A judge of Kyiv’s Solomyansky District Court allegedly caught with a $22,000 bribe was released by a Lviv court on Jan. 29 due to a lack of the High Council of Justice’s approval for his arrest.
The judge was arrested on Jan. 26. Earlier this month a judge of Kirovohrad District Court in the city of Kropyvnytsky was released for the same reason. He had been arrested when allegedly taking a $3,000 bribe.
The moves came amid a dispute between the High Council of Justice and the National Anti-Corruption Bureau of Ukraine over whether the council’s approval is needed for such arrest warrants for judges. The bureau and civic activists argue that the council’s position will lead to corrupt judges escaping justice.
Oksana Lysenko, a spokeswoman for the High Council of Justice, told the Kyiv Post that the National Anti-Corruption Bureau and prosecutors had failed to ask for the council’s permission to arrest the judge. She added that employees of the council had been on duty during the weekend and had been waiting for the bureau’s request.
Ihor Benedesyuk, chairman of the High Council of Justice, told the censor.net news site on Jan. 30 that the council was ready to consider such requests immediately to make sure that judges accused of crimes don’t escape.
Last September constitutional amendments on judicial reform came into effect, making it possible to detain judges in the act of committing a crime.
Previously, it had been impossible due to Ukraine’s extreme version of judges’ immunity. Critics say that such immunity made judges a corrupt untouchable caste not bound by the law rather than making it independent.
In August Mykola Chaus, a judge reportedly linked to President Petro Poroshenko’s top allies Ihor Kononenko and Oleksandr Hranovsky, was caught by the National Anti-Corruption Bureau with a $150,000 bribe. However, he fled because he could not be detained without parliament’s approval under the previous version of the Constitution.
The constitutional amendment passed in September read: “Without the High Council of Justice’s approval, a judge cannot be detained or held in custody or under arrest until the court issues a conviction, except for the detention of a judge during or immediately after he or she commits a grave or extremely grave crime.”
After the constitutional changes took effect, courts first regularly arrested judges without seeking the High Council of Justice’s approval, Daria Manzhura, a spokeswoman for the National Anti-Corruption Bureau, told the Kyiv Post.
However, the council on Jan. 17 issued a statement saying that, while judges can be arrested in the act of committing a crime, they have to be subsequently released unless the council authorizes an arrest warrant for them. The High Council of Justice said that this interpretation would help preserve judges’ independence.
The statement was then supported by the Ukrainian Association of Investigative Judges.
Civil society groups, including Chesno, the Reanimation Package of Reforms and AutoMaidan, argue that the statement contradicts the Constitution. The interpretation of the council will lead to corrupt judges fleeing since courts will have to release them when the 3-day detention deadline expires, the activists say.
The council has to decide on approving an arrest warrant for a judge within five days.
“In its public statement, the High Council of Justice assumed the function that it is not empowered with – to interpret the Constitution of Ukraine,” Manzhura said. “They don’t have the authority to interpret the Constitution. Only the Constitutional Court can do that.”
The National Anti-Corruption Bureau also issued a public statement on the matter.
“The judge of (Lviv’s) Halytsky District Court cited the High Council of Justice’s public statement, which has no legal force whatsoever,” the bureau said. “…The bureau believes that the situation contradicts the letter and spirit of judicial reform.”
