Cases of violation of guarantees of independence of judges by law enforcement agencies and individuals

The European Charter on the Statute for Judges establishes the “right to appeal” for every judge if he/she believes that there is a threat to his/her independence or the independence of the legal process, or if this independence is somehow violated, and in such a case, he/she can refer the matter to an independent body. This means that judges are not left defenseless in cases of encroachments on their independence. The right to appeal is a necessary guarantee, otherwise, it would remain merely a desire to establish principles aimed at protecting judges if they are not consistently supported by mechanisms that will ensure their effective implementation. The obligation to obtain a proposal or opinion from an independent body before a decision is made regarding the status of a particular judge does not necessarily extend to all possible situations in which his or her independence might be influenced. That is why it is extremely important to ensure that judges have the opportunity to turn to this body on their own initiative. In 2022, the High Council of Justice received 128 reports of interference in the professional activities of judges regarding the administration of justice, actions that violate the guarantees of judges’ independence, or undermine the authority of justice. In particular, 114 reports were received from judges of local courts, 7 from judges of appellate courts, 3 from judges of the Supreme Court and the High Anti-Corruption Court, and 1 report from the Territorial Department of the State Judicial Administration of Ukraine. The largest number of reports from judges about interference in the activity of judges regarding the administration of justice was received in February 2022 (34 reports), and the least in March 2022 (3 reports). Judges primarily associated the interference in their activities as judges in the administration of justice with the judicial cases they were handling. The most common reasons for reporting interference in the judges’ administration of justice in 2022 were extrajudicial appeals to law enforcement agencies with complaints about judges committing criminal offenses and initiating criminal proceedings against judges – 18 cases; unfounded recusals – 15 cases; improper conduct (baseless accusations against a judge, threats, instructions on procedural actions and making certain judicial decisions, threats of filing complaints about criminal offenses) – 15 cases, among others. It’s important to note that the High Council of Justice is aware of cases where “interference” was associated with the inactivity of law enforcement officials. The High Council of Justice believes that the inactivity of law enforcement representatives poses a direct threat to the independence of judges and the authority of justice. In light of this, the High Council of Justice submits appropriate proposals for the identification and accountability of such individuals in accordance with current legislation. Academic articles emphasize that “interference” can manifest as threats and as extrajudicial appeals by law enforcement officials. However, the High Council of Justice does not consider threats to file disciplinary complaints against a judge’s behavior as “interference”. The majority of the High Council of Justice’s decisions on taking measures to ensure the independence of judges and the authority of justice in 2020 were mainly related to: judges’ security; threats of physical harm; attacks on judges; violations of order in court sessions; blockages of courts. According to the High Council of Justice’s annual report for 2020 “On the State of Ensuring the Independence of Judges in Ukraine”, the highest number of reports from judges about interference in their activity in 2020 related to interference by citizens and their associations. The High Council of Justice considers this situation to be traditional, as confirmed by statistical data from previous years. It’s worth noting that when reviewing reports from judges about interference in their judicial activities, there are increasingly cases that are not directly related to interference in their activities. However, such reports from judges indicate that there is a significant undermining of the authority of justice. Given this, such reports from judges require the High Council of Justice to take appropriate responsive measures.