Inacceptability of influence by prosecutors and lawyers on the activities of judges

Nazar HDANSKYI "Inacceptability of influence by prosecutors and lawyers on the activities of judges".

https://science.lpnu.ua/law/all-volumes-and-issues/volume-11-number-1-40...

Authors:
1
Western Ukrainian National University

  Abstract. Prosecutors and lawyers, whose work involves ensuring the application of the law and, at the same time, diligently respecting court decisions, the enforcement of which is often their duty, must protect the right to appeal during their execution. It is clear that the reverse is also true: judges must respect prosecutors as representatives of these professional bodies and not interfere with the performance of their duties. According to Article 124 of the Constitution of Ukraine, judicial decisions are binding throughout the territory of Ukraine and are therefore considered lawful until they are annulled in appellate or cassation order or reviewed by a competent court in another manner prescribed by procedural law, within the proceedings in which they were made. This rule can be characterized as the presumption of legality of judicial decisions. It is an important guarantee of the independence of judges in making decisions.

From this constitutional provision, it follows that the exclusive right to verify the legality and justification of judicial decisions belongs to the respective court, as defined in accordance with procedural legislation. Challenging judicial decisions, the activity of courts and judges regarding the consideration and resolution of cases outside the procedure provided by procedural law, is not allowed. The term "judicial decision" should also be understood to include the court's verdict, ruling, or decision. The requirement of legality means the court's compliance with norms of substantive and procedural law. Procedural law norms are considered violated if the consideration and resolution of the case were carried out by an unauthorized court. A judicial decision is deemed justified if it is made by the court based on circumstances in the legal case that are fully and comprehensively clarified based on evidence examined by the court.

Therefore, the issuance of a justified judicial decision is contingent upon how effectively the court determined the subject of the judicial review, the subject of proof, and adhered to the entire set of rules regulating the procedural order of gathering, examining, and evaluating evidence. A just judicial decision must also be properly motivated. The right to a fair trial, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms regarding the role of the prosecution in the criminal justice system, adopted by the Committee of Ministers, includes the right to a judicial decision that is properly motivated. Typically, a motivated judicial decision is one with a proper and comprehensive statement of the reasoning part in its text. It is necessary to distinguish two main directions of interaction between judges and prosecutors. On one hand, there are relations between judges and prosecutors arising from procedural principles and rules, which directly affect the effectiveness and quality of justice. In Opinion No. 11(2008) on the quality of judicial decisions, the Consultative Council of European Judges indicates that the standards of quality of judicial decisions directly depend on the interaction of various participants in the judicial process. On the other hand, there are relations arising from the professional behavior of judges and prosecutors, involving mutual respect for each other's tasks and constructive dialogue between judges and prosecutors, as well as lawyers.

The rule of prosecutorial ethics established in this article is aimed at maintaining the authority of justice, ensuring respect for the independence of judges, and according to paragraph 8 of part 1 of Article 3 of the Law of Ukraine "On the Prosecutor's Office," it is one of the principles of the prosecutor's office's functioning. At the same time, prosecutors should not publicly defend the justification of court decisions. Public statements or comments are considered those made during the performance of one's duties or using an official position, as well as with the awareness of the possibility of their publication in the press, broadcast on radio, television, or using other mass media; disseminated on the Internet or using other means of telecommunication; presented in assessments, statements, letters addressed to other persons; announced in public speeches, etc. Prosecutors are prohibited from publicly expressing, in the presence of others, any doubts about the justice of judicial decisions outside the procedure for their appeal, including through their behavior (non-verbally). Likewise, the justice of a judicial decision should be assessed by the prosecutor exclusively in the context of its legality and adherence to the decision-making procedure.

Furthermore, interference or any influence in cases or in a manner not provided by law on the activities of judges, including through public statements regarding their decisions, actions, or inactions, in the absence of signs of administrative or criminal offenses, is a separate ground for the disciplinary responsibility of prosecutors (paragraph 8 of part 1 of Article 43 of the Law of Ukraine "On the Prosecutor's Office"). Even if a prosecutor identifies what he believes to be a knowingly unjust judicial decision, i.e., signs of a criminal offense committed by a judge as provided by Article 375 of the Criminal Code of Ukraine, public statements about it would also be unethical as it would undermine the authority of the judiciary as a whole. Judges and lawyers must be independent in the performance of their duties. This independence is affirmed by the Codes of Conduct for each profession (paragraph 7 of Opinion (2013)16 of the Consultative Council of European Judges on the relations between judges and lawyers).

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