Dismissal without suspect

The High Council of Justice must verify compliance with the procedure for obtaining the procedural status of the Judge.

During the consideration by the High Council of Justice of the applications for removal, the issue of the legitimacy of a suspicion report was repeatedly raised. Some members of the Council believe that he should check the legality of the Judge’s acquisition of the status of a suspect, the majority hold the opposite opinion. The situation is similar in the Grand Chamber of the Supreme Court.
The position of the Grand Chamber of the Supreme Court and a special opinion

On November 8 of this year, the Grand Chamber of the Supreme Court considered the appeal of the Judge of the Dzerzhinsky District Court of Kharkiv Serhiy Lazyuk against the decision of the Cassation Administrative Court of 2.04.2018. The Judge appealed the decision of the High Council of Justice dated 29.09.2017 №3041/0/15-17 to extend the period of his suspension from justice. When making a decision, the opinions of the Judges of the Grand Chamber of the Supreme Court were divided. The main issue on which it was not possible to reach an agreement concerned the powers of the High Council of Justice when considering such a petition.

The decision of the Grand Chamber of the Supreme Court dated 8.11.2018 determined that the competence of the High Council of Justice does not include the verification of compliance with the procedure for notification of suspicion established by law, and the Council’s powers are limited to verifying the validity of suspicion (in accordance with the provisions of Article 132 of the Criminal Procedure Code) as a general requirement criminal proceedings).

However, such a position causes an ambiguous interpretation of the provisions of the current criminal procedural legislation, actually narrows the range of issues that should be considered by the High Council of Justice in solving this issue, and contradicts the criminal procedure nature of such a decision of the Council.

At the same time, some Judges of the Grand Chamber of the Supreme Court stated that such narrowing interpretations are inadmissible. Taking into account the conditions for applying such an event provided for by the Criminal Procedure Code (if the person has the procedural status of the suspect), the first thing that the High Council of Justice should establish is that the Judge has acquired such status in the manner prescribed by law.

This logic is understandable and is based on the provisions of the Law, since Article 1551 of the Criminal Procedure Code as a condition for the application of such an undertaking to ensure criminal proceedings presupposes that the Judge has the status of a suspect or accused. In addition, the total for the institution of the dismissal of a person from office the norm of Article 157 of the Criminal Procedure Code of one of the circumstances that are subject to mandatory accounting when solving this issue, determines the existence of a legal basis for dismissal.

High Council of Justice as an investigator of the Judge

Agreeing with the conclusions set forth in the dissenting opinion, we note that the grounds for dismissal should be understood, in particular, whether the person (the Judge – in this case) has the procedural status of the suspect But according to Article 42 of the Criminal Procedure Code, as well as in accordance with the practice of the European Court of Human Rights (Paragraph 46 of the decision of 27.02.80 in the case of «Deweer v. Belgium a person must receive the status of a suspect only in accordance with the procedure established by law the law of procedure (including the competent subject). Otherwise, she cannot be considered to have acquired the procedural status of a suspect in criminal proceedings.

In the context of the above, it is impossible to agree with the opinion of the Grand Chamber of the Supreme Court that the issue of compliance with the procedure for notifying a Judge of suspicion is not within the competence of the High Council of Justice and should be considered exclusively in the framework of criminal proceedings.

Thus, according to Article 1551 of the CPC and Article 63 of the Law «On the High Council of Justice», the High Council of Justice has a specific criminal procedure legal personality. Therefore, in order to monitor the observance of the rights and freedoms of Judges in criminal proceedings against him, he is authorized to investigate all the issues that are relevant when deciding on the issue of suspension. In particular, the Council, as an authority of state and judicial administration, whose activities are aimed at ensuring (including) the independence of the judiciary (Article 1 of the Law on High Council of Justice), taking into account the special subject composition of the relevant criminal procedural legal relations, assumes the functions of investigative Judges and becomes a structure, the authority which belongs to prevent the baseless use of measures of procedural coercion.

As a body that makes a procedural decision on the application of such a provision as a suspension, the general rules provided for in Article 132 of the Criminal Procedure Code.

In particular:

  • checking whether there is a reasonable suspicion of having committed a criminal offense of such a degree of severity may be grounds for applying security measures;
  • assessment of the level of compliance of the requirements of pre-trial investigation with such a degree of interference with the rights and freedoms of a Judge;
  • establishing the possibility of performing a task, for which the Attorney General or his deputy makes a corresponding request.

Thus, the decision of the High Council of Justice is to suspend a Judge from justice (to extend the period of suspension), although it is subject to administrative appeal, but has a complex legal nature and is essentially one of the procedural decisions taken in criminal proceedings.

The substantiation of the suspicion and the acquisition by the Judge of the procedural status of the suspect in accordance with the current Criminal Procedure Code and the practice of the ECHR (decision dated August 30, 1990 in the case of «Fox, Campbell and Hartley v. the United Kingdom») are not identical concepts. They should be established as independent legal facts when deciding on the issue of removal (the continuation of its term) in accordance with Articles 132 and 1551 of the CPC.

Extension of suspension

In addition, the resolution of the Grand Chamber of the Supreme Court used a literal interpretation of the norms of the current legislation regarding the issues being resolved when considering an application for extension of time (in particular, the inability to view the previous decision of the High Council of Justice on the application of such a measure). However, in the case of consideration of such a petition, this is not about revising a previously adopted decision, but about adopting a new one, which is possible only if the procedural form provided by law is observed.

As with the decision on the issue of suspension, and with the extension of the relevant event, the legislative condition on the need for a person to acquire the procedural status of the suspect is unchanged. Therefore, the legal basis for making relevant decisions also does not differ. Considering this question of the person’s lack of the procedural status of the suspect must be a basis for returning the application for extension of suspension as such, which is submitted without complying with the requirements defined by law (Part 3 of Article 64 of the High Council of Justice law), or for making a decision to refuse to satisfy (Paragraph 19.13 of the Regulations of the High Council of Justice).

Implementation of the message from drafting to delivery

The main thing in the dissenting opinion of the judges of the Grand Chamber of the Supreme Court is the explanation of the provisions of Article 481 of the Criminal Procedure Code due notice to the judge of suspicion. Thus, the relevant norm establishes the authority of the Attorney General and his deputies to implement a report on the suspicion of a judge. At the same time, law enforcement practice distinguishes between the notions of «compilation» and «reconciliation» or «implementation of a suspicion report» and its «delivery». In practical activities, the message of suspicion, composed or agreed by prosecutors of the highest level, is often handed to persons by investigators or prosecutors – procedural leaders on the basis of instructions from the first.

The dissenting opinion stresses the inadmissibility and illegality of the corresponding actions, taking into account the complexity of the concept «implementation of a suspicion report». It is noted that «a written notice of suspicion cannot be acquired in the procedural aspect of the quality of reality, of reality only as a result of the creation, assembly and coordination of it by certain authorized subjects of the criminal process». So, the mere fact of drawing up the text of a message of suspicion without its direct delivery by the relevant person cannot be regarded as the fulfillment of the whole complex of actions, covering the concept of «carry out a message of suspicion». Thus, the Attorney General or his deputy, who compiled a report on suspicion, must submit it, as well as carry out the appropriate set of procedural actions.

Such a requirement of the Code is fully consistent with the provisions of Article 49 of the Law «On Judicial System and Status of Judges» and given the procedural importance of a report of suspicion is an additional guarantee of the independence of a Judge from the use of coercive measures against him, reduces the risk of obstruction of professional activity justice and the like.

In addition, the recognition by the Attorney General and his deputies of exclusive authority to implement a report on the suspicion of a Judge under Article 481 of the Criminal Procedure Code, firstly corresponds to the guarantees of independence of Judges proclaimed by law, and secondly, it is a logical step, given the impossibility (inappropriateness) of separation the implementation of a report on suspicion of individual proceedings, which in accordance with the provisions of the Code cannot be performed by different subjects.

Also, the impossibility of entrusting others with the prosecution of the relevant procedural actions upon the delivery of a notice of suspicion follows from a systematic analysis of the general (Part 2 of Article 36 of the Criminal Procedure Code) and the special (Article 481) norms.

It seems that the interpretation of the aforementioned norms set forth in a dissenting opinion may lead to the harmonization of law enforcement practice on notification of suspicion not only to Judges, but also to other persons specified in Article 481 of the CPC (lawyers, deputies of local councils, people’s deputies). After all, they are also handed over the relevant procedural decisions not provided for by Article 481 of the Criminal Procedure Code.

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