Can Materials from Covert Investigative Actions Be Used in Disciplinary Proceedings?

Recently, discussion has intensified over whether, in disciplinary proceedings against a judge, it is permissible to use materials from covert investigative (search) actions, obtained in criminal proceedings and provided to the High Council of Justice. In this piece, we set out our position on these issues.

Since the establishment of the NABU, many high-profile, top-level corruption cases have concerned judges. The best-known is the case involving judges of the District Administrative Court of Kyiv (DACK), following the publication of the so-called “Vovk tapes.” The tapes capture private conversations which, according to the investigative version, reflect an attempt by judges to seize influence over the judicial branch in Ukraine. The recordings allegedly discuss filing artificial lawsuits to halt the work of the High Qualification Commission of Judges (HQCJ), a false bomb threat targeting the High Council of Justice (HCJ), interference in procedures for appointing members to these bodies, filing artificial complaints against judges, and other actions. 

Although the “tape” materials are still being considered by the High Anti-Corruption Court, their first consequences have already materialized: in recent years, the High Council of Justice has decided to dismiss the most prominent figures in the case—namely, DACK Chair Pavlo Vovk and his deputy, Yevhenii Ablov. 

More broadly, according to HCJ member Roman Maselko, the number of judges held accountable by the HCJ on the basis of recorded conversations or the results of other covert investigative (search) actions currently stands at 50. In 48 of these cases, the HCJ upheld the dismissal decision. Some of the dismissed judges have already challenged these decisions in court, and in nine instances the Grand Chamber of the Supreme Court agreed with the HCJ’s position. To date, no HCJ decision has been overturned; however, the vast majority of these cases are still awaiting a final decision, or court proceedings have yet to be initiated. In addition, the HCJ is considering dozens of complaints that may likewise result in judges being dismissed.

Based on an analysis of the case law, the main argument raised by dismissed judges is that the HCJ had no right to use, and law enforcement bodies had no right to transfer materials from covert investigative (search) actions for purposes of disciplinary proceedings. 

Recently, this debate within the legal community has been revived in view of the possibility that the Grand Chamber of the Supreme Court may change its established approach to the permissibility of using such materials. If the Supreme Court’s approach does change, dozens of judges whose cases are still pending or will be reviewed may obtain a chance to return to office, at least until a criminal conviction is handed down.

Current members of the HCJ have also joined the debate: 11 members of the Council published an article supporting the position that covert investigation materials may be used in disciplinary proceedings. Shortly before that, HCJ member Serhii Burlakov published a separate statement opposing such use.

In our view, the use of covert investigation materials in disciplinary proceedings against judges is both appropriate and lawful. Our position is based on the understanding that the current practice does not show signs of violating the right to privacy and correspondence, or other human rights.

Early practice 

In 2017, amendments to the Law of Ukraine on the Prosecutor’s Office entered into force. These amendments were intended to reform the disciplinary mechanism applicable to prosecutors. In particular, the authority to hold prosecutors disciplinarily liable was vested in the Qualification and Disciplinary Commission of Prosecutors (QDCP). From the start of its work, the QDCP was the first body to begin using materials from covert investigative actions in a systematic manner in its proceedings. 

According to a study by the Center of Policy and Legal Reform, in 2017–2018 the QDCP relied on information obtained covertly by law enforcement in 25 out of 196 decisions imposing disciplinary sanctions. In most of these cases, dismissal was selected as the sanction. The study reports that, as of the time of analysis in 2019, none of the QDCP’s decisions had been overturned by the Supreme Court. 

According to an analysis by the DEJURE Foundation, following the QDCP’s practice, the HCJ also began using this instrument in disciplinary proceedings against judges. Although at first the HCJ’s practice lacked a consistent approach (its Disciplinary Chambers could adopt opposing decisions on the use of covert investigation materials within the same week), the HCJ’s approach has since become fairly uniform: 50 judges have been subjected to disciplinary liability. 

Arguments against the use of covert investigation materials

An analysis of the early practice of disciplinary bodies, concluded and pending cases before the Supreme Court, as well as legal commentary on this topic, makes it possible to identify the following arguments against using covert investigation materials in disciplinary proceedings: 

1. such use violates the right to respect for private life and correspondence guaranteed by Article 8 of the European Convention on Human Rights (ECHR); 
2. imposing disciplinary liability on the basis of such materials violates the presumption of innocence; 
3. imposing disciplinary liability on the basis of such materials violates the ne bis in idem principle. 

In our view, these arguments do not demonstrate that the use of covert investigation materials in disciplinary proceedings is impossible.

Interference with private communications and correspondence

Article 8 of the ECHR prohibits public authorities from interfering with a person’s right to respect for private and family life, home, and correspondence. Certain covert investigative measures clearly constitute such interference. 

However, the Convention itself permits interference if three criteria are met with respect to the state’s actions:

1. in accordance with the law, 
2. a legitimate aim of the interference (in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others), and
3. the necessity of the interference in a democratic society (that is, whether the reasons were relevant and sufficient and whether the decision-making process was fair and capable of ensuring adequate protection of the interests at stake).

Against these criteria, we consider whether materials from covert investigative (search) actions may be used in disciplinary proceedings. 

“In accordance with the law”

Under the case law of the European Court of Human Rights, interference must have a basis in domestic law that is properly accessible and formulated with sufficient precision to be foreseeable. 

The Criminal Procedure Code of Ukraine, in its foundational principles, provides that in criminal proceedings everyone is guaranteed the secrecy of correspondence, telephone conversations, telegraphic and other correspondence, and other forms of communication (Article 14(1) of the Criminal Procedure Code of Ukraine), as well as non-interference with private (personal and family) life (Article 15(1) of the Criminal Procedure Code). 

These provisions also state that information obtained as a result of interference with communications (Article 14(3) of the Criminal Procedure Code) and information concerning private life (Article 15(3) of the Criminal Procedure Code) may not be used other than for the purposes of addressing/performing the tasks of criminal proceedings. They cannot be interpreted in isolation from the process in which they are applied. The point is that the Criminal Procedure Code regulates the process of criminal liability, not disciplinary liability. This was also noted by Anatolii Miroshnychenko, a member of the High Council of Justice, in his dissenting opinion to the decision of the Third Disciplinary Chamber of the High Council of Justice of April 10, 2019 No. 1106/3dp/15-19.

In other words, in the context of using covert investigative (search) materials in disciplinary cases, these provisions should be understood as meaning that pre-trial investigation authorities may not use such information outside criminal proceedings.

At the same time, the Criminal Procedure Code itself provides that information obtained through covert investigative actions may go beyond the bounds of the criminal process (Article 257). If a ruling of an investigating judge is required to use such information in another criminal proceeding, the Criminal Procedure Code does not specify the mechanism for using it for other purposes. Accordingly, it is logical to transfer this information on the basis of Article 222(1) of the Criminal Procedure Code, which sets out the general rule on lifting the secrecy of the pre-trial investigation and disclosing such information. 

This approach is also supported by the position of the Grand Chamber of the Supreme Court. In particular, in its resolution of October 22, 2019 in case No. 9901/918/18, the Grand Chamber recognized the lawfulness of the QDCP obtaining materials from an ongoing criminal proceeding—including covert investigative (search) materials—as evidence in disciplinary proceedings: 

“61. In this regard, the Grand Chamber of the Supreme Court notes that information necessary for the Commission to exercise its powers may be obtained from any sources in the manner established by law. Therefore, the Commission requested and received, for the purposes of adopting the contested decision, copies of the materials of the criminal proceeding, the authorization to use which within the disciplinary proceeding, pursuant to Article 222 of the Criminal Procedure Code, was granted directly by the prosecutor. 

(…) 

63. Accordingly, there are no grounds to conclude that the evidence used in the disciplinary proceedings was obtained unlawfully.”

If we turn to disciplinary proceedings, the collection and admissibility of evidence are governed by the Law of Ukraine on the Judiciary and the Status of Judges and the Law of Ukraine on the High Council of Justice. In this context, these laws are the special legislation applicable to disciplinary proceedings, and they do not contain restrictions on the sources from which evidence may be obtained. 

Particular attention should be paid to the regulation of operational and search activities. In particular, the relevant units are required to inform the competent public authorities of facts and data known to them indicating legal violations related to the official activities of public officials (Article 7(4) of the Law of Ukraine on Operational Search Activities). In other words, the legislature has expressly provided for the transfer of information obtained covertly.

The existence of established Supreme Court case law on the admissibility of using covert investigative materials in disciplinary proceedings is important when assessing foreseeability as an element of the “quality of law.” 

The European Court of Human Rights has developed two requirements under the “in accordance with the law” criterion: the law must be accessible, and the norm must be formulated with sufficient precision to enable a citizen to regulate his conduct (The Sunday Times v. the United Kingdom, No. 6538/74, § 49).

In addition, the concept of “law” must be understood in a substantive, not merely formal, sense. It encompasses not only statutes in the narrow sense, but also subordinate legislation and unwritten law, including settled case law, which plays a major role in legal system of the Continental States (Kruslin v. France, No. 11801/85, § 29). 

Therefore, even if one were to assume, in theory, that the relevant legal basis in legislation could be regarded as insufficiently clear, the consistent and settled judicial interpretation of that basis eliminated any legal uncertainty. 

Legitimate aim and necessity in a democratic society

To assess whether the interference pursued a legitimate aim and was necessary in a democratic society, it is useful to refer to the most recent judgment of the European Court of Human Rights in Adomaitis v. Lithuania (No. 14833/18), in which the Court examined a comparable situation. 

In that case, the applicant was the director of a Lithuanian prison, whose telephone conversations were intercepted for a year and who was subjected to other covert surveillance on suspicion of abuse of office. Although the criminal proceedings were discontinued for lack of grounds for prosecution, the collected materials, authorized by a prosecutor, were used in disciplinary proceedings.

The ECHR held that the interference pursued a legitimate aim within the meaning of Article 8(2) of the Convention—namely, the prevention of crime and the protection of the rights and freedoms of others. The use of covert surveillance materials was also found to be aimed at ensuring transparency and openness in the public service, which the Court expressly treated as a legitimate aim of the interference (Adomaitis v. Lithuania, No. 14833/18, § 84).

In the Ukrainian context, the overwhelming majority of the cases considered by the High Council of Justice involved unlawful benefits or other corruption offenses; and since the start of the full-scale invasion, also conduct related to national security. Disciplinary review of cases supported by such materials clearly pursued a legitimate aim not only of protecting national interests—among other things by removing the relevant individuals from office—but also of performing a broader public function. This includes restoring trust in public institutions, implementing the principle of accountability, and safeguarding the authority of justice as a whole.

When assessing the necessity and proportionality of using information obtained in criminal proceedings, the ECHR took into account, among other factors, the aim of ensuring the effectiveness of law-enforcement institutions and high ethical standards for senior public officials. The seriousness of the alleged corruption conduct was also important. The use of these materials was clearly limited by law, and the applicant had the opportunity to challenge both the reliability of the evidence and the proportionality of the interference (Adomaitis v. Lithuania, No. 14833/18, § 87).

There is also another approach, for example, a judgment of the Court of Justice of the European Union concerning a prosecutor dismissed following disciplinary proceedings. The proceedings were based on materials obtained through interference with electronic communications and mobile-communications metadata. 

The prosecutor argued that the transfer of this information was inconsistent with Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. That directive prohibits interference with private communications, subject to a limited list of exceptions. 

The Court of Justice focused on the list of exceptions and stated that it contains a hierarchy from more to less significant aims. If materials were obtained under one exception (for example, the investigation of serious crime), they may be used only for more significant aims within the list (for example, protecting national security and public security). The Court indicated that disciplinary proceedings carry less weight in this hierarchy of aims. At the same time, the arguments of the governments of the Czech Republic and Ireland, referred to in the judgment, that such disciplinary proceedings concern public security, were rejected solely because the national court, in deciding the case, did not refer to any serious threat to public security (A.G. v. Lietuvos Respublikos generalinė prokuratūra, §§ 41–42).

Accordingly, the Court of Justice did not engage with the argument that disciplinary proceedings linked to corrupt conduct could relate to public security. In Ukrainian disciplinary practice, judges have been dismissed, among other grounds, based on evidence of involvement in corrupt conduct. Therefore, given the lack of reasoning and the absence of an assessment of the admissibility of such an approach, it cannot be stated with certainty that the Court considers the transfer of such materials to a disciplinary body to be categorically impermissible. 

Returning to the Ukrainian context, it should be noted that standards of integrity and professional ethics for judges are, in practice, among the highest applicable to any public officials. This follows from the scope of judges’ powers, as well as the exceptional guarantees of their independence and protection. In these circumstances, the seriousness of the recorded facts and the nature of the position support the necessity and proportionality of using materials from covert investigative (search) actions. 

At the same time, judges were not deprived of effective remedies. They were enabled to challenge the relevance and admissibility of the evidence in the criminal proceedings, and to contest its use in the disciplinary process. Moreover, judges could challenge in court both the submission of such materials to the disciplinary body and the manner in which those materials were assessed.

Violation of the presumption of innocence

Another argument against using materials from covert investigative (search) actions is that finding a disciplinary offense on the basis of such materials allegedly amounts to finding a person guilty of a crime without a court conviction. In other words, the disciplinary body is said to “prematurely” determine the existence of a crime before a court ruling. 

The presumption of innocence guarantees that a person is considered not guilty of committing a crime until a guilty verdict enters into legal force (Article 62 of the Constitution of Ukraine). It is important to understand that this refers specifically to a conviction on a criminal charge. 

Disciplinary proceedings, by their subject matter, respondent, standard of proof, procedure, and other features, are not a criminal charge. In particular, a disciplinary body does not determine whether the elements of a crime are present; it analyzes certain circumstances through the lens of professional ethics. Accordingly, disciplinary liability cannot, under any circumstances, be equated with a finding that a person is guilty of committing a crime. Moreover, a disciplinary decision has no binding effect for criminal proceedings, as the Grand Chamber of the Supreme Court also stated in its resolution of January 22, 2019 in case No. 800/454/17.

A situation is entirely possible in which a person may be held disciplinarily liable even though they were acquitted in criminal proceedings or the criminal proceedings were terminated. This approach is consistent with the case law of the European Court of Human Rights, as the Grand Chamber of the Supreme Court also noted, in particular, in its resolution of April 25, 2018 in case No. 800/547/17: 

“According to the case law of the European Court of Human Rights, it does not violate Article 6 of the Convention to impose disciplinary liability on the basis of information about facts established in criminal proceedings, where such information was analyzed from the perspective of rules of official ethics, even if the person was acquitted in the criminal proceedings (see, mutatis mutandis, the decision of the European Commission of Human Rights of October 6, 1982 in X v. Austria declaring application No. 9295/81 inadmissible) or the proceedings were terminated (see, mutatis mutandis, the decision of the European Commission of Human Rights of October 7, 1987 in C v. the United Kingdom declaring application No. 11882/85 inadmissible).”

In that decision, the Grand Chamber of the Supreme Court expressly indicated that the presumption of innocence cannot be extended to the disciplinary procedure.

Violation of the ne bis in idem principle

Closely related to the preceding claim is the argument that imposing disciplinary liability on the basis of materials from criminal proceedings may allegedly result in a violation of the prohibition on holding a person liable twice for the same conduct. 

However, the Constitution of Ukraine provides that no one may be held twice to legal liability of the same type for the same offense (the first paragraph of Article 61). 

Criminal liability and disciplinary liability are different types of legal liability. As noted above, the European Court of Human Rights allows disciplinary liability for conduct that was the subject of criminal proceedings, even where the person was acquitted or the proceedings were terminated. 

The Venice Commission has also repeatedly noted the possibility of applying different types of liability specifically to judges (Opinion No. 880/2017, CDL-AD(2017)002, § 18). 

Can the Supreme Court change its own case law? 

The Grand Chamber of the Supreme Court has repeatedly departed from prior case law, including its own. However, the positions of the Supreme Court carry significant weight: legal conclusions on the application of legal norms set out in its decisions are binding on all public authorities (Article 13(5) of the Law of Ukraine on the Judiciary and the Status of Judges). 

For this reason as well, such a shift must have sufficient grounds. The Grand Chamber of the Supreme Court has identified such grounds, in particular, in its resolution of June 8, 2022 in case No. 362/643/21:

• deficiencies in the previous decision or group of decisions (ineffectiveness, lack of clarity, inconsistency, insufficient reasoning, imbalance, or error); 
• changes in the societal context such that the approach applied in those decisions has clearly become outdated due to the development of social relations in a particular area or changes in their legal regulation.

As a result of the analysis, and from the perspective of an outside observer, the established case law does not display material deficiencies that would justify changing it. Nor have there been significant changes in the societal context since 2017 that would require a shift in approach. Moreover, the use of materials from covert investigative (search) actions in disciplinary proceedings has demonstrated its effectiveness.

Conclusions

The issue of using materials from covert investigative (search) actions in disciplinary proceedings unquestionably remains debatable. At the same time, existing national practice, the experience of other countries, and the approach of international institutions in situations similar in substance suggest that the use of such materials in disciplinary proceedings may be considered acceptable, provided that clear safeguards are observed. In particular, recent judgments of the European Court of Human Rights, as well as the consistent case law of the Grand Chamber of the Supreme Court, indicate the permissibility of this mechanism as one that does not conflict with human-rights guarantees.

Accordingly, in Ukraine’s current realities, there are sufficient legal and institutional preconditions to preserve the existing approach to using such materials in disciplinary proceedings against judges. There are no grounds today to revise that approach or refuse from it. 

This mechanism has already become an important element of accountability of the judiciary and of restoring trust in it. Information about the significant number of judges dismissed through disciplinary procedures on the basis of such materials convincingly demonstrates the system’s capacity for self-cleansing. At the same time, the use of covert investigative (search) actions must, of course, remain measured and proportional, and must comply with human rights and procedural safeguards—so that the pursuit of integrity does not turn into a threat to judicial independence.