Criminal Liability for Making an Unlawful Court Decision by Judiciary: International Standards, Legislation of Ukraine and Other European States

• Main Author: Mykola Khavroniuk
• Format: Article
• Language: English
• Published: National University of Kyiv-Mohyla Academy 2019-05-01
• Series: Наукові записки НаУКМА: Юридичні науки
• Subjects: judge; court decision; unlawful judicial decision; criminal liability; immunity of judges
• Online Access: http://nrplaw.ukma.edu.ua/article/view/185730/185290

The article examines the problem of bringing Ukrainian judges to criminal liability for their so-called unlawful court decisions, the grounds for such liability compared with the grounds of criminal liability of judges for any acts related to their performance of their official powers. The paper analyzes international standards on criminal liability of judges and judges’ immunity, as well as a court decision. It is determined that, in accordance with international standards, judicial immunity must be functional, that is extend exclusively to acts related to the passing of judicial decisions and execution of other official duties; judicial immunity should not apply to cases of unjust benefits received by judges, although this occurs in connection with the performance of their official duties, and for any crimes not related to the performance of their official duties; making an unlawful judicial decision or other act related to the performance of a judge’s official duties may be recognized as a crime only on condition that there is intent. A judicial decision can be considered to be contrary to the content and purpose of justice which: a) is incomprehensible, and the reasons for making it unclear; b) does not provide legal certainty to the parties, does not resolve the dispute and intensifies the conflict; c) is unjustified, inadequate, such that it is not passed within a reasonable time and not as a result of a fair trial. The approaches of legislators of other states concerning the criminalization of the issuance of an unlawful judicial decision and other acts related to the performance of a judge’s official duties are generalized. Thus, it has been found that criminal responsibility for acts related to the performance of official duties of a judge, in particular, the passing of court decisions, in the legislation of different countries, may appear: 1) none at all, or 2) there is a selfish act related to the performance of official duties of a judge, or 3) there is a deliberate rendering of a wrongful (illegal, biased, illegal and unreasonable, illegal and prejudiced) judgment – irrespective of selfish motives, or 4) there are other acts related to the performance of official duties of a judge. The requirements of the procedural legislation of Ukraine concerning court decisions and judicial practice are analyzed, and the definition of “unlawful judicial decision” is proposed.