The High Council of Justice publicly justified the use of criminal case materials in judges’ disciplinary proceedings
Judges may be held disciplinarily liable on the basis of materials from criminal proceedings, including covert investigative actions (CIAs). Eleven members of the High Council of Justice (HCJ) have issued a joint position to this effect. They emphasised that this practice is well established, lawful, and confirmed by decisions of both the HCJ and the Supreme Court.
An established practice since 2019
The use of CIAs materials as evidence in disciplinary proceedings has been a consistent practice of the HCJ and the Supreme Court since at least 2019. During this period, disciplinary chambers have submitted 50 judges for dismissal on the basis of such evidence.
The Grand Chamber of the Supreme Court has not overturned a single decision in which a judge was sanctioned on the basis of CIAs materials; on the contrary, it has upheld eight such decisions.
Disciplinary and criminal liability are different
The HCJ stresses that disciplinary and criminal liability are distinct types of legal liability. They differ in their grounds, procedures, and legal consequences.
Therefore, holding a judge simultaneously liable in disciplinary and criminal proceedings does not amount to double punishment. A disciplinary body’s decision does not depend on whether there is a criminal conviction, just as a disciplinary decision does not affect the consideration of a criminal case.
Why CIAs materials are admissible evidence
Neither the Law “On the High Council of Justice” nor the Law “On the Judiciary and the Status of Judges” prohibits the use of investigative materials in disciplinary proceedings. Likewise, the Criminal Procedure Code does not prohibit the use of CIA materials outside criminal proceedings. For their transfer, the HCJ obtains authorisation from an investigator or prosecutor. Disciplinary bodies have limited powers to collect evidence, which is why they rely on materials gathered by law enforcement agencies.
The CIA materials used in disciplinary cases were declassified during the pre-trial investigation and lost their classified status. They have already been used openly, including during court hearings.
Moreover, in its ruling of 20 May 2019 in case No. 815/2658/17, the Grand Chamber of the Supreme Court confirmed the HCJ’s right to independently assess such evidence within disciplinary proceedings.
Accordingly, the majority of HCJ members concluded in their article that materials from criminal proceedings, including the results of CIAs, may lawfully be used together with other evidence to assess a judge’s disciplinary misconduct. In the HCJ members’ view, this practice complies with national legislation, Supreme Court case law, decisions of the European Court of Human Rights, and EU standards, and contributes to increasing trust and building a judiciary of integrity.
This position is particularly important in the context of the case of Pavlo Vovk, the former head of the scandal-ridden District Administrative Court of Kyiv (DACK). The HCJ unanimously dismissed Vovk on the basis of NABU materials. There are now grounds to believe that the Grand Chamber may reinstate the former head of the DACK.
It is evident that the majority of HCJ members understand the risks to judicial reform if the Grand Chamber were to prohibit the use of CIA materials in disciplinary proceedings. This article shows that the HCJ is changing its face: the body no longer defends the corporatist interests of judges; instead, it prioritises judicial independence, public trust, the authority of justice, and the formation of a professional judicial corps. Now the Supreme Court must likewise stand up for these principles and prevent judges of low integrity from returning to office.
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