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During the consideration of submissions on giving consent to apply measures of restraint against judges, it is important to strike a balance between the independence of judges and their responsibility to society – Hryhorii Usyk


Problematic issues that arise when considering submissions on giving consent to detain a judge, to take him/her in custody or keep under arrest, were discussed at a working meeting by members of the HCJ, representatives of the HCJ Secretariat, Specialized Anti-Corruption Prosecutor’s Office, Criminal Cassation Court within the Supreme Court, High Anti-Corruption Court, Kyiv Court of Appeal, and Taras Shevchenko National University of Kyiv.

The Chairman of the HCJ Hryhorii Usyk noted:

“The Constitution of Ukraine guarantees the independence of a judge. This guarantee is provided by a special procedure for bringing a judge to disciplinary liability. A judge may not be detained or kept in custody or under arrest without the consent of the High Council of Justice before a sentence is passed against him/her by the court, with the exception of detention of a judge during or immediately after committing a grave or especially grave crime. The issue of giving consent to apply measures of restraint against judges affects the authority of both the individual judge and the entire judicial system. It is important to strike a balance between the independence of judges, guaranteeing their status and the goal that needs to be achieved, namely, so that the responsibility of a judge to society and to the state is obvious. Judges should be integrity, fair, and professional as persons who directly administer justice and are under the close attention of society, which has a great demand for justice.”

Hryhorii Usyk also noted that the Montreal Universal Declaration on the Independence of Justice, adopted by the First World Conference on the Independence of Justice in 1983, stated that consent to take a judge in custody, detain or arrest him/her shall be given by an authorized body of the judiciary. This has become the European standard. The HCJ is precisely the kind of authorized body in Ukraine – the body of judicial governance that gives consent to apply measures against judges. After all, the main function of the HCJ is to ensure the independence of the judiciary.

The HCJ member, Oleksii Melnyk informed that in 2023, 17 decisions were taken, of which 15 were on giving consent to take a judge into custody, 1 was on refusal to satisfy motion, 1 was on the return of motion. In general, consent to apply measures of restraint against judges in relation to those suspected of committing such criminal offenses as misappropriation, embezzlement, conversion, or property by malversation, through abuse of office, high treason,  violations of traffic safety rules or operation of transport by persons who drove under the influence of alcohol, fraud, accepting an offer, promise or receiving an improper advantage by an official (most often), justification of the armed aggression of the rf against Ukraine.

Decisions on giving consent to take a judge in custody were made on the basis of petitions from the Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor’s Office, including specific facts and evidence about the judge committing a socially dangerous act and reasons for the need to take the judge in custody due to the risks defied in part one of Article 177 of the Criminal Procedure Code of Ukraine, namely, that the judge can hide from pre-trial investigation agency and/or the court.

Oleksii Melnyk recalled that the HCJ prepared and published on the official website a review of the HCH decisions adopted in 2023 based on the results of consideration of petitions on giving consent to take a judge in custody. The review shows that there are problems with determining the discretionary powers of the HCJ in the matter of boundaries of the study of risks specified in the petition on giving consent to apply measures of restraint against a judge.

Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor's Office Oleksandr Klymenko noted that the SAPO investigators pay special attention to developing the practice of reasoning each of the risks identified by part one of Article 177 of the Criminal Procedure Code of Ukraine, and pay attention to the collection of evidence that can confirm these risks.

Member of the HCJ Serhii Burlakov informed that members of the HCJ as part of the Ukrainian delegation paid a working visit to Strasbourg (French Republic). During expert consultations with representatives of the Secretariat of the ECHR, the European Commission for the Efficiency of Justice, the European Commission for Democracy through Law and the Co-operation Programs Division of the Directorate General for Human Rights and the Rule of Law, questions to the Ukrainian delegation concerned, in particular, the state of ensuring the independence of the status of judges.

“The ECHR considers court cases against judges through the prism and optics of old Europe. A judge is a special subject, but at the same time he/she is an ordinary person who should be subject not only to the additional burdens provided by law, but to all the Convention provisions that apply to every citizen. At the same time, a judge is someone whom the state and the Ukrainian people have authorized to administer justice. Therefore, there are increased requirements for a judge,” Serhii Burlakov noted.

He also drew attention to a number of decisions of the ECHR regarding the assessment of reasoning the risks to apply measures of restraint, in particular, in the cases of Panchenko v. Russia, Neumaster v. Austria, Marabishvili v. Georgia, Jarzynski v. Poland, etc. The ECHR points out those risks should be confirmed by certain material facts and evidence and cannot be based only on merely potential assumptions.

The HCJ member Roman Maselko noted that it is important to understand the key distinction between the competencies of the HCJ and the court. The HCJ checks the guarantees of independence, the absence of obvious facts indicating pressure and influence on a judge, his/her persecution, and the illegality of actions against him/her. The decision of the HCJ is that the court should not, but may, consider and decide on the detention of the judge. That is, the decision of the HCJ on giving consent to take a judge in custody does not mean that a measure of restraint in the form of taking under custody should be necessarily applied to the judge.

The Head of the High Anti-Corruption Court, Vira Mykhailenko, explained that when considering the pre-trial investigation body's motion to apply a measure of restraint, HACC judges rely on the decision of the High Council of Justice, which verified that the guarantees of independence were not violated, and the case is then considered according to the general rules of the Criminal Procedure Code.

Judge of the Criminal Cassation Court within the Supreme Court Viacheslav Nastavnyi noted that a measure of restraint is the same for all suspects. For judges, it is identified by subject. In every court decision, both on measure of restraint and its extension, the decision of the HCJ is referred to. The fact is stated that there is such a decision and it allows applying a measure of restraint.

Viacheslav Nastavnyi also drew attention to the fact that courts should take into account the practice of the ECHR on the presumption of the right to liberty, which should be guaranteed, and such a right should be limited in exceptional cases if there are sufficient and reasonable grounds.

Olena Kostiuchenko, Head of the Department of Criminal Procedure and Criminology at the Taras Shevchenko National University of Kyiv, noted that scholars adhere to the following theoretical approach: if a crime does not pose a public threat to the life and health of a person, more lenient measures of restraint should be applied.