Ett grundlagsskyddat anställningsförhållande – något om ordinarie domare. Om rättsstatliga och etiska förväntningar på domarrollen och om förutsättningarna för straffrättsliga och arbetsrättsliga sanktioner
Sammanfattning: The autonomy of the court and the individual judges is of fundamental importance for the rule of law and for a functioning democratic social order. The purpose of this thesis is to describe and analyze the law as it applies to ordinary judges from the perspective of constitutional law and labor law. The method of inquiry is legal dogmatic and legal analytic. The materials used in this thesis are partly from the traditional legal sources and partly from empirical sources in the form of decisions from the Government Disciplinary Board for Higher Officials. The thesis examines how the appointment procedure for appointing judges takes place, what the expectations are for the role of judge, and what constitutes criminal and labor law sanctions such as misconduct, disciplinary liability and dismissal. Decisions on the appointment of judges are made by the government after proposals from the Judges Proposals Board. The assessment may only use objective reasons such as merit and skill in its determination. In order for an applicant to be appointed as an ordinary judge, it is a requirement that a number of eligibility conditions first be met. Judges are employed through sovereign appointment. Therefore, they have a further reaching employment protection according to the law on sovereign appointment and chapter 11 section 7 in the Instrument of Government, than that of the employment protection provided by the Public Employment Act and the Employment Protection Act. The expectations on the role of judge are determined in part by the states rule of law and in part by the international and national rules of ethics. The rule of law demands that judges must judge independently, impartially and in accordance with the principles of legality, equality and objectivity. The judicial conduct refers, amongst other things, to principles of independence and impartiality and how judges should behave to strengthen public confidence in the court as well as guidelines for exercising the judgeship. Misconduct made while in the role of judge have consisted of, among other things, unlawful deprivations of liberty and the failure to dispatch judgements within the prescribed time limit as well as decisions on premature preventive detention without legal ground. Recurring circumstances that arise during the assessment are whether any injury or inconvenience has arisen because of the act, the degree of the workload, time pressure and whether measures have been taken to limit the injury. The types of actions that have resulted in disciplinary liability vary in scope from inappropriate and damaging behavior to incorrect application of law and inadequate processing. In the examination of disciplinary liability, unlawful deprivations of liberty have been common and the workload has been a recurring factor which, in conjunction with other circumstances, has had a limiting effect on the liability. The circumstances that have been regarded in the assessment are similar to those that have been taken into account in the examination of misconduct. Very few actions in the role of judge have led to dismissal. There is only limited guidance in the legislative history of chapter 11 section 7 in the Instrument of Government and the assessments from the Government Disciplinary Board for Higher Officials are brief. This results in difficulty drawing general conclusions about which actions as a judge that result in dismissal. The majority of the situations that have been assessed by the board have been of criminal nature. Established practice shows that every form of offense or crime of a less serious nature should not result in dismissal. Occasional fines, drunk driving offenses or acts that can be considered to be singular events do not constitute sufficient grounds for dismissal. On the other hand, repeated offenses have led to dismissal. Despite the ambiguity in how chapter 11 section 7 in the Instrument of Government is to be interpreted, the employee protection for judges appear to be strong.
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