During the war, state bodies and the judiciary faced tough challenges that required timely and adequate response. In the conditions of martial law, the problem of collaborationism, in particular, arose especially acutely.
On March 15, 2022, the Law of Ukraine No. 2108-IX “On making amendments to certain legislative acts of Ukraine on establishing criminal liability for collaborative activities” entered into force. The concepts of collaborationism, its forms, responsibility for the commission of such a criminal offense are defined, as well as the term of punishment for aiding the aggressor state is provided.
However, it should be stated that for today it is impossible to quickly and effectively counteract manifestations of collaborationism, including among representatives of the judiciary, without further improvement of legislation. War with an aggressor country requires the development of quick and effective mechanisms for preventing and countering treason.
It should be reminded that the High Council of Justice supported the position of the President of Ukraine regarding the need for inspection of state power bodies regarding the detection of collaboration activities. The HCJ notes that such an inspection should also be carried out in the judicial system on the basis of legislatively defined clear algorithms.
In today's critical realities, the lack of possibility for the Council to perform extremely important functions of temporarily suspending of a judge from administration of justice in connection with criminal prosecution and granting permission for his/her detention is particularly dangerous. The HCJ receives information about the likely collaboration activities of representatives of the judicial branch of government, which is subject to investigation. Unfortunately, in the absence of a quorum and in the presence of legislative gaps, the Council is currently deprived of the opportunity to make proper decisions, and this harms the authority of the judiciary.
It should be stated that without making appropriate legislative changes today it is impossible to quickly and effectively counteract manifestations of collaborationism among representatives of the judiciary. Such a mechanism should be quick and efficient and comply with the provisions of the Constitution and laws of Ukraine.
The High Council of Justice once again calls on the subjects of appointment to elect/appoint members of the constitutional body as soon as possible in accordance with the procedure established by the current legislation in order to resume the work of the Council, primarily to protect the interests of the state of Ukraine.
The HCJ supports the initiative of the Council of Judges of Ukraine to suspend the payment of judicial remuneration to judges, whose actions may indicate collaboration, treason, aiding the aggressor state. At the same time, the HCJ notes that the issue of possible limitation of the constitutional guarantees of judges under martial law should be regulated within the framework of the current legislation.
Currently, the state continues to spend funds on the payment of monthly allowances to authorized judges and retired judges, for whom law enforcement bodies have established facts of collaboration activities.
At the same time, judges who, during mobilization, are drafted into the ranks of the Armed Forces of Ukraine and other military formations and who retain their place of work and position may be deprived of payment of judicial remuneration. According to the HCJ, the state should give such judges the right to choose to receive judicial remuneration or military pay. Getting judicial remuneration by judges is not a privilege, but one of the constitutional guarantees that judges, who are on guard for maintaining the integrity of the state, may currently be deprived of due to imperfect legislation.
It should be reminded that the full performance by the High Council of Justice as a collegial body of functions and powers will be possible only after filling the vacancies according to the quota of each of the subjects of the formation of the HCJ.
The legal procedure for election/appointment of new members of the High Council of Justice takes a long time. The filling of all vacant positions can continue until the end of 2022, and the response to egregious needs is needed for yesterday. In view of this, the HCJ draws attention of the subjects of legislative initiative to the need to immediately delegate partial powers of the HCJ to the President of the Supreme Court as an ex officio member of the Council or to temporarily resume the work of the Council in its current composition. After all, important issues remain open and unresolved today, among which is the right guaranteed by the Constitution of Ukraine to dismiss judges from their positions, in particular in connection with the inability to perform their powers for health reasons, and resignation.
Currently, in Ukraine, a judge does not have a real opportunity to exercise the right to be dismissed from his position on the grounds provided for by the Constitution of Ukraine, which is a direct violation of the European Convention on Human Rights.
The proposal of the Council of Judges of Ukraine, set out in paragraph 9 of the operative part of the decision dated August 5, 2022 No. 22, under which a judge, as a subject with a special status, is actually deprived of the observance of the principle of independence, which cannot be applied to any other person, is unacceptable.
The said initiative of the body of judicial self-government proposed in practice to eliminate the highest constitutional body in the judicial system - the High Council of Justice from the procedure for terminating the resignation under paragraphs 2, 4 of the first part of Article 145 of the Law of Ukraine “On the Judiciary and the Status of Judges”, which may jeopardize the independence of judges Ukraine.
In addition, the HCJ draws attention to the fact that the power to terminate resignation of a judge belongs exclusively to the High Council of Justice; therefore, by putting forward such a proposal, the Council of Judges of Ukraine disregarded the current norms of the law.
It is also advisable to transfer the decision-making on termination of resignation under Article 145 of the Law of Ukraine “On the Judiciary and the Status of Judges” to the President of the Supreme Court as an ex officio member of the Council, taking into account the existing mechanism of temporary transfer of powers.
The High Council of Justice is aware that the delegation of such powers to the President of the Supreme Court or resumption of the work of the Council without a quorum does not fully comply with the norms of the Constitution of Ukraine, but it does not contradict the Convention for the Protection of Human Rights and Fundamental Freedoms, since such restrictions guard the inflexibility of trust in judicial institutions, the guaranteed right to a fair trial and the inviolability of the integrity of the state.
The European Convention on Human Rights is the quintessence of civilizational achievements, which we should be equal to, which is a purposeful vector of movement towards maintaining a strong, integral legal state.
That is why we believe that this is currently possible mechanism for the state to immediately respond to cases of collaboration and treason in the judicial system, since no law enforcement body is vested with such powers.
Putting on the scales of Themis the compliance with the Constitution of Ukraine of such legislative changes and the lack of effective tools to counter manifestations of collaboration activities and high treason in the judicial system, we believe that all legislative novelties should be aimed at protecting the interests of the state of Ukraine.
Minor, but much-needed legislative changes due to the harsh conditions of martial today will be temporary in nature and will make it possible to level the devastating consequences for both the system and the state as a whole.