Tetiana BONDARENKO – member of the High Council of Justice, retired judge of the Mykolaiv Court of Appeal

Oleh KANDZIUBA – member of the High Council of Justice, prosecutor

Oksana KVASHA – member of the High Council of Justice, Doctor of Legal Sciences, Professor

Olena KOVBII – member of the High Council of Justice, judge of the Kherson District Administrative Court

Alla KOTELEVETS – member of the High Council of Justice, judge of the Kharkiv Court of Appeal, Candidate of Legal Sciences

Dmytro LUKIANOV – member of the High Council of Justice, Doctor of Legal Sciences, Professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine

Roman MASELKO – member of the High Council of Justice, attorney

Oleksii MELNYK – member of the High Council of Justice, prosecutor

Mykola MOROZ – member of the High Council of Justice, Candidate of Legal Sciences, Associate Professor

Maksym SAVIUK – member of the High Council of Justice, former senior detective of the National Anti-Corruption Bureau of Ukraine

Hryhorii USYK – member of the High Council of Justice, judge of the Supreme Court

General framing of the issue

The High Council of Justice (hereinafter – the HCJ) ensures the formation and proper functioning of the judiciary and strengthens public trust in justice, including through disciplinary proceedings conducted by a disciplinary body in respect of a judge, the examination of cases concerning the disciplinary liability of judges and of complaints against decisions to hold a judge or a prosecutor disciplinarily liable, which is consistent with international standards of judicial independence, in particular the recommendations of the Council of Europe, the opinions of the European Commission for Democracy through Law (the Venice Commission) and Ukraine’s commitments to the European Union.

The use, as evidence in disciplinary proceedings against judges, of materials from criminal proceedings — in particular the results of covert investigative (search) actions (hereinafter – CISA) — is currently a subject of debate in assessments of contemporary disciplinary practice. This is because CISA form part of criminal proceedings that involve restrictions of an individual’s rights permissible only on the conditions and under the procedure expressly laid down by the Criminal Procedure Code of Ukraine (hereinafter – the CPC of Ukraine). The use of the results of such actions in disciplinary proceedings, which have a different legal nature, purposes and standards of proof, raises questions as to the limits of their relevance and admissibility as evidence, and as to compliance with the guarantees of fair proceedings and judicial independence.

In disciplinary proceedings, one of the key arguments raised by the person facing disciplinary liability is, arguably, that the disciplinary body may not use CISA materials from criminal proceedings when deciding on that person’s disciplinary liability.

The relevant practice has been shaped over the years and is today settled both in the decisions of the HCJ disciplinary bodies and of the HCJ itself, and in the judicial review exercised by the Supreme Court. Since 2019, the Disciplinary Chambers of the HCJ, assessing the evidence in disciplinary cases as a whole, have adopted decisions recommending the dismissal of 50 judges on the basis of declassified CISA materials. As at the date of preparation of this article, there are no decisions of the HCJ or of the Grand Chamber of the Supreme Court quashing such decisions specifically on the ground that CISA materials are inadmissible as evidence in disciplinary proceedings. The HCJ has upheld almost all the relevant decisions of its Disciplinary Chambers and has changed the type of disciplinary sanction in only two cases. The Grand Chamber of the Supreme Court has upheld eight such decisions; the remaining cases are currently pending.

Without setting out to refute the positions of individual authors, this article seeks to present the consolidated position of the HCJ on a topical issue that continues to provoke debate within the legal community.

The disciplinary liability of a judge as a type of legal liability

In its legal nature, disciplinary liability differs substantially from criminal liability in its grounds, the procedure for its implementation, the range of persons involved, and its character and legal consequences. Therefore, holding a person disciplinarily liable while criminal proceedings against that person are pending does not contradict the principles of fairness and proportionality and does not amount to being held liable twice for the same breach.

According to the conclusions of the Grand Chamber of the Supreme Court set out, in particular, in its rulings of 4 April 2019 (proceedings No. 11-945сап18) and of 19 May 2021 in case No. 9901/997/18 (proceedings No. 11-291заі20), disciplinary and criminal liability belong to different types of legal liability and therefore, in the light of Article 4 of Protocol No. 7 to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) and Article 61(1) of the Constitution of Ukraine, they are not mutually exclusive.

The question of a person’s guilt in committing a crime (criminal offence) is, of course, decided by a court alone. At the same time, the exclusive power to establish the presence or absence of the elements of a disciplinary offence in a judge’s conduct is vested in the disciplinary bodies – the Disciplinary Chambers of the HCJ (Article 131 of the Constitution of Ukraine and Article 42 of the Law of Ukraine “On the High Council of Justice”). That is, the decisions of any bodies, including a court verdict, cannot be binding on the disciplinary body that determines whether or not a judge’s conduct contains the elements of a disciplinary offence. Moreover, the disciplinary body cannot be constrained in conducting disciplinary proceedings by the absence of a decision of a competent body in another procedure, in particular by the absence of a court verdict on facts that may serve as grounds for both criminal and disciplinary liability.

At the same time, a decision of the disciplinary body has no legal significance for a court examining criminal proceedings or a case concerning an administrative offence.

In disciplinary proceedings, an assessment is made only of facts that may indicate the presence or absence of the elements of a disciplinary offence in a judge’s conduct. Neither the conduct of disciplinary proceedings nor their outcome can establish that a person’s guilt in committing an administrative or criminal offence has been proven.

A systematic understanding of the problem calls for several important general observations concerning a judge’s legal liability.

First, for one and the same act a judge may be subjected to different types of legal liability.

No one may be held liable twice under the same type of legal liability for the same offence (Article 61 of the Constitution of Ukraine). Accordingly, holding a judge criminally liable for a particular socially dangerous act does not preclude holding that judge disciplinarily liable for the same act.

Second, it must be borne in mind that the law establishes a single ground for criminal liability – the commission by a person of a socially dangerous act containing the elements of a criminal offence provided for by the Criminal Code of Ukraine (Article 2). By contrast, the law provides for twenty-five (!!!) separate grounds for a judge’s disciplinary liability (Article 106 of the Law of Ukraine “On the Judiciary and the Status of Judges”).

Accordingly, if a socially dangerous act committed by a judge does not, for whatever reason, entail criminal liability (in particular because it does not contain the elements of a criminal offence), it may well constitute one or more grounds for the judge’s disciplinary liability. Incidentally, the law even singles out one such situation, providing that a ground for a judge’s disciplinary liability may be the use of the status of judge in order unlawfully to obtain material benefits or other advantages for himself or herself or for third parties, where such an offence does not contain the elements of a crime or a criminal misdemeanour (Article 106(1)(11) of the Law of Ukraine “On the Judiciary and the Status of Judges”).

In the light of the foregoing, it cannot be argued that using materials from criminal proceedings for the purposes of disciplinary proceedings substitutes disciplinary proceedings for criminal ones. There is no substitution whatsoever, since each set of proceedings is conducted on the grounds and under the procedure laid down by law. The only thing that links them (rather than one replacing the other) is the materials used as evidence in these proceedings, which differ in their subject matter, in the bodies conducting them and in their consequences.

The foregoing is consistent with Opinion No. 880/2017 of the European Commission for Democracy through Law (the Venice Commission) of 13 March 2017 on the criminal liability of judges, according to paragraphs 18 and 53 of which disciplinary liability has different constituent elements and applies different standards of proof from criminal liability. Under paragraph 53 of that Opinion, “criminal and disciplinary liability are not mutually exclusive: disciplinary sanctions may equally be applied in a criminal case ending in acquittal; moreover, the fact that criminal proceedings have not been instituted because it was impossible to establish criminal guilt or the facts does not mean that no disciplinary breach was committed by the judge concerned, precisely because of the different nature of the two types of liability”; “the importance of the independence of judges in the exercise of their judicial functions does not mean that judges should not be accountable. A balance must be struck between their immunity as a means of protecting them from pressure and improper action by the authorities and by private individuals (functional immunity) and the fact that they should not be above the law (accountability)”; “where a judge’s misconduct is capable of undermining public confidence in the judiciary, it is in the public interest to bring disciplinary proceedings against that judge”.

CISA as evidence in disciplinary proceedings against a judge

The existence of grounds for a judge’s disciplinary liability must be confirmed by appropriate evidence. The Law of Ukraine “On the High Council of Justice”, which governs disciplinary proceedings in respect of a judge, operates with the concept of “evidence” and refers to it as a necessary condition for holding a judge disciplinarily liable.

Under the law, a disciplinary complaint is left without examination and returned to the complainant if it does not refer to factual data (testimony, evidence) concerning the judge’s disciplinary offence. Participants in a disciplinary case have the right to submit evidence, give explanations, apply for witnesses to be summoned, put questions to the participants in the disciplinary case, raise objections, lodge other applications or challenges, and consult the case file.

A ground for holding a judge disciplinarily liable is deemed established by the Disciplinary Chamber (the HCJ) following its examination of the disciplinary case if the evidence submitted and obtained within the disciplinary proceedings is clear and convincing in confirming the existence of such a ground. Evidence is clear and convincing if, from the standpoint of an ordinary reasonable person, taken as a whole it makes it possible to conclude that the circumstances constituting a ground for holding the judge disciplinarily liable are present or absent (Articles 44 and 49 of the Law of Ukraine “On the High Council of Justice”).

Thus, the law lays down no restrictions on the submission and use of evidence in disciplinary proceedings in respect of a judge. From the content of the law one can identify only certain criteria that evidence in a judge’s disciplinary case must meet.

Evidence must be:

– submitted and obtained within the disciplinary proceedings. It may be submitted by the participants in the disciplinary case (including complainants) and obtained by the Disciplinary Chambers of the HCJ (the HCJ);

– clear and convincing in confirming the existence of grounds for the judge’s disciplinary liability.

The law lays down no other conditions (requirements) for evidence in a disciplinary case concerning a judge.

Beyond any doubt, CISA materials may also constitute such evidence.

This article does not call into question the guarantees for the protection of an individual’s private sphere during criminal proceedings established by the CPC of Ukraine. Under Articles 14 and 15 of the CPC of Ukraine, everyone is guaranteed the privacy of correspondence, telephone conversations, telegraph and other communications, as well as non-interference with private and family life. Interference with these spheres is permitted solely on the basis of a reasoned court decision, in the cases expressly provided for by law, and only in order to achieve the objectives of the criminal proceedings. Information obtained as a result of such interference may be used solely for the purposes of the criminal proceedings in which it was obtained.

One form of such interference is the conduct of CISA. Under Article 256 of the CPC of Ukraine, the results of CISA may be recognised as evidence in criminal proceedings provided that the statutory procedure for conducting them and their proper procedural formalisation have been observed. The procedure for classifying and declassifying such materials is additionally governed by subordinate regulations.

The use of CISA results for other purposes, or the transfer of the information, is governed by Article 257 of the CPC of Ukraine, under which, if the conduct of CISA reveals indications of a criminal offence that is not being investigated in the criminal proceedings concerned, the information obtained may be used in other criminal proceedings only on the basis of a ruling of an investigating judge issued at the prosecutor’s request. Moreover, information obtained as a result of CISA is transferred solely through the prosecutor.

Accordingly, that provision does not prohibit the use of CISA materials for purposes other than those of the criminal proceedings; rather, it lays down a special procedure where they are used in other criminal proceedings. Moreover, the use of the conjunction “or” in the wording of the cited article supports the conclusion that the CPC of Ukraine expressly provides for the transfer of information obtained as a result of CISA subject to the relevant procedure – solely through the prosecutor.

Disclosure of pre-trial investigation information, including CISA materials, before the investigation is completed is permitted only with the written authorisation of the investigator or the prosecutor and to the extent that they consider possible (Article 222 of the CPC of Ukraine). Such authorisation is a mandatory condition for transferring the materials to other bodies or persons.

When the HCJ examines disciplinary cases concerning judges, no “further” or “new” interference takes place with the judge’s private life, privacy of correspondence or other communications beyond that already carried out in the criminal proceedings and provided by the pre-trial investigation bodies and their officials in the manner prescribed by the legislation of Ukraine in force. That is, only those CISA materials are used that have already been obtained within criminal proceedings and transferred to the HCJ on the basis of the written authorisation of the investigator or the prosecutor under Article 222 of the CPC of Ukraine.

Furthermore, the HCJ examines such materials not as evidence of the commission of a criminal offence, but exclusively from the standpoint of whether the judge’s conduct discloses indications of a disciplinary offence.

Disciplinary proceedings against judges are conducted on the basis of special legislation – the Laws of Ukraine “On the Judiciary and the Status of Judges” and “On the High Council of Justice”. Those laws establish an autonomous procedure for gathering, verifying and assessing evidence which is not to be equated with the criminal-procedure rules of proof, fully in keeping with the principle enshrined in the legislation of Ukraine that a special law (lex specialis) takes precedence over a general one (lex generalis). The disciplinary liability of judges has an independent legal nature and is not derivative of criminal liability.

The foregoing supports the conclusion that the Laws of Ukraine “On the Judiciary and the Status of Judges” and “On the High Council of Justice”, which define the grounds for a judge’s disciplinary liability and the procedure for disciplinary proceedings in respect of a judge, contain no reservations regarding the submission or use of CISA materials in disciplinary proceedings against a judge.

Accordingly, in their disciplinary practice the disciplinary bodies (the Disciplinary Chambers of the HCJ) and the HCJ use CISA materials that have been obtained by the pre-trial investigation bodies in the manner prescribed by law, are not secret (having been declassified under the established procedure) and have been provided to the HCJ as evidence confirming the commission of a disciplinary offence by a judge.

This disciplinary practice of the HCJ has been accompanied by an analysis of the legislation and by discussion of the legal grounds for using CISA materials in disciplinary proceedings against judges. Debates have arisen on various aspects of such use, which we consider entirely natural and even necessary for a constructive approach to resolving problematic issues. The possibility of using such materials in disciplinary cases concerning judges has also been examined by the Supreme Court, as set out in detail in this article.

A position has been publicly expressed that the transfer of CISA results and their use in disciplinary proceedings against judges has no corresponding legal basis in the national legislation of Ukraine. Reference is made in this connection to the relevant provisions of the Constitution of Ukraine, the CPC of Ukraine, the Convention and other international legal instruments, judgments of the European Court of Human Rights (hereinafter – the ECtHR) and of the Constitutional Court of Ukraine, separate opinions of Supreme Court judges, and so on. However, despite the large number of legal provisions cited in support of that position and the extensive use of ECtHR case-law, its conclusions are neither unequivocal nor convincing.

The “secrecy” of the information used by the HCJ in disciplinary proceedings against a judge runs as a common thread through the entire article under discussion. Yet in disciplinary proceedings against a judge the HCJ does not use “secret information”, since the CISA materials provided to it (appended to the complaint) are not secret. At the time, such materials were obtained covertly and carried the relevant classification. But in the course of the pre-trial investigation they were declassified, lost their secret status and could be used openly for procedural purposes, in particular in public court hearings concerning the application of a preventive measure, the extension of the pre-trial investigation period, the seizure of property and so on.

Those materials reached the HCJ as “ordinary” materials of criminal proceedings, authorisation for the use of which outside such proceedings was granted by the investigator or the prosecutor under the procedure laid down by the legislation of Ukraine in force, in particular Article 222 of the CPC of Ukraine — the lawfulness of which is confirmed by the case-law of the Supreme Court, as noted below in this article.

In these circumstances, such information becomes public long before it is appended to the materials of the disciplinary proceedings. Therefore, in our view, it is incorrect to speak of “the use of secret information in disciplinary proceedings against a judge”.

Certain authors base their conclusion that CISA materials cannot be used in disciplinary proceedings against a judge on the fact that those materials are “as a rule obtained as a result of interference with private communications”, while stressing that in this context there is no dispute about, and no examination of, “the question of the lawfulness or unlawfulness of gathering evidence by conducting the relevant CISA, since such an action is carried out within criminal proceedings and the examination of those questions falls within the competence of the court (the investigating judge) determined by the criminal procedure legislation of Ukraine and is essentially a separate measure of judicial control over the pre-trial investigation body”.

Those authors define the aim of their article as an attempt “to substantiate doubts as to the lawfulness of using CISA materials obtained as a result of interference with private communications specifically in disciplinary proceedings against a judge”. It appears that such caveats are not made by chance, since establishing that the evidence is of lawful origin to a considerable extent undermines that concept. The point is that the question of the lawfulness or unlawfulness of obtaining information that may be used as evidence of a judge’s disciplinary offence is of fundamental importance. And if one proceeds from the premise that such evidence was obtained lawfully, the logical conclusion is that its use is likewise lawful (admissible).

At the same time, verification of the lawfulness both of the conduct of CISA and of the disciplinary body’s receipt of the materials and ability to use them is always a matter for assessment. Facts indicating that CISA were conducted unlawfully, that there was no authorisation to use their results in the disciplinary procedure, that the Disciplinary Chamber of the HCJ obtained them unlawfully, and so on, may and must be examined in the course of the disciplinary proceedings. The disciplinary body has the relevant powers to assess those facts for the purposes of the disciplinary proceedings specifically, and not for the purpose of exercising judicial control over the pre-trial investigation body.

On the standard of proof

The Law of Ukraine of 6 September 2023 No. 3378-IX “On Amendments to the Law of Ukraine ‘On the Judiciary and the Status of Judges’ and Certain Laws of Ukraine concerning Changes to the Status and Procedure for Forming the Service of Disciplinary Inspectors of the High Council of Justice” introduced amendments, in particular supplementing Article 49 of the Law of Ukraine “On the High Council of Justice” with paragraph 16, under which a ground for holding a judge disciplinarily liable is deemed established by the Disciplinary Chamber (the HCJ) following its examination of the disciplinary case if the evidence submitted and obtained within the disciplinary proceedings is clear and convincing in confirming the existence of such a ground.

Evidence is clear and convincing if, from the standpoint of an ordinary reasonable person, taken as a whole it makes it possible to conclude that the circumstances constituting a ground for holding a judge disciplinarily liable are present or absent.

The Law of Ukraine “On the High Council of Justice” vests the Disciplinary Chambers (the HCJ) with exclusive powers to conduct disciplinary proceedings in respect of judges and to adopt decisions holding a judge disciplinarily liable or refusing to do so, on the basis of the disciplinary body’s own assessment of the evidence submitted or obtained within the disciplinary proceedings and of its clarity and persuasiveness in confirming the existence of a ground for the judge’s disciplinary liability. The standard of proof for a disciplinary offence in disciplinary proceedings differs substantially from the standard of proof for a criminal offence before a court – a point overlooked by the proponents of the position we do not share.

The laws governing the application of the institution of judges’ disciplinary liability do not define the concept of “evidence” or the specific features of proof in disciplinary proceedings against judges.

The features of evidence are:

1) factual data, that is, not the facts themselves but information about them;

2) not any factual data, but only those that must be established in disciplinary proceedings against judges;

3) factual data embodied in a particular form (means of proof).

The means of proof in disciplinary proceedings against judges may be:

1) documents, physical and electronic evidence;

2) the judge’s written explanation as to the substance of the complaint;

3) the explanations of the judge, the complainant, their representatives, witnesses and other persons summoned or invited to take part in the sitting of the disciplinary body.

Since the law does not directly define the means of proof in disciplinary proceedings against judges, this list is not exhaustive, and other means of proof may also serve as a source of information about the factual circumstances relevant to disciplinary proceedings against judges.

The general subject matter of proof in disciplinary proceedings against judges may be taken to include:

1) circumstances relevant to establishing the standing of the person who lodged the disciplinary complaint;

2) circumstances relevant to the decision on the admissibility of the disciplinary complaint for examination;

3) the circumstances set out in the complaint that may indicate the commission of a disciplinary offence by the judge (circumstances that arguably disclose the elements of a disciplinary offence);

4) facts of the judge’s breach of judicial duties that disclose the elements of the relevant disciplinary offence and confirm the judge’s culpability in committing it (circumstances that disclose the elements of a disciplinary offence);

5) circumstances relevant to the correct resolution of the disciplinary case and to the imposition of the type of disciplinary sanction (circumstances mitigating and/or aggravating the judge’s liability, as well as circumstances characterising the judge as a person, and so on).

Two standards of proof are distinguished in disciplinary proceedings:

1) the “minimally sufficient level of evidence” standard (the “substantial evidence” standard);

2) the “clear and convincing evidence” standard.

The “minimally sufficient level of evidence” standard is generally used to establish circumstances (facts) connected with the adoption of individual procedural decisions determining the course of the disciplinary proceedings (most of them are established at the stage of the preliminary verification of the disciplinary complaint, the study of the materials to establish indications that the judge has committed a disciplinary offence, and the adoption of a decision to leave the disciplinary complaint without examination and return it, to refuse to open a disciplinary case, or to open one).

The application of this standard is justified because at that stage of the disciplinary proceedings it is necessary to verify the circumstances (facts) confirming the admissibility or inadmissibility of the disciplinary complaint for examination, and the circumstances (facts) indicating that the judge may have committed a disciplinary offence. For that reason, the phrase “the judge’s conduct discloses indications of a disciplinary offence” is quite often used in the practice of the HCJ when documents are submitted to the Disciplinary Chambers of the HCJ.

The “clear and convincing evidence” standard applies to proof of the circumstances (facts) relevant to deciding the disciplinary case on the merits (establishing the judge’s culpability in committing a disciplinary offence and imposing the appropriate type of disciplinary sanction, or refusing to hold the judge disciplinarily liable, and so on), which are established at the following stages: preparation of the disciplinary case for examination; examination of the disciplinary case and adoption of a decision to hold the judge disciplinarily liable or to refuse to do so; and examination of a complaint against a decision to hold the judge disciplinarily liable or to refuse to do so.

This standard of proof is higher than the “balance of probabilities” standard generally used in civil proceedings, but lower than the “beyond reasonable doubt” standard used predominantly in criminal proceedings.

The procedure of proof within disciplinary proceedings against judges is determined by special legislation, which contains no restrictions on the admissibility of evidence obtained as a result of CISA.

It should be noted separately that, unlike pre-trial investigation bodies, the disciplinary bodies of the HCJ have significantly fewer procedural and resource capacities for gathering evidence. This is due both to the legal nature of disciplinary proceedings and to the functional purpose of the HCJ. The HCJ is not empowered to carry out investigative (detective) actions or CISA, to apply measures of procedural coercion, or independently to build a body of evidence by interfering with a person’s private life.

The limited toolkit for gathering evidence is offset by another mechanism – the possibility of using evidence already obtained within other legal procedures, primarily criminal proceedings. That is why proof in disciplinary proceedings is “derivative” in character: the HCJ does not create new evidence but requests, examines and assesses materials gathered by authorised bodies within their competence, provided that the source of those materials is lawful.

In this context, the use of declassified CISA materials takes on particular significance. Since such materials were obtained using a mechanism provided for by the legislation in force but unavailable to disciplinary bodies, their subsequent inclusion in a disciplinary case enables the HCJ to assess the judge’s conduct fully and comprehensively without going beyond its own powers. In doing so, the HCJ independently assesses the relevant information exclusively in the domain of disciplinary liability, as confirmed by the case-law of the Grand Chamber of the Supreme Court.

At the same time, when declassified CISA materials are assessed, the judge always has the right and the opportunity to: 1) examine them in full, together with the grounds on which they were obtained both by the investigating body and by the HCJ; 2) submit objections as to their reliability and lawfulness; 3) appeal against the decision of the Disciplinary Chamber to the HCJ and to the Supreme Court. Thus, in the course of “working with CISA” the judge is afforded all the procedural guarantees necessary to ensure the fairness of the process.

The consistency of the practice of the HCJ and the Supreme Court

The practice of the HCJ’s disciplinary bodies and of the HCJ itself regarding the possibility of using materials from criminal proceedings in disciplinary proceedings is well established and consistent, since that position enjoys the unanimous support of the members of the HCJ and is reflected, in particular, in their unanimous adoption of the relevant decisions[1].

The practice of the Grand Chamber of the Supreme Court in the relevant legal relations is likewise settled.

In particular, in its rulings of 14 March 2019 in case No. 9901/789/18, of 18 June 2019 in case No. 9901/699/18 and of 2 September 2020 in case No. 9901/213/19, the Grand Chamber of the Supreme Court concluded that such evidence as CISA reports may be used in disciplinary proceedings, referring in particular to the rulings of the Grand Chamber of the Supreme Court of 22 and 29 January 2019 (cases No. 800/454/17 and No. 9901/728/18 respectively).

In its ruling of 29 January 2019 in case No. 9901/728/18, the Grand Chamber of the Supreme Court rejected the person’s arguments seeking to refute the commission of a disciplinary offence on the ground that the proceedings in the case concerning an administrative offence had been discontinued, stating that in examining that case the court does not investigate whether the person is guilty of an administrative offence, but gives a legal assessment of the circumstances as to whether or not the prosecutor committed a disciplinary offence in terms of a breach of the rules of professional ethics. Furthermore, the Supreme Court stated that the discontinuation of proceedings in a case concerning an administrative offence for want of the elements of that offence does not mean that the factual circumstances of the act disclose no indications of another type of offence at all.

In its ruling of 22 October 2019 in case No. 9901/918/18, the Grand Chamber of the Supreme Court stated that the information required by the Qualification and Disciplinary Commission of Prosecutors for the exercise of its powers may be obtained from any sources under the procedure established by law.

Therefore, the Qualification and Disciplinary Commission of Prosecutors requested and obtained the copies of the materials of the criminal proceedings needed to adopt the contested decision, authorisation for the use of which within the disciplinary proceedings was granted directly by the prosecutor under Article 222 of the CPC of Ukraine. In view of this, the Grand Chamber of the Supreme Court found erroneous the claimant’s arguments that CISA materials cannot constitute evidence in disciplinary proceedings.

In its ruling of 20 May 2019 in case No. 815/2658/17, the Grand Chamber of the Supreme Court likewise observed that the complainant’s arguments that CISA materials could not be used in the examination of that administrative case were unsubstantiated and unfounded. Any testimony and other materials gathered within criminal proceedings must be assessed by the investigating authorities and by the court. At each stage of the process, the assessment of evidence has its own features, explained by the differing conditions and tasks of that stage. Thus, the assessment of evidence carried out at the stage of the pre-trial investigation is only preliminary in character. The question in criminal justice of whether a person prosecuted is guilty or innocent is decided by a court alone on the basis of evidence examined in the course of the trial. By contrast, the contested order in that case was issued by the defendant on the basis of circumstances in which the claimant had committed acts that discredit the title of prosecutor and may cast doubt on his objectivity, impartiality and independence and on the honesty and incorruptibility of the prosecution service; that is, in examining that case the court does not investigate whether or not there was guilt in the claimant’s conduct, but gives a legal assessment of the circumstances as to whether or not the person committed a disciplinary offence. Accordingly, the courts of the lower instances had the power to assess the materials of the pre-trial investigation being conducted in respect of the claimant exclusively as evidence confirming that he had extra-official relations with third parties and communicated with them about the procedural steps planned in criminal proceedings No. 12016160160000974.

Summarising the foregoing, it must be noted that there is settled law-enforcement practice according to which declassified CISA materials may lawfully be used in disciplinary proceedings.

Agreeing with the conclusions of the HCJ, the Grand Chamber of the Supreme Court also confirmed that the disciplinary body has the power not only to examine declassified CISA reports, but also to make its own assessment of the information recorded in them exclusively within the disciplinary proceedings, without substituting a criminal-law assessment of the judge’s conduct. Such an assessment is made through the prism of the judge’s compliance with the standards of official and professional ethics, which underlines the autonomy of judges’ disciplinary liability from criminal liability.

Accordingly, the arguments that evidence obtained within criminal proceedings can in principle never be used in disciplinary proceedings find support neither in the practice of the HCJ nor in the legal conclusions of the Grand Chamber of the Supreme Court.

As regards the consistency of the case-law of the Supreme Court, it is worth noting separately that in its Opinion No. 11 (2008) the Consultative Council of European Judges emphasised the need to “take care to ensure legal certainty and consistency”. Under paragraph 49 of that Opinion, “judges should apply the law consistently. However, when a court decides to depart from previous case-law, this should be clearly stated in its decision”.

Examining the question of the legal certainty of court decisions and answering the question whether a uniform interpretation of case-law is fully ensured across all judicial bodies, the European Commission for Democracy through Law (the Venice Commission), in its updated Opinion of 16 December 2025 “The Updated Rule Of Law Checklist”, also set out the position that court decisions must be drafted in clear and comprehensible language and must be consistent with the case-law on the relevant issue. The uniform application of laws enhances the public perception of fairness and justice and trust in the administration of justice. Furthermore, the principle of res judicata (the finality of court decisions) means that once the final appeal has been decided, no further appeals are possible. Final court decisions must be enforced unless there are compelling reasons to review them. A departure from res judicata is justified only where it is made necessary by circumstances of a substantial and compelling character (paragraphs 54, 55 and 58 of the updated Opinion)[2].

As to the binding force of the conclusions of the Supreme Court and the mechanisms for departing from them, the following position has been substantiated: “the conclusion of the Supreme Court on the application of legal rules must be formulated explicitly, as a quasi-rule as to how the relevant legal rule is to be applied, that is, in such a way that the conclusion can serve as a premise in the reasoning for deciding that and other similar cases, where the second (minor) premise will be statements about the existence of the relevant facts with which the rule links its application”[3].

The Grand Chamber of the Supreme Court itself, in its ruling of 4 September 2018 in case No. 823/2042/16, concluded that “in order to ensure the unity and consistency of case-law, the Grand Chamber of the Supreme Court must have substantial grounds for departing from previously expressed legal positions: its earlier decisions must be erroneous or ineffective, or the approach applied in them must have manifestly become outdated as a result of developments in a particular sphere of social relations or in their legal regulation”.

The Grand Chamber of the Supreme Court has reached similar conclusions in other cases. For example, in paragraph 8.21 of its ruling of 15 October 2025 in case No. 907/882/22, the Grand Chamber of the Supreme Court stated that it “has repeatedly emphasised that the need to depart from a conclusion on the application of a legal rule (rules) arises from certain identified objective reasons which must be clearly delineated and substantiated. Moreover, a departure from a legal position must have only weighty grounds and a real basis; a court should not depart from previous decisions in the absence of a weighty reason for doing so, and the purpose of a departure may be to correct only those inconsistencies (errors) that are of fundamental importance for the judicial system”.

This position of the Supreme Court is also in line with the case-law of the ECtHR, which, in § 70 of its judgment of 18 January 2001 in Chapman v. the United Kingdom (application No. 27238/95), stated that “in the interests of legal certainty, foreseeability and equality before the law, it should not depart from its own previous decisions without good reason”.

In our view, the practice developed by the Grand Chamber of the Supreme Court on the use, as evidence in disciplinary proceedings against judges, of materials from criminal proceedings obtained by the HCJ exclusively by lawful means is settled and clear. That practice is effective and foreseeable, complies with the principle of legal certainty in the relevant legal relations and promotes uniform approaches in the law-enforcement practice of the HCJ’s disciplinary bodies, the HCJ and the Supreme Court.

Accordingly, since in recent years social relations in this sphere have been settled, as has the relevant legal regulation as a whole, the HCJ has no grounds whatsoever to depart from the established practice in those legal relations.

Public and private life: the ECtHR dimension and international experience

In the public discussion of the issues addressed in this article, there is in fact a shifting of emphasis and a substitution of concepts, evidently intended to secure the “soundness” of the conclusion that CISA materials cannot be used in disciplinary proceedings against judges.

A considerable part of those arguments is devoted to the questions whether the conduct of CISA involves interference with a person’s guaranteed right to respect for private life and correspondence and whether such interference was justified. That is, the focus is placed on the activities of the pre-trial investigation bodies in conducting CISA, but that is not a matter examined by the HCJ within disciplinary proceedings against judges.

No one can deny the right to respect for private life and to the privacy of correspondence, telephone conversations, telegraph and other communications guaranteed by the Constitution of Ukraine and by international legal instruments. That requires no argument. The question is a different one: whether there are legal grounds for restricting those rights, for interfering with them in the cases and in the manner determined by law. And if such restriction or interference took place on lawful grounds and in the manner prescribed by law, then the results of such interference (in this instance, by conducting CISA) are likewise lawful.

International legal instruments and the Constitution and laws of Ukraine define the cases and grounds for restricting such rights. Interference with private communications may take place, in particular, in the course of CISA, the grounds and procedure for which are governed by the CPC of Ukraine.

In its case-law, the ECtHR maintains the position that holding a person disciplinarily liable on the basis of information about facts established in criminal proceedings, where such information was analysed from the standpoint of the rules of professional ethics, does not violate Article 6 of the Convention, even where the person was acquitted in the criminal proceedings (see the decision of 6 October 1982 in X. v. Austria, application No. 9295/81) or where those proceedings were discontinued (see the decision of 7 October 1987 in C. v. the United Kingdom, application No. 11882/85).

The presumption of innocence guaranteed by Article 6 § 2 of the Convention applies to a procedure that is criminal in nature and in which a court makes a finding of a person’s guilt precisely in the criminal-law sense (ECtHR judgment of 11 February 2003 in Ringvold v. Norway, application No. 34964/97). Accordingly, that guarantee cannot be extended to disciplinary proceedings which, under Article 6 § 1 of the Convention, fall within the notion of a dispute over civil rights and obligations (the standards of proof in the disciplinary procedure and in criminal proceedings differ substantially).

These positions of the ECtHR are consistently taken into account by the Grand Chamber of the Supreme Court when examining cases in similar legal relations, in particular but not exclusively in its rulings of 25 April 2018 in case No. 800/547/17 (proceedings No. П/9901/87/18), of 22 January 2019 in case No. 800/454/17 (proceedings No. П/9901/141/18), of 12 September 2024 in case No. 990SCGC/12/24 (proceedings No. 11-138сап24) and of 3 July 2025 in case No. 990SCGC/14/25 (proceedings No. 11-137сап25).

As regards the relevance of the ECtHR case-law to the questions outlined in this article, the following should be noted.

Examining a complaint under Article 6 § 1 of the Convention in the context of the fairness of civil proceedings, the ECtHR emphasised the need to ascertain whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This entails an examination of the alleged “unlawfulness” and, where the violation of another Convention right is concerned, of the nature of the violation found. As to the assessment of the nature of the unlawfulness or of the violation of the Convention found, the question whether the use as evidence of information obtained in breach of Article 8 of the Convention or of domestic law rendered the trial as a whole unfair contrary to Article 6 of the Convention must be determined with regard to all the circumstances of the case, including respect for the applicant’s rights of defence and the quality and importance of the evidence in question. In particular, it must be examined whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into account, as must the question whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (judgment of 17 October 2019 in López Ribalda and Others v. Spain, applications No. 1874/13 and No. 8567/13, §§ 150–152).

However, the opponents’ reliance on that ECtHR judgment in the context of the subject of this article in no way demonstrates that CISA materials cannot be used in disciplinary proceedings against a judge. That judgment merely highlights two key points: first, the evidence must be obtained lawfully; second, the applicant (in our case, the judge whose disciplinary case is being examined) must be afforded the opportunity to challenge the authenticity of the evidence and to oppose its use.

Where materials obtained as a result of CISA are used in disciplinary proceedings against a judge, both of those requirements are met.

One must proceed from the premise that CISA materials appended as evidence to a disciplinary complaint or added to a judge’s disciplinary case have been obtained lawfully: the CISA were duly authorised, their results were formalised and subsequently declassified under the procedure prescribed by law, and the relevant materials were provided to the HCJ and added to the disciplinary case with the authorisation of the competent persons conducting the pre-trial investigation or the procedural supervision in the criminal proceedings. If, in the course of the disciplinary proceedings, it is established otherwise (that the CISA were conducted in breach of the law), the HCJ has the right to reject the CISA materials provided to it and to disregard them when deciding whether or not the judge’s impugned conduct amounts to a disciplinary offence.

At the same time, in accordance with the rules governing such proceedings, the judge in respect of whom disciplinary proceedings are being conducted has the right to call into question the authenticity of the CISA materials as evidence and to oppose their use in the disciplinary proceedings. The HCJ, for its part, is obliged to examine and take into account the judge’s arguments concerning such doubts and objections.

The foregoing shows that, in addressing the possibility of using materials from criminal proceedings in disciplinary proceedings against a judge, the researchers rely on ECtHR judgments that are in fact irrelevant but which, in their view, have precedential significance in the relevant legal relations from the standpoint of interference with the private life of judges subject to disciplinary proceedings.

For example, in its judgment of 29 June 2017 in Affaire Terrazzoni c. France (application No. 33242/12), which concerned the possibility of using in disciplinary proceedings against a judge the transcript of a telephone conversation intercepted within criminal proceedings, the ECtHR stated, among other things, that the impugned interference had been carried out in accordance with the law and had pursued the aim of establishing the truth in connection with the initial criminal proceedings.

Furthermore, in its judgment of 18 January 2022 in Adomaitis v. Lithuania (application No. 14833/18), which concerned the applicant’s dismissal (as the head of a penal institution) in disciplinary proceedings on the basis of information gathered in criminal proceedings (opened on suspicion that the applicant had, for payment, improved the conditions in which convicts served their sentences and had granted them privileges; those proceedings were discontinued for lack of sufficient evidence), the ECtHR found the use of such information for the purpose of holding the applicant disciplinarily liable to be proportionate and permissible. At the same time, that question had been thoroughly examined and reasoned by the domestic courts, and the applicant had not disputed the authenticity of the information used.

The possibility of using materials from criminal proceedings in disciplinary proceedings against a judge is confirmed not only by the case-law of the ECtHR but also by the national case-law of certain European countries.

A detailed analysis of that practice was carried out by V. Pleskach, a disciplinary inspector of the HCJ[4]; therefore, without quoting that study in detail, we set out what we consider to be its principal propositions:

– in the case-law of the Federal Republic of Germany, a judge may be held disciplinarily liable on the basis of evidence from criminal proceedings (telephone interception, covert surveillance, monitoring) even where the judge is not charged with an offence in those proceedings, provided that the evidence obtained indicates a breach of judicial ethics;

– in the Republic of Estonia, a judge may be held disciplinarily liable using the materials of a criminal case that has not yet been finally decided. Although the disciplinary proceedings may not concern the act that is the subject of the criminal proceedings, the evidence gathered in those proceedings gives an insight into the judge’s improper conduct;

– in the practice of the Republic of Moldova, materials from criminal proceedings are accepted as evidence in disciplinary proceedings against judges on general terms;

– in the Republic of Lithuania, it is possible to conduct disciplinary proceedings against a judge in respect of facts that are also the subject of criminal proceedings – even before a verdict is delivered in the criminal case;

– in the Republic of Croatia, materials from criminal proceedings may be used as evidence in disciplinary proceedings.

Taken together, the foregoing shows that the law-enforcement practice both of the ECtHR and of the national judicial bodies of a number of developed European countries allows for the use of materials from criminal proceedings, and in particular the results of CISA, in disciplinary cases.

The use of such materials in disciplinary proceedings against judges is regarded as an important element enabling an assessment of a judge’s proper conduct and of compliance with the rules of judicial ethics. In our view, this has a direct bearing on building trust in the judiciary and on the authority of justice as a whole.

Moreover, in its decision of 8 July 2021 in Berlizev v. Ukraine (application No. 43571/12), the ECtHR found the complaint concerning the use of unlawful evidence to be manifestly ill-founded and rejected it as inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. The ECtHR noted that in that case the applicant’s conversation with H. had been recorded covertly without prior judicial authorisation, in breach of domestic law and of Article 8 of the Convention. As to Article 6 of the Convention, it appeared from the case file that the impugned evidence was not the only evidence in the case and that the courts had relied on other materials, in particular witness statements, expert opinions and physical evidence. Even assuming that the impugned evidence had been decisive for the applicant’s conviction – which the applicant did not claim, stressing only its importance – that element was not decisive for the Court’s assessment of the fairness of the trial as a whole (see § 37 of the judgment in Khan v. the United Kingdom, application No. 35394/97). In this connection, the Court emphasised that the applicant had never been prevented from challenging the authenticity and accuracy of the impugned evidence and from opposing its use in the criminal proceedings against him. However, despite the availability of procedural guarantees throughout the criminal proceedings, the applicant had not made use of them before the first-instance and appellate courts (see, by way of comparison, §§ 44 and 45 of the aforementioned judgment in Bašić v. Croatia).

Conclusions

Materials from criminal proceedings may, together with other evidence, be used by the HCJ to establish whether or not a judge’s conduct discloses indications of a disciplinary offence.

Holding a judge disciplinarily liable is not made conditional on the mandatory existence of a court decision finding the judge guilty of a criminal offence whose elements cover the acts in question.

The HCJ does not and cannot establish guilt under the law on criminal liability, and does not determine whether a judge’s conduct discloses the elements of a criminal offence. The HCJ merely assesses the facts through the prism of whether or not there are grounds for holding the judge disciplinarily liable in disciplinary proceedings.

In exercising the powers conferred by the legislation in force, the HCJ examines CISA materials not in isolation from other evidence but together with it – objectively and comprehensively. This approach is an effective mechanism for safeguarding the independence of the judiciary, affirming trust in the judiciary and the authority of justice, and building a judiciary of integrity and high professionalism.

In the light of the foregoing, there are grounds for concluding that there is no legal problem in using materials from criminal proceedings, in particular the results of CISA, as evidence in disciplinary proceedings against judges.

[1] See, for example:

HCJ decision of 7 October 2024 No. 3051/0/15-24 (https://hcj.gov.ua/doc/doc/47859);

HCJ decision of 4 March 2025 No. 396/0/15-25 (https://hcj.gov.ua/doc/doc/50906).

[2] Updated Opinion of the European Commission for Democracy through Law (the Venice Commission) of 16 December 2025 “The Updated Rule Of Law Checklist”. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2025)002-e

[3] Pilkov Kostiantyn. Conclusions of the Supreme Court: the formula of a conclusion, its binding force and the mechanism of departure. http://www.lsej.org.ua/8_2023/46.pdf

[4] Pleskach Viacheslav. Materials of covert investigative actions (CISA) in disciplinary cases concerning judges in foreign practice: Germany, Estonia, Moldova, Lithuania, Croatia. https://constitutionalist.com.ua/materialy-nehlasnykh-slidchykh-dij-nsrd-v-dystsyplinarnykh-spravakh-shchodo-suddiv-v-zarubizhnij-praktytsi-nimechchyna-estoniia-moldova-lytva-khorvatiia/