The Grand Chamber of the Supreme Court determined when CISA protocols can be evidence in a disciplinary case against a judge

If the information contained in the protocols on the results of CISA (covert investigative search actions) is declassified on legal grounds, then the disciplinary body during disciplinary proceedings may examine these protocols and evaluate the information presented in them, as well as all evidence collectively to determine the presence of a disciplinary offense in the judge’s actions, making an independent assessment of such actions and circumstances of the case, including in the context of judges' compliance with rules of official and professional ethics. This conclusion was made by the Grand Chamber of the Supreme Court in case No. 990SCGC/32/25.

Circumstances of the case

The judge was suspected of receiving undue benefit for making court decisions.

The disciplinary body concluded that the judge’s actions contained a disciplinary offense under paragraph 3 of part one of article 106 of Law No. 1402-VIII, manifested in the judge’s behavior that discredits the title of judge or undermines the authority of justice, particularly regarding morality, honesty, incorruptibility, correspondence of the judge’s lifestyle to his status, and is grounds for applying disciplinary sanctions in the form of a submission for dismissal from office.

The disciplinary body obtained information about signs of a disciplinary offense from video recordings, interrogation protocols, protocols of inspection and handover of money, search protocols, expert conclusions, and other separate materials of the criminal proceedings, as well as from CISA protocols.

Moreover, the High Council of Justice (HCJ) considered not only the mentioned evidence but also the judge’s behavior, who did not provide a reasonable explanation of his version of events discussed in the pre-trial investigation materials and the decision of the Disciplinary Chamber of the HCJ.

Legal conclusion of the Grand Chamber of the Supreme Court

The Grand Chamber first noted that disciplinary and criminal liability are different types of legal responsibility, and that the principle of autonomy applies in disciplinary proceedings, according to which disciplinary proceedings are considered independently of criminal proceedings. Therefore, bringing a judge to disciplinary responsibility and simultaneously conducting criminal proceedings against him does not contradict the principles of fairness and proportionality and is not double jeopardy for the same violation.

When deciding on the possibility of using information recorded in CISA protocols in disciplinary proceedings, the Grand Chamber took into account that part two of article 255 of the Criminal Procedure Code of Ukraine (CPC) should be interpreted and applied considering part one of this article and the title of the article, which defines the scope of all provisions contained therein.

Since article 255 CPC is titled "Measures to protect information not used in criminal proceedings," the prohibitions in part two apply to information not used in the respective criminal proceedings.

This approach to interpreting part two of article 255 CPC is confirmed by the legislator’s logic, in particular by the content of the provisions of the following article 256 of this Code.

In fact, the criterion separating the subjects of legal regulation of article 255 CPC and article 256 of this Code is the principle of admissibility of evidence defined in article 85 CPC.

Accordingly, article 256 CPC applies to all evidence collected in criminal proceedings, including information recorded in CISA protocols that meet the admissibility criterion, i.e., factual data related to the subject of proof in criminal proceedings or circumstances relevant to these proceedings.

Conversely, information, items, and documents obtained as a result of CISA that do not meet the admissibility criterion and contain information unnecessary for further pre-trial investigation are subject to the provisions of article 255 CPC, and the consequence of this rule for regulating disputed legal relations is the destruction of such information as it cannot be used in criminal proceedings.

Accordingly, it is obvious that the rules of article 255 CPC, which in certain cases prohibit the use of CISA materials for purposes unrelated to criminal proceedings, do not apply at all to information recorded in CISA protocols that are part of criminal proceedings.

The CPC also regulates cases, conditions, and procedures for who and how should act if NSRD reveals signs of a criminal offense not investigated in the current criminal proceedings. In such a case, the law (article 257 CPC) does not prohibit using the obtained information in another criminal proceeding but stipulates that such use is possible only based on a ruling of an investigative judge issued at the prosecutor’s request. Also, in such cases, the transfer of information obtained through CISA is carried out only through the prosecutor.

In the circumstances of the case considered by the Grand Chamber, the CISA protocols are part of the criminal proceedings, have been declassified, and authorized for use by an authorized person for other purposes, including disciplinary proceedings, which does not contradict the legitimate purpose of obtaining these materials.

Additionally, the Grand Chamber noted that the CPC regulates exclusively the procedure of criminal proceedings, as stated in article 1 of this Code, so its rules cannot be applied in the context of prohibiting the use of certain evidence in disciplinary proceedings.

Instead, the procedure for proving within disciplinary proceedings against judges is defined by special legislation – Law No. 1402-VIII and Law No. 1798-VIII, which do not contain restrictions regarding the admissibility of evidence, including evidence obtained as a result of CISA.

Special legislation does not establish requirements regarding the admissibility and permissibility of evidence in disciplinary proceedings, nor does it impose an obligation on the disciplinary body to establish certain circumstances solely based on direct evidence.

Part sixteen of article 49 of Law No. 1798-VIII defines that to bring a judge to disciplinary responsibility, the evidence must be clear and convincing, i.e., such that from the point of view of a reasonable person collectively allows concluding the presence or absence of relevant circumstances.

Therefore, if as a result of CISA in criminal proceedings information about signs of a disciplinary offense was revealed, the law does not prohibit the competent disciplinary body on independent legal grounds obtained within disciplinary proceedings to use such information if it was transferred for use through the prosecutor based on the law.

In this case, the Grand Chamber stated that the circumstances established by the disciplinary body in the disciplinary proceedings resulted from a comprehensive examination of all evidence collected in the mentioned proceedings, the totality of which was so convincing as to make affirmative conclusions about actions that generally undermine the authority of justice. The judge, having the right to dispute the fact he was accused of, did not offer a reasonable version of the events that occurred.

The Grand Chamber also assessed the legality, legitimacy of purpose, and proportionality of interference with the right to respect for private life guaranteed by article 8 of the Convention in the aspect of access to the chosen profession of judge and concluded that the HCJ did not violate article 8 of the Convention regarding the applicant. The HCJ also did not violate the provisions of paragraph 1 of article 6 of the Convention, as the grounds for bringing the judge to disciplinary responsibility are sufficiently motivated, and there are no grounds to consider this decision obviously arbitrary.

Thus, in this case, the Grand Chamber dismissed the judge’s complaint, and the HCJ’s decision to bring him to disciplinary responsibility in the form of a submission for dismissal remained unchanged.

The Grand Chamber’s ruling dated May 14, 2026, in case No. 990SCGC/32/25 can be found at this link.

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