Disciplinary Proceedings as a Preventive Mechanism for Ensuring the Right to a Fair Trial

Authors

  • Zurab Aznaurashvili Grigol Robakidze University
  • Tamar Devdariani Grigol Robakidze University

DOI:

https://doi.org/10.52340/zssulaw.2023.01.11

Keywords:

Court, judge, judicial ethics, justice, fair trial, disciplinary proceedings

Abstract

The existence of mechanisms for disciplinary proceedings against judges is important both to ensure the accountability of judges in a democratic society and to strengthen confidence in the judicial system.

To ensure the authority of the judiciary, the judge must recognize and follow the rules and standards of conduct necessary to protect the prestige of justice. Every action of a judge must be based on the rules of judicial ethics, and such behaviour, which violates the established standard and, in its essence, represents a possible disciplinary offense, must be evaluated by the body implementing disciplinary proceedings within the framework of disciplinary legislation.

On the other hand, disciplinary proceedings contribute to the understanding of the judge's behaviour in such a way as to ensure the use of disciplinary proceedings as a preventive mechanism, and the mentioned type of proceedings itself should not pose a threat to the fundamental values of independence and impartiality of the court. In addition, during the disciplinary proceedings, it should be ensured that the proceedings are conducted with proper quality and in a prescribed manner.

Author Biographies

Zurab Aznaurashvili, Grigol Robakidze University

Assistant Professor

Tamar Devdariani, Grigol Robakidze University

Guest Lecturer at Grigol Robakidze University, Deputy Head of the Public Information Division of the

Administration (Department) of the Ministry of Internal Affairs of Georgia

References

Note On International Standards and Good Practice of Disciplinary Proceedings Against Judges, OSCE Office for Democratic Institutions and Human Rights, Warsaw, 2018, 16.

Constitutional Court of Georgia 2006 December 15 №1/3/393,397 decision, II. §1.

The right to a fair trial) contains several relevant provisions regarding the role of Public Prosecutors in a trial. Article 8 (1) establishes: "every person, in determining any criminal charges brought against him or his / her rights and obligations of a civil, labor, financial or any other nature, shall have the right to consider his / her case within a reasonable period and with due guarantees Be competent, independent and impartial by the tribunal, which is pre-established based on the law“.

"Every person, in determining the basis of his / her civil rights and obligations, or the merits of the criminal charges presented to him / her, shall be entitled to a fair and public hearing of his / her case within a reasonable period of time by an independent and impartial court established on the basis of law."

“All persons are equal before courts and tribunals. Each person has the right to judge each criminal charge brought against him / her, or to determine his / her rights and obligations in any civil process, to have his / her case fairly and publicly identified by a competent, independent and impartial court established on the basis of law“.

A/HRC/11/41, [2009], §57; U.N. Doc. CCPR/C/OP/1, Larry James Pinkney v. Canada, Communication No. 27/1978, [1985], §34. Sunday Times v United Kingdom, [1979] ECtHR, §49.

Case C-719/19, European Commission v. Poland (ECLI:EU:C:2021:366), [2021], §6

Shivaraj S Huchhanavar, Conceptualising Judicial Independence and Accountability from a Regulatory Perspective, 4 April 2023 - https://www.idunn.no/doi/10.18261/olr.9.2.3

Gasitashvili E., Zambakhidze T., Loria A., Meskhishvili S.T.R., Kordzakhia Z., Moliterno J., Chubular T., Legal Ethics, Tbilisi, 2021, p. 577.

A judge may be charged with criminal, civil, administrative, as well as disciplinary liability.

The position of the judiciary and its relation with the other powers of state in a modern Democracy, Consultative Council of European Judges (CCJE), Opinion №18, 2015, 9, 26.

Oleksandr Volkov v. Ukraine, №21722/11, §80

Article 7510, paragraph 5 of the Organic Law on Common Courts of Georgia.

ODIHR Max Planck Minerva Research Group on Judicial Independence, Kyiv, 23-25 June 2010, §25.

Gogiashvili G., Judicial Law, Second Edition, Tbilisi, 2020, p. 71.

The Inter-American Court of Human Rights clarified concerning to disciplinary penalties that it is a punitive mechanism that can have a significant impact on human rights, especially in the case of dismissal of a judge (López Lone et al. v. Honduras, [2015] ECtHR §257).

Oleksandr Volkov v. Ukraine, №21722/11, §137.

Ibid, §87-91.

No. 3 conclusion of the Consultative Council of European Judges (CCJE) "on the principles and rules regulating the professional conduct of judges, particularly the norms of ethics, inappropriate behavior, and impartiality in office," Strasbourg, France, 19.11.2002.

No. 3 conclusion of the Consultative Council of European Judges (CCJE), §72.

Report of the OSCE Office for Democratic Institutions and Human Rights "Best Practices and International Standards for Disciplinary Proceedings of Judges," §47.

Public Defender against the Parliament of Georgia, decision of the Constitutional Court of Georgia No. 1/466.

Guide on Article 6 of the European Convention on Human Rights - Right to a fair trial, Council of Europe/European Court of Human Rights, 2022 - https://www.echr.coe.int/documents/d/echr/guide_Art_6_eng

Sturua v. Georgia №45729/05, §33.

Ibid, §35.

Oleksandr Volkov v. Ukraine, №21722/11, §150.

Ibid, §151.

Sturua v. Georgia №45729/05, §40.

The final document of the Vienna meeting of representatives of the participating countries of the Conference on Security and Cooperation in Europe (CSCE), 1986, 1989; Copenhagen document of the CSCE conference in the field of human dimension, 1990; Paris charter for a new Europe, 1990; document of the Moscow meeting of the CSCE conference in the field of human dimension, 1991; MC.DOC/4/06.

The Independent Inspector's Office, which has the exclusive authority to initiate disciplinary proceedings against judges, processes and publishes statistical information on a quarterly basis and annually prepares an analysis of the conclusions and decisions of the High Council of Justice.

Published

2025-02-02

Issue

Section

Articles