The Council of Judges of Ukraine clarified the status of the court chairman in the activities of judges' assemblies

The Council of Judges of Ukraine adopted decision No. 26 dated June 26 regarding the clarification of the status of the court chairman in the activities of judges' assemblies.

The clarification concerns the status of the court chairman (or the person who performs the duties of the court chairman in the manner prescribed by law) in the activities of judges' assemblies and the scope of his participation as a judge in the discussion of issues and decision-making by the judges' assembly on matters concerning the internal activities of the court in accordance with Articles 126, 133 of the Law of Ukraine "On the Judiciary and the Status of Judges," the Regulations on the Council of Judges of Ukraine, approved by the XX regular Congress of Judges of Ukraine on March 11, 2026.

The Council of Judges of Ukraine decided:

1. Clarify that the election of a judge to the position of court chairman (or the assignment to a judge of the respective court of the duties of the court chairman in the manner prescribed by law) does not exempt him from exercising the powers of a judge, nor does it change the scope of his powers and guarantees related to the status of a judge.
2. Clarify that one of the guarantees of ensuring the independence of judges is judicial self-governance, which is exercised, in particular, through judges' assemblies, where, according to part one of Article 128 of the Law of Ukraine dated June 2, 2016, No. 1402-VIII "On the Judiciary and the Status of Judges," issues of the internal activities of the court are discussed and collective decisions on the discussed issues are made. The court chairman (judge performing the duties of the court chairman in cases prescribed by law) organizes the convening and preparation of the judges' assembly according to the established procedure. At the same time, holding an administrative position does not automatically confer the status of chairperson of the assembly on such a judge, as the chairperson may be elected by the assembly from among other judges. The administrative position of the court chairman itself neither privileges nor restricts such a judge's right to be elected chairperson of the judges' assembly, to participate in discussions, and to vote on issues submitted to the judges' assembly of the respective court.
3. Clarify that the preparation and organization of the judges' assembly includes, among other things, the formation of a preliminary (tentative) agenda, proposals for which — during the preparation of the judges' assembly — may also be submitted by judges of the respective court. The final agenda of the judges' assembly is approved by the judges' assembly (by open voting), which allows judges to directly express proposals regarding agenda items before their final approval, discussion, and voting on the defined issues.
4. Clarify that if the court chairman is elected or designated as chairperson of the judges' assembly, he ensures compliance with the procedure of the assembly, proper organization of the consideration of agenda items, and equal conditions for judges' participation in discussions and voting. Within this procedure, the court chairman, as a judge of the respective court, is not deprived of the right to propose the inclusion of candidates for election or delegation to the agenda, as well as to provide justification for his position on the relevant issue. Significant information known to the court chairman in connection with the exercise of his administrative powers and relevant to the proper organization of the court's work or the objective resolution of the issue submitted to the judges' assembly must be brought to the attention of the judges' assembly as related to the subject of discussion. At the same time, making proposals or providing information does not replace or limit the powers of the judges' assembly regarding the approval of the agenda, discussion of agenda items or candidates, and decision-making based on voting results.
5. Clarify that in the absence of circumstances indicating restrictions on judges' rights to express themselves at the assembly, ask questions to candidates, propose alternative candidates, or freely participate in voting, the mere fact of the chairperson of the judges' assembly, who holds an administrative position in the court, proposing a candidate judge for election by the judges' assembly does not create sufficient grounds to conclude personal bias, undue advantage, prejudiced or subjective attitude towards such a judge, or administrative pressure or coercion.
6. Clarify that according to part two of Article 52 of the Law of Ukraine dated June 2, 2016, No. 1402-VIII "On the Judiciary and the Status of Judges," all judges have a single status regardless of the court's place in the judicial system or the administrative position held by the judge in the court. The court chairman's proposal to the agenda of the judges' assembly regarding the election of a candidate from among the judges does not impose an obligation on the judges' assembly or individual judges to agree with or support such a proposal during voting. Judges of the respective court have the right to submit their own proposals to the agenda of the judges' assembly, including regarding candidates proposed for election by the judges' assembly. If the court chairman chairs the judges' assembly, he is obliged to ensure the consideration of such proposals in the established manner and equal conditions for all candidates to be proposed, presented, discussed, and participate in the election procedure by the judges' assembly.
7. Clarify that regarding the participation of judges of the Supreme Court of Ukraine in the judges' assemblies of the cassation court of the respective specialization corresponding to the specialization of the judicial chamber of the Supreme Court of Ukraine in which such a judge exercised justice, through the prism of forming the agenda of the judges' assembly, the need to convene which coincided in time with the adoption of the Law of Ukraine dated November 21, 2023, No. 3481-IX "On Amendments to the Law of Ukraine 'On the Judiciary and the Status of Judges' in connection with the Decision of the Constitutional Court of Ukraine dated February 18, 2020, No. 2-r/2020 on ensuring the continuity of justice by the highest court in the judicial system of Ukraine," it is necessary to proceed primarily from the fact that judges of the Supreme Court of Ukraine must continue to exercise their powers as judges of the Supreme Court and have the right to participate in judicial self-governance on an equal basis with other judges. Therefore, the actual differentiation of judges of the Supreme Court of Ukraine and judges of the Supreme Court in the possibility of exercising the powers of a Supreme Court judge, in particular through participation in the judges' assemblies of the respective cassation court, is inconsistent with the principle of irremovability of judges and the unity of judges' status, which is part of the constitutional guarantee of judicial independence. This approach follows from Articles 52, 53 of the Law of Ukraine dated June 2, 2016, No. 1402-VIII "On the Judiciary and the Status of Judges" and is consistent with the third paragraph of point 13 of the Decision of the Constitutional Court of Ukraine dated February 18, 2020, No. 2-r/2020.

Given the exceptional situation of the existence of two courts as public law legal entities — the Supreme Court of Ukraine and the Supreme Court — the exercise by judges of the Supreme Court of Ukraine of the powers of a Supreme Court judge, including participation in the judges' assemblies of the respective cassation court, required the application of a legal mechanism for enrollment in the staff of the Supreme Court according to specialization. Under such circumstances, the formal nature of the procedure for enrollment in the staff of the Supreme Court should not by itself hinder ensuring the possibility for such judges to exercise their right to participate in judicial self-governance and the judges' assemblies of the respective cassation court, especially when their convening was caused by the need to elect a candidate from the cassation court of the respective specialization to the permanent collegial body of the Supreme Court, which is the Grand Chamber of the Supreme Court. Considering the content of the Decision of the Constitutional Court of Ukraine dated February 18, 2020, No. 2-r/2020, the adoption of the Law of Ukraine dated November 21, 2023, No. 3481-IX in its implementation, and the emergence of circumstances requiring the convening of judges' assemblies, this is not a disproportionate interference with the right of such judges to participate in judicial self-governance (judges' assemblies), especially when their convening was caused by the need to elect a candidate from the cassation court of the respective specialization to the permanent collegial body of the Supreme Court, which is the Grand Chamber of the Supreme Court.

8. Clarify that the adoption of the Law of Ukraine dated November 21, 2023, No. 3481-IX "On Amendments to the Law of Ukraine 'On the Judiciary and the Status of Judges' in connection with the Decision of the Constitutional Court of Ukraine dated February 18, 2020, No. 2-r/2020 on ensuring the continuity of justice by the highest court in the judicial system of Ukraine," which defines the legal mechanism for continuing the exercise of powers by judges of the Supreme Court of Ukraine as judges of the Supreme Court, cannot be interpreted — in the context of convening the judges' assemblies of the cassation court of the specialization corresponding to the specialization of the judicial chamber of the Supreme Court of Ukraine in which the Supreme Court judge exercised justice, for whom there were grounds to expect enrollment in the staff of the Supreme Court — as an event unrelated to the resolution of internal activities of the respective cassation court.

In this regard, the exercise by the court chairman of administrative powers to organize the judges' assembly, form the preliminary agenda, provided equal conditions for the participation of judges of the respective court in the judges' assembly, in the given situation, cannot by itself be interpreted as the use of the administrative position of the court chairman contrary to the tasks and duties envisaged by such a position.

The exercise of the court chairman's administrative powers at the stage of organizing the judges' assembly should be assessed taking into account the institutional goal of ensuring the uninterrupted work of the Grand Chamber of the Supreme Court and the exercise of judicial powers defined by the Constitutional Court of Ukraine. At the same time, actions aimed at ensuring the possibility of considering the issue by the judges' assembly should be distinguished from actions that create advantages for an individual judge outside the established procedure. The decisive factor is that the final decision on the appointment of a candidate to the Grand Chamber of the Supreme Court belongs exclusively to the competence of the judges' assembly and is not part of the administrative powers of the court chairman.

9. Clarify that the assessment of actions in the relevant situation should be carried out not only from the point of view of their possible consequences for an individual but also taking into account the institutional context of the court's functioning, the separation of powers between the court chairman and the judges' assembly, as well as procedural guarantees of collective decision-making.

"From the materials submitted to the appeal, it appears that after the issue of the participation of a judge of the Supreme Court of Ukraine in the judges' assembly of the Administrative Cassation Court within the Supreme Court arose, the issue was considered by the judges' assembly, which, according to the protocol, discussed the relevant circumstances and expressed a position regarding the assessment of actions related to the organization of the consideration of this issue.

Under such conditions, the actions of the court chairman regarding the organization of the consideration of the relevant issue and ensuring the possibility of its submission to the judges' assembly should be assessed within his administrative powers and cannot by themselves be regarded as interference in the independent expression of will of the judges' assembly or as administrative pressure or the presence of personal interest.

The materials provided do not indicate violations during the conduct of the judges' assembly that could call into question the observance of procedural guarantees of their activities, in particular regarding the restriction of judges' rights to express themselves, ask questions, propose candidates, or freely exercise their will during voting.

At the same time, restricting the court chairman, who chairs the judges' assembly in the prescribed manner, from expressing a position on agenda items, providing information relevant to their consideration, or proposing candidates from among the judges solely because he holds an administrative position in the court, in the absence of established circumstances affecting the freedom of expression of other judges, would effectively mean limiting his right as a judge of the respective court to participate in judicial self-governance on an equal basis with other judges," the Council of Judges added.

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