the existing foreign experience of control and supervision over thework of judges is quite diverse and can be used by domestic legislators when introducing amendments and additions to current legislation. The most positive experience that can be used in Ukraine to improve the control over the activity of judges includes: 1) The need to improve the procedure for selecting judges; 2) extension of the statute of limitations for committing an offense as a ground for disciplinary liability, in order to reduce the risk of judges avoiding its occurrence; 3) introduction of new forms and methods of control in the relevant field; 4) improvement of organizational and legal bases of public involvement in the implementation of control and supervision measures in the area under study.

Independence of an Advocate in Disciplinary Proceedings: Comparative Approach with a Focus on Ukrainian Experience

This research brings a special focus on the notion of disciplinary liability of advocates, regarding their status in a legal system dedicated to universal standards of competitive fair trial. The article is based on experience of Ukraine in shaping an efficient system of the bar, with a wide comparative insight into the systems of disciplinary liability of lawyers in European counties. Universal standards of professional legal ethics are being peculiarly adverted. Safeguards of procedural independence of lawyers in disciplinary proceedings are presented regarding best European practices. It has been concluded that confidentiality is a cornerstone of professional status of a lawyer and limitations of this principal should be strictly envisaged by law. Otherwise, trustful relationships of a lawyer and his client would be challenged. Independence, due proceedings of investigation of disciplinary offences, proportionality are mentioned as basic principles on which the system of disciplinary liability of lawyers in a democratic society is being founded. Local bar associations play a leading role in protection of advocates’ professional rights and shielding them from unwanted attacks of any type, including infringements of procedural rights of lawyers, coming from law-enforcement authorities.

ВІДПОВІДАЛЬНІСТЬ ЗА ПОРУШЕННЯ НОРМ ЗЕМЕЛЬНОГО ЗАКОНОДАВСТВА

У статті розкриваються особливості застосування заходів юридичної відповідальності та її різновиди за порушення норм земельного законодавства. Звертається увага на невідповідність положень різних галузей права, проаналізовано чинне законодавство та охарактеризовано особливості адміністративної, кримінальної та цивільної відповідальності за порушення норм земельного законодавства.
 Особливість цієї теми полягає в тому, що відповідальність можна охарактеризувати з різноманітних сторін, а також описуються її особливості в кожній галузі права.
 Визначено сутність та характерні особливості притягнення правопорушника до адміністративної відповідальності у сфері земельних відносин. За результатами дослідження було виявлено, що адміністративна відповідальність за порушення земельного законодавства відрізняється власною нормативною підставою у вигляді правових норм, закріплених у статтях Кодексу України про адміністративні правопорушення та деяких інших нормативно-правових актах, а також особливим порядком притягнення та накладення адміністративних стягнень.
 Розглянуто сучасний стан правового забезпечення кримінальної відповідальності у сфері земельних відносин в Україні. Проаналізовано зміст основних нормативно-правових актів, що стосуються питань регулювання відповідальності за правопорушення у сфері земельних відносин. Також було розглянуто дисциплінарну відповідальність, яка характеризується тим, що до осіб, які перебувають у трудових відносинах з підприємством, винних у вчиненні дисциплінарних проступків земельно-правового характеру, застосовуються заходи особистого впливу у вигляді накладення дисциплінарних стягнень.
 У статті розкриваються норми цивільно-правової відповідальності. Зазначено, що вона застосовується за земельні правопорушення, які характеризуються збитками, наприклад, за використання земельної ділянки не за цільовим призначенням, тому норми земельного законодавства тісно пов’язані із нормами цивільного законодавства, а тому такий вид відповідальності потребує окремої уваги та ретельного аналізу. Таким чином, юридична відповідальність постає необхідною правовою гарантією законності у сфері земельних відносин.