The High Council of Justice found violations of jurisdiction, case distribution, and review deadlines, but limited itself to a warning for the judge from Mykolaiv
The Third Disciplinary Chamber of the High Council of Justice held Judge Serhiy Shcherbyna of the Zavodskyi District Court of Mykolaiv accountable for disciplinary responsibility and applied a disciplinary sanction in the form of a warning.
Circumstances of the case
The basis for the proceeding was a complaint regarding the consideration of civil case No. 487/2806/22.
In September 2022, a serviceman called up during mobilization filed a lawsuit against the Mykolaiv Educational and Scientific Institute of Law of the National University "Odesa Law Academy" and two military units. The claim included demands for reinstatement at the educational institution (a labor dispute subject to civil proceedings) and dismissal from military service (a public-law dispute subject to administrative courts).
The complainant indicated that the plaintiff violated the rules for combining claims (Article 20 of the Civil Procedure Code of Ukraine) by joining claims subject to different types of proceedings. Judge Shcherbyna opened proceedings and scheduled a hearing for September 27, 2022—only four days later—which effectively made it impossible to exercise the procedural rights of the defendants within the established 15-day period.
Additionally, the court did not send copies of the order to open proceedings, the statement of claim, and attached documents to the defendant military units. Without information about their receipt, on September 30, 2022, the judge issued a default judgment granting the claim. The military units received a copy of the decision only on October 12, 2022. Despite timely filing motions to review the default judgment (on October 27 and 28), on November 1, 2022, the court sent copies of the decision marked as having entered into legal force "for information and proper execution."
The Third Disciplinary Chamber also noted circumstances regarding the automated case distribution. On September 22, 2022, the case was assigned to Judge Shcherbyna at 16:03. Before the distribution, at least six judges were excluded from the automated system without proper legal grounds: some with reference to being in the deliberation room (some of them excluded one minute after the case card was created), others for reasons such as "poor health," "distance of residence," "lack of shelter," which according to local Rules for the use of the automated document management system are not grounds for exclusion. The next day, these judges' participation in case distribution was restored.
The Chamber believes that such actions could have caused the case to be assigned exclusively to Judge Shcherbyna and indicate a violation of the procedure for determining the judge. According to paragraph 4 of part one of Article 36 of the Civil Procedure Code of Ukraine, this created an obligation for the judge to declare recusal.
Decision of the Disciplinary Body
During the substantive consideration of the case, the Third Disciplinary Chamber heard the judge’s representative, lawyer Olena Udovychenko, and disciplinary inspector Vyacheslav Pleskach. The Chamber did not support the inspector’s proposal to apply a stricter sanction (temporary suspension for three months with referral for advanced training and subsequent qualification assessment) and decided to limit itself to a warning, recognizing it as proportionate to the committed offense.
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