For the first time failed exam isn`t an incontestable basis for dismissal.
Judges and their retired colleagues are increasingly turning to advocacy. A large number of these appeals are complaints of bias Proficiency Testing with farther recommendation to dismissal through non-confirmations compliance with their current position. Consider whether such actions are legal.
Exposure to subjectivism
The most often complaints concern numerous procedural irregularities when evaluating, excessive formalism and undue subjectivism, without giving priority to knowledge and experience but to other indicators. As it turned out members of the High Judicial Qualification Commission also retreat from international legal acts ratified by Ukraine and judgments of the European Court of Human Rights. As well, members are beyond of their authority when making judgments.
As a result, we have numerous cases of dismissal of highly qualified and experienced judges. This affects both the quality of justice and the authority of the judiciary. We often witness an actual crowding out Judges from office. Judges had to apply to the High Council of Justice with the letter of resignation.
By that situation we cannot fail to be concerned. A Damocles’ sword of exposure and the constant threat of dismissal for someone’s subjectivism is powerful blow to the guarantees of the independence of judiciary. It causes a chain reaction. While administering justice the integrity of judiciary is lost, ignored rights, legitimate interests to parties of judicial proceedings, Judges are under pressure, spread corruption ties.
Situation comes to absurdity. Judges refuse to consider high-profile matters if an accused is stand guard in some of local judiciaries and the Courts of Appeal. Judges are afraid that the result of a court case will interfere with the passage of qualification evaluation.
To describe the malignancy of this phenomenon is unnecessary. This is a theme of another discussion. We are examining the issue of the High Judicial Qualification Commission qualification now. And about initiating dismissal of Judges, which failed exam.
A considerable percentage of the commission’s judgments which describe non- compliance with their current position and recommendations for their dismissal due to failed exam are rather dubious from the view of legality. Title VIII «Justice» or Title XV «Transitional Provisions» of Constitution or the Law «On judicial system and status of judges» or any other act don’t provide for the possibility for dismissal of Judges immediately after failed exam. That is, without applying a milder type of disciplinary sanction.
Paragraph 3, Part 6, Article 126 of Constitution reveals an exhaustive list of reasons for Judges’ dismissal. In accordance with subparagraph 4 Paragraph 161 «Transitional Provisions» of Constitution about non- compliance with Judge`s current position. Current position must be evaluated in accordance with Law and by criteria of professionalism, professional ethics and virtues.
In accordance with Part 8, Article 109 of Law «On judicial system and status of Judges» sets out when a statement on dismissal is submitted:
- Committed a substantial disciplinary offense, gross or systematic neglect of duties, which is incompatible with the status of Judge or revealed his non- compliance with current position;
- Violation of duty to confirm the legality of the source for property.
Part 9 of Article 109 reveals the meaning of «a substantial disciplinary offense» «gross (systematic) neglect of duties, which revealed his non- compliance with current position». In the context of qualification evaluation, gross neglect of duties (as a legal basis for dismissal) may be exclusively in next action:
- Judge hadn’t complied with the Court`s judgment, conducting the disciplinary proceedings against Judge, adopted in accordance with Paragraph 4, Part 1 of Article 109;
- If Judge failed qualification evaluation, which appointed in accordance with Paragraph 4, Part 1 of Article 109.
From the second attempt
Disciplinary sanction may be applied for Judges. This will be in the form of temporary suspension from justice with a compulsory referral to the National School of Judges for a refresher course and subsequent qualification evaluation.
Thus, after failed exam, constitutes a form of the reverent disciplinary offense but only if it is expressed in one of these manifestations
- He didn’t fulfill the requirements of the High Council of Justice about referral to the National School of Judges for a refresher course;
- After this course Judge failed exam. So, he didn’t confirm the ability to administer justice.
Judge will dismissed due to non- compliance with current position, he must get another, a milder type of disciplinary sanction: removal from justice for a period from one to six months and referral to the National School of Judges for a refresher course, if Judge failed exam.
We can conclude that a single failed exam during qualification evaluation isn’t an incontestable basis for dismissal.