The Conclusion of the Council of Judges of the Russian Federation on the draft federal law “On amending of the Article 12.1 of the Federal law of the Russian Federation “On the status of judges in the Russian Federation”

     The draft federal law “On amending of the Article 12.1 of the Federal law of the Russian Federation “On the status of judges in the Russian Federation” was argued in the Council of Judges of the Russian Federation.

     The Council considers the innovations presented in the draft not acceptable because their realization will not promote the improvement of the legal regulation of the procedure of bringing judges to disciplinary responsibility.

     So, particularly it is not possible to support the proposal about the extension of the list of types of sanctions for committed disciplinable offences.

With a view to the high status of a judge which is primarily confirmed by exceptionally complicated selection procedure and the presentation of candidates for the position of a judge and by the legal procedure of the appointment to one’s position (point  “e” of article 83 of the Constitution of the Russian Federation) we believe that in order to prevent a disciplinary offense, entailing an early termination of powers of a judge, the type of  disciplinary action as a warning is quite enough.

     We also believe that effectual limitation of the list of types of sanctions by two types makes the conception of the disciplinary responsibility important for judges as well as for the society.

     According to the draft one of the bases for the imposition of disciplinary penalty in the type of the early termination of powers of a judge should be a flagrant disciplinable offence which was expressed in rendering of an illegal judicial act if it’s illegality was confirmed by the higher judicial instance.

     In this way of the interpretation of the flagrant disciplinable offence every case of the rescission of a judgment (or amendment) by a higher instance in connection with incorrect application of substantive or procedural law can be the basis for the beginning of the disciplinary proceedings against a judge and his dismissal.

     Such an attitude of draft developers is crucially unacceptable since it contradicts the point 2 of article 16 of the Federal Law “On the status of judges in the Russian Federation” which claims that a judge can’t be brought to any responsibility for the expression of opinion and accepted judicial decision unless the judicial decision which took legal force convicts the judge of criminal abuse or delivery of a wittingly misjudgment.

     This legal norm is enacted for development of the constitutional principle of judges’ independence and reflects the level of the state guarantee of independence and inviolability which can’t be reduced even by a law (point 4 of article 5, point 3 article 11 of the Federal Constitutional law “On the Judicial system of the Russian Federation”, point 1.1 of the European charter on the statute for judges).

     In the development of this positions the Constitutional Court of the Russian Federation underlined in the Decree № 3-П from February 28, 2008 that a judge can’t be brought to disciplinary responsibility in the form of termination of powers of a jugde for a judicial error unless the misjudgment is the result of the judge’s behavior which is incompatible with his post. The other proposition would not correspond to the principles of judicial independence, irremovability and inviolability.

     The new disciplinary penalty “reduction of the skill category of a judge” introduced by the draft law in fact creates a new judge’s liability – material. Enforcement of the penalty will lead to the reduction of wages (which also consists of additional payment for the skill category), this position is not acceptable because of contradiction with the point 3 of article 11 of the Federal Constitutional law “On the Judicial system of the Russian Federation” and with points 1 and 4 of article 9 of the Federal law “On the status of judges in the Russian Federation”.

      Summarizing the facts the Council of Judges does not support the above-named draft federal law and considers that there is no necessity in the enactment of this draft law also the decree of the Constitutional Court of the Russian Federation № 19-П from July 20, 2011with reference to the point 1of article 12.1 of the Federal law of the Russian Federation “On the status of  judges in the Russian Federation” which is recognized to be in agreement with the Constitution of the Russian Federation.



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