There are only three professions,

whose representatives are honored to wear the mantle:

priest, judge and scientist

Henry Rozowski

The law authorized the High Council of Justice (hereinafter — VRP) to approve the Uniform indicators for evaluating the integrity and professional ethics of a judge (candidate for the post of judge) (hereinafter — Indicators). It should do this after consultations with the Higher Qualification Commission of Judges of Ukraine (hereinafter — the HCC), the Council of Judges of Ukraine and the Public Council of Integrity.

The draft Indicators was prepared by the VRP working group and is currently in the final stage of this process. At the same time, a discussion arose in the legal community regarding the content of these Indicators, in particular, regarding the moral component of a judge's integrity. As a member of the GRP working group for the development of such Indicators, I have my own vision of the imperative nature of this component of the integrity of judges, which is based on many years of scientific activity in the field of law and work experience as a member of the VRP.

According to the Constitution and laws of Ukraine, a judge has a special (special) status, which is characterized by the presence of certain requirements and restrictions regarding the occupation of this position and guarantees of his activity. The behavior of a judge must correspond to his high status, which obliges him to accept a number of restrictions that may seem burdensome to an average citizen.

The Bangalore principles of the conduct of judges (approved by the resolution of the UN Economic and Social Council of July 27, 2006), in particular, the observance of ethical norms, the demonstration of observance of ethical norms is recognized as an integral part of the activity of judges.

On September 18, 2024, the decision of the 10th Regular Congress of Judges of Ukraine adopted a new version of the Code of Judicial Ethics, the preamble of which stipulates: "Ensuring the right of everyone to judicial protection based on the establishment of the principle of the rule of law, the administration of justice on behalf of the state of Ukraine on the basis of The Constitution and laws of Ukraine establish high requirements for the moral qualities of a judge. Aware of the significance (importance) of their mission, in order to strengthen and maintain public trust in the judiciary, judges of Ukraine believe that they are obliged to demonstrate and promote high standards of behavior, in connection with which they voluntarily accept more significant restrictions related to with compliance with ethical norms both in behavior during the administration of justice and in extrajudicial behavior". For example, according to the current legislation of Ukraine (in particular, the Law "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine") citizens of Ukraine are not prohibited from entering (exiting) the temporarily occupied territories of Ukraine freely and without hindrance. At the same time, does recreation in the occupied Crimea, even in the absence of a ban, indicate high standards of behavior? Does a highly moral person need prohibitions to understand what is ethical and what is not? Is it true that even an ordinary person, in order to never commit theft, needs to know about the existence of Art. 185 of the Criminal Code?

Therefore, ethical requirements for candidates for the position of judges are not just important, they are a kind of existential. It is also the duty of the participants in the legal process to address the judge "Your honor". nullifies attempts to deny the expediency of the ethical requirements for this high office, which should be provided in the Indicators.

Ethics/morality, despite its non-legal nature, is the quintessence of justice. Can a judge who is impeccable in terms of professional ethics and property integrity be recognized as virtuous if he does not adhere to ethical norms, which are moral imperatives in modern society? Can an impeccable property declaration outweigh moral virtues? The answer to these questions is obvious — No. If the judge is not a model of human and citizen behavior, then all other requirements lose their meaning.

I note that the concept of "integrity" (honest, integrity) is also mentioned in the Ethical Principles for Judges adopted by the Canadian Judicial Council. Thus, in the Commentary of this principle it is said that "although the general definition of the term ideal integrity is not a difficult task, trying to achieve precision in it is quite difficult, and sometimes even inexpedient."Here it is difficult to find the absolute truth, because society's perception of certain behavior depends on the standards adopted by the community, which can change depending on place and time" (https://cjc-ccm.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf) .

Why exactly am I paying attention to this? In Ukraine, a war started by Russia has been going on for 10 years, a war to destroy the Ukrainian nation, Ukraine as a state. Therefore, it is obvious that currently the moral standards of Ukrainian civil society determine the high standards of behavior of judges as representatives of a state that is fighting for its existence.

Hans Petter Graver in his book "Heroes in the Judge's Mantle: Honest Judging in the Conditions of Immoral Laws" emphasizes: "We demand more from a judge than compliance with ethical rules or rules of proper judicial behavior, regardless of whether they derive from legislation or are adopted by judicial councils or other bodies".The "theory of judicial virtues" developed by Lawrence Solum is also given, which includes, in particular, civic courage …, judicial temperament, judicial intelligence, wisdom and, above all, justice.

(https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/2024_prezent/ethics_of_judge_bernaziuk.pdf)

Therefore, recognizing the imperative of a judge's observance of ethical standards, we are thinking about the criteria for a judge's integrity as a citizen of his state. In the Law "On the Basic Principles of State Policy in the Field of Affirming Ukrainian National and Civil Identity" it is established that such principles, in particular, are: formation of an active civic position based on respect for human rights, spiritual values ​​of the Ukrainian people,national identity; defense consciousness and civil stability; patriotism Patriotism in this sense means the formation of civil stability, opposition to manifestations of discrimination, corruption, collaborationism, separatism, propaganda of totalitarian regimes.

In the Strategy for the Affirmation of Ukrainian National and Civic Identity for the Period Until 2030 (approved by the Resolution of the Cabinet of Ministers of Ukraine dated December 15, 2023), it is stated: "The existence and prosperity of Ukraine is impossible without general awareness by citizens of their national and civic identity. Such a feeling of belonging to the Ukrainian nation as an original community, united by a name, symbols, historical memory, social and state (national) values, in particular the Ukrainian language and folk traditions, directly affects the life of every person.

The standards of integrity of judges should include the manifestation of active citizenship and patriotism, which is a condition for the survival of the Ukrainian state. I would call it the well-known Latin expression "conditio sine qua non" ("condition without which there is no", "necessary condition") of the judge's integrity.

Why is simple enforcement of laws and compliance with professional ethics by judges insufficient? Because the lack of an active civic position, the indifferent attitude of the judge as the moral authority of society to the need to preserve the Ukrainian national identity undermines the principles of national security of Ukraine. "Don't be afraid of enemies — in the worst case they can kill you.

Don't be afraid friends — in the worst case, they can betray you. Fear the indifferent — they do not kill and do not betray, but only with their silent consent do betrayal and murder exist on earth» (Bruno Yasenskyi).

Therefore, in my opinion, the integrity of a judge cannot be limited to compliance with the requirements stipulated by law. In "Rules of ethical behavior of judges, their application and compliance" (The First Expert Commission of the International Association of Judges) stated: "Some principles of ethics may not recommend or even categorically prohibit actions that do not actually contradict the law. Such principles exist to keep the judge above suspicion and inspire the highest standards. The principles of ethics and the disciplinary rules of conduct of judges should not be confused. Therefore, despite legal uncertainty, ethical norms — the imperative of judicial activity. And in the end, almost every law or other regulatory legal act contains evaluative concepts, poorly formulated provisions, the content of which is interpreted differently by law enforcement agencies. Therefore, legal certainty — it is, in fact, an unattainable ideal that should be strived for despite everything.

A judge as a citizen of Ukraine is called to affirm, defend and protect national values ​​that are vital for society and the Ukrainian state. Let me remind you that "denazification" of Ukraine — this is one of the goals of the war against our country, declared by the Russian dictator. Therefore, Ukraine does not need an impersonal, "denazified" a judge who conforms only to clearly defined legal fictions, our state needs a Ukrainian judge, a patriotic judge who consciously administers justice in the name of Ukraine.

Oksana Kvasha, member of the Supreme Council of Justice, doctor of jurisprudence, professor, leading researcher (part-time) of the Department of Criminal Law, Criminology and the Judiciary of the Institute of State and Law named after V. M. Koretsky of the National Academy of Sciences of Ukraine

Den newspaper. November 26, 2024

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