Disciplinary Sanctions against Judges: Punitive but not Criminal for the Strasbourg Court

• Date: 06 February 2023
• Year: 2023
• Author: Prof. Dr. Lorena Bachmaier
• Pages: 42
• DOI: https://doi.org/10.30709/eucrim-2022-018

I. Introduction

Criminal and administrative sanctioning systems have been running on parallel tracks in the European continental legal tradition for centuries. In many cases, criminal policy aspects distinguish criminal offences from administrative offences, rather than features or elements of each regulatory system. This is not new.¹ The lines have always been blurred, and the case law of the ECtHR has further obscured the boundaries between the two categories.² This difficulty of differentiating between administrative punitive sanctions and criminal sanctions and the overlap between them has been the subject of numerous scholarly studies, which have also highlighted a growing confusion reflected at the level of EU law.³

Identifying which administrative offences are to be considered “criminal in nature” is relevant from the point of view of the theory of criminal law, where it has been stressed that there is an unacceptable expansion of criminal law that runs against the principle of ultima ratio. Even more importantly, such a clarification would help identify which of the safeguards of the criminal procedure should also apply to the administrative sanctioning proceedings with a punitive nature. The latter also holds true for the ne bis in idem principle.⁴

The debate and the case law have mainly revolved around competition law, environmental law, and crime prevention.⁵ In turn, disciplinary proceedings – in particular those against judges – represent an area that has often been neglected but where the above-mentioned questions are of great relevance. Although the ECtHR initially considered certain disciplinary proceedings as criminal in nature, it has long abandoned this stance and repeatedly declared that judicial disciplinary proceedings fall within the civil limb of Art. 6 of the ECHR. In this context, the question arises whether disciplinary proceedings and sanctions against judges are purely administrative, “quasi-criminal,” or “criminal in nature.” Why are disciplinary sanctions against judges, which seem to have a clear punitive character and can entail severe penalties, not considered “criminal” by the Strasbourg Court? Do they have specific features that justify not including them in the concept of “criminal charge”? Are the boundaries between criminal and administrative offences even more blurred in this area?

While it would exceed the scope of this article to review the numerous discussions and case law in connection with the blurred lines between administrative and criminal sanctions and the difficulties of identifying proceedings and sanctions which are “criminal in nature,” the aim is to map out the arguments put forward in ECtHR case law on disciplinary sanctions against judges. To that end, I will first describe the safeguards established for disciplinary proceedings against judges. Second, I will briefly call to mind the scope and meaning of the so-called Engel criteria, and reflect on the arguments invoked by the Court when framing the disciplinary sanctions against judges within the civil limb of Art. 6 ECHR. I will argue that such an approach does not aid in providing clarity regarding the safeguards of the criminal procedure that are applicable in administrative sanctioning proceedings with a punitive nature. In my conclusions, I will argue that the CJEU might be called upon in the future to define what should be considered as “criminal in nature” in disciplinary proceedings against judges.⁶ The issue is not irrelevant as such sanctions are a weak link when it comes to protecting judicial independence – the latter falling within the competence of the Luxembourg Court.

II. Principles for Disciplinary Proceedings against Judges in European Law

Before looking in detail at the CoE legal framework in disciplinary proceedings (including the ECtHR case law on this matter), it makes sense to discuss the legal situation in the EU. To date, the CJEU has yet to conclusively answer the question of whether or not disciplinary sanctions against judges ought to be classified as “criminal” or “quasi-criminal”. By its judgment in Associação Sindical dos Juízes Portugueses v Tribunal de Contas,⁷ the CJEU linked the disciplinary liability of judges to judicial independence as defined in Art. 19(1) TEU and thus extended the EU’s competence to rule on these issues by a broad interpretation of Art. 51(1) of the Charter. This enabled the CJEU to rule on the safeguards of judicial independence in the Member States and resulted in the definition of some guarantees that disciplinary proceedings should include in order to respect said principle of independence. Thus, when it comes to judicial independence and its effective protection, the EU has extended the traditional limits posed by the material criteria which define the spheres of EU and national law. Since that judgment, the CJEU has had the opportunity to rule on the safeguards of judicial independence in the Member States.⁸

The CJEU case law, following some of the standards set out by the ECtHR, defines the guarantees that disciplinary proceedings should include in order to respect the principle of independence:⁹

• A procedure before an independent body that respects the rights of the defence and the right of appeal;

• The precise regulation of disciplinary offences and sanctions.

Yet, what preliminary ruling would the CJEU give on the disciplinary responsibility of a judge? What safeguards would it require to be respected when it comes to disciplinary proceedings against judges? Would it echo the ECtHR and deny the punitive character of such disciplinary sanctions, i.e., the applicability of criminal safeguards? Or would it only limit the concept of “criminal in nature” to cases in which the dismissal of a judge is at stake? Or not even to such cases?

Let us look at the standards on disciplinary proceedings against judges in the framework of the Council of Europe (CoE) and the ECtHR case law interpreting the ECHR guarantees in this field.

With regard to disciplinary liability, COE Recommendation 94(12) on the independence, efficiency and role of the judges already includes principles on the accountability of judges.¹⁰ These principles were updated by CoE Recommendation 2010(12) on the independence, efficiency and responsibilities of judges.¹¹ CoE Recommendation (2010)12 requires that disciplinary proceedings against judges are conducted by independent bodies or the courts, ensuring full observance of the guarantees of a fair trial. In addition, judges must be granted the right to appeal the decision of the disciplinary body.¹²

Accordingly, the European Charter on the Statute for Judges provides for the possibility of disciplinary proceedings before a competent authority and the imposition of a disciplinary sanction against a judge “following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation.”¹³

What are the standards provided by the ECHR as interpreted by the ECtHR? This will be outlined in the following three sections – starting with the principles for an independent and impartial tribunal, followed by the right to a fair trial, and finally the right to judicial remedy.

1. Independent and impartial tribunal

The ECtHR does not stipulate that the disciplinary liability against judges be decided by a court. In this regard, the ECtHR has been consistent in its stance that conferring competence to a professional disciplinary body – and not a court – to decide on disciplinary offences and eventually impose the corresponding sanction is not in itself inconsistent with the requirements of Art. 6(1) ECHR. However, when CoE member states opt for this approach, the disciplinary body must either comply with the requirements of Art. 6(1) ECHR (i.e., be an “independent and impartial tribunal established by the law”),¹⁴ or its decisions must be subject to a “sufficient” judicial review by a body complying with the requirements of independence and impartiality.¹⁵ When assessing the sufficiency of the review, two elements are thus taken into account: the scope of the appeal, but also whether the competent court complies with the requirements of independence, as seen in the case of Denisov v. Ukraine.¹⁶ In this case, the applicant – a judge who had been dismissed from his position as president of the Kyiv High Administrative Court of Appeal – complained that the proceedings before the judicial council and the appeal before the High Administrative Court (HAC) concerning his removal had not been compatible with the requirements of independence and impartiality. He also complained that the HAC had not provided a sufficient review of his case, thereby impairing his right of access to a court.¹⁷

2. Right to a fair trial in disciplinary proceedings

It has been established that disciplinary proceedings against judges must meet the fair trial safeguard requirements as provided under Art. 6(1) ECHR. It is settled ECtHR case law that the disciplinary proceedings in which the right to continue to exercise a profession is at stake are classified as “disputes” over civil rights within the first alternative of Art. 6(1) ECHR.¹⁸ This approach has been applied to proceedings before various professional disciplinary bodies; in Baka v. Hungary, the Court confirmed its applicability to disciplinary proceedings against judges.¹⁹

The ECtHR has analysed the violation of fair trial standards against four criteria: lack of impartiality of tribunals, the violation of the principle of equality of arms, secrecy, and excessive length of proceedings.²⁰ The relevant criteria for satisfying the requirements of Art. 6(1) ECHR concern both the disciplinary proceedings at first instance and the judicial proceedings on appeal. As...