Actual problems of accountability and responsibility of officials of international judicial institutions

Smirnov Viktor Vyacheslavovich Postgraduate student, Department of Constitutional and International Law, University of Management "TISBI" 420012, Russia, respublika Tatarstan, g. Kazan', ul. Mushtari, 13 05540@mail.ru Other publications by this author

At all times, the status of a judge has been special for society and has been an integral attribute of statehood, since the sustainable existence of society is possible only with the existence of fair justice bodies.

It seems that the elements of responsibility and accountability are among the key elements for the proper and fair functioning of any State bodies, including the judiciary.

With the development of globalization and integration processes, the development of international law is taking place, the formation of a new supranational law, the application of which requires developed, independent, competent bodies of international justice ^{[3, p.7]}. In recent decades, international judicial institutions have begun to develop actively: the number of international courts of universal jurisdiction and specialized courts has grown, organizations have emerged that have many features of the international court of justice, or a hybrid character ^{[20, p.60]}. For the effective functioning of international judicial bodies, a developed institution of responsibility of officials of international judicial institutions, including criminal ones, is necessary, since the rights and freedoms of each individual and their protection have ceased to be only an internal matter of a separate country ^{[12, p. 207]}. As Professor L. H. Mingazov notes, a new format of the security regime is currently being adopted, when the protection of the individual and society as a whole is brought to the fore ^{[11, p. 25]}.

Currently, there are a number of problems related to the accountability and responsibility of officials of international judicial institutions, including the selectivity of the application of international law ^{[15, p.3]}, with doubts related to the presence of signs of objective impartiality. ^{[9, p.12]}

V. I. Churkin^[1] believed that the International Criminal Court (ICC) was being used for political purposes to "delegitimize the regime" and in his speeches drew attention to the absence of the fact of objective impartiality of this international judicial institution. In particular, when the vote was held on the draft resolution on the transfer of the Syrian dossier to the ICC, he drew attention to the fact that the ICC "moves away from acute topics" and does not consider the issues of civilian deaths and NATO bombing. ^{[19, pp. 345-347]}

The subject of this study is a general overview of the issues of accountability and responsibility of officials of international judicial institutions, especially judges.

In the course of the research, first of all, general scientific research methods were used: the dialectical method, the deductive method, the comparative method, in which the general patterns of responsibility of judges in various countries were analyzed first, and then more specifically on the examples of the International Criminal Court and the European Court of Human Rights. The method of system analysis was also used, which made it possible to more comprehensively consider the issues of accountability of judges to the public.

The theoretical basis of the research was the works of the following domestic scientists – specialists in the field of international law and justice – Abashidze A. H., Abdullina A. I., Adamova E. R., Akhamova I. L., Aliyev Z. G., Amirov K. F., Amirova R. R., Antonov I. O., Arslanova K. M., Bakulina L. V., Bakulina L. T., Bukhmina S. V., Valeeva R. M., Gavrilova V. V., Gadelshina Z. I., Garanina I. G., Garipova R. S., Glushkova S. I., Gorshunova D. N., Huseynova T. I., Kalamkaryana R. A., Kalinichenko P. A., Kashkina S. Yu., Kleandrova M. I., Kopylova E. A., Lazutina L. A., Mezyaeva A. B., Mingazova L. H., Motrokhina E. Yu., Neshataeva T. N., Tolstykh V. L., Troshchinsky P. V., Shaykhutdinova G. R. and others.

The works of such foreign scientists as: Jonas G., Markal J., Schmitt K. were also used.

The scientific novelty of the work is as follows: the mechanisms of holding judges accountable in different countries are considered, the problem of insufficient regulation of mechanisms for holding officials of international justice bodies accountable is revealed, it is shown that, taking into account the development of global integration processes and the worldwide spread of international courts and tribunals, the issues of accountability and responsibility of judges to society are of key importance for fair functioning judicial bodies.

The mechanism of judges' responsibility has existed since ancient times, as has the existence of the court itself. Archaic communities of people united in tribes and clans tried to settle disputes among themselves not by military means, but by holding a meeting of elders and leaders ^{[6, p.13]}, which in essence is a prototype of the international court of justice. The interaction of these societies was not of a global nature, each of them, in the absence of a global understanding of the world order as a whole, considered itself as a "world".

In ancient times, the functions of judges were assigned to priests, who were believed to be interpreters of the will of the gods, and in some proto-states of antiquity, such a function was performed by the supra-communal administration. ^{[1, p.15]}. Already at that time, the first mentions of the responsibility of judges appeared, for example, in the works of Plato, the situation of the trial of a judge in Atlantis was described, when ten judges tried another judge accused by a third person who did not have the status of a judge.

There are several elements of the term "responsibility". Firstly, responsibility is associated with the need to give an account of their actions and be responsible for their consequences. Secondly, responsibility is also connected with punishability for committed acts ^{[2, p.3]}. Thirdly, responsibility can also be considered in a broad sense, that is, as an obligation to perform useful actions for society, that is, an individual's inner sense of self for his role. Fourth, legal responsibility is understood as the obligation of a person who has committed an illegal act to suffer adverse consequences in the form of certain measures of state coercion.

In their meaning and content, these terms are identical for the responsibility applicable to judges and other officials.

The term accountability in the broad sense in the Russian language is understood as the obligation to report to someone. On the one hand, from the point of view of the principle of judicial independence, judges can be accountable only to higher courts. On the other hand, the duty of a judge to produce a motivational part of his decision implies an element of accountability to society and control by other branches of government. In the motivational part, the judge reports to the general public about why he made this or that decision.

The accountability of judges can be divided into internal (to higher judges, reporting to other branches of government) and external (to the media and society as a whole). Currently, in many countries, officials of judicial institutions hold briefings in front of representatives of the press and other media, a lot of information for the possibility of public control is posted on the official websites of courts.

Annual reports on the work of judicial institutions can also be considered as one of the forms of reporting to the general public. Thus, the European Court of Human Rights submits an annual report, which provides detailed statistics on the decisions taken by the court, with informative graphs and sorting statistics of acts by country. The International Criminal Court also submits annual reports to the UN General Assembly. The President of the International Criminal Court submits a report on investigations to the UN Security Council.

Professor M.I. Kleandrov suggests considering the responsibility of a judge from the point of view of the organizational structure of responsibility, which, in his opinion, should contain the following links: determining the subject of responsibility, the initiator of bringing to responsibility; the specifics of the violation committed by the subject of judicial responsibility; fixing the violation of legal or moral (ethical standards) committed by the judge; conducting a preliminary check (preliminary investigation); decision-making (on punishment, on acquittal) by a special body "court over judges"; determination of the measure and form of responsibility of the judge; collection, generalization, analysis and elimination of the causes of judicial violations; identification of systemic problems ^{[4, pp.50-63]}.

National law and international law contain provisions according to which the most worthy representative of society should be a judge, and the most worthy of worthy representatives should be judges of international judicial institutions, since the best representatives of their profession from each country or legal system should be elected there. However, the reality differs from the ideas laid down, since judges are also people with their own character, mentality and system of views. Accordingly, responsibility is provided for them if their behavior and actions do not correspond to the high status of a judge.

In national law, first of all, there are three main types of judges' responsibility: criminal, civil and disciplinary. Currently, two areas of regulation of criminal liability of judges have become the most widespread in the world: the first is when judges have judicial immunity and cannot be brought to criminal responsibility, detained, or brought without the consent of the relevant competent authority (usually formed also from judges, for example, in paragraph 5.1 of the European Charter on the status of Judges in 1998, it is stipulated that such a body should consist of at least 50% of elected judges).

The second is when immunity is not granted or there are restrictions. Such a standard, in particular, is established in Spain, Belgium, Cyprus, France, Italy, etc. In these countries, judges may be brought to criminal responsibility, for example, for corruption, for crimes against the administration of justice, violation of the principle of confidentiality of the consideration of a criminal case, etc.

Such a fundamental separation poses a number of legal problems.

On the one hand, a judge must be fully independent in relation to the branches of State power in matters of decision-making and judicial immunity in this case meets the principle of the rule of law. Moreover, this is a certain guarantee not only for the judge, but also for the participants in the process, since in this case any influence on the judicial staff from other branches of government is excluded.

On the other hand, lack of responsibility leads to permissiveness and impunity.

If we talk about civil liability, then in most common law countries there is absolute judicial immunity of civil liability, for example, in the USA, Great Britain, etc. 

Erroneous judicial decisions should be corrected within the framework of appeal and cassation appeal, and not by filing a civil lawsuit against the judge. There is a mechanism for filing a claim for damages to the State, which means that it is the State that in any case is the guarantor of compensation to the victim for damage caused by a judicial error of an illegal and unlawful nature.

At the same time, paragraph 5.2. of the European Charter on the Status of Judges of 1998 provides for the possibility of the State to file a claim against a judge in the event of a gross and inexcusable violation of the rules governing the performance of judicial duties.

Disciplinary responsibility acts as a guarantor of compliance with ethics and professional behavior of individual judges. A gross, serious violation in the professional field of a judge may entail disciplinary responsibility. In addition, in a number of states (Great Britain, Norway, Poland, Spain, Italy, the Netherlands, etc.), a judge is obliged to observe not only the established professional standards of behavior, but also to build his private life (or family) in such a way as to correspond to the high status of a judge and not undermine the reputation of the court. In their actions, judges should be guided by the developed codes and the principles embedded in them.

For committing a disciplinary offense, the following sanctions are most often applied to judges: warning, reprimand, fine, salary reduction and more serious – suspension, etc. For example, in Canada, Norway and the Netherlands there is a division into small violations, responsibility for which is a warning or reprimand, as well as strict sanctions - recall or dismissal. Denmark, Bulgaria, the Czech Republic and Sweden also apply monetary sanctions, such as a reduction in their wages.

Issues of disciplinary responsibility are regulated in the Basic Principles of Judicial Independence adopted in Milan in 1985, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 17 provides that the consideration of the complaint at the initial stage should be confidential.  It is believed that confidential consideration is important because there are special circumstances that may harm the interests of justice or it may be necessary to protect the private life of a judge, taking into account the specifics of the consideration of cases of disciplinary responsibility of judges.

At the same time, there are States that have established the principle of transparency of disciplinary hearings, for example, Belgium, the Czech Republic, Ireland, Poland, Portugal, Italy and Romania. Moreover, some States post the text on disciplinary decisions on the official website on the Internet.

Most often, disciplinary proceedings against judges can be initiated in two ways: the first, when public authorities (for example, heads of courts, judicial councils or commissions, the Minister of Justice, etc.) have the right to file a complaint against a judge. The second, when disciplinary proceedings can be initiated by participants in the trial who believe that they have suffered from the actions of the judge.

According to the Law of the People's Republic of China "On Judges", a person holds the position of a judge for life. They may be suspended from work in the event of criminal charges, disciplinary proceedings or the announcement of their activities under a ban ^{[17, pp. 415-416]}.

International law has its own specifics, primarily related to the geopolitical status of international judicial institutions.

Consider the accountability, responsibility and procedure for bringing officials (primarily judges) to justice in the International Criminal Court and the European Court of Human Rights. First of all, it is necessary to define the term "official" for these institutions, since its generally accepted concept does not exist in international law.  The Rules of the European Court of Human Rights contain the terms "sole judge", "judge", "ad hoc judge", "judge-rapporteur", "rapporteur" and others. The term "official" in the Rules of the ECHR is contained only within the designation of officials of the Registry (Article 18) and article 22, which states that officials of the Registry have the right to attend a secret meeting of the court behind closed doors.  The secretariat also includes speakers (Rule 18A) and legal advisers (Rule 18B), the main functions of these persons include assistance to the Court and individual judges.

The Rome Statute of the International Criminal Court also does not define the term "official", but the text of the Statute itself contains such a term as "official", and it is used in many articles. In particular, article 70 (d) of the ICC Statute discloses that an offence against the administration of justice is obstruction, intimidation or unlawful influence on an official of the Court. Paragraphs "e", "f" of the said article indicate that an official of the Court may be influenced, he may be subjected to extortion or receiving a bribe in connection with the performance of his official duties. Article 43 defines the Registrar as the chief administrative Officer of the Court. Based on the systematic interpretation of the above documents, it can be concluded that officials of international judicial institutions, one way or another, in the performance of their professional duties, can influence the Court.

Thus, it can be concluded that the term "official" can be considered any person through whom an international judicial institution performs its functions ^{[5, p. 217]}. Accordingly, the judge will also be an official.

A judge of the European Court of Human Rights may be dismissed from office if other judges vote by a 2/3 majority that he ceases to meet the requirements (provided for in article 21 of the Convention for the Protection of Human Rights and Fundamental Freedoms). Rule No. 7 of the Rules of Procedure of the European Court of Human Rights added new conditions that the judge must be heard in advance at the plenary session of the Court. Any judge has the right to begin the procedure of removal from office, which, according to experts, indicates the democratic nature of the mechanism for removing an ECHR judge. Moreover, the requirements related to the removal of judges of the European Court of Human Rights are not strictly formally established, and in many respects their definition is left to the judges themselves. ^{[14, p. 77]}

The prosecution of officials in the International Criminal Court is established by the Rome Statute of the ICC, the Rules of Procedure and Evidence, as well as the Rules of Court. According to articles 46, 47 of the ICC Statute, there are two types of responsibility: removal from office and the application of disciplinary measures. If elected officials commit serious misconduct or serious violation of their duties, they may be removed from office ^{[18, pp.53-67]}, or if such an official is unable to perform the functions assigned to him by virtue of the ICC Statute.

According to article 24 of the ICC Rules of Procedure and Evidence, "serious misconduct" may be disclosure of facts or data that become known to an official in the course of performing his duties, gross negligence in the performance of duties, etc.

The decision on the dismissal of a judge, Prosecutor, Deputy Prosecutor must be taken by the Assembly of States Parties to the ICC Statute by secret ballot: there must be a 2/3 majority of votes in respect of judges on the recommendation adopted by a 2/3 majority of the remaining judges; in order to make a decision on the dismissal of a Prosecutor from office, an absolute majority of States Parties is required;

Disciplinary liability is provided for in the form of a reprimand or a monetary fine (no more than a person's salary for 6 months) and is applied for an offense of a less serious nature than provided for in paragraph 1 of article 46 of the Statute.

According to article 25 of the ICC Rules of Procedure and Evidence, interference in the exercise of the functions of one of the officials referred to in Article 47 will be considered a "less serious offense" if it takes place outside the performance of official duties, causes or is likely to damage the authority of the Court, etc. (at the same time, the conduct of ICC officials not during the performance of their professional duties is regulated by the Code of Judicial Ethics of the International Criminal Court).

The procedure for dismissal from office and disciplinary measures against court officials are regulated in chapter 8 of the ICC Rules of Procedure.

Complaints against judges and other officials regarding conduct are sent to the Presidium, which must conduct a preliminary check of the received complaint and determine whether the complaint is anonymous or obviously unfounded. If it is not, then the complaint is referred to the competent authority for consideration, in accordance with the provisions 119-125 of the ICC Rules.

Officials of international judicial institutions are often under political pressure, which can correct their actions in one direction or another. For example, the US authorities imposed a number of sanctions against a number of senior officials of the International Criminal Court, including the prosecutor and judges ^{[6, p.286]}, who gave solemn obligations to exercise their powers with dignity, faithfully, impartially and in good faith ^{[7, c258]}.

Thus, the independence of officials of international judicial institutions should be balanced by their responsibility for violating the norms and rules governing their activities. They should be aware that procedures can be used against them to monitor how effectively and efficiently they perform their functions, and, if necessary, impose penalties. The authority and effectiveness of the judicial system are directly dependent on the balance of the legal institution of holding judges and other officials of international judicial institutions accountable in terms of the principle of judicial independence and the need to monitor the proper administration of justice ^{[13, p.103]}.

In conclusion, I would like to note that the accountability of officials of international judicial institutions is extremely important, since international courts and tribunals in their activities often exceed the powers provided for them, introduce new "norms" of international law that contradict generally recognized norms, and sometimes the Statutes of these institutions ^{[8, p.100]}. In particular, Professor A.B. Mezyaev notes that by its decisions such an international judicial institution as the International Tribunal for the Former Yugoslavia ^{[16, p. 239]} radically changed the procedural rules for the tribunal itself, which actually led to two different tribunals: one that was provided for by the UN Security Council, and one that was created by the Rules of Procedure and practice. ^{[10, p.92]}.

We believe that the procedures for holding officials accountable are poorly detailed. If the procedure for removing judges from office and bringing them to disciplinary measures are somehow provided for in the documents of international judicial institutions, then the issues of responsibility in relation to officials of international judicial institutions are regulated very little. Moreover, the ICC Statute, although it contains references to the term "official", contains an article regulating the jurisdiction of the court in relation to crimes against the administration of justice, which discloses possible crimes that may be committed against officials, but this term does not disclose, the circle of persons who belong to officials does not define.

Meanwhile, we believe that other officials of international judicial institutions, along with judges, can exert some influence on decisions taken by judicial institutions. Accordingly, their accountability to the general public should be more detailed.

Based on the results of the study, we come to the conclusion that, firstly, a transparent legal mechanism should be worked out to bring officials of international judicial institutions to justice, possibly with the creation of a special independent body to consider disciplinary cases against officials. Secondly, statistics on the effectiveness of judges of international courts and tribunals, as well as officials, should be kept and made available to the general public, which could be used as one of the factors for evaluating the work of such persons. Thirdly, we believe that it is extremely important to continue further improving the "transparency" of both the judicial process and the entire activities of international judicial institutions.