The “new” HCJ decided to continue with the practice of the previous compositions, turning down disciplinary complaints against judges without due motivation and assessing the content of such complaints.
A problematic issue in the practice of the HCJ considering disciplinary cases is using template refusals to open disciplinary proceedings without providing even a minimal level of substantiation. For instance, there’s the case with judge Osiik of Prymorskyi District Court of Odesa, who tried the case of an alleged administrative violation committed by an activist with charges under Art. 152 of the Administrative Code (violation of official standards, norms, and rules in the sphere of urban development and landscaping). However, such cases should not be tried in courts at all, since under Article 218 of the Administrative Code, cases with potential administrative violations under Art. 152 of the Administrative Code are reviewed exclusively by administrative commissions at the executive agencies of city councils. Thus, judge Osiik evidently violated the right to “trial established by law,” since the administrative penalty was imposed on an individual by an agency that is not legally competent in this matter, and this court decision makes it impossible to appeal it within the scope of the law.
Despite such an obvious violation by the judge, the High Council of Justice completely refused to open a disciplinary proceeding, instead using formulaic phrasing that “the complainant disagreed with the court decision.” This decision was unanimously made by HCJ members Kandziuba, Lukianov, Plakhtii, Kotelevets.
The HCJ’s reluctance to substantiate its refusal to open disciplinary proceedings in any way leads to a lack of clarity why judges in similar cases may either face disciplinary liability or not even have disciplinary proceedings reviewing their actions. This gives an impression that the HCJ is very superficial in its verification of disciplinary complaints, uses double standards and inconsistent approaches when deciding on starting disciplinary cases.
It should be noted that in such cases, reporting members of the HCJ write substantiated opinions where they provide their assessment of arguments in the disciplinary complaint, albeit concisely, and based on these opinions the HCJ then decides on refusing to open a disciplinary proceeding. In addition, certain HCJ members do prepare substantiated decisions on returning or turning down a disciplinary complaint.
It thus remains unclear why the HCJ is unwilling to publish at least these opinions. The complainant does not receive the opinion, either, and it can only be received as part of requested disciplinary case files — even though the HCJ does send the decision to the complainant, which makes it even less clear why the HCJ cannot also attach the opinion of the reporting HCJ member alongside the decision. To be clear, the law does not prevent the HCJ from publishing such opinions, and they normally do not contain a lot of confidential information or personal data, or if they do, they can be anonymized on the same basis as the HCJ’s decisions. Therefore, there is nothing that prevents their publication apart from the HCJ’s unwillingness to do so.
