On the question of holding a judge to responsibility for a judicial decision adopted by him
Authors: Hdanskyi Nazar 
Published: December 2023

Abstract. Titan of labor Ivan Franko and Metropolitan Andrey Sheptytskyi wrote: "Love Ukraine not with a stream of loud and noisy phrases, but with quiet and tireless work. Loud, phraseological and, to a greater extent, insincere, because patriotism not supported by deeds must give way to respectable, silent, but deeply felt patriotism, which manifests itself not in words, but in work." Under the influence of information and political campaigns, society often uncritically accepts as its own the populist and dangerous words of public figures who, not knowing the true state of affairs in the judicial system of Ukraine and having never worked there for a single day, call themselves "experts" and undertake its "reform". In the absence of objective and reliable information about the level of trust in the judiciary and the impact of legislative changes on it, such persons, guided by their own reputational interests, form a false impression in society about the activities of the courts. This, in particular, concerns the expediency of using evaluative concepts in the regulation of the grounds for bringing judges to disciplinary responsibility and their correct interpretation. The Law of God was not chosen as an epigraph to the article by chance, because it was constructed precisely with the use of evaluative concepts, the key ones of which are "love" and "neighbor". And if the Lord Himself resorted to evaluative concepts in order to write the New Testament (agreement) with man, then it is useless to think that we, people, will be able to do without using this technique of legal technique. In Ukraine, as a democratic state, legislation must meet the criteria and principles defined by the Constitution of Ukraine. These are, in particular, the principled rule of law. The requirement of the rule of law, as established by the Constitutional Court of Ukraine, is compliance with the principle of legal certainty. This principle presupposes the uniform application of the rule of law, as well as the impossibility of its arbitrary interpretation. Legal certainty of the rule of law is a key condition for providing everyone with effective judicial protection by an independent court. According to the decision of the Constitutional Court of Ukraine (No. 6-r/2019 dated June 20, 2019), legal certainty includes such components as clarity, comprehensibility, and unambiguity of legal norms. According to this decision, "the legislator must strive for clarity and comprehensibility in the presentation of legal norms. Each person, in accordance with the specific circumstances, must orientate himself on which rule of law applies in a certain case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, taking into account the reasonable and foreseeable stability of the rules of law" (paragraphs 5, 6 sub. 4.1 clause 4 of the motivational part). And according to the decision of the Constitutional Court of Ukraine (from February 26, 2019 No. 1-р/2019), it is especially important to adhere to the clarity and unambiguity of the norms that determine criminal responsibility, taking into account the specifics of the criminal law and the consequences of bringing to criminal responsibility, "because bringing to such type of legal responsibility is associated with possible significant limitations of human rights and freedoms" (par. 7, item 3 of the motivational part). It should be noted that in the decision in the case "Novik v. Ukraine" (Novik v. Ukraine) dated December 18, 2008 (application No. 48068/06), the European Court of Human Rights stated: "...when it comes to deprivation of liberty, it is extremely important ensuring the general principle of legal certainty. The requirement of "quality of legal prescriptions" within the meaning of clause 1 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 means that if a national law allows the possibility of deprivation of liberty, such law must be sufficiently accessible, clearly formulated and foreseen in application to exclude any risk of arbitrariness" (§ 19). The Constitutional Court of Ukraine proceeds from the fact that the Criminal Code of Ukraine (Article 375) does not provide criteria by which it would be possible to determine which sentence, decision, resolution or resolution of a judge (judges) is "unjust", as well as the meaning of the expression "knowingly unjust" has not been disclosed. This leads to an ambiguous understanding of the composition of the crime, which is qualified according to the specified norm. According to the Constitutional Court of Ukraine, the wording of the provision of Art. 375 of the Criminal Code of Ukraine allows for the possibility of its abuse in the event that the authorities of the pre-trial investigation commit actions, the consequence of which is the bringing to criminal responsibility of the judge who issued a court decision that, in the opinion of the investigator, prosecutor or any other person, is "unjust" (in particular , disagreement with the decision). The decision emphasizes that the criminal law must be legally defined, clear, unambiguous and predictable. This is what can guarantee the administration of justice by the judge on the basis of the rule of law and the effective implementation of everyone's constitutional right to judicial protection. On the basis of the above, the Constitutional Court of Ukraine concludes that Art. 375 of the Criminal Code of Ukraine contradicts the Constitution of Ukraine, in particular, Part 1 of Art. 8. At the same time, in accordance with the Constitution of Ukraine (Part 4, Article 126), a judge cannot be held accountable for a court decision passed by him, except in the case when the judge committed a crime or a disciplinary offense.