Revenge or the rule of law: the Supreme Court is considering Pavlo Vovk’s appeal against his own dismissal

Another hearing took place in the Supreme Court in the case of Pavlo Vovk, the judge who was dismissed by the High Council of Justice for interfering with the work of the HQCJ and for other serious violations of judicial ethics. Now, Vovk is trying to argue that the investigative materials in his case supposedly could not be used in disciplinary proceedings. If the Supreme Court agrees, the disciplinary decision on his dismissal may be overturned, opening a path for Vovk to return to the system.

Arguments put forward by Pavlo Vovk’s side — and why they are irrelevant:

The limitation period has allegedly expired. The defence claims that before amendments to the law in 2023, the limitation period was calculated as “three years from the moment the disciplinary offence was committed until the HCJ opened the proceedings,” regardless of when the complaint against the judge was filed. Since the law has no retroactive effect, the lawyer argues that the HCJ missed the deadline: the offence was in 2019, while the proceedings were opened in 2023.

Even in 2021, Article 42 of the Law “On the High Council of Justice” quite clearly indicated the moment disciplinary proceedings begin: “Disciplinary proceedings commence after receiving a complaint regarding a judge’s disciplinary offence.” The Grand Chamber of the Supreme Court has taken different positions on this matter, but the key factor has been whether the calculation of deadlines was reasonably justified — and in the HCJ’s decision regarding Vovk, it was. Once a complaint is received, the three-year period stops running. Since fewer than three years passed between Vovk’s offence and the moment the HCJ received the complaint, the limitation period did not expire.

Covert investigative actions (CIA) materials cannot be used. The lawyer cites the Criminal Procedure Code and claims that the results of covert investigative actions are inadmissible evidence in disciplinary proceedings. However, the Grand Chamber has supported the practice of using such materials in disciplinary cases for the past seven years, including with reference to ECtHR case law. We wrote more about the admissibility of using covert recordings here.

Interference with private life. The defence argues that using CIA materials constitutes interference with Vovk’s private life, and such measures are only permissible within criminal proceedings and in compliance with legality. The Criminal Procedure Code, they claim, does not allow such use in disciplinary cases, so it is unlawful. However, the materials do not disclose private aspects of the judge’s life. They pertain to assessing the official conduct of a judge who himself attempted to influence the work of the HQCJ — a judicial governance body.

Any interference with private life occurred at the stage of the covert investigative actions (and occurred lawfully), not at the disciplinary stage, and it concerned not the judge’s “personal sphere,” but his official behaviour. Therefore, using the results of covert investigative actions in disciplinary proceedings against a judge does not constitute interference with his private life.

Not all witnesses were questioned. According to Vovk’s lawyer, since the HCJ summoned four witnesses but only one appeared and was questioned, the HCJ had no right to adopt a decision before hearing all of them. However, hearing witnesses is the HCJ’s right, not its obligation, and the decision on whom to question or not to question is entirely at the HCJ’s discretion. If the HCJ finds the evidence sufficient to establish a disciplinary offence, it may adopt a decision without questioning all witnesses.

The participation of HCJ member Olha Popikova was unlawful. The defence argues that HCJ member Olha Popikova allegedly previously took part in the work of the disciplinary chamber that examined the complaint against Vovk, and therefore should have been recused. They claim that she participated in the preliminary review and voted to open the proceedings, although she did not participate in the vote on the merits.

Vovk’s representative ignored the very logic behind the prohibition on members of a disciplinary chamber participating in the full HCJ’s review of appeals against their own decisions. At this stage, the HCJ is essentially conducting an “appeal-like” review, so naturally, a person cannot review their own decision. Since HCJ member Popikova did not participate in adopting the disciplinary chamber’s decision on the merits, she was not reviewing her own decision.

Next comes the decisive stage.

The Supreme Court’s conclusion in this case will indicate whether the system is capable of protecting the decisions on judicial cleansing adopted in recent years. If procedural manipulations prevail, Pavlo Vovk may return, and everything the country has done to liquidate DACK will be at risk.