The High Council of Justice Suspended Judge Zhanna Yelenina of the Supreme Court's Grand Chamber During the Pre-Trial Investigation

The High Council of Justice considered the petition of the Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor's Office, Oleksandr Klymenko, regarding the temporary suspension of Supreme Court judge Zhanna Yelenina from administering justice due to her being subjected to criminal liability.

According to the petition materials, the prosecution requests to temporarily suspend the Supreme Court judge from administering justice for a period of two months in connection with criminal liability under Part 4 of Article 368 of the Criminal Code of Ukraine.

The investigation in the proceedings is conducted by the National Anti-Corruption Bureau of Ukraine under the procedural guidance of the Specialized Anti-Corruption Prosecutor's Office.

Essence of the suspicion and the prosecution's position

The petition states that the judge, while serving in the Grand Chamber of the Supreme Court, allegedly received an unlawful benefit of an especially large amount for making a decision in a case related to a corporate dispute.

According to the prosecution's version, this concerns influencing the results of the cassation appeal review in a case regarding the cancellation of the decision of the appellate commercial court and the subsequent review of decisions of lower courts.

Other episodes of possible unlawful benefit transfers, which, according to the prosecutor, took place in 2023–2024, are also mentioned separately in the petition materials.

According to the investigation, the petition includes protocols of covert investigative (search) actions, audio and video surveillance materials, search protocols, witness testimonies, the notice of suspicion, and the ruling on the application of a preventive measure.

During the consideration of the petition, the prosecution presented circumstances which, according to them, indicate the reasonableness of suspicion in the criminal proceedings concerning the Supreme Court judge.

According to the prosecutor, this concerns receiving an unlawful benefit for making a decision in a case in the interests of certain individuals and companies. In particular, the petition states that the amount of the unlawful benefit, according to the prosecution's calculations, was equivalent to over 1,000,000 hryvnias at the exchange rate at the time of the events. The criminal proceedings, within which the suspicion was notified, were separated from a broader investigation, which, according to the prosecutor, concerns corruption episodes in the judicial system and other officials.

According to the prosecution, the testimony of one of the witnesses contains information about the circumstances of the unlawful benefit transfer and the involvement of other persons who currently do not have the status of suspects. The prosecutor emphasized that if the judge continues to administer justice, there are risks provided for by the Criminal Procedure Code of Ukraine, namely: possible destruction or forgery of documents, influence on witnesses in the criminal proceedings, coordination of positions with other persons involved in the case.

It is also noted that part of the allegedly received unlawful benefit has not been identified or seized at the time of the investigation.

The prosecutor drew attention to the fact that: the reasonableness of the suspicion was already subject to judicial review at the preliminary stage, a preventive measure in the form of bail was applied to the suspect, part of the bail was paid. Taking into account these circumstances, the prosecutor stated that: there are risks of obstructing the investigation, the petition is reasonable, and it should be satisfied.

Defense position

The defense lawyer of the Supreme Court judge stated that they do not dispute the fact of the existence of criminal proceedings, but believe that the issue of guilt and qualification of actions cannot be the subject of consideration by the High Council of Justice.

The defense also noted that the mere fact of opening criminal proceedings or notifying suspicion is not grounds for automatic suspension of a judge from administering justice.

According to the defense, the High Council of Justice should assess exclusively:

• the presence of procedural grounds for suspension
• real risks for the criminal proceedings
• the proportionality of such a measure

At the same time, as the defense emphasizes, the prosecution's petition essentially contains assertions about proven guilt, which, in their opinion, contradicts the presumption of innocence principle enshrined in the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms.

The defense stressed that according to the requirements of the Criminal Procedure Code of Ukraine, in particular the principle of proportionality of measures to ensure criminal proceedings, the petition must contain individualized and proven risks, justification of the necessity of this particular measure, and an assessment of the possibility of applying alternatives. According to the defense, such elements are insufficient in the submitted petition.

The defense emphasized that since the search conducted in 2023, the judge has cooperated with the pre-trial investigation body and provided detailed explanations regarding the incriminated events, as well as relevant materials to support her position.

According to the defense, these explanations and documents were available to the prosecution throughout the investigation period but, in the defense's opinion, were not properly considered when preparing the petition for suspension and during the selection of the preventive measure.

In response to questions about the alleged receipt of 50,000 US dollars, the defense stated that the judge had already provided explanations regarding these circumstances during interrogations. According to the defense, the funds were transferred with the involvement of other persons, and the circumstances of their receipt are subject to full verification within the pre-trial investigation.

Commenting on the witness testimony, the defense noted that the prosecution largely relies on the testimony of the former head of the Supreme Court, questioned as a witness. According to the defense, this testimony: was obtained under the procedural control of the prosecution, requires thorough verification for admissibility, relevance, and reliability, and cannot be considered sufficient without confirmation by other evidence.

The defense also emphasized that this witness's testimony was given after key procedural decisions in the case, which, in their opinion, requires additional evaluation of their objectivity.

The defense stated that the materials of the notice of suspicion, in their opinion, contain internal contradictions and do not correspond with the factual testimony of the key witness.

The defense stressed that the witness's testimony significantly differs from the circumstances described in the suspicion and requires additional verification for reliability and consistency with other evidence.

Commenting on the covert investigative action protocol, the defense confirmed the fact of a meeting between the judge and the witness but emphasized that it took place under conditions which, in the defense's opinion, may indicate possible provocative behavior by the witness. The defense noted that: the covert investigative action protocol, in their opinion, does not meet certain procedural law requirements, the materials do not fully reflect the mechanism of involving the witness in recording the events, the content of the conversation is fragmentary and does not contain clear agreements or unequivocal confirmations of the accusation.

In response to questions about the origin of the funds seized within the criminal proceedings, the defense reported that the judge provided explanations regarding these funds during interrogation in 2023. According to the defense, the judge stated that she received the funds directly from the former head of the Supreme Court but insisted that they were not an unlawful benefit. The defense claims that the funds were transferred to assist a serviceman and resolve his housing issues. It is also noted that the judge had not previously received similar funds from this person.

Decision of the High Council of Justice

Having heard the parties, the High Council of Justice decided to partially satisfy the petition of the Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor's Office – and temporarily suspend the Supreme Court judge from administering justice within the framework of the criminal proceedings regarding bringing her to criminal liability.

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