Grand Chamber of the Supreme Court: The High Council of Justice Unlawfully Deprived a Judge of the Right to Appeal a Disciplinary Ruling

Judicial independence is not a personal privilege but a fundamental guarantee of every citizen’s right to a fair trial. However, a problematic practice has emerged within the High Council of Justice that risks disrupting the balance between disciplinary accountability and a judge’s right to defence.

The issue arises when disciplinary bodies close disciplinary proceedings due to the expiration of limitation periods, yet simultaneously include conclusions about alleged violations in the reasoning of their decisions. In such instances, the judge is effectively denied the opportunity to appeal these conclusions because there is no formal indication of them having been held accountable.

In Case No. 990/521/25, the Grand Chamber of the Supreme Court upheld the constitutional guarantees of judges, ruling that the formal title of a decision cannot deprive a judge of the right to judicial protection. The Court emphasised that the decisive factor is not the title of the decision, but its actual content and legal consequences for the individual concerned.

The Essence of the Conflict: "Accusation Without Sanction"

 Central to the dispute is Ruling No. 838/0/15-25 of the Second Disciplinary Chamber of the High Council of Justice, which closed disciplinary proceedings against a judge due to the expiration of the limitation period for accountability.

While it might seem that the disciplinary proceedings were concluded and, accordingly, the judge was not dismissed, the reasoning within Ruling No. 838/0/15-25 created a significant problem. Despite the case closure, the document contained critical assessments of the judge’s actions, mentioning "gross violation of the Convention," "arbitrariness," and actions that "discredit the title of judge and are evidence of an oath violation."

Thus, the decision effectively contained conclusions that, by their content, amounted to disciplinary sanctions, even though the proceedings were formally terminated. This contradiction – between the form of the decision and its real content – became the subject of consideration by the Grand Chamber of the Supreme Court.

Herein lies the legal paradox: no disciplinary sanction was applied to the judge due to the expiration of the limitation period, yet the decision effectively stated the commission of a disciplinary offence. Reputational consequences ensued, but the High Council of Justice effectively precluded any possibility of appealing them. When the judge attempted to appeal the ruling, the High Council responded with a letter signed by the Chair stating: "the ruling on closure is not subject to appeal."

Position of the High Council of Justice and the Court of First Instance

 The High Council of Justice’s letter asserted that Article 51 of the Law "On the High Council of Justice" provides for appealing only decisions on holding accountable or refusing to hold accountable. As a ruling on closure is not a substantive decision, the law does not provide for the right to appeal it.

This position was supported by the court of first instance (the Administrative Cassation Court within the Supreme Court), which concluded that the law explicitly regulates only appeals against decisions on holding accountable or refusing to open a case, thereby excluding rulings on the closure of disciplinary proceedings from the appeal procedure.

Priority of Content Over Title: Conclusion of the Grand Chamber of the Supreme Court

 The Grand Chamber of the Supreme Court disagreed with the formal approach taken by the High Council of Justice and the Administrative Cassation Court within the Supreme Court, which held that the title of a procedural document determined its appealability. The Court emphasised the need to assess not the form, but the actual content of the decision and its consequences for the individual.

The Grand Chamber reiterated that, according to part one of Article 1 of the Law "On the High Council of Justice," the High Council is a collegial, independent constitutional body of state power and judicial governance. Its mandate is to ensure the independence of the judiciary, its functioning on principles of responsibility and accountability to society, the formation of an honest and highly professional body of judges, and compliance with the Constitution and laws of Ukraine, as well as professional ethics in the activities of judges and prosecutors.

The High Council of Justice conducts disciplinary proceedings through its Disciplinary Chambers. Based on their consideration, these chambers may adopt decisions in the form of a decision, ruling, or protocol ruling.

The Law on the High Council of Justice stipulates that if, at the time of considering a disciplinary complaint, the limitation period for holding a judge disciplinarily accountable has expired, the Disciplinary Chamber must refuse to open a disciplinary case (paragraph 2 of part one). Concurrently, part two of Article 45 of the Law explicitly establishes that decisions refusing to open a disciplinary case are not subject to appeal.

This provision was cited by the Second Disciplinary Chamber of the High Council of Justice in its ruling, stating that it could not be appealed. However, the Grand Chamber of the Supreme Court drew attention to a crucial circumstance: the dispute concerned not merely the procedural form of the document, but its content.

The disciplinary body proceeded to establish the factual circumstances of the case, assess the judge’s actions and decisions during the case review for their compliance with Articles 6 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and qualify the judge’s actions under the provisions of Article 106 of the Law "On the Judiciary and the Status of Judges."

The Second Disciplinary Chamber of the High Council of Justice effectively went beyond resolving the procedural issue of closing the proceedings. Although the substantive consideration of the disciplinary case had not even begun, the Disciplinary Chamber formulated categorical conclusions regarding the judge’s behaviour.

In particular, the reasoning part of the ruling stated that the established circumstances indicated the presence in the judge’s actions of signs of a disciplinary offence under paragraph 4 of part one of Article 106 of the Law "On the Judiciary and the Status of Judges."

Therefore, despite being titled "ruling on closure of proceedings," the document, by its content, corresponded to a decision in a disciplinary case. The Disciplinary Chamber established factual circumstances, assessed evidence, qualified the judge’s actions, and effectively stated the presence of a disciplinary offence.

The Right to Defence as a Guarantee of Judicial Independence

 The Grand Chamber placed special emphasis on the guarantees of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and constitutional provisions regarding the right to judicial protection and judicial independence.

If the disciplinary body effectively states improper conduct by a judge, the individual must have the opportunity to subject such conclusions to judicial review. Otherwise, the disciplinary procedure risks transforming from a mechanism of accountability into a tool for forming an unfounded negative conclusion without the right to defence.

The High Council of Justice Could Not Decide the Issue Unilaterally

 The Grand Chamber also questioned the procedure by which the judge was effectively denied access to appeal. The High Council of Justice is a collegial body, thus the issue of admissibility of a complaint against a disciplinary body’s decision must be resolved by the Council in the manner prescribed by law, not unilaterally by the Chair of the High Council through an explanatory letter.

Effectively, the Grand Chamber confirmed the principle: a state authority cannot deprive a person of the right to review a decision merely by changing its title or formal procedural form.

Why the Grand Chamber Recognised the Actions of the High Council of Justice as Unlawful

 The Court referred to Opinion No. 27 of the Consultative Council of European Judges, which emphasises that disciplinary accountability is inseparably linked to judicial independence. If the procedure for holding judges disciplinarily accountable is not clearly regulated or allows arbitrary application, it creates risks for guarantees of judicial independence. Therefore, disciplinary proceedings must comply with all procedural guarantees provided by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Moreover, the Grand Chamber drew attention to the legislative structure of the Law on the High Council of Justice. Part two of Article 45 explicitly establishes that only decisions refusing to open a disciplinary case are not subject to appeal. In contrast, no provision of the Law or the High Council’s Regulations prohibits appealing rulings on the closure of disciplinary proceedings. Therefore, the High Council’s conclusion about the impossibility of such an appeal had no normative basis.

For this reason, the Grand Chamber believes that a judge has the right to appeal a ruling of the Disciplinary Chamber that establishes the presence of a disciplinary offence in their actions.

Depriving a judge of the opportunity to appeal such a decision of the Disciplinary Chamber would constitute a violation of their independence, guaranteed by the Constitution and laws of Ukraine, as well as the right to judicial protection enshrined in Article 6 of the Convention and Article 55 of the Constitution of Ukraine.

In conclusion, the Grand Chamber satisfied the judge’s appeal, annulled the decision of the Administrative Cassation Court within the Supreme Court, and recognised the actions of the High Council of Justice that denied him the opportunity to appeal the ruling of the Second Disciplinary Chamber as unlawful.

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