The Supreme Court explained when a police officer can be dismissed without a guilty verdict
The Supreme Court, sitting as the Cassation Administrative Court, considered a case regarding a police officer’s appeal against an order imposing disciplinary liability in the form of dismissal from service. The Court examined whether the notice of suspicion and materials of the criminal proceedings could be used during the disciplinary proceedings and whether a guilty verdict is a mandatory condition for dismissing a police officer for violating service discipline.
Essence of the case
The police officer filed a lawsuit against the Main Directorate of the National Police in Kyiv, demanding to recognize as unlawful and cancel the order applying disciplinary punishment in the form of dismissal from service. Initially, he also requested reinstatement and compensation for forced absence, but later partially withdrew these claims, leaving the legality of the disciplinary order as the subject of dispute.
The plaintiff argued that the disciplinary order was essentially based on the notice of suspicion and materials of the criminal proceedings. In his opinion, before a court issues a guilty verdict, there are no legal grounds for dismissal. He also denied committing any actions that could indicate violation of service discipline or the Police Oath, emphasized the lack of evidence of improper performance of duties, cited procedural violations during the disciplinary investigation, denial of the opportunity to provide explanations, and missed deadlines for applying disciplinary sanctions.
The courts established that in May 2022, the police officer had already been subjected to a disciplinary sanction in the form of a severe reprimand for violating the procedure for registering reports of criminal offenses, failure to comply with the National Police legislation, the Disciplinary Statute, and the Police Oath. This sanction was not appealed.
In August 2022, the police officer was notified of suspicion of committing criminal offenses under Articles 190, 289, and 362 of the Criminal Code of Ukraine. Subsequently, the National Police leadership initiated an internal investigation.
During the internal investigation, the disciplinary commission found that the police officer, upon receiving information about a possible criminal offense, did not inform the leadership and failed to ensure registration of relevant information in police information systems and the Unified Register of Pre-trial Investigations.
The disciplinary commission also concluded that he abused his official position by conducting actions beyond the powers provided by law, identified himself as a police officer when seizing a vehicle without complying with criminal procedural law, failed to properly document the vehicle seizure, used official information resources to transmit information to third parties, engaged in off-duty relations with citizens to receive money, violated anti-corruption laws, police ethical rules, and the Police Oath. The investigation also revealed other violations of service discipline, including misuse of official transport.
Based on the results of the internal investigation, the National Police leadership concluded that the police officer committed gross violations of service discipline undermining the authority of the National Police of Ukraine, and by order dated October 6, 2022, applied disciplinary sanction in the form of dismissal.
Decisions of the courts of first and appellate instances
During the case, the court of first instance accepted the plaintiff’s partial withdrawal of claims regarding reinstatement, compensation, and other derivative claims, closing proceedings in that part. However, the court continued to consider the claim to recognize as unlawful and cancel the order of the Main Directorate of the National Police in Kyiv imposing disciplinary liability in the form of dismissal.
By the decision of the Kyiv District Administrative Court dated January 16, 2024, upheld by the Sixth Administrative Court of Appeal on May 15, 2024, the claim was denied.
The courts reasoned that the conclusion of the internal investigation, which served as the basis for the dismissal order, was based not only on pre-trial investigation information but on a set of established circumstances indicating unlawful behavior by the police officer. They found that the case materials confirmed his disciplinary offense, and therefore the dismissal order complied with the law.
Position and conclusions of the Supreme Court
Reviewing case No. 640/18230/22 in cassation, the Supreme Court noted that under Article 341 of the Code of Administrative Procedure of Ukraine, it reviews the correctness of the application of substantive and procedural law only within the arguments of the cassation appeal and the factual circumstances established by the courts. The cassation court is not authorized to establish new facts or re-evaluate evidence.
The Supreme Court pointed out that the Law of Ukraine "On the National Police" provides various grounds for terminating a police officer’s service. One is the implementation of disciplinary sanction in the form of dismissal according to the Disciplinary Statute; another is the entry into force of a court decision holding the officer liable for an administrative offense related to corruption or a criminal offense. These grounds are independent and cannot be equated.
The Supreme Court recalled its legal conclusion from the October 2, 2019 ruling in case No. 804/4096/17, stating that disciplinary liability of a police officer is not dependent on criminal or administrative liability. If the same act can entail different types of legal responsibility, this does not mean that applying one depends on the completion of the other. This approach has been repeatedly confirmed in subsequent practice.
The Supreme Court also referred to its August 30, 2022 ruling in case No. 120/8381/20-a, which stated that applying disciplinary sanction in the form of dismissal for violation of service discipline is a separate ground for termination and does not depend on the initiation of criminal proceedings or a guilty verdict. The existence of criminal proceedings does not exclude the possibility of disciplinary sanctions if the internal investigation establishes facts of non-performance or improper performance of duties.
Furthermore, the Supreme Court emphasized that a criminal proceeding decision alone cannot indicate the presence or absence of a disciplinary offense or the person’s guilt. Criminal proceedings assess the presence of a criminal offense under the Criminal Code, while disciplinary proceedings have a different subject of proof and are conducted under the rules of the National Police Disciplinary Statute.
The Supreme Court disagreed with the cassation appeal’s argument that the disciplinary sanction was applied solely based on the notice of suspicion. The Court stated that disciplinary proceedings have an independent nature, and the internal investigation is conducted to timely, fully, and objectively clarify all circumstances of the possible disciplinary offense, establish causes and conditions, degree of guilt, and prepare proposals on the type of disciplinary sanction. Legislation defines internal investigation as activity to collect, verify, and evaluate materials and information about the disciplinary offense.
The Court stressed that during the internal investigation, the disciplinary commission must collect and evaluate documents and materials confirming or refuting the offense, and the investigation conclusion must include established facts, explanations of the police officer and others, documents confirming or denying the offense, information about the officer, and a conclusion on the presence or absence of the offense and the proposed sanction.
Analyzing the case materials, the Supreme Court agreed with the lower courts that the internal investigation was not limited to using criminal case materials. The disciplinary commission’s conclusion was based on a complex of established circumstances indicating violations of legislation, service discipline, the Police Oath, ethical rules, and anti-corruption laws. It was this combination, not just the notice of suspicion, that justified the disciplinary sanction.
The Supreme Court also rejected the cassation appeal’s claims of violation of the police officer’s right to provide explanations during the investigation. The courts found that the disciplinary commission repeatedly sought explanations from the plaintiff. Police officers visited his residence, but he was absent. Upon return, he stated he would provide explanations only in the presence of a lawyer but did not appear at the police unit. Later, he also failed to appear upon summons, with corresponding reports drawn up. Under these circumstances, the Supreme Court found no procedural violations that could independently justify canceling the disciplinary sanction.
The Supreme Court concluded that the courts of first and appellate instances correctly applied the Law of Ukraine "On the National Police" and the Disciplinary Statute, properly examined the investigation materials, and reasonably recognized the dismissal order as lawful. The cassation appeal’s arguments do not refute the lower courts' conclusions, as they are mainly based on the erroneous equating of disciplinary and criminal liability and disregard the independent nature of disciplinary proceedings.
The Supreme Court dismissed the police officer’s cassation appeal and left unchanged the Kyiv District Administrative Court’s decision of January 16, 2024, and the Sixth Administrative Court of Appeal’s ruling of May 15, 2024. Thus, the order of the Main Directorate of the National Police in Kyiv imposing disciplinary liability in the form of dismissal remains in force.
The ruling takes effect from the date of adoption, is final, and not subject to appeal.
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