Conflict of Interest vs Judicial Independence: Can the High Council of Justice Overcome the Administrative Offense Code Judicial Error and Protect Justice from NAPC Interference?

Judge

of the Dobropillia City District Court Olena Zdorovytsia

This post is dedicated to analyzing the systemic legal conflict between anti-corruption control and the principles of judicial independence on the example of my disciplinary case — Judge Olena Zdorovytsia of the Dobropillia City District Court. The illegality of the practice of holding a judge liable under Article 172-7 of the Code of Ukraine on Administrative Offenses (CUAO) for the so-called procedural conflict of interest is examined. Special attention is paid to the question: whether the High Council of Justice (HCJ), during the reconsideration of the disciplinary case, will demonstrate institutional courage, be guided by the conclusions of the Supreme Court, and make a fair decision despite the existence of a formally “uncanceled” judicial-administrative error due to defects in the CUAO.

1. The Nature of the Procedural Conflict of Interest

Constitutional guarantees of judicial independence are a fundamental condition for a fair trial (Article 126 of the Constitution of Ukraine). However, recent practice has revealed a dangerous trend: attempts by the National Agency on Corruption Prevention (NAPC) to use administrative procedural tools (Article 172-7 of the CUAO) to assess judges' actions directly during the administration of justice.

The key legal error of this approach lies in ignoring the difference between non-procedural and procedural conflicts of interest. Moreover, the situation turns into a procedural deadlock when the conflict of interest issue has already been resolved within the process itself by denying a procedural challenge, yet the NAPC still issues a protocol, and courts issue a conviction, holding judges administratively liable for a procedural conflict of interest.

2. Case Facts: The Legal Absurdity of "Interconnected" Cases

To understand the depth of the problem, it is worth examining the circumstances of my case in detail — Judge Olena Zdorovytsia of the Dobropillia City District Court, Donetsk region, which clearly illustrates how corruption accusations were artificially created by the NAPC.

The judge was considering a criminal case against the head of an outpatient clinic (a medical professional), accused under Part 2 of Article 358 of the Criminal Code of Ukraine of forging sick leave certificates for the then mayor Andriy Aksyonov. The judge had friendly relations with Aksyonov, due to which, in his personal criminal case, where he was the accused and which came to the judge while she was already considering the medical professional’s case, she lawfully declared a recusal.

However, a fundamentally different procedural situation arose in the medical professional’s case:

absence of subjective grounds for recusal: Judge Zdorovytsia was not acquainted with any of the direct participants in this criminal case. Aksyonov himself was not a party to the process and was not even involved as a witness. Therefore, there were simply no legal grounds for recusal under Article 75 of the Criminal Procedure Code of Ukraine (CPC).

valid court ruling as an absolute barrier for NAPC: During the consideration of the medical professional’s case, the prosecution (the prosecutor) filed a challenge against Judge Zdorovytsia. The grounds for this challenge were completely identical to the circumstances later cited by the NAPC in 2023 in its protocol regarding her alleged conflict of interest in the criminal case, for which she was ultimately found guilty of an administrative offense under Part 2 of Article 172-7 of the CUAO. However, the challenge was denied by another judge who reviewed the prosecutor’s application in November 2020. This ruling denying the challenge became legally binding and remains valid to this day. According to Article 129-1 of the Constitution of Ukraine, court decisions are mandatory for execution. The NAPC is not a judicial authority and has no right to question the legality of a court act that confirmed the absence of grounds for removing the judge from the case. The judge was procedurally obliged to continue the case, as voluntary avoidance of the process after denial of the challenge is a direct disciplinary offense. The NAPC’s protocol in this case puts the judge in an inherently no-win situation where any action is interpreted as a violation.

Why is the claim of "case connection" absurd from the criminal law perspective?

The NAPC and the courts (first and appellate instances), which held the judge administratively liable for a procedural conflict of interest in a criminal case currently under appellate review, justified the conflict of interest by claiming that the medical professional’s verdict could allegedly influence Aksyonov’s case, and that by not recusing herself from the medical professional’s case, the judge acted to create prejudicial facts that would be considered in favor of Aksyonov during his case.

But this construction completely collapses under the pressure of criminal procedural doctrine:

absence of the institute of preclusion in the CPC: In Ukrainian criminal procedure, there is no preclusion of facts and circumstances established in another criminal case. The court that would later consider Aksyonov’s case is obliged to independently establish all circumstances solely based on evidence examined in its own court session. The verdict regarding the medical professional had no and could not have any predetermined legal significance for Aksyonov’s case.

discrepancy in the scope of the accusation: Aksyonov was charged exclusively with using a forged sick leave certificate (Part 4 of Article 358 of the Criminal Code). The accusation of embezzlement or misappropriation of state funds through this sick leave was not made at all. What "interconnection" and "material interest of third parties" the NAPC claimed in this case remains a mystery.

the content of the verdict disproves the "assistance" claim: At the time the NAPC protocol was drawn up in February 2023, two years had already passed since the judge issued the verdict (May 31, 2021) in the criminal case where the NAPC saw a conflict of interest. Indeed, the judge acquitted the medical professional on purely substantive grounds, as the accused was charged under Part 2 of Article 358 of the Criminal Code as an official and therefore could not be a subject of this criminal offense. At the same time, the verdict shows that the judge, based on official data from the State Border Guard Service, directly established the fictitiousness and illegality of the sick leave issued to Aksyonov. How can one claim "intent to assist" in 2023 when the text of the 2021 verdict unequivocally disproves this and it was known in advance to both the NAPC and the judges who considered the NAPC protocol?

3. Priority of Procedural Law and the Imperative of Article 35-1 of the Law "On Prevention of Corruption"

Holding a judge administratively liable for failure to declare recusal in a specific criminal case under appellate review directly contradicts fundamental legal principles.

Part 1 of Article 35-1 of the Law of Ukraine "On Prevention of Corruption" clearly establishes: rules regulating conflicts of interest in judges' activities are determined by laws governing their status and the principles of justice. For a judge during the consideration of a criminal case, this is exclusively the Criminal Procedure Code of Ukraine. The institutes of challenge and recusal (Articles 75–81 CPC) are the only legitimate mechanisms for verifying court impartiality.

When the NAPC and courts considering cases under the CUAO begin to analyze a judge’s verdict, trying to assess it for violations of procedural and substantive law, they commit direct interference in the judge’s activity in the administration of justice. The legality, validity of the verdict, and correctness of the application of legal norms may be assessed only by appellate and cassation courts within criminal proceedings (Article 129 of the Constitution of Ukraine), not by external executive control bodies or judges considering cases under the CUAO. Assessment of a court decision by an executive body (NAPC) violates guarantees of judicial independence and the principle of separation of powers.

4. The "Dead" CUAO Ruling as a Consequence of Legislative Defect

During the disciplinary prosecution, the High Council of Justice initially dismissed Judge Zdorovytsia relying on the ruling holding her administratively liable under Part 2 of Article 172-7 of the CUAO. However, later the Grand Chamber of the Supreme Court and the Administrative Cassation Court in the Supreme Court composition completely annulled the HCJ’s decision to hold the judge disciplinarily liable and to dismiss her.

The Supreme Court Grand Chamber stated: the NAPC has no right to assess procedural actions of a judge during court proceedings.

A deep legal dissociation arose here:

- on one hand, substantive law and justice prevailed at the highest judicial instance (Grand Chamber of the Supreme Court).

- on the other hand, the ruling holding the judge administratively liable formally remains valid in the registers.

This happened due to the outdated and imperfect Code of Ukraine on Administrative Offenses. The CUAO does not provide for cassation appeals (Article 294) or review of decisions based on newly discovered circumstances. Courts, when considering the judge’s application for review of the ruling based on new circumstances, simply feared to apply analogy of law for case review, trapped by the rigid procedural framework of the CUAO. A closed circle of judicial error arises, which cannot be procedurally corrected at the national level due to the imperfection of the CUAO.

However, by annulling the HCJ decision to hold the judge disciplinarily liable, the Supreme Court Grand Chamber applied a refined legal approach, noting that it: ".. without in any way questioning the court decision in administrative case No. 227/572/23, by virtue of the constitutional principle of the binding nature of court decisions, cannot ignore the fact that the basis for the NAPC protocol was not a non-procedural conflict of interest of the judge, but exclusively her actions regarding the consideration of the criminal case..."

Thus, the highest court directly indicated that the formal "ghost" of a valid CUAO ruling (which cannot be annulled solely due to the absence of cassation in the CUAO) does not exempt the HCJ from the obligation to see the substantive legal defect of this document — the administrative court and the NAPC assessed an object that is not subject to their control at all.

5. Test of Professional Courage: Can the HCJ Make a Fair Decision?

Since the Supreme Court annulled the initial HCJ decision to hold Judge Zdorovytsia disciplinarily liable and dismiss her, the case returns to the Council for reconsideration. The HCJ faces a challenge beyond dry legal formulas: will the Council be able to make a lawful and fair decision having before it a formally valid but conceptually flawed court ruling under Article 172-7 of the CUAO?

To make an honest verdict, the HCJ must demonstrate institutional independence and, in my opinion, rely on two key factors:

imperative nature of the Supreme Court’s conclusions: The position of the Supreme Court Grand Chamber is binding on the HCJ during reconsideration. If the highest judicial instance has already established that the NAPC’s actions were unlawful interference in justice, the HCJ has no right to repeat old mistakes.

autonomy of disciplinary proceedings: The HCJ is not an automatic tool for stamping decisions based on illegal NAPC protocols. The HCJ is obliged to conduct its own independent assessment. The existence of an administrative ruling adopted on the basis of a protocol drawn up with obvious abuse of powers by anti-corruption bodies and complete disregard of the absence of preclusion in the CPC cannot be grounds for destroying a judge’s career. Especially when her duty to consider the case was dictated by a valid court ruling denying the challenge, and the verdict actually confirmed the illegality of issuing the document to the "needed person."

The HCJ composition has a unique chance to put an end to this precedent.

CONCLUSION.

The case of Judge Olena Zdorovytsia clearly proved that procedural conflicts of interest must be resolved exclusively within the process according to procedural code rules. Violations of procedural challenge or recusal rules can only entail disciplinary liability before the HCJ and never administrative liability. Attempts by the NAPC to hold a judge administratively liable for procedural conflict of interest by artificially constructing a "conflict of interest" where there is no preclusion, and the verdict states the illegality of third parties' actions, is a legal nonsense.

This case should serve as a powerful incentive for the Verkhovna Rada of Ukraine to urgently reform the CUAO — to introduce cassation appeals and the institute of newly discovered circumstances in corruption-related cases. Until the legislator corrects this error, all responsibility for ensuring justice lies with the High Council of Justice. The Council has all levers and powers to ignore the formal "ghost" of the administrative ruling, apply the principle of the rule of law, the binding nature of the Supreme Court’s conclusions, and fully close the disciplinary case, protecting the independence of the Ukrainian judiciary.

But is the High Council of Justice, which is called to ensure judicial independence, ready to be a real shield for judges against the arbitrariness of the executive branch, or will it succumb to the formalism of the defective CUAO legislation?

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