Disciplinary responsibility of judges is a cornerstone of judicial independence.
Judges cannot decide freely and impartially if they fear disciplinary consequences - especially the risk of dismissal - for their rulings.
That is why the structure and functioning of disciplinary bodies are crucial.
That is why the structure and functioning of disciplinary bodies are crucial.
Key considerations include: who elects their members; how decisions are made; the clarity and legal basis of disciplinary offences; the rules applied; fair trial guarantees; and the availability of remedies and judicial review. These elements are as vital to judicial independence as tenure security, merit-based appointments by an independent body, adequate remuneration and freedom of expression and association.
Importantly, judges should not face disciplinary action for their legal interpretations, factual assessments or evidentiary evaluations – except in cases of malice and gross negligence. This principle also applies to civil and criminal liability of judges.
Disciplinary proceedings should only occur when judges fail to perform their duties properly and efficiently. Such proceedings must be handled by an independent authority or court, ensuring fair trial rights and proportionate sanctions, with the possibility to appeal.
In the European context, important work in setting standards on the disciplinary responsibility of judges has been done by the Venice Commission. As the Council of Europe’s advisory body, it has shaped principles through its opinions, often drawing from the Consultative Council of European Judges (CCJE) and the European Court of Human Rights (ECtHR). This is not a one-way process - these bodies also incorporate the Commission’s views into their own work.
Judicial councils vary across Europe, shaped by each country’s legal, historical and cultural context. Yet, they are guided by shared principles and face common challenges. The Venice Commission does not endorse a single model for disciplinary bodies, recognizing the diversity among member states. However, some core principles emerge from its opinions, for instance:Disciplinary procedures must be conducted by a legally established jurisdiction, not ad hoc panels (CDL-AD(2014)038, Montenegro)
A separate Disciplinary Board, distinct from the Superior Council of Magistracy, is a positive development (CDL-AD(2014)006, Republic of Moldova)
The European Charter on the Status for Judges, adopted by the Council of Europe in 1998, further states that decisions affecting a judge’s career should involve an independent authority, with at least half its members being judges elected by their peers. This ensures broad representation and shields the judiciary from political influence.
Further guidance comes from Recommendation CM/Rec(2010)12, adopted by the Committee of Ministers of the Council of Europe in 2010, which defines judicial councils as independent bodies established by law or constitution to protect judicial independence and promote an effective justice system. At least half of their members should be judges, elected by their peers from all judicial levels, ensuring pluralism. Councils must operate transparently, using pre-established procedures and reasoned decisions, without interfering in individual judicial independence.
The CCJE has also addressed the issue of judicial councils in several opinions, notably Opinion No. 10 (2007) on “Council for the Judiciary in the service of society” and Opinion No. 27 (2024) on “Disciplinary liability of judges.” These reflect the evolving consensus on the role of councils in disciplinary matters, despite the diversity of national systems. The principles and recommendations in Opinion 10 and 27 are vital, especially where governments misuse disciplinary systems to silence judges - often those who speak out on justice system reforms or criticize the executive. Judges, like all citizens, have the right to free expression and, crucially, the duty to defend judicial independence. In some cases, these principles are the only protection judges have. Any state committed to the rule of law must uphold them.
In conclusion, in Europe, judicial councils must be independent, transparent and accountable, and their structure and processes should promote judicial independence. Councils should be composed mainly of judges, elected by their peers, and be responsible for judicial appointments, promotions, training and discipline. Respecting these standards is essential to maintaining an independent judiciary and ensuring the foundations of a democratic society governed by law.
Duro Sessa is the President of International Association of judges and a Judge of the Supreme Court of the Republic of Croatia. He also serves as a member of the Advisory Board of the Global Judicial Integrity Network.
A European perspective on good practices in judicial disciplinary bodies
Importantly, judges should not face disciplinary action for their legal interpretations, factual assessments or evidentiary evaluations – except in cases of malice and gross negligence. This principle also applies to civil and criminal liability of judges.
Disciplinary proceedings should only occur when judges fail to perform their duties properly and efficiently. Such proceedings must be handled by an independent authority or court, ensuring fair trial rights and proportionate sanctions, with the possibility to appeal.
In the European context, important work in setting standards on the disciplinary responsibility of judges has been done by the Venice Commission. As the Council of Europe’s advisory body, it has shaped principles through its opinions, often drawing from the Consultative Council of European Judges (CCJE) and the European Court of Human Rights (ECtHR). This is not a one-way process - these bodies also incorporate the Commission’s views into their own work.
Judicial councils vary across Europe, shaped by each country’s legal, historical and cultural context. Yet, they are guided by shared principles and face common challenges. The Venice Commission does not endorse a single model for disciplinary bodies, recognizing the diversity among member states. However, some core principles emerge from its opinions, for instance:Disciplinary procedures must be conducted by a legally established jurisdiction, not ad hoc panels (CDL-AD(2014)038, Montenegro)
A separate Disciplinary Board, distinct from the Superior Council of Magistracy, is a positive development (CDL-AD(2014)006, Republic of Moldova)
The European Charter on the Status for Judges, adopted by the Council of Europe in 1998, further states that decisions affecting a judge’s career should involve an independent authority, with at least half its members being judges elected by their peers. This ensures broad representation and shields the judiciary from political influence.
Further guidance comes from Recommendation CM/Rec(2010)12, adopted by the Committee of Ministers of the Council of Europe in 2010, which defines judicial councils as independent bodies established by law or constitution to protect judicial independence and promote an effective justice system. At least half of their members should be judges, elected by their peers from all judicial levels, ensuring pluralism. Councils must operate transparently, using pre-established procedures and reasoned decisions, without interfering in individual judicial independence.
The CCJE has also addressed the issue of judicial councils in several opinions, notably Opinion No. 10 (2007) on “Council for the Judiciary in the service of society” and Opinion No. 27 (2024) on “Disciplinary liability of judges.” These reflect the evolving consensus on the role of councils in disciplinary matters, despite the diversity of national systems. The principles and recommendations in Opinion 10 and 27 are vital, especially where governments misuse disciplinary systems to silence judges - often those who speak out on justice system reforms or criticize the executive. Judges, like all citizens, have the right to free expression and, crucially, the duty to defend judicial independence. In some cases, these principles are the only protection judges have. Any state committed to the rule of law must uphold them.
In conclusion, in Europe, judicial councils must be independent, transparent and accountable, and their structure and processes should promote judicial independence. Councils should be composed mainly of judges, elected by their peers, and be responsible for judicial appointments, promotions, training and discipline. Respecting these standards is essential to maintaining an independent judiciary and ensuring the foundations of a democratic society governed by law.
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