CERTAIN ISSUES OF INDEPENDENCE OF JUDGES AND PECULIARITIES OF CRIMINAL PROCEEDINGS AGAINST THEM

Stanislav Mishchenko
Deputy Chairman of the
High Specialized Court of Ukraine
for Civil and Criminal Cases
Honored Lawyer of Ukraine

CERTAIN ISSUES OF INDEPENDENCE OF JUDGES AND PECULIARITIES OF CRIMINAL PROCEEDINGS AGAINST THEM

The article considers certain issues related to ensuring the independence of judges and peculiarities of criminal proceedings against them according to the new procedural law. It proposes possible solutions to the questions that are put forward by the investigative judges and the court in the administration of justice and are not currently regulated by the Criminal Procedure Code of Ukraine.

Key words: independence of judges, immunity of judges, criminal procedure, criminal offence

The establishment of an independent, impartial, competent and efficient judiciary is the main requirement for the effective realization of human rights protection. This necessitates development and introduction of new approaches to the definition of notion, structure and content of the principle of judicial independence, which is confirmed by the numerous legislative initiatives, many of which have already been introduced and implemented to the law enforcement practice.

Proper legal definition of guarantees of judicial independence is a crucial step towards the establishment of a truly independent judiciary that is capable of ensuring reliable protection of human rights and fundamental freedoms. In order to secure the uniform application of criminal procedure law by courts of first instance and appellate courts and to avoid its [the law] ambiguous interpretation in course of judicial review in criminal proceedings against a judge, the main objective of this paper is to examine issues relating to constitutional guarantees of independence and immunity of judges in administration of justice and peculiarities of criminal proceedings against judges.

In criminal proceedings against judges the investigative judge and the court should bear in mind that the Constitution and the laws of Ukraine (Article 126 of the Constitution of Ukraine) guarantee the independence and immunity of judges as an integral part of their status. Thus, 1) the independence of judges is a constitutional guarantee of establishing and functioning of courts and of professional activity of judges, provided, inter alia, by the prohibition of any influence on judges [15]; 2) the public legal purpose of judges’ immunity consists in ensuring the administration of justice by an independent, impartial and fair court. Content of judges’ immunity as a condition of their professional duties is defined in part 3 of Article 126 of the Constitution of Ukraine [15] and other normative and legal acts of Ukraine, according to which a judge shall not be arrested or detained without the consent of the Verkhovna Rada of Ukraine, until a verdict of guilty is rendered by the court. However, despite the guarantees of judicial independence and immunity in the administration of justice, according to the report of the Chamber of Criminal Cases of the Supreme Court of Ukraine (the SCU) from July 1, 2013, if a judge commits certain actions recognized as crimes under current Criminal Code of Ukraine (the CC) they have to be brought to responsibility provided for by law [2].

The special legal status of judges is predetermined by execution of their constitutional duties, i.e. the administration of justice [16], and therefore there is a special procedure for bringing judges to legal liability. In particular, the special procedure for criminal proceedings against this category of persons is prescribed by Chapter 37 of the Criminal Procedure Code of Ukraine (the CPC).

The start of pre-trial investigation, entry of the information on criminal offence indicated by an applicant or detected by an investigator or prosecutor to the Unified Register of Pre-trial Investigations is determined by Article 214 of the CPC [11] and shall be conducted in the manner prescribed by the Regulations on the Operation of the Unified Register of Pre-trial Investigations, approved by the Order № 69 of the Prosecutor General of Ukraine from August 17, 2012 with the subsequent amendments [12], and the Instructions elaborated on the basis thereof, approved by the Order № 1050 of the Ministry of Internal Affairs of Ukraine from November 19, 2012 “On the procedure of uniform accounting management in organs of internal affairs of Ukraine of statements and reports on the committed criminal offences and other events” [7].

In view of the Conclusion of the Chamber of Criminal Cases of the SCU from July 2013 “On the initiation of criminal proceedings against judges in connection with the administration of justice” the content of the aforementioned legal acts is approved by the judicial practice [2]. In our opinion, implementation of the provisions thereof should contribute to elimination of formality of approach to recording information in the Unified Register of Pre-trial Investigations. Thus, when considering complaints on omission of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations the investigative judge shall be governed by the provisions of the aforementioned legal acts.

According to procedural law, the territorial jurisdiction of criminal proceedings shall be governed by Articles 32 and 34 of the CPC. In particular, according to the following wordings “the charge against a judge”, “the accused being a current or former judge”, “the accused being or having been a court employee” used in part 2 of Article 32, paragraph 3 of part 1 of Article 34 of the CPC it is possible to change the jurisdiction of criminal proceedings against a judge or a court employee only if they have acquired the procedural status of the accused. It should be kept in mind that according to part 2 of Article 42 of the CPC the accused is a person against whom a charge has been submitted to the court in order prescribed by Article 291 of the CPC. In other words, prior to acquisition by a judge or a court employee of the status of the accused it is impossible to change the jurisdiction of court’s consideration of complaints on omission of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations and requests to take measures of procedural compulsion concerning the said official. Exceptions are cases in which satisfaction of application for recusation of the investigative judge makes impossible the realization of requirements of part 1 of Article 82 of the CPC, i.e. transfer of criminal proceedings to a different investigative judge of the same court.

Complaints on omission of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations shall be submitted within ten days, calculated from the date of the start of the period of inaction of the investigator/ prosecutor (after the expiry of 24 hours), to the local court within which territorial jurisdiction falls the pre-trial investigation body which inaction is appealed.

In consideration of such appeals it should be taken into account that:

- requirements for the content of statement or report on criminal offence, to be entered to the Unified Register of Pre-trial Investigations, are prescribed in part 5 of Article 214 of the CPC [11] and specified in subsection 2 of Section 1 of the Regulations on the Operation of the Unified Register of Pre-trial Investigations [12]. First, the content of statements and reports on criminal offence, to be entered to the Unified Register of Pre-trial Investigations, shall comply with the requirements of the criminal procedural law. According to paragraph 4 of part 5 of Article 214 of the CPC such statements and reports shall contain a brief exposition of circumstances that may indicate the commission of criminal offence provided by the applicant or discovered from other sources [11]. At the same time, in relation to systematic interpretation of the provisions of the CPC and analysis of part 4 of Article 84 of the law of Ukraine “On the Judiciary and the Status of Judges” № 2453-VI from July 7, 2010 [5], information received from anonymous sources is not accepted. Second, it is necessary to take into account that provisions of parts 4, 5 of Article 214 of the CPC are logically related to the content of part 1 of Article 2 of the CC, according to which the commission of a socially dangerous act is the grounds for criminal responsibility, that is why a statement or report on criminal offence should contain evidence of the crime. The similar approach is used to determine the grounds for disciplinary action against judges under part 4 of Article 84 of the Law of Ukraine “On the Judiciary and the Status of Judges” [5]. Given the above, the participant’s disagreement with the court’s decision can not be the grounds for criminal charge against a judge [6];

- the investigator, prosecutor shall enter relevant data to the Unified Register of Pre-trial Investigations without delay, but no later than 24 hours after submitting of the statement or report on criminal offence (filed according to the requirements of part 5 Article 214 of the CPC), or after discovering on their own, from any source, of circumstances that may indicate a criminal offence [11]. In accordance with clause 1.4 of Section II of the Regulations on the Operation of the Unified Register of Pre-trial Investigations a statement or report on criminal offence shall be considered submitted from the date of receipt of warning of criminal liability for an intentional false report on criminal offence [12]. However, if it is not possible to warn a person of criminal liability for an intentional false report on criminal offence for objective reasons (transmission of statement or report by mail or any other means of communication, unconsciousness of the applicant, business trip etc.), the term (24 hours) shall be calculated from the date of receipt of such statement by the investigator or prosecutor [12]. Thus, it is necessary to acknowledge the propriety of those investigative judges who refuse to satisfy complaints on omission of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations if the applicant did not submit, in person, a statement or report on criminal offence, was not warned of criminal liability for an intentional false report on criminal offence and did not provide information on the gravity of causes of such failure.

Complaints on omissions of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations shall be returned to the applicant if they are not subject to consideration in this court, i.e. they submitted in violation of the rules of jurisdiction, established by Article 303 of the CPC, or if they are submitted after expiration of the term (part 1 of Article 304 of the CPC) and the applicant does not raise the question of renewal of the term, or if the investigative judge does not find the reasons for its renewal. In addition to the above, in consideration of complaints on omissions of the investigator or prosecutor to enter information on criminal offence by a judge to the Unified Register of Pre-trial Investigations, including those covered by Articles 374, 375 of the CC, the investigative judges shall take into account that according to part 5 of Article 124 of the Constitution of Ukraine court decisions shall be mandatory for execution throughout the entire territory of Ukraine [9], and as it is stated in paragraph 10 of the Plenum Resolution of the SCU № 8 “On the Independence of the Judiciary” from June 13, 2007 they shall be considered valid until they are reversed by the decision of the competent court in order prescribed by the procedural law [13]. Therefore, verification of legality and validity of judgments shall be the exclusive right of the relevant court. It is not allowed to appeal the judgments and operation of courts and judges concerning consideration and resolution of cases out of the order provided by the procedural law, and courts shall refuse to accept such statements and reports, according to paragraph 10 of the Plenum Resolution of the SCU “On the Independence of the Judiciary” [13]. Therefore, in our opinion, if a person submits a report on criminal offence by a judge, provided by Articles 374, 375 of the CC, and the decision taken by them is not reviewed or reversed in the procedural order, entering of corresponding information to the Unified Register of Pre-trial Investigations has no legitimate legal grounds, as such violations, including violation of the right to defense, rendering of unjust sentence, decision or decree, may be pronounced only by the court after the review of judicial decisions.

We consider it appropriate to digress from the main subject of our article in view of importance of consideration of complaints on omissions of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations and indicate the following. In course of pre-trial investigation this complaint shall be considered within 72 hours after its receipt and in the mandatory presence of the person who made the complaint or their counsel or representative and the investigator or prosecutor whose omission is challenged. However, according to part 3 of Article 306 of the CPC, an absence of investigator or prosecutor is not an obstacle to the consideration of the complaint [11].

In our opinion, if there is corresponding request the investigative judge may decide on consideration of the complaint in absence of the applicant. The request may be an endorsement on the complaint or may be submitted separately. If such request was not submitted and the applicant failed to appear in court, the investigative judge shall determine the reasons for their non-appearance and postpone consideration to a later date, thus providing the applicant an opportunity to realize their right. If the person failed to appear at the next hearing of consideration of such complaint without notification of reasons for their non-appearance the investigative judge may take the following measures:

1) to impose a monetary penalty on the applicant in the amount of 0,5 to 2 minimal wages (part 1 of Article 139 of the CPC) pursuant to the provisions of part 2 of Article 55 of the CPC, under which a person acquires the rights and responsibilities of the victim from the moments of submission of statement or report on criminal offence against them, and part 1 of Article 306 of the CPC [11];

2) to leave the complaint without consideration in view of legal requirement to consider appeals against decisions, actions or omissions in pre-trial investigations in the mandatory presence of the person, who made the complaint or their counsel or representative.

If, at the time of consideration of the complaint under Article 303 of the CPC, the applicant has waived the complaint due to the fact that the complained decisions (foreseen in paragraphs 1, 2, 5, 6 of part 1 of the stated Article), actions or omissions were removed by the investigator or prosecutor themselves, the investigative judge shall close the proceedings. In case of any of the circumstances foreseen in part 2 of Article 305 of the CPC the proceedings on the complaint shall be closed regardless of the applicant’s waiver of appeal.

In our opinion, if at the time of consideration of the complaint under Article 303 of the CPC the applicant has waived the complaint on grounds not foreseen in part 2 of Article 305 of the CPC [11] then under part 6 of Article 9 of the CPC the investigative judge shall close the proceedings on the complaint taking into account the participant’s right to withdraw their claims at any time (parts 2, 4 of Article 26, part 2 of Article 36, part 3 of Article 61, part 2 of Article 337, part 6 of Article 340, Article 403, Article 432 of the CPC) [11], legal consequences of such withdrawal, constitutional guarantees and principles of criminal proceedings such as equality before law and court.

In the pre-trial investigation after consideration of complaints on omission of the investigator or prosecutor to enter information on criminal offence to the Unified Register of Pre-trial Investigations the investigative judge shall pronounce the decision: 1) on the obligation to enter information on criminal offence to the Unified Register of Pre-trial Investigations; 2) on the dismissal of the complaint. This decision can not be appealed under part 3 of Article 307 of the CPC [11].

Back to the main topic of the article, it should be noted that the implementation of constitutional requirements for judicial immunity (Article 126 of the Constitution of Ukraine) is provided, inter alia, by the following:

- a judge detained on suspicion of committing an action entailing criminal or administrative responsibility shall be released immediately after establishing their identity. Under part 2 of Article 48 of the Law of Ukraine “On the Judiciary and the Status of Judges” [5] no judge may be forcefully taken to police or any institution or body except for to court;

- in their professional activities judges shall be independent of any undue influence, pressure or interference. A judge shall not be obliged to provide any explanations regarding the merits of cases under their consideration, except when required by the law (Article 64 of the CPC), as well as provide them to anyone for examination (paragraph 4 of the Plenum Resolution of the SCU “On the Independence of the Judiciary”).

It should be noted that requesting from a judge to explain the issues to be or have been the subject of discussion in the retiring room or an attempt to disclose secrecy of a judgment in any other way, vindication or removal of cases, consideration of which has not been completed, as well as obtaining court files (copies of documents contained in the case, extracts from them etc.) violating the order prescribed by the law (by an illegitimate individual, without proper documentation etc.) shall be recognized as a violation of principles of independence of the courts and judges. At the same time, requesting from a judge to explain the issues not related to the the subject of discussion in the retiring room, including long-time failure to consider cases, organization of judicial proceedings and judicial ethics, can not be recognized as a violation of principles of independence of the courts and judges.

According to paragraph 3 of part 1 of Article 481 of the CPC and part 3 of Article 48 of the Law of Ukraine “On the Judiciary and the Status of Judges”, criminal case of a judge may be opened only by the Prosecutor General of Ukraine or their deputy in written form [5], which means that corresponding notice of suspicion should be signed by one of the stated authorities.

Furthermore, the similar provision (which, however, includes prosecutors of regions and prosecutors of Kyiv and Sevastopol among subjects entitled to issue a notice of suspicion) is provided for lawyers. However, in accordance with paragraph 3 of part 1 of Article 23 of the Law of Ukraine “On the Bar and Lawyers’ Activities” a lawyer is guaranteed that investigative measures against them shall be taken at the motion of the above mentioned subjects, in particular, the Prosecutor General of Ukraine, their deputies, the Prosecutor of the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol [4].

According to part 5 of Article 48 of the Law of Ukraine “On the Judiciary and the Status of Judges” intrusion into the home or other estate or office of a judge, into their personal or official vehicle, conduct of examination, search, or seizure therein, interception of their telephone conversations, personal search of a judge, as well as search and seizure of their correspondence, belongings, or documents shall only take place on the basis of a court decision [5]. Despite the fact that the specified list of investigative actions is not exhaustive and is supplemented in accordance with the relevant provisions of the CPC, the law does not specify the peculiarities of initiation of such investigative actions, except for dismissal of a judge.

In consideration of the above, it would be right, similar to part 3 of Article 23 of the Law of Ukraine “On the Bar and the Lawyers’ Activities” and with regard to part 3 of Article 481 of the CPC and paragraph 15 of part 1 of Article 3 of the CPC, to make a provision that investigative actions against judges shall be conducted with the consent of the court according to the order issued at the request of the Prosecutor General of Ukraine or their deputies.

When considering requests for initiation of criminal proceedings against judges, the investigative judge or the court shall take into account the following:

- removal of a judge from office as a means of ensuring criminal proceedings is not the subject of consideration by the investigative judge or the court. The investigative judge or the court shall take into account the provisions of part 4 of Article 48, paragraph 7 of part 1 of Article 91 of the Law of Ukraine “On the Judiciary and the Status of Judges”. Part 3 of Article 154 of the CPC, under which a judge shall be removed from office by the High Qualification Commission of Judges of Ukraine at the reasoned request of the Prosecutor General of Ukraine in order, established by law [5]. Thus, in case of receipt of such request the investigative judge or the court shall, under part 2 of Article 156 of the CPC, take a decision to return it to the prosecutor as filed without compliance with the requirements of Article 155 of the CPC, of which part 1 states that a request for removal from office of officials specified in part 1 of Article 154 of the CPC, shall be submitted to the relevant state authorities [11];

- detention or application of a preventive measure against a judge, such as remand in custody or home confinement until a verdict of guilty is rendered by a court shall not be carried out without the consent of the Verkhovna Rada of Ukraine (part 3 of Article 126 of the Constitution of Ukraine, part 1 of Article 482 of the CPC) [9; 11]. However, the European Commission for Democracy through Law (Venice Commission) in paragraph 12 of the Opinion CDL-AD (2007)003 questions the provision which provides that judges are inviolable and immune from arrest except with the approval of the Verkhovna Rada of Ukraine. According to the European Commission, it is inappropriate that the parliament should have any role in lifting a judges’ immunity [1], and, as it follows from subparagraph 5 of paragraph 130 of the Opinion CDL-AD (2010)026 such lifting (of judicial immunity) shall be a competence of a truly independent judicial body [17]. This, inter alia, encourages the legislature to develop appropriate amendments to the Constitution of Ukraine, strengthening the independence of judges. In particular, it is proposed to provide in part 3 of Article 126 of the Constitution of Ukraine that a judge shall not be detained or arrested without the consent of the High Counsel of Justice given at the request of the High Qualification Commission of Ukraine, until a verdict of guilty is rendered by a court [14];

- the investigative judge and the court shall notify the High Qualification Commission of Justice of Ukraine on application of any preventive measure or rendering a verdict of guilty against a judge by sending a copy of the relevant court ruling, as it is foreseen in paragraph 2 of part 1 of Article 483 of the CPC [11].

In the event of request for temporary access to case files in respective jurisdiction (civil, administrative) the investigative judge may, if there are enough grounds, allow temporary access to case files, make their copies, provide extracts etc. The investigative judge is not allowed to permit the withdrawal of any materials related to the case under consideration since granting of such permit grossly violates the person’s right to a fair trial and is procedurally prohibited by the CPC (part 4 of Article 395, part 3 of Article 426) [11] and may violate the principle of reasonable time (for example, part 1 of Article 188 of the Code of Administrative Proceedings, part 2 of Article 214 of the Code of the Code of Administrative Proceedings, Article 91, Article 111 of the Code of Civil Procedure, part 2 of Article 296, part 1 of Article 328 of the Code of Civil Procedure) [8; 3; 18].

Moreover, the investigative judge must dismiss the request for temporary access to documents comprising secret protected by law (judicial personal records, in particular), in accordance with paragraph 3 of part 5 of Article 163 of the CPC, except in the case provided for in part 6 of the CPC [11], i.e. if the party of the criminal proceedings proves that these documents: a) are or may be in the possession of a natural or legal person; b) by themselves or in conjunction with other things and documents of the corresponding criminal case are essential for establishment of important circumstances in criminal proceedings; c) contain information that can be used as evidence, and prove there is no other way to prove the circumstances that are supposed to be proven by these documents.

According to part 1 of Article 250 of the CPC [11], until the verdict of the investigative judge rendered after considering the decision of the investigator or prosecutor the secret investigative actions may be initiated only in cases provided for by part 4 of Article 268 and part 3 of Article 269 of the CPC. Thus, until the verdict of the investigative judge it is possible to initiate only the following investigative actions: 1) establishing the location of radio-electronic means (Article 268 of the CPC) [11]; 2) observation of the person (Article 269 of the CPC) [11], but only in exceptional emergency cases, including those related to saving people’s lives, preventing the commission of grave or especially grave crimes, provided for in Chapters I, ІІ, VІ, VІІ (Articles 201 and 209), ІХ, ХІІІ, ХІV, ХV, ХVІІ of the CC [10].

After initiation of secret investigative actions the prosecutor must submit the corresponding request to the judge. If the request for permission to conduct the secret investigation against a judge is submitted after the start of investigation activities and there are no reasonable grounds for its initiation under the CPC the investigative judge shall refuse the permission to conduct it. In such case, information obtained as a result of the secret investigation shall be destroyed in order prescribed by Article 255 of the CPC [11].

To conclude with, the article supports the legislative initiatives of the President of Ukraine and considers certain issues related to ensuring the independence of judges and peculiarities of criminal proceedings against them according to the new procedural law. It proposes possible solutions to the questions put forward by the investigative judges and the court in the administration of justice that should provide the basis for the practice of the High Specialized Court of Ukraine for Civil and Criminal Cases.

References:

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