“The HCJ members are extremely concerned about the impossibility to make decisions in critical situations under the circumstances that arose in the judicial system during the war. The lack of authority of the highest body of judicial governance threatens the stability of the judicial system and the security of the entire state”, – this was emphasized by the Acting Chairman of the High Council of Justice Vitalii Salikhov during the round table on “Collaboration as a challenge to the judicial system”, dedicated to search for mechanisms of appropriate response to manifestations of collaborationism in the judicial system. The event took place on September 29, 2022 at the initiative of the High Council of Justice.
The full text of Vitalii Salikhov’s speech is offered for attention
The need to create conditions for emergency response to cases of collaboration activity and high treason in the judicial system is obvious. The HCJ members represent the highest constitutional body of judicial governance, which is obliged to ensure governability and stability of the judicial branch of power work and direct its activities to prevent the unlawful behavior of individual judges.
On March 15, 2022, the Law of Ukraine dated March 3, 2022 No. 2108-IX “On making amendments to certain legislative acts of Ukraine on the Establishment of Criminal Liability for Collaboration Activities” came into force, which is aimed at resolving the issue of the prohibition of collaborationism. In particular, the Criminal Code of Ukraine is added by Article 1111, which defines the concept of collaborationism and its forms, as well as liability for the commission of a criminal offense defined by this article.
According to the fifth part of Article 48 of the Law of Ukraine “On the Judiciary and the Status of Judges”, judicial independence shall be ensured, in particular, by the inviolability and immunity of a judge; the means of ensuring the personal security of the judge, his/her family and assets, as well as other means of their legal protection as determined by law. Article 131 of the Constitution of Ukraine establishes that the High Council of Justice, in particular, gives consent to detain a judge or hold him/her in custody, adopting decisions on suspension of judges from the administration of justice.
With the beginning of the full-scale war of the russian federation against Ukraine and after the occupation of certain territories of Ukraine, the High Council of Justice received appeals/letters with information about the suspicion of representatives of the judiciary in collaborative activities, committing treason, etc. The said information is received, as a rule, in the appeals of law enforcement bodies as part of pre-trial investigations in criminal proceedings against representatives of the judiciary, including retired judges.
Another challenge to the judiciary during the war was the cases when authorized judges and retired judges were found to have the foreign citizenship, acquired during the beginning of the armed aggression of the russian federation against Ukraine in 2014, during a full-scale war or earlier.
Article 126 of the Constitution of Ukraine clearly provides that the authority of a judge shall be terminated in case of acquisition of foreign citizenship. In addition, Article 121 of the Law of Ukraine “On the Judiciary and the Status of Judges” states that powers of a judge shall be terminated in case of acquisition by a judge of any foreign citizenship, with the effect from the day when any such termination of the Ukrainian citizenship or acquisition of foreign citizenship occurred.
Despite the fact that in 2016 the corresponding amendments were made to the Constitution of Ukraine and the Law of Ukraine “On the Judiciary and the Status of Judges”, which make it impossible for a judge of Ukraine to acquire foreign citizenship, currently, the legislation does not define appropriate mechanism for terminating the powers of a judge in the event of acquisition of foreign citizenship.
Since the study of evidence of acquisition by a judge of foreign citizenship is subject to a thorough assessment, requires the conducting necessary actions, to confirm those by contacting the relevant authorities, enterprises, institutions, organizations, there is a need to urgently resolve the issue of granting the authority to establish such a fact to the High Council of Justice as a collegial, independent constitutional body of state power and judicial governance.
It should be noted that, in accordance with Article 1 of the Law of Ukraine “On the High Council of Justice”, the High Council of Justice is a collegial, independent constitutional body of state power and judicial governance, which operates in Ukraine on a permanent basis to ensure the independence of the judiciary, its functioning on the basis of responsibility, accountability to society, the formation of integrity and highly professional corps of judges, compliance with the norms of the Constitution and laws of Ukraine, as well as professional ethics in the activities of judges and prosecutors.
Because from February 24, 2022, there is no authorized composition of the High Council of Justice, as defined by Article 131 of the Constitution of Ukraine, there are objective circumstances that obstruct the High Council of Justice from exercising its authority of giving consent to detain judges or hold them in custody or arrest, adopting decisions on suspension of judges from the administration of justice in connection with criminal prosecution, including for the commission of criminal offence defined by Article 1111of the Criminal Code of Ukraine (collaboration activity), until the formation of a new composition of the Council through the election (appointment) of members of the High Council of Justice to grant the specified powers to the current members.
Granting by legislator the said powers to members of the HCJ for a certain defined period is the only possible way to bring collaborators to responsibility, since these functions in relation to judges are not performed by any law enforcement bodies.