Weekly analysis for 18 — 24 December

Members of Parliament propose to “improve” the activities of the High Council of Justice

Event

On November 29, 2024, draft law № 12265 “On amendments to certain legislative acts regarding the improvement of legal regulation of the activities of the High Council of Justice and certain aspects of the judicial system’s functioning” was registered in the Verkhovna Rada of Ukraine. The draft law proposes changes to the procedure for recalling members of the High Council of Justice (hereinafter – HCJ) from office by the elected or appointed authorities, modifies the process for resolving conflicts of interest in the activities of HCJ members, and introduces certain restrictions on their activity within the judicial system.

CPLR’s assessment 

1. The Law of Ukraine “On the High Council of Justice” (hereinafter – Law № 1798-VIII) is proposed to be supplemented with principles of its functioning, such as the rule of law, legality, independence, objectivity, competence, professionalism, collegiality in decision-making, justification of decisions, openness, and publicity. On one hand, the idea of enshrining fundamental principles in the HCJ’s activities is reasonable; however, on the other hand, most of the proposed principles are already established in the existing legislation. Specifically, according to Article 1 of Law of the Law № 1798-VIII, the Council operates to ensure the independence of the judiciary, its functioning based on the principles of responsibility, accountability to society, the formation of an honest and highly professional judicial corps, adherence to the norms of the Constitution and laws of Ukraine, as well as professional ethics in the activities of judges and prosecutors. As the HCJ is part of the judicial branch, the principles outlined in this article fully apply to its operations. The principles of collegiality in decision-making and the Council’s proper justification of decisions are followed from the content of Articles 34 and 50 of Law № 1798-VIII. Clause 1.1 of the Council’s Regulations states that “the main principles of the Council’s activities and its bodies are the rule of law, openness, publicity, collegiality, independence and impartiality, and reasonableness of timeframe”. Therefore, the need to duplicate these principles in the activities of the highest judicial governance body seems questionable.

2. Part 4 of Article 20 of Law № 1798-VIII is proposed to be amended by supplementing with the following sentence: “A member of the High Council of Justice may not submit an application and documents to participate in a competition for a vacant judicial position, or participate in such a competition, until dismissal or termination of his/her powers powers”. However, the authors of the draft law did not take into account that, according to Part 4 of Article 69 of the Law of Ukraine “On the Judiciary and the Status of Judges”, a person holding the position of a member of the HCJ cannot apply for a judicial position, both during their tenure and for one year after his/her dismissal or termination of powers. These restrictions do not apply to current members of the HCJ in accordance with Paragraph 60 of the Final and Transitional Provisions of the law. Therefore, the proposed restriction for HCJ members is already established in the current legislation.

3. Part 5 of Article 20 of Law № 1798-VIII, in its current version, outlines the grounds for removing a member of HCJ from consideration of a specific issue due to a conflict of interest. The procedure for addressing a (self)recusal application is defined in Article 33 of the same Law and Chapter 8 of the Council’s Regulations. Under Part 5 of Article 33 of Law № 1798-VIII, a decision on recusal (self-recusal) is made by the majority of HCJ members present at the meeting of the Council or its body, through a vote in a deliberation room, in the absence of the HCJ member whose recusal (self-recusal) is being considered. The draft law proposes to amend this procedure: a member of the HCJ would be deprived from participating in the Council’s consideration of an issue where a conflict of interest is declared. Applications from other individuals regarding the recusal of a HCJ member would be addressed according to Article 33 of Law № 1798-VIII. This raises concerns about the necessity of the proposed amendments. Furthermore, the automatic removal of multiple HCJ members based on their applications (which could potentially be made under external pressure) without the need for collegial review and approval could lead to a blocking the Council’s decision-making process while exercising its powers.

4. The draft law № 12265 proposes a significant reduction in the HCJ members’ remuneration. According to current legislation, the remuneration of a Council member is set at 1.5 times the salary of the Supreme Court judge, while the draft law suggests lowering it to the salary level of a local court judge. This would result in a several-fold reduction in compensation to Council members. On one hand, this approach can be considered fair in light of the legal regime of martial law and the  need for fiscal restraint in the state budget. On the other hand, HCJ members perform extremely important state functions related to the selection of judges and ensuring the independence, professionalism, and integrity of the judiciary. The HCJ’s status is that of the highest judicial governance body, and its members enjoy protections equivalent to those of judges in higher courts. A potential reduction in the remuneration of HCJ members is possible only with a simultaneous reduction of salaries of judges of appellate and higher specialized courts, as well as the Supreme Court, which is not currently on the agenda. It is also important to note that the Constitutional Court of Ukraine has repeatedly expressed the legal position on the inadmissibility of reducing guarantees of judicial independence and immunity, including judicial remuneration.

5. Article 22 of Law № 1798-VIII is proposed to be supplemented with a provision according to which “a member of the High Council of Justice, elected as the Head of the High Council of Justice, may not hold this position for more than one term”. On one hand, this proposal appears reasonable, as it aims to prevent the excessive concentration of power and reduce potential corruption risks. A similar rule applies to the Head of the Constitutional Court of Ukraine. However, the authors of the draft law do not propose similar restrictions for the Deputy Head of the HCJ. Additionally, the members of the Council have a rather short term of office – four years, which already serves as a safeguard against the usurpation of power (for comparison, judges of the Constitutional Court of Ukraine serve a nine-year term). Given that the HCJ is a collegial body, it is difficult to imagine a scenario where one individual could hold the position of a Head for the entire four-year term. Therefore, changing the term of office for the Head of the HCJ lacks valid theoretical or practical justification.

6. The draft law proposes to amend the mechanism for dismissing a member of the High Council of Justice (HCJ) from office for actions deemed incompatible with the high status of an HCJ member. Specifically, it suggests transferring the decision on this matter entirely to the discretion of the appointing (electing) authorities, removing the HCJ from this procedure. Under the current regulation, it is the HCJ itself that submits a proposal for the dismissal of a member to the appointing (electing) authority.

Excluding the HCJ from the dismissal procedure could result in politically motivated or arbitrary recalls of Council membersThis concern is supported by the historical precedent of politically influenced dismissals of judges of the Constitutional Court of Ukraine by the bodies that appointed them before 2016. At that time, the President of Ukraine, the Verkhovna Rada, and the Congress of Judges of Ukraine lost the authority to dismiss judges of this court.

It should be noted that there is no “coercion” mechanism for making a decision on the dismissal of a member of the HCJ in collegial bodies, nor can such a mechanism exist. This complicates the practical challenges in implementing this procedure, even in its current legislative form. The Verkhovna Rada of Ukraine, the Congress of Judges of Ukraine, the Congress of Advocates of Ukraine, the All-Ukrainian Conference of Prosecutors, the Congress of representatives of legal higher education institutions and scholar institutions – all of these are collegial bodies responsible for appointing members to the HCJ. Moreover, these congresses usually meet no more than once a year, as organizing and holding them is a complex process. Therefore, predicting actual cases of HCJ members’ dismissal following their “recall” by collegial appointing bodies proves to be difficult. One potential solution to this issue is to adopt a model similar to the one outlined in Article 21 of the Law of Ukraine “On the Constitutional Court of Ukraine”. According to Paragraph 3 of Part 1 of Article 21 of this law, a judge of the Constitutional Court may be dismissed for committing a serious disciplinary offense, gross or systematic neglect of duties incompatible with the status of a Constitutional Court judge, or demonstrating their unsuitability for the position. The Constitutional Court considers the issue of dismissal of a judge on this ground at a special plenary session, based on the conclusion of the permanent commission on regulation and ethics. The implementation of such an approach would require further changes to the legislation. However, the procedure for dismissing a member of the High Council of Justice (HCJ) could involve the existing Ethics Council, which is established to assist the bodies that elect (appoint) HCJ members in determining whether a candidate meets the criteria of professional ethics and integrity. The Ethics Council could provide its expert evaluation of the unlawful or unethical actions of an HCJ member, similar to the role of the permanent commission on regulation and ethics in the Constitutional Court of Ukraine. In our view, the participation of the Ethics Council, which includes independent foreign experts, would ensure a fair and impartial outcome in the procedure for the HCJ member dismissal.

7. The draft law proposes that if grounds for returning a disciplinary complaint  arise after the initiation of a disciplinary case, the case should be closed, the complaint left unexamined, and returned to the complainant, with the Disciplinary Chamber issuing a ruling to this effect. A similar proposal is made for the grounds for refusing to open a disciplinary case. While such issues may indeed arise in the HCJ’s disciplinary practice, they are currently unregulated, posing challenges for the proper conduct of disciplinary proceedings. At the same time, Articles 44 and 45 of the law, which regulate the grounds for returning a disciplinary complaint and refusing to open a disciplinary case, require a more comprehensive update at the legislative level. There is a conflict between these provisions and Article 107 of the Law of Ukraine “On the Judiciary and the Status of Judges”. According to Paragraph 2 of Part 1 of Article 44 of Law № 1798-VIII, a disciplinary complaint is  returned to the complainant without being examined if it does not provide details of a disciplinary offense committed by a judge. Meanwhile, Part 6 of Article 107 of the Law of Ukraine “On the Judiciary and the Status of Judge” states that a disciplinary case cannot be initiated against a judge based on a complaint that lacks information about the existence of elements of a disciplinary offense by a judge. In HCJ disciplinary proceedings, these provisions are applied differently, leading to inconsistency in practice. Furthermore, the grounds for returning a disciplinary complaint and refusing to open a case are contradictory, and their current formulations are unclear and ambiguous. This causes significant inconsistencies in their application by different members of the Council and various Disciplinary Chambers. Finally, the approach proposed by the authors of the draft law contains significant corruption risks, as its implementation could lead to arbitrary closure of disciplinary proceedings and the return of disciplinary complaints in high-profile cases.

8. Another proposed amendment to Article 55 of Law № 1798-VIII introduces a rule that allows the existence of a complaint about a judge’s disciplinary offense to serve as grounds for suspending consideration of the judge’s dismissal. This applies to dismissals based on clauses 1 (inability to perform duties due to health conditions) and 4 (submission of a resignation or a request for dismissal) of Part 6 of Article 126 of the Constitution of Ukraine, but only if a disciplinary case has been initiated. This amendment raises concerns and cannot be assessed positively. First, under the current version of the law, the HCJ has discretionary authority to suspend consideration of a judge’s dismissal on the specified grounds while reviewing a complaint or statement that could  lead to dismissal under clauses 2, 3, or 6 of Part 6 of Article 126 of the Constitution of Ukraine (these grounds involve actions incompatible with the high status of a judge). This discretionary power has sometimes allowed judges facing disciplinary proceedings for serious legal violations to evade responsibility by resigning. Although the HCJ’s attempts to address this issue in 2023-2024, the practice has not been entirely removed. As a result, some judges accused of serious misconduct resign and secure the “honorable” pension with substantial payments from the state budget. This practice is unacceptable given the need to ensure judicial integrity. Second, the proposed amendments would further expand the HCJ’s ability to suspend consideration of a judge’s resignation request to cases where a disciplinary case has already been initiated. This would enable judges aware of his/her violations to resign before a disciplinary case is opened. 

9. The draft law proposes to introduce accountability for state authorities and their officials regarding measures to ensure judicial independence and uphold the authority of the judiciary. Specifically, it proposes to amend Part 3 of Article 74 of Law № 1798-VIII to empower the HCJ to require monthly reports from relevant authorities or officials on the actions taken and the results achieved in response to its submissions, particularly when long-term measures are necessary. This proposal deserves to be approved, as the overall effectiveness of measures undertaken by the HCJ to ensure judicial independence remains low. This is largely due to the reluctance of public authorities or officials to respond adequately to the Council’s submissions.

10. The final novelty proposed by the draft law involves amending Article 35-1 of the Law of Ukraine “On Corruption Prevention” proposing that the rules for resolving conflicts of interest in the activities of the HCJ are to be defined by laws regulating the status of relevant individuals and the principles governing the respective bodies. This amendment is both fair and timely, aligning with existing provisions for judges of general jurisdiction and judges of the Constitutional Court of Ukraine. Given that HCJ members are essentially equated with judges in terms of their legal status, introduction of specific rules for managing conflicts of interest in their activities is essential. However, a key concern is that, should these changes be enacted, the HCJ must act promptly and decisively to establish clear rules for resolving conflicts of interest in its members’ activities by developing and updating its Regulations. Consistent adherence to these rules is equally important, as the lack of external oversight on this issue could lead to violations and abuses within the Council’s activities.

In conclusion, most of the proposals outlined in Draft Law №  12265 “On amendments to certain legislative acts regarding the improvement of legal regulation of the activities of the High Council of Justice and certain aspects of the judicial system’s functioning” are insufficiently substantiated, create corruption risks, or lack a systemic approach to revising legal regulations. The adoption of this draft law would pose potential risks to ensuring the independence and impartiality of the highest judicial governance body, which is unacceptable.

Strengthening Responsibility for Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Event

On December 16, the Draft Law “On Amendments to the Criminal Code of Ukraine to Strengthen Responsibility for Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (№ 12319, hereinafter – the Draft Law) was registered in the parliament. The Draft Law proposes the following amendments to the Criminal Code of Ukraine (hereinafter – the CC):

– to introduce new articles 365-4, 365-5, and 365-6, which will establish criminal liability for torture committed by a public official; treatment that degrades human dignity, committed by a public official; and failure to fulfill or improper fulfillment of official duties, resulting in torture or degrading treatment, respectively; 

– to increase the penalty under Part 3 of Article 127 to imprisonment for a term of 10 to 15 years;

– to introduce certain amendments to Articles 69, 75, 127, 146-1, 365, and 373.

CPLR’s position

According to Part 2 of Article 4 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on December 10, 1984 (the Convention), each State party required to treat acts of torture as crimes under its criminal law  and shall make these offences punishable by appropriate penalties which take into account their grave nature. However, Article 127 of the Criminal Code defines “torture” more narrowly than provided in Part 1 of Article 1 of the Convention and therefore, it needs to be brought into alignment with the Convention.

The explanatory note to the Draft Law emphasizes that the classification of torture committed by a public official in Section II of the Special Part of the CC of Ukraine, titled “Crimes Against Life and Health of an Individual” does not correspond to the primary object of this crime.  This distorts statistical data related to crimes in the context of official duties. The CC also fails to distinguish between torture and treatment that degrades human dignity. Under Article 16 of the Convention, Ukraine shall undertake to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, either at their instigation, with their knowledge, or with their tacit consent. Since treatment that degrades dignity does not fall under the definition of torture committed by a public official and varies in gravity, it is necessary to establish criminal responsibility for such conduct in a separate article of the CC.

At the same time, the following points should be noted:

1. According to Article 1 of the Convention, for its purposes, the term “torture” refers to “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. However, in Articles 127 and 365-4 of the Draft Law, the term refers to “any intentional act aimed at causing severe physical pain, or physical or mental suffering, through the use of violence or threats”. 

This suggests that even the mere demonstration of an instrument that could potentially be used to inflict torture (for example, an ordinary hammer) would already be considered a completed crime under the relevant article, warranting an extremely severe penalty – up to 15 years in the case of aggravating circumstances.

Therefore, the wording “aimed at causing severe physical pain, or physical or mental suffering” in Articles 127 and 365-4 of the Draft Law should be replaced with the words “by which severe physical pain, or physical or mental suffering, is inflicted on a person”.

2. The CPLR experts have already pointed out in previous studies regarding the inconsistency of the restriction of the application of incentive rules under Articles 69 and 75 of the CC in relation to certain criminal offences with the principles of criminal law (equality of all before the law and court, proportionality, etc.). At this point, we would like to emphasize once again that the prohibition to impose a lighter sentence than that provided by law and exemption from punishment with probation for public officials who have committed torture will, in many cases, hinder the investigation of such crimes committed in complicity.

3. Parts 2 of the proposed new Articles 365-4 and 365-5 contain an error, as purpose and motive are distinct elements that can define a criminal offense. Therefore, a criminal offense cannot be committed “with the purpose of discrimination, including for motives…”.

Additionally, Article 365-5 contains two other stylistic errors: it refers to “acts or omissions aimed at creating a sense of humiliation or devaluation in a person, regardless of the purpose…”. However, firstly, omission is, along with action, a form of conduct. Secondly, direction and purpose are essentially the same concept, meaning an act cannot have direction without purpose.

4. Clarification of the qualifying feature “committed by a public official” provided in Part 2 of Article 365 of the CC and Part 2 of Article 373 of the CC will make it impossible to qualify the corresponding actions (abuse of power or official authority by a law enforcement officer and coercion to testify, respectively) when committed by individual who is not a public official. Therefore, this clarification should be worded as “in the absence of the signs of a criminal offense specified in Article 365-4 of this Code”.

5. The Draft Law proposes to increase the penalty provided in Part 3 of Article 127 of the CC, raising the imprisonment term from 7 to 12 years to 10 to 15 years. However, the comparative table does not include the additional penalty outlined in Part 3 of Article 127 of CC which involves “deprivation of the right to hold certain positions or engage in certain activities for up to three years”.

6. Some of the proposed provisions of the CC are stylistically complex, which may hinder their correct understanding and application. To address this, it would be advisable to more frequently apply the legislative practice of dividing the parts and notes of CC articles into subsections (as seen in Articles 115, 368, and 442). Instead of repeatedly using phrases like “with the purpose of” and “as well as” this division should be made in Part 1 of Article 127 and in the note to this article, as well as in Part 1 of Article 365-4.

On Ensuring the Adherence to Guarantees of Advocacy Activity

Event

On December 16, the Draft Law “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code, and the Criminal Procedure Code of Ukraine regarding Ensuring the Adherence to Guarantees of Advocacy Activity” (№ 12320, hereinafter – the Draft Law) was registered in the parliament. The Draft Law proposes the following:

1) to amend the Code of Ukraine on Administrative Offenses (CAO) by introducing a new Article 185-16, which establishes administrative liability for violating the prohibition on identifying the lawyer with the client;

2) to amend Article 397 of the Criminal Code of Ukraine (CC), which provides for criminal liability for interference with a lawyer’s professional activities, and to specify the forms of such interference.

CPLR’s position 

In the explanatory note, the authors refer to official statistics from the Office of the Prosecutor General, which reveal that in 2022, 15 criminal proceedings were registered for interference with the activities of a defense lawyer or representative (Article 397 of the CC). However, in 2023 and during the first 8 months of 2024, 46 such offenses were reported. This data confirms the increase in criminal offenses committed against lawyers. Nevertheless, none of the 107 criminal proceedings recorded between 2022 and 2024 for violations under Article 397 of the CC resulted in a notice of suspicion. According to the Unified State Register of Court Decisions, only two criminal proceedings have been reviewed by the courts since the introduction of the register, both leading to convictions under Article 397 (one in 2015 and one in 2016).

Despite this, the authors of the draft law clearly highlight the lack of an effective mechanism to protect lawyers’ rights from unlawful interference and to ensure the guarantees of their professional activities, which they attribute to the unclear wording of Article 397 of the CC.

We cannot agree with this justification, and the Draft Law contains significant flaws.

1. There is a lack of scientific studies or arguments supporting the establishment of administrative liability for violating the prohibition on  identifying the lawyer with the client. Furthermore, there is no such requirement in Ukraine’s international treaties.

Holding an individual administratively or legally liable for expressing a reasoned opinion (within the law) would violate the freedom of speech guaranteed by Article 34 of the Constitution of Ukraine.

2. The new version of Article 397 of the CC includes an excessively detailed list of forms (methods) of interference with a lawyer’s activities – approximately twenty in total. This level of specificity is unnecessary.

In fact, the only argument the authors provide for these amendments is the statistical data from the Office of the Prosecutor General. However, this data alone does not provide a sufficient basis for such conclusions or the excessive level of detail in the article. Additionally, this level of specificity does not ensure compliance with the relevant provisions.

Furthermore, the list of violations is open-ended, allowing for the possibility of holding a person accountable for “…any other deliberate obstruction of the professional activities and lawful powers of the lawyer in defense, representation, and provision of other types of legal assistance to an individual”. Such broad formulations undermine the principle of legal certainty.

3. It is unclear what criteria are used to differentiate liability  for “obstruction…,” “interference…,” “influence…” and why the punishment for “influence” should be more severe than for “obstruction” or “interference”. The term “interference” lacks a standardized definition in both the theory or the practice of criminal law.

Therefore, the issue of protecting lawyers’ rights from unlawful interference cannot be addressed by introducing liability, particularly criminal liability, for any potential violations of the guarantees of advocacy. Criminal law provisions must be clearly and understandable, and liability must be predictable, proportional and effective.