Weekly analytics for 19 — 25 July

Polygraph will not increase trust in courts – but may decrease it

Event

On July 3, the Verkhovna Rada of Ukraine registered draft law № 9454 “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the introduction of additional procedures to strengthen public trust in the judiciary” (Draft law). It is aimed at implementing the decision of the National Security and Defense Council of Ukraine (NSDC) “On accelerating judicial reform and overcoming corruption in the justice system”. 

The draft law, among other things, proposes to supplement the Law of Ukraine “On the Judiciary and the Status of Judges” with new articles 59-1 “Monitoring the activity of the court” and 62-1 “Psychophysiological questioning of a judge using a polygraph”. Thus, if one of the judges has been served a notice of suspicion of committing a corruption criminal offense and there has been consent to that judge’s detention, custody, or arrest, or the judge has been temporarily suspended from the administration of justice in connection with criminal proceeding, the High Council of Justice (HCJ) may also make a decision on monitoring the activity of entire court.

According to the draft law, the subject of such monitoring is “detection of possible signs of disciplinary offenses committed by the judges of the relevant court (especially significant ones), gross or systematic neglect of duties incompatible with the status of a judge, revelations of their incompatibility with the position held, as well as circumstances that cause reasonable doubt about the legality of the source of their property”. The National Agency on Corruption Prevention (NACP) will monitor the lifestyle of judges of the court at the request of the HCJ, as well as conduct a full check of the declarations of a person authorized to perform the functions of the state or local self-government submitted by the judges.

Also, as part of the monitoring, the HCJ may decide to conduct psychophysiological questioning of a judge using polygraph in cases specified by the Law “On the Judiciary and the Status of Judges”. The HCJ will also define the procedure for conducting such a questioning and the list of specialized institutions or specialists who can perform it.

The purpose of the questioning is to obtain information on the probable reliability of a person’s answers to questions related to possible offenses, his/her integrity, compliance with the rules of judicial ethics, legality of the source of property, circumstances that may constitute or constitute the grounds for disciplinary liability, or other circumstances that may negatively affect public trust in the judiciary.

Although a second month has passed since the adoption of the mentioned decision of the NSDC, neither the Plenum of the Supreme Court nor the HCJ have yet expressed their position regarding the impact of mentioned questioning on the independence of judges.

CPLR’s expert assessment 

Article 126 of the Constitution of Ukraine guarantees the independence and immunity of judges and prohibits any influence on a judge.

According to the Article 131 of the Constitution, the HCJ, in particular, takes measures to ensure the independence of judges and exercises other powers determined by the Constitution and laws of Ukraine.

The draft law, in violation of provisions of art. 6 of the Constitution of Ukraine, provides for the legislature’s outright intervention in the authority of the judiciary, forcing the latter to start monitoring the activity of the Supreme Court immediately after the adoption of legislative amendments.

Furthermore, according to the draft law, the HCJ will independently determine the procedure for conducting the questioning and the list of specialized institutions or specialists authorized to conduct the questioning of judges. The HCJ may decide to monitor the court’s activity, or it may decide to conduct questioning of a judge. Therefore, discretionary powers of the HCJ are established. However, in violation of the requirements of part 2 of Art. 19 of the Constitution of Ukraine, the draft law does not contain the list of cases in which such decisions are made, nor are there provisions to oversee the exercise of such powers by the HCJ or on responsibility for possible abuse of the questioning procedure.

The model of total inspection set forth by the draft law poses a threat of pressure on the leadership of the court and on individual judges, contradicts the principle of individual nature of legal responsibility of a person (Article 61 of the Constitution of Ukraine), and, in turn, constitutes a violation of the principle of independence of a judge. In the conditions of a weak democracy, it is difficult to even predict what consequences the use of such a mechanism may lead to.

The draft law does not take into account the provisions of the Law of Ukraine “On Corruption Prevention”. According to Art. 51-3, declarations of judges are already subject to a full inspection, the sequence and procedure of which is determined by the NACP[*]. Art. 51-4 states that information about inconsistency between the standard of living and the declared property and income is the grounds for lifestyle monitoring – rather than detention on suspicion of committing a corruption offense. Therefore, if the draft law is adopted in the proposed version, the HCJ will exceed its authority and interfere in the work of a central executive body with special status.

Psychophysiological questioning of a judge with the use of a polygraph cannot strengthen trust in the judiciary, as the results of questioning are confidential and cannot be made public – nor can they constitute be grounds for bringing a judge to responsibility. In practice, this may lead to using the information obtained as part of questioning as a way to search for other evidence or grounds to bring a judge to responsibility or to suspend him/her from the administration of justice.

Undergoing psychophysiological questioning with the use of a polygraph carries risks of unjustified interference with constitutional rights of a person. In particular, this involves the right to respect for dignity, which provides that no person shall be subject to medical, scientific or other experiments without his/her free consent (Part 3 of Art. 28 of the Constitution of Ukraine). At the same time, the draft law contains provisions according to which a person will actually be forced to agree to undergo a polygraph questioning. It is envisioned that the application package submitted by a candidate for the position of a judge or by a judge who applies for transfer to another court must include a written consent to psychophysiological questioning with the use of a polygraph in case of selection as the winner of the competition. Otherwise, such a candidate or judge will be rejected and will not be submitted to the President of Ukraine for appointment to the position of a judge or transfer to another court. Under such circumstances, one’s failure to consent to undergoing a polygraph will result in denial of access to the judicial profession, creating obstacles to the exercise of the constitutional right to work provided for by Art. 43 of the Constitution of Ukraine.

The effectiveness of a polygraph questioning depends on professionalism of the polygraph examiner, formulation of questions and their emphasis, good working order of equipment, and human factor. A person can feel emotional disturbances even due to the very fact of undergoing a questioning and certain environment of the questioning. A person may be afraid of the wrong interpretation of his/her answers and, hampered by the fear of the “wrong” answer, react similarly to both control and relevant questions. Physiological reactions are also affected by medications (for example, sedatives) and physiological health of the person being examined. It is due to these risks that a polygraph questioning results are not recognized as an independent source of evidence during the investigation of disciplinary and criminal offenses, and the information obtained through such questioning is only indicative in nature.

Therefore, the practical implementation of provisions of the draft law as related to questioning may lead to reputational risks for a judge who honestly and professionally performs his/her duties, or increase the feeling of impunity of a judge who regularly takes bribes.

Given the above, it is impossible for the law to provide for any legal consequences of conducting the questioning. As such, it should not be used to resolve legal issues. Trust in the courts can be restored by careful selection of judicial candidates, ensuring the inevitability of individual responsibility for corruption and other offenses, resumption of declarations and their full inspections, formation a culture of corruption whistleblowing among citizens, and other measures defined by current legislation and provided for by the Anti-corruption Strategy for 2021-2025 and the State Anti-corruption Program for 2023-2025.

[*] Full inspections of declarations, as well as the declaration of income and property of persons authorized to perform state or local self-government functions were suspended for the duration of martial law. Currently, both international partners and public representatives are demanding the MPs to restore this procedure.