Judge as a Hostage of a Colleague: Analysis of the HCJ Practice in Disciplinary Cases on 'Collective Inaction'

Standards of disciplinary responsibility for judges remain one of the key issues of judicial reform and ensuring the independence of justice. The limits of disciplinary responsibility of judges for violating deadlines for preparing the full text of a court decision during collegial consideration of cases have become a separate subject of legal discussion.

The formation of new practice by the High Council of Justice, under which all members of the judicial panel are held responsible for procedural delays of the reporting judge, calls into question the very essence of judicial independence. This practice is based on the thesis that a court decision is the result of joint intellectual work, and therefore responsibility for its physical absence should be collective.

In a system where, according to official data, over 600 judicial vacancies remain unfilled in some courts, and one judge has a workload equivalent to about 430 working hours per month against a norm of 160, the requirement to prepare a multi-volume motivated decision within five days seems almost unattainable. However, disciplinary practice proposes to make this workload even greater. In addition to their own workload, judges must also monitor whether the reporting judge will prepare the full text of the decision on time, since in case of delay, disciplinary consequences may affect the entire panel.

But does this practice withstand the test of compliance with legislation and international standards? The Venice Commission's 2025 opinion directly points to the critical vagueness of the concepts used by Ukrainian disciplinary law, particularly regarding "unjustified delay." In conditions where some judges work with a workload significantly exceeding the norm, the assessment of disciplinary responsibility for violating deadlines for preparing court decisions requires consideration of the real conditions of justice administration.

Legal anatomy of the problem: is "delay" a legally defined concept?

Here lies the root of legal uncertainty. Paragraph 2 of part one of Article 106 of the Law of Ukraine "On the Judiciary and the Status of Judges" uses the term "unjustified delay." The Grand Chamber of the Supreme Court has repeatedly emphasized that delay is not any delay but only that which is illegal and unjustified, i.e., not caused by objective factors (illness, case complexity, excessive workload).

The Venice Commission's October 2025 opinion (CDL-AD(2025)044) explicitly states that this norm is formulated too broadly and requires clear objective criteria. The Commission recommends extending the criteria of intent or gross negligence to all cases of disciplinary responsibility to avoid arbitrariness. Currently, "delay" remains a vague norm that allows holding a judge accountable even for state shortcomings that failed to provide the court with staff.

Thus, the term "delay," particularly regarding the preparation of a motivated court decision, is not a strictly formalized concept with a defined number of days or hours. Instead, in Ukrainian legal practice, including decisions of the Grand Chamber of the Supreme Court and the High Council of Justice, it is considered an evaluative concept whose content is revealed through analysis of objective and subjective factors.

The Grand Chamber of the Supreme Court, in its ruling dated January 16, 2025, in case No. 990SCGC/7/24, developing a legal position formed back in 2018, clarified that delay in preparing the full text of a court decision is a disciplinary offense only if two mandatory conditions are met. First, the deadline established by procedural law for preparing the decision must be violated. Second, such violation must be unjustified, i.e., not caused by valid circumstances.

The practice of the High Council of Justice also shows that the mere violation of deadlines for preparing the full text of a court decision does not mean automatic commission of a disciplinary offense. The HRC must assess not only the length of the delay but also the reasons that caused it.

The HRC has repeatedly emphasized that disciplinary responsibility is possible only in the absence of objective reasons for the delay. In particular, by decision dated April 14, 2025, No. 786/1dp/15-25, the Council refused to hold judges accountable, taking into account excessive workload, and by ruling dated May 7, 2020, No. 1159/1dp/15-20, did not open a disciplinary case due to established objective reasons, including significant workload and staff shortage.

At the same time, recent Council decisions demonstrate a change in approach to assessing judges' responsibility during collegial consideration of cases. For example, by ruling dated March 2, 2026, No. 302/1dp/15-26, the HRC opened a disciplinary case against all members of the panel, noting that since the court decision is a joint act of the panel and signed by all its members, prolonged failure to prepare its full text may indicate collective inaction of judges. A similar approach was applied in the ruling dated September 17, 2025, No. 1963/2dp/15-25.

Collegiality or individual independence

Using one of the latest conclusions of the HRC disciplinary inspector as an example, one can trace how approaches to assessing disciplinary responsibility of judges for violating deadlines for preparing full texts of court decisions, especially in collegial cases, are changing.

The conclusion of HRC disciplinary inspector Tetiana Ostapenko dated June 9, 2026, became a vivid example of how the disciplinary system tries to solve the problem of staff shortage by punitive methods. Despite the recorded abnormal workload in the Kyiv Court of Appeal — 430 hours per month against a norm of 160 — the inspector resorts to comparative statistics that ignore the complexity of proceedings, the number of volumes, and the actual duration of court sessions. This undermines the principle of proportionality and contradicts the Venice Commission's 2025 conclusions regarding the need to specify the concept of "unjustified delay."

In the conclusion to case No. 1963/2dp/15-25, it is proposed to hold one judge accountable by reprimand while simultaneously refusing sanctions against her colleague. The main argument was that the individual workload indicators of the first judge were lower than the court average, while the colleague considered a record 5382 cases per year. However, such an approach evaluates the "gross product" rather than the intellectual complexity and physical duration of the judge's work during the war.

The disciplinary inspector qualified the judges' actions under paragraph 2 of part 1 of Article 106 of the Law of Ukraine "On the Judiciary and the Status of Judges," which provides for responsibility for unjustified delay in preparing a motivated court decision.

At the same time, as noted in the Venice Commission's Opinion, this norm is formulated quite broadly and requires clearer objective criteria for application.

Mathematical illusion: Why the number of cases does not equal actual workload

The inspector compares 330 cases of one judge and 5382 cases of her colleague, concluding about the "insufficient intensity" of the first's work. However, legal analytics requires considering other factors.

Appeals against convictions for serious crimes (Articles 121, 186 of the Criminal Code) require writing rulings of 54 pages with evaluation of each party's argument. One such case in terms of labor costs can equal hundreds of minor administrative offense materials.

Cases considered by the panel often consist of 4-5 volumes. Processing such an amount of materials is physically impossible within the 5-day procedural deadline when the judge is in sessions daily.

Besides final decisions, the judge daily considers dozens of motions (e.g., covert investigative actions) that have critical deadlines and often do not enter the "big" workload statistics.

Martial law and the principle of proportionality

Did the inspector consider martial law? Formally — yes, noting that the system operates under difficult conditions. However, in fact, the principle of proportionality was violated.

The problem of the relationship between martial law, staff shortage, and disciplinary responsibility of judges for delay requires deep legal assessment, as current disciplinary practice demonstrates a conflict between procedural theory and physical impossibility of law enforcement.

Holding judges responsible for "delay" under such conditions is punishing the judge for the state's staffing default, which contradicts the approaches set out in the opinions of the CCJE and the Venice Commission.

In their conclusions, disciplinary inspectors often acknowledge that judges work under excessive workload but note that this alone is not an unconditional ground to justify delays in preparing full texts of court decisions lasting 10–18 months.

At the same time, official judicial statistics indicate a significant staffing deficit.

According to normative workload data, the volume of work required to consider cases in courts significantly exceeds judges' capabilities under normal working hours. Therefore, when assessing disciplinary responsibility, the question arises whether procedural deadlines can be evaluated without considering staffing shortages and actual workload on judges.

A separate aspect is the impact of martial law on court organization. Disciplinary acts of 2026 formally recognize "security, staffing, and organizational restrictions," but in practice ignore them when imposing sanctions.

Judges not only administer justice but also participate in social initiatives, and the absence of secretaries, disruptions in system operation due to shelling, and sessions from 9:00 to 18:00 make it physically impossible to timely send decisions to the Register "no later than the next day."

And although the conclusion in case No. 1963/2dp/15-25 places responsibility on the reporting judge, some HRC rulings indicate a tendency to open cases against all panel members for "collective inaction." This calls into question the principle of individual guilt.

Legal positions of the Grand Chamber of the Supreme Court

The practice of the Grand Chamber of the Supreme Court has formed several approaches to applying Article 106 of the Law of Ukraine "On the Judiciary and the Status of Judges," which defines grounds for disciplinary responsibility of judges.

HRC decisions must be properly motivated

By ruling in proceeding No. 11-279sap21, the Grand Chamber emphasized that when reviewing decisions of the High Council of Justice, the court assesses their compliance with criteria defined in part three of Article 2 of the Code of Administrative Procedure of Ukraine, particularly regarding reasonableness, proportionality, impartiality, and prudence.

The court noted that to hold a judge disciplinarily liable under paragraph 3 of part one of Article 106 of the Law, the HRC must provide proper reasoning why the specific behavior of the judge discredits the judicial title and undermines the authority of justice.

Procedural errors are not identical to ethical misconduct

In the ruling dated June 13, 2024, in case No. 990SCGC/2/24, the Grand Chamber distinguished procedural violations from disciplinary offenses related to discrediting the judicial title.

The court concluded that even significant violations of procedural or substantive law do not by themselves indicate commission of an offense under paragraph 3 of part one of Article 106 of the Law. Such qualification requires establishing circumstances indicating violation of ethical standards and undermining the authority of justice by the judge.

Delay in preparing a decision may be a disciplinary offense

In the ruling dated February 10, 2022, in proceeding No. 11-442sap20, the Grand Chamber confirmed that significant and unjustified violation of deadlines for preparing the full text of a court decision may constitute a disciplinary offense under paragraph 2 of part one of Article 106 of the Law.

At the same time, the Grand Chamber critically assessed some conclusions of the High Council of Justice regarding the presence of a disciplinary offense. The court concluded that not all episodes of unjustified delay in preparing the full text of court decisions were properly supported by evidence.

The Grand Chamber emphasized that the mere date of entering the court decision into the Unified State Register of Court Decisions or the date of sending its copies to the parties are not indisputable evidence of untimely preparation of the full text. To establish such a fact, proper evidence must be examined, including data from the court's automated document management system (ADMS).

The ruling is important for further disciplinary practice. The Grand Chamber effectively confirmed that disciplinary responsibility of a judge cannot be based on assumptions or indirect signs. Each episode of possible disciplinary offense must be properly established and supported by admissible evidence, and the HRC decision must contain full and convincing reasoning.

Independence vs accountability

One of the main guarantees of judicial independence is a clear distinction between disciplinary responsibility of a judge and the state's responsibility for proper functioning of the system. The Constitution of Ukraine establishes that judges' independence is guaranteed by the state not as a personal privilege but to ensure everyone's right to a fair trial. Any proceeding must assess not only the text of the decision but also the conditions under which the judge worked: staff shortage, martial law, and excessive workload.

No one can be held responsible solely due to a negative outcome. The mere fact of violating the deadline for preparing a decision is not an automatic ground for sanctions. It is necessary to establish whether the judge had a real opportunity to fulfill the duty, whether objective obstacles were absent, and whether the judge acted with intent or gross negligence.

Automatic application of disciplinary responsibility solely due to the length of delay contradicts the principles of legal certainty and personal guilt.

The rule of law requires that the disciplinary body establish a causal link between the behavior of a specific person and the violation, considering that procedural deadline violations may result from shortcomings in the organization of the judiciary, not only the behavior of a particular judge. A court decision is a symbol of the state, and punishing the panel because the state did not provide resources for its timely preparation is inconsistent with the rule of law standards.

At the same time, the question of how the approach to disciplinary responsibility of all members of a judicial panel aligns with international standards of judicial independence requires separate analysis. The next publication will review the practice of European countries, opinions of the Consultative Council of European Judges (CCJE), the Venice Commission, and other international institutions regarding the limits of individual disciplinary responsibility of judges during collegial consideration of cases.

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