PDF

Taras PASHUK,

lawyer at the Registry of the European Court of Human Rights,

Doctor of Law Sciences

DISCIPLINARY LIABILITY OF JUDGE FOR LEGAL ERROR: COMPARATIVE-LAW PERSPECTIVE IN THE CONTEXT OF JUDICIAL INDEPENDENCE.

The article explores general theoretical conditions under which a judge may be imposed disciplinary liability for a legal error. The comparative analysis of the domestic approaches in France and in the USA, as well as the overview of the international law on this matter, suggests that the disciplinary liability of a judge for a legal error enters a sensitive area of interaction between two fundamental principles of the modern society: the principle of independent adjudication and the need for public confidence in the competent justice. The judicial independence cannot be a shield for an inappropriate judge and the law should permit, rather on the exceptional grounds, a disciplinary interference with the adjudicating function which may entail analysis of the contents of the judicial decisions.

The criteria for such interference are necessarily developed in broad terms, however the use of normative technique is sometimes unfortunate as it often does not make due distinction between the actus reus and mens rea elements of the disciplinary offence. In order to prevent the overinclusive approach by the disciplinary authorities, the actus reus of the legal error subject to discipline should be understood as referring to egregious legal mistake. In practical dimension it is important to take into account the standard which should be applied in such cases. In order to classify a legal error as meriting discipline the US objective reasonableness test appears to be appropriate. On the basis of that standard a legal error would amount to a disciplinary offence if a reasonably prudent and competent judge would in all the circumstances have concluded that the conduct was both obviously and seriously wrong.

The disciplinary proceedings against a judge should necessarily include the investigation of the mental element of the conduct. Such analysis should permit to distinguish a good-faith legal error which cannot be subject to discipline from a bad-faith legal error which deserves a disciplinary measure. Furthermore, there are external factors which have relevance to the determination whether or not the legal mistake should be elevated to a disciplinary offence. Those factors include the issue of ambiguity of law, the frequency of legal errors, and the reversibility of legal error.

Key words: legal error, disciplinary misconduct, disciplinary responsibility.

References

Gray C. The line between legal error and judicial misconduct: balancing judicial independence and accountability. Hofstra Law Review. 2004. Vol. 32. Iss. 4. Р. 1245–1280.[engl.]

Conseil constitutionnel, Commentaire de la décision n° 2007–551 DC du 1er mars 2007, Les Cahiers du Conseil constitutionnel, Cahier n° 22 URL: https://www.conseil-constitutionnel.fr/decision/2007/2007551DC.htm.[fr.]

Massachusetts Supreme Judicial Court Rules, Rule 3:09: Code of Judicial Conduct URL: https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-rule-309-code-of-judicial-conduct. [engl.]

Arizona Code of udicial Conduct URL: http://www.azcourts.gov/portals/137/rules/Arizona%20Code%20of%20Judicial%20Conduct.pdf[engl.]

Maine Code of Judicial Conduct URL: http://www.courts.maine.gov/rules_adminorders/rules/text/mc_jud_conduct_plus_2017-9-5.pdf. [engl.]

Massachusetts Commission on Judicial Conduct, 2017 Annual Report, URL: https://www.mass.gov/files/documents/2018/05/15/CJC%202017%20Annual%20Report_1.pdf. [engl.]

Supreme Judicial Court of Maine, In the Matter of Benoit, 487 A.2d 1158 (Me. 1985). [engl.]

Court on the Judiciary of Oklahoma, Appellate Division, State Edmondson v. Colclazier, No. CJAD-01-2. 14 June 2002. [engl.]

Supreme Court of California, Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 84 Cal. Rptr. 2d 466; 975 P.2d 663. [engl.]

Supreme Court of Louisiana, In re Boothe (2013), 12–1821 (La.1/29/13), 110 So.3d 1002. [engl.]

Supreme Court of Kentucky, Alred v. Commonwealth judicial conduct commission (2012), No. 2011–SC–000558–RR. [engl.]

Supreme Court of New Jersey, In the Matter of Louis M. J. Dileo, a Former Judge of the Municipal Court (072095), D-66-12 (N.J. 2014). [engl.]

Lubet S. Judicial discipline and judicial independence. Law and Contemporary Problems. 1998. Vol. 61. Р. 59–74.

New Mexico Judicial Education Center. New Mexico Judicial Ethics Handbook, University of New Mexico School of Law. 2011. 208 p. [engl.]

Stern G. Judicial error that is subject to discipline in New York. Hofstra Law Review. 2004. Vol. 32. Iss. 4. Р. 1547–1563. [engl.]

Shaman J. M. Judicial Ethics. Georgetown Journal of Legal Ethics. 1988. № 2 (1). Р. 1–20. [engl.]

Venice Commission & the CoE Directorate of Human Rights & the OSCE Office for democratic institutions and human rights, Joint Opinion on the draft law on disciplinary liability of judges of the Republic of Moldova, no. 755 / 2014 (CDL-AD(2014)006), Strasbourg. Warsaw, 24 March 2014 URL: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)006-e. [engl.]