The Supreme Court Exceeds Its Powers and Attempts to Replace the HCJ

Recently, the Grand Chamber of the Supreme Court once again annulled a decision of the High Council of Justice (HCJ). By doing so, the Grand Chamber interfered with a well-founded decision of the HCJ and overstepped the legal limits of its authority.

The case concerned judge Oleksandr Hnyp, whom the Third Disciplinary Chamber of the HCJ held disciplinarily liable for deliberately violating recusal rules. The judge appealed this decision, but instead, the HCJ in plenary imposed an even harsher sanction — temporary suspension from administering justice for three months, with the loss of salary supplements and mandatory qualification assessment.

In annulling the HCJ’s decision, the Grand Chamber justified its ruling by stating that “the HCJ cannot, based on a judge’s appeal, impose a stricter sanction than the one initially applied by the Disciplinary Chamber” (para. 199).

Experts from the Centre for Political and Legal Reforms (CPLR) have thoroughly analyzed this Grand Chamber ruling, highlighting its problematic aspects and the risks it poses. DEJURE Foundation supports the CPLR’s arguments, specifically:

1. The law does not prohibit the HCJ from imposing a stricter disciplinary sanction on a judge than the one applied by the Disciplinary Chamber. However, the Grand Chamber effectively limited the HCJ’s discretion in choosing a proportionate sanction for disciplinary misconduct.

2. The GC SC can annul HCJ decisions only when they are clearly unlawful or unmotivated. Instead, the Court overturned the HCJ’s decision solely because the HCJ had imposed a stricter sanction. This ground for annulment is not provided for in Article 52(1) of the Law on the High Council of Justice. Such actions by the GC SC violate the law, encroach on the HCJ’s discretion, and effectively substitute its role.

3. The Supreme Court improperly applied the criminal law principle of ‘prohibition of worsening the legal position of the appellant.’ This principle, enshrined in the Criminal Procedure Code, does not apply to disciplinary proceedings, which differ significantly in nature, procedure, evidentiary standards, and consequences. Applying criminal law analogies in this context is flawed. Moreover, by addressing so-called legislative gaps in this way, the Grand Chamber could arbitrarily annul “inconvenient” decisions.

4. In disciplinary proceedings, which are similar to administrative justice, the principle of official clarification of case circumstances applies. This means that the HCJ examines not only whether a judge’s rights were respected in the disciplinary process but also assesses the legality and validity of the Disciplinary Chamber’s decision. If this principle is ignored, Disciplinary Chambers could easily protect low-integrity judges without consequences.

The Supreme Court’s decision creates corruption risks. If the Disciplinary Chamber shields low-integrity judges, the HCJ, in plenary, would no longer have the right to overturn unjust and unfounded decisions. This risk is particularly relevant given that complainants in disciplinary cases do not have an automatic right to appeal a Disciplinary Chamber’s decision — they must first obtain its permission. To address this, the law should be amended to remove the requirement for complainants to obtain approval from the Chamber to appeal.