Individual Guilt of a Judge or Joint Punishment: Experience of France and the USA Against Collective Responsibility
Ukrainian practice of holding judges disciplinarily liable has faced a new challenge: how to reconcile the demand for the speed of justice with the fundamental principles of foreseeability and proportionality? The Venice Commission's opinion of October 2025 contains a number of recommendations aimed at preventing the use of vague provisions of Article 106 of the Law as grounds for arbitrary disciplinary prosecution of judges.
Certain decisions of the High Council of Justice indicate an approach whereby all members of a judicial panel, not only the reporting judge, can be held disciplinarily liable for untimely preparation of the full text of a court decision. At the same time, analysis of the practice of the European Court of Human Rights, the Venice Commission’s opinions, and other international standards shows that disciplinary liability of judges must be based on the principle of individual guilt and observance of fair trial guarantees.
ECHR Practice — Standards of Independence and Discipline
The European Court of Human Rights considers disciplinary liability of judges not as an internal administrative matter, but as a sphere directly affecting the independence of the judiciary and every person's right to a fair trial.
According to ECtHR practice, notably in the case "Oleksandr Volkov v. Ukraine," judicial independence is not a personal privilege but a guarantee of the legitimacy of justice in the eyes of society. The Court emphasizes that disciplinary proceedings that may lead to dismissal or severe sanctions fall under Article 6 of the Convention (right to a fair trial). This means that the disciplinary body, namely the High Council of Justice, must meet the requirements of independence and impartiality, and the procedure itself must ensure adversarial proceedings.
International standards pay special attention to the principle of foreseeability, which is a component of the rule of law. ECHR practice has repeatedly stressed that the law must be formulated clearly enough for a person to foresee the consequences of their behavior. For these reasons, in the cases "Oleksandr Volkov v. Ukraine" and "Kulykov and Others v. Ukraine," the Court found violations of the Convention due to the application of overly broad and vague disciplinary grounds, including the concept of "breach of oath." Similar issues may arise regarding the application of paragraph 2 of part one of Article 106 of the Law of Ukraine "On the Judiciary and the Status of Judges," since the concept of "unjustified delay" lacks legislatively defined objective criteria and leaves too wide a discretion to the disciplinary body.
The principle of proportionality requires that disciplinary sanctions correspond not only to the severity of the offense but also to the circumstances of its commission and the course of the disciplinary proceedings themselves. This approach was formulated in 2025 by the Grand Chamber of the Supreme Court, taking into account ECHR practice, including the cases "Beck v. Norway" and "Chiarello v. Germany." The Court recognized that excessive duration of disciplinary proceedings is a circumstance to be considered when determining the type of sanction, as the state cannot compensate for its own procedural inefficiency by applying harsher sanctions to a judge.
Analysis of Opinion CDL-AD(2025)044
The joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe No. CDL-AD(2025)044, adopted in October 2025, is currently the most important international document defining the limits of reforming the disciplinary system for judges in Ukraine.
Below is a detailed analysis of the Commission's key positions concerning the interpretation of Article 106 of the Law of Ukraine "On the Judiciary and the Status of Judges" and standards for holding judges accountable.
Guilt Criterion
The Venice Commission welcomes the reduction of the list of disciplinary offenses (from over twenty to ten) but emphasizes the risks associated with the vagueness of the remaining formulations.
The Commission drew attention to the excessive breadth of the formulation of unjustified delay, as stated in paragraph 2 of part 1 of Article 106 of the Law on the Judiciary and the Status of Judges. Vague wording increases the risk of arbitrary actions and can be used as a means of pressure on judges.
The Commission stresses that given the seriousness of possible consequences, high standards of legal certainty and foreseeability must apply to disciplinary proceedings: the law must be clear enough for a judge to unequivocally understand the conditions under which a sanction is imposed.
One of the key recommendations of the Venice Commission was the introduction of a single standard for the subjective side of a disciplinary offense. The Commission emphasized that disciplinary liability of a judge should arise only in the presence of intent or gross negligence. At the same time, good-faith errors in the application of law, interpretation of legislation, or evaluation of evidence generally cannot be grounds for disciplinary prosecution, as such errors should be corrected by judicial review — primarily through appellate or cassation review of court decisions. This approach aims to prevent the transformation of disciplinary procedures into a mechanism for influencing judicial independence through evaluation of the content of a judge’s procedural activity.
Protection Against Ignoring the Objective Reality in Which a Judge Works
The Venice Commission paid special attention to the need to consider the real conditions of justice administration. The Opinion states that disciplinary bodies cannot assess a judge’s behavior in isolation from the objective circumstances in which they exercise their powers. Compliance with procedural deadlines depends not only on the organization of the individual judge’s work but also on the court’s staffing, level of technical equipment, number of vacancies, workload, and other organizational factors.
Therefore, the Commission emphasizes that a judge should not bear disciplinary responsibility for delays caused by structural shortcomings in the functioning of the judicial system. In Ukrainian realities, where many courts operate under chronic staff shortages, excessive workload, and martial law, this recommendation is especially important. Imposing disciplinary liability without proper assessment of such circumstances would effectively shift responsibility for shortcomings in the organization of the judiciary onto judges, whereas eliminating these shortcomings is the state’s obligation.
Collegial Responsibility: Limits of Individual Guilt
The Venice Commission also focused on the issue of individualizing disciplinary responsibility of judges during collegial consideration of cases. The Commission holds that disciplinary sanctions may be applied only after establishing the personal guilt of a specific judge, not based on their formal participation in the judicial panel.
This position is particularly important considering the principle of confidentiality of deliberations. Since the process of discussion and voting by judges is confidential, the disciplinary body cannot presume equal responsibility of all panel members merely because the final decision was made jointly. In the absence of evidence of personal unlawful behavior of each judge, imposing disciplinary liability on the entire panel contradicts the principle of individual guilt and creates a risk of collective responsibility incompatible with international standards of judicial independence.
Sanctions and the Principle of Proportionality
The Venice Commission also critically assessed the proposed system of classifying disciplinary offenses into minor, serious, and significant. According to the Commission, the criteria for such differentiation remain insufficiently defined, creating a risk of inconsistent application of disciplinary law and excessively broad discretion of the disciplinary body in determining the severity of the same violation.
Specific remarks were also made regarding types of disciplinary sanctions. In particular, the Commission recommended excluding sending a judge to the National School of Judges of Ukraine from the list of disciplinary sanctions, emphasizing that professional training should be a tool for qualification improvement, not a form of punishment. Moreover, the application of a severe measure such as transferring a judge to a lower court may be justified only in exceptional cases involving the most serious disciplinary offenses, provided the principle of proportionality and proper motivation of the decision are observed.
The 2025 opinion warns Ukraine against turning the disciplinary system into a mechanism of statistical control. If the High Council of Justice ignores the objective overload of judges and punishes for "delay" without proving intent, it will lead to the destruction of judicial independence.
International Practice
International standards are based on a simple axiom: disciplinary responsibility of a judge is exclusively personal, and the state cannot shift the consequences of its own staffing or organizational problems onto judges. Analysis of ECtHR practice, the Venice Commission, and approaches of European countries and the USA shows that the concept of holding an entire panel responsible for a delay caused by the reporting judge is not supported in international law. That is why the application of "collective surety" has no analogues in the analyzed international practice.
In most developed democracies, responsibility for delay in preparing a decision is never automatically imposed on the entire panel.
Individualization of Responsibility
International experience confirms that disciplinary responsibility for violation of deadlines in preparing court decisions is individual and cannot be imposed on all members of a judicial panel merely due to participation in the case consideration. The practice of European countries holds that responsibility lies with the judge assigned to prepare the decision or who committed a personal disciplinary violation, while other panel members cannot be held accountable for the actions or inactions of their colleague.
France
According to Article 450 of the French Civil Procedure Code, judicial functions are clearly divided. The presiding judge organizes the court hearing and sets the date for announcing the decision, while the reporting judge (juge rapporteur) is responsible for preparing the text of the decision in those categories of cases where a juge rapporteur is appointed. Even if the state pays compensation for excessive duration of case consideration, the question of possible responsibility of a specific judge is resolved only upon proving their personal guilt.
USA
In federal appellate courts, after a decision is made by majority vote, the writing of the opinion is assigned to one designated authoring judge. This judge bears responsibility for timely preparation of the decision. Other panel judges may comment or suggest changes to the draft but do not bear disciplinary responsibility for delay in writing, as they have no procedural authority to control the pace of the authoring judge’s work.
United Kingdom
Judges administer justice independently even within a panel. In the practice of England and Wales, responsibility for preparing the text of the decision is linked to the specific judge preparing it, and responsibility lies solely with them. The presiding or other panel members are not responsible for a colleague’s inaction, as the principle of judicial independence excludes internal coercion or control over the content and timing of preparing court decisions.
Thus, international practice demonstrates a unified approach: disciplinary responsibility of a judge is personal, not collective. Therefore, imposing responsibility on all members of a judicial panel for a delay caused by the reporting judge significantly differs from the standards established in leading legal systems of democratic states.
Criteria of "Delay" and Time Benchmarks
Special attention deserves the international approach to assessing delays in preparing court decisions. The practice of European countries holds that not every violation of procedural deadlines automatically constitutes a disciplinary offense. The decisive factors are the reasons for the delay, its systematic nature, and the presence of personal guilt of the judge.
Germany
Court decisions must be prepared within a reasonable time, usually several weeks after the case hearing is completed. However, disciplinary measures are applied only when the delay is unjustified and not explained by objective circumstances, including excessive workload, case complexity, or other factors beyond the judge’s control.
United Kingdom
The practice of courts in England and Wales considers about three months after the hearing as a benchmark. If the delay reaches ten to twelve months, it may be grounds for appellate intervention due to violation of the right to a fair trial. At the same time, disciplinary responsibility of a judge is applied only in cases of systematic and unjustified failure to perform official duties, not for isolated delays caused by crisis conditions in the judicial system.
Italy
A disciplinary offense is constituted only by repeated, significant, and unjustified delay in administering justice. If the cause is excessive accumulation of pending cases or other systemic problems, the state compensates for the violation of the right to a trial within a reasonable time according to the Pinto Law, while the judge is not subject to disciplinary punishment in the absence of personal guilt and provided they took measures to properly organize their work.
Thus, international practice draws a clear line between technical violation of deadlines and disciplinary offense. The mere fact of delay is not sufficient grounds for disciplinary liability: the competent body must establish that the delay was personally culpable, systematic, unjustified, and not caused by objective shortcomings in the judicial system. This approach corresponds to the principles of judicial independence, proportionality, and legal certainty.
Control Mechanisms
Comparative analysis shows that international practice does not reduce control over preparation deadlines exclusively to disciplinary sanctions. In many countries, priority is given to transparency mechanisms that encourage judges to eliminate delays without interfering with their independence.
In the USA, one such mechanism is the Civil Justice Reform Act (CJRA) Reports. Twice a year, federal courts publish a list of judges whose cases or court decisions remain unresolved for more than six months. This information is public and primarily has a reputational effect, motivating judges to clear backlogs without applying disciplinary sanctions. Inclusion in such a report does not automatically mean disciplinary proceedings or punishment.
Conclusions for Ukraine
International standards demonstrate a fundamentally different approach to disciplinary responsibility of judges than that recently observed in certain decisions of the High Council of Justice regarding so-called "joint inaction" of panel members. Holding all judges of a panel responsible for delay in preparing the full text of a decision by the reporting judge is inconsistent with the principles of individual responsibility and foreseeability of disciplinary law.
Certain approaches observed in disciplinary practice may create a risk of turning disciplinary procedures into a tool of statistical control if responsibility is linked not to proven personal guilt but to consequences of systemic staff shortages and court overload.
International recommendations indicate that one possible way is not to expand "collective surety" of panel members but to return to the basic principles of the rule of law — individual responsibility, proof of intent or gross negligence, and official recognition of abnormal workload as an objective circumstance that may exclude the composition of a disciplinary offense. This approach is recommended by the Venice Commission, the Consultative Council of European Judges, and the current practice of the Grand Chamber of the Supreme Court.
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