Кодексы этики профессиональных сообществ: гарантия независимости или инструмент давления?

Журнал российского права. 2021. Т. 25. № 2. С. 160–170.

Mikhaylov V.

This article is the third in a series of publications by the author on various aspects of regulating the status of judges in the context of ensuring their independence.

The article analyzes the legal nature of ethical codes, their commonality and differences, on the basis of which it is proposed to endow them with criteria and to classify them.  The author substantiates the unnecessary regulatory functions of the code of ethics for prosecutors and the unreasonableness of the approaches used in it, which differ from the ethical rules of other state executive bodies.

Based on the results of the study of law enforcement practice, the conclusion is drawn that there is no unambiguous understanding of the categories of “misconduct that belittles the authority of the judiciary” and “discrediting the honor of a prosecutor”, which naturally creates the possibility of their subjective application. Any minor “misconduct” can be attributed to those and entail the most adverse consequences for the representative of the relevant professional community, making him extremely vulnerable and defenseless against a group vested with authority to assess the severity of the misconduct of colleagues.

This investigation also draws attention to an excessively wide discretion in the choice of disciplinary measures, due to insufficient regulation of this issue. Due to this, any member of the community who, by virtue of his principles and commitment to democratic values, becomes objectionable, can be subjected to serious administrative pressure by the negligent leadership (with the ability to initiate verification) and ultimately expelled from membership in it. Such a serious leverage creates another threat to individuals whose independence is an integral part of their legal status and a guarantee of the proper protection of the rights and freedoms of citizens.

The author, using the example of the judiciary, proposes a universal criterion for determining the grounds for reasonably terminating powers, and determines the appropriate source.

 At the same time, an attempt is made to determine the true purpose of codes of ethics and their place in the general legal system.

Keywords: суд, принцип независимости, disciplinary liability, дисциплинарная ответственность, court, the disciplinary offense, дисциплинарный проступок, the principle of independence, авторитет судебной власти, code of ethics, termination of authority, authority of the judiciary, honor of a prosecutor, кодекс этики, прекращение полномочий, честь прокурорского работника