Disciplinary Liability of Judges – Prevention or Encouragement

Present paper is intended to verify how strongly the current legislation of Georgia is focused on prevention of disciplinary misconduct of judges. The matter is discussed through the prism of the concept of general prevention (Die generalpräventive Lehre). After a consistent review of legislation, following conclusion should be made: The discussion offered in this paper has once again stressed on an ever existing problem: It is not necessary at all that a concept developed within certain ﬁ eld of law is used in a restricted way − only within the frame of that same ﬁ eld of law. It should be applied in process of comprehension of a problem that occurred within adjacent ﬁ eld of law if it is applicable considering its subject, problematics or/and methodological base.


INTRODUCTION
For a long time, concepts from various disciplines are being imported into legal science and it makes surprise for no one. Legal scholars freely adopt ideas from psychology, psychiatry, sociology etc. and thus try to enhance the law. Keeping that in mind, it seems somewhat odd that concept developed through deep comprehension within certain fi eld of law is almost ignored and hardly ever gets addressed within adjacent fi eld of law despite that it might be applicable considering its subject, problematics or/and methodological base.
In legal literature, as well as in everyday life, the term "prevention" is usually associated with a criminal offense. This is natural since criminal offense is the most serious type of offenses and therefore its prevention is the number one task for the law. 1 Therefore, it is no surprise that criminal law is the fi eld of law that has primarily provided the deepest comprehension of the concept of prevention. Although this doesn't mean that only criminal offences deserve prevention. Disciplinary, administrative and sometimes even civil offences might bear signifi cant social danger and thus it is important to prevent them as well. 2 The most important is the level of damage that the 1 Team of authors (editors: Nachkebia G., Todua N.). (2018). Criminal Law. General Part. Textbook (Third Edition). Tbilisi, "Meridiani" publishing house, p. 21. 2 Tsereteli T. (2007). Problems of Criminal Law. I Vol.
action might cause to public relations (material illegality). Disciplinary misconduct of judges is no exception from this approach. It not only violates the interests of a party to the proceedings, but also jeopardizes the smooth administration of justice in general and affects public confi dence in the court and its decisions. 3 Considering such great importance, current Georgian legislation casts doubt on the approach chosen by the Georgian legislator. Present paper is intended to answer a question − how strongly the current legislation of Georgia is focused on prevention of disciplinary misconduct of judges?

METHODOLOGICAL BASE
It would be sensible to discuss the matter through the prism of the concept of general prevention (Die generalpräventive Lehre) since that would allow to ask the most critical questions possible. Although it was developed within the framework of criminal law and primarily serves its purposes, its ideas can be easily modifi ed to apply to the matter of disciplinary responsibility of judges. 4 The concept of the general prevention was developed by Feuerbach. This concept consistently argues that the goal of punishment should be prevention of future crimes rather than punishment (retribution) itself. 5 General prevention consists of two main approaches. The fi rst of them aims to bring a threat of punishment upon citizens, to give them a precise idea about the alleged legal consequences. It is crucial since people, who think of committing an offence although have not made the fi nal decision yet, must reject their criminal ideas under the fear of alleged punishment (negative general prevention). 6 According to this theory, every offence has its own psychological reason that stimulates one to commit it. This stimulus may be subdued if each and every citizen is aware that his/her offence will inev-Tbilisi, "Meridiani" publishing house, pp. 22-25. 3 Henley V. itably cause a punishment. 7 For this reason this theory is referred as "theory of psychological enforcement" as well. It focuses on bringing legal peace, which is the main goal of law itself. The teaching relies upon the idea that the goal of punishment is to affi rm the reality of the legislative threat and that without such affi rmation the threat would be useless. It clarifi es why the punishment should be used even if there is no risk of the recidivism. If a serious crime goes unpunished, people will inevitably grow expectation of impunity. The use of punishment is necessary to prevent such situation. The second approach aims to generate legal consciousness within the members of society by implementing legal restrictions, so that they would not intent to commit crimes initially (positive general prevention). 8 This contributes to formation of law-abidingness among citizens. 9 The last must be achieved by saving and strengthening the trust to the legal order. The application of punishment should have the effect of social learning − people should learn loyalty to the law; Also the effect of trust − people should learn that the law is not only written on paper, but comes into action when needed. Loyalty to the law also is characterised by the effect of peace since law obedience makes people peaceful. 10

CURRENT LEGISLATION
According to paragraph 1 of article 7544 of Organic Law of Georgia on General Courts: "The Disciplinary Board shall make a decision on fi nding a judge guilty of committing a disciplinary misconduct, imposing disciplinary liability on him/her or on applying to him/her with a private recommendation letter if culpable commission of the disciplinary misconduct under this Law by the judge has been proved, by inter-compatible and irrefutable evidence collectively, during hearing a disciplinary case by the Disciplinary Board but, because of a minor signifi cance of the infringement, insignificant degree of the guilt or other grounds (due to sensitivity of the matter or another reason, consideration of the judge's personality), the Disciplinary Board considers inappropriate to impose disciplinary penalty on the judge and deems it suffi cient to apply to him/her with a private recommendation letter." So, according to this legislative norm, a judge may commit a disciplinary misconduct and still go without dis- 7 Tskitishvili T. (2019). Punishment and Sentencing. Tbilisi, "Meridiani" Publishing house, p. 27-28. 8 Roxin, Arzt, Tiedemann. The work cited, p. 6. 9 Turava M., 2011 Criminal Law. General Part. Concept of Crime. Tbilisi, "Meridiani" Publishing house, p. 45. 10 Tskitishvili T. The work cited, p. 31.
ciplinary penalty in case of: 1. Minor signifi cance of the infringement; 2. Insignifi cant degree of the guilt; 3. Other ground (due to sensitivity of the matter or another reason, consideration of the judge's personality). This article obviously provides legal basis for defence. The fact of its existence in legislation is acceptable, since thanks to it not only grounds of liability are regulated but grounds of exemption from liability as well. Still, the particular types of defence need to be comprehended separately: Defence number one -minor signifi cance of the infringement − creates no principal controversies. Such defence serves the idea of differentiation of offences, which in turn should assist protection of the principle of proportionality. This is more than important when the action though formally illegal still does not cause signifi cant enough damage to social relations. Such offence doesn't bear signifi cant enough social danger to make liability necessary. 11 Defence number two − insignifi cant degree of the guilt -already creates some controversy. Namely, the degree of guilt depends on how strong was one's ability to act differently, how high was his/her level of freedom. The lower was the level of freedom that the offender had during commitment of the act, the lower will be the level of condemnation that the he/she should be subjected to. 12 Although it is hard to imagine that one was fully exempted from liability for this reason. One may be fully exempted from liability only in case if one's guilt was fully disproved. This is possible only if during the committing the offence one had fully lost the ability to act differently. Therefore, insignifi cant degree of the guilt may serve as a mitigating factor of liability but in no way as a defence.
Defence number three − other ground (due to sensitivity of the matter or another reason, consideration of the judge's personality) -causes even more controversy. It substantially contradicts the concept of general prevention. The vague formulation grants the disciplinary board almost unrestricted right not to punish the judge they like. By all means, it is hard to imagine based on which legal categories one may argue that "sensitivity of the matter" may serve as a defence, i.e. judge has committed a disciplinary misconduct but he/ she should go without penalty because the matter is "too sensitive." This causes only astonishment.
As for the formulation "another reason, consideration of the judge's personality", it directly indicates that the 11 Tsereteli T. The work cited, pp. 49-64. 12 Ugrekhelidze M. (1978). decision may be prejudiced. It would be unacceptable if one argued that the personality of the judge is mentioned here in order to apply to the principle of individualization. The factor of personality of the offender must be already taken into account on the stage of guilt. Accordingly, this matter is already taken into account within the second defence described in paragraph 1 of article 7544 which regulates the matter of guilt. Moreover, the personal factor in this sense may serve as a mitigating factor of liability but by no means as a defence. It becomes rather apparent that the formulation of paragraph 1 of article 7544 serves one purpose -to minimize the requirements of argumentation of decisions of the disciplinary board in order to enable it not to punish the judge they like. Apart from voluntary decisions and the danger of corruption that it produces, the main idea of the general prevention -the threat of punishment -becomes diminished. The legislator directly indicates that in case of disciplinary misconduct the board is able not to penalize the judge and do it without any real argumentation. With this in mind, a judge has full reason to assume that if he/she commits a misconduct, he/she will have a real chance to go without penalty. Instead of creating a stiff expectation on irreversibility of legal consequences, paragraph 1 of article 7544 creates expectations that those legal consequences can be avoided. The "psychological enforcement" is not provided, the psychological stimulus is not subdued. On the contrary, the judge gets additional psychological stimulus to commit an offense. Consequently, instead of prevention, the misconduct is encouraged.

CONCLUSION
To sum up, the following conclusion should be made: • Current Georgian legislation is less than focused on general prevention of disciplinary misconduct of judges; • Current regulations make it even more diffi cult to prevent misconducts; • A deep comprehension of the matter through the prism of concept of general prevention is needed in order to create new, more acceptable regulations. The discussion offered in this paper has once again stressed on an ever existing problem: It is not necessary at all that a concept developed within certain fi eld of law is used in a restricted way − only within the frame of that same fi eld of law. It should be applied in process of comprehension of a problem that occurred within adjacent fi eld of law if it is applicable considering its subject, problematics or/and methodological base.