A judge has a special status in society and the state, which is determined by his performance of an important social and state function — administration of justice. This leads to increased requirements for the person who wears the judicial mantle or claims it. After all, the determining criterion for a person to occupy the position of a judge and stay in it is the trust of society and the state, the absence of doubts about the appropriate level of competence and integrity.

Therefore, what is permissible in various spheres of life for an ordinary person is often unacceptable for a judge. Sometimes one act in one or another sphere of life is enough to make an unequivocal conclusion that such a person cannot be a judge a priori. And it is not necessary that this act be subject to the law and receive a legal assessment. The moral and ethical aspect may be sufficiently convincing for the appropriate conclusion.

Currently, the issue of ethical behavior of judges has been actualized by two interrelated aspects. The first — this is Russian military aggression and a war launched by the Russian Federation against Ukraine. The second — the need for Unified indicators for evaluating the integrity and professional ethics of a judge (candidate for the position of judge), the adoption of which is required by law.

In legal circles, a discussion has started regarding the content of the specified Unified indicators and, especially, regarding the admissibility (from the point of view of being a judge) of visiting the annexed Russian Federation by a judge/candidate for the position of a judge without an urgent need Crimea, other temporarily occupied territories (hereinafter — TOT) and the aggressor state.

The official position of the High Council of Justice (hereinafter — VRP) has not yet been formed. In this discussion, two diametrically opposed positions converged.

The first of them is that a judge/candidate for the post of judge who visited without urgent need the Crimea annexed by the Russian Federation, other TOTs or the territory of the aggressor state, should be recognized as not meeting such a criterion as "observance" ethical norms and impeccable behavior in professional activity and personal life".

The second position boils down to the fact that the Unified Indicators are "exclusively of a legal nature", and therefore the determination of a judge's integrity cannot be connected with the moral and ethical criteria for evaluating his behavior. I will immediately note that the second position is legally untenable, since the Law "On the Judiciary and the Status of Judges" (Part 9 of Article 69) it is established that «a candidate for the position of a judge meets the criterion of integrity if there are no reasonable doubts about his independence, honesty, impartiality, incorruptibility, conscientiousness, his observance of ethical norms, his impeccable behavior in professional activity and personal life…».

Personally, I am not only a supporter of the first position, but I defend it in every possible way. My vision of ethical requirements for a judge is formed on the basis of many years of scientific and teaching activity in the field of law, work experience as a member of the Supreme Administrative Court, the current legislation of Ukraine, international acts that regulate the behavior of a judge, as well as taking into account the practice of the VRP and the Higher Qualification Commission of Judges of Ukraine (hereinafter — the Supreme Qualification Commission of Judges of Ukraine), the results of analytical studies of the integrity of judges and the position of the competent bodies of Ukraine.

Ethical standards of judge behavior

The Bangalore Principles of Judicial Conduct (approved by the UN Economic and Social Council resolution of July 27, 2006) provide that:

• "Trust in the judicial system, as well as in the authority of the judicial system in matters of morality, honesty and incorruptibility of judicial bodies takes a primary place in a modern democratic society»; </p >

• these principles are approved so that "judges individually and collectively treat their position as a respected and honorable one, understanding the degree of trust of societies, and make every effort to maintain and further develop trust in the judicial system." ;

• "the judge demonstrates behavior that is impeccable even from the point of view of an outside observer".

The commentary to the Bangalore Principles of Judicial Conduct states: « A judge's personal behavior affects the judicial system as a whole. Public trust in the judicial system is based not only on the competence and scrupulousness of judges, but also on their honesty, incorruptibility and morality. A judge should be not only a "good judge", but also a "good person", despite the fact that the meaning of these words can be perceived differently in different strata of society. According to society, the judge has taken on the duty not only to serve the ideals of justice and truth, which are the basis for the rule of law and the principles of democracy, but also to embody them.

In the preamble of the new edition of the Code of Judicial Ethics (2024) it is stated: "Ensuring the right of everyone to judicial protection based on the affirmation of the principle of the rule of law, the administration of justice on behalf of the state of Ukraine on the basis of the Constitution and laws of Ukraine set high requirements for moral qualities of a judge. Aware of the significance (importance) of their mission, in order to strengthen and maintain public trust in the judiciary, judges of Ukraine believe that they are obliged to demonstrate and promote high standards of behavior, in connection with which they voluntarily accept more significant restrictions related to with compliance with ethical norms both in behavior during the administration of justice and in extrajudicial behavior».

In the context of the high status of the judge, it is worth mentioning the obligation of the participants in the court process to address the judge "Your honor!".

Therefore, ethical requirements for candidates for the positions of judges — it is not some secondary thing that stands after the requirement of independence, objectivity, honesty and incorruptibility. And more — in the analytical report "Investigation of the practice of applying the category of "integrity" (2024) in the context of selection and qualification assessment of judges» stated that the Public Council of Integrity considers the visit to the Russian Federation and TOT as not corresponding to the indicator of independence.

Therefore, compliance of a candidate for the position of judge with ethical norms is an overriding condition at each stage of selection.

In another Analytical Report — "Integrity in the justice system: on the way to uniform and clear indicators" (2024), which contains an analysis of the practice of the Supreme Court of Ukraine, the Supreme Court of Justice, the Ethics Council regarding the evaluation of the integrity of judges, candidates for the positions of judges or members of the Supreme Court of Justice, generalized cases of violation of personal integrity are formulated as follows: « After the start of the armed aggression, the judge (candidate for the post of judge) without urgent need visited the Russian Federation or the TOT of Ukraine».

Therefore, the integrity of a judge cannot be limited only to compliance with the requirements stipulated by law. In "Rules of ethical behavior of judges, their application and compliance" (The first expert commission of the International Association of Judges, 31.10.2004– 04.11.2004) stated: « Some principles of ethics may not recommend or even categorically prohibit actionsthat are not actually against the law. Such principles exist so that the judge is beyond suspicion and inspires adherence to the highest standards… The structure and content of any ethical principles must be agreed in each country with its own traditions and experience».

Why is the last thesis important to us? Because for the last ten years, Ukraine has been suffering from Russian armed aggression, the purpose of which is the destruction of the Ukrainian nation and state. Such circumstances cannot fail to affect the requirements for the ethics of a judge's behavior. In a state fighting for its survival and preservation, national self-awareness and patriotism take priority.

National legislation

Any judge — he is primarily a citizen of Ukraine.

In the Strategy for the Affirmation of Ukrainian National and Civic Identity for the Period Until 2030 (approved by the Resolution of the Cabinet of Ministers of Ukraine dated December 15, 2023), it is stated that "the existence and prosperity of Ukraine is impossible without general awareness by citizens of their national and civic identity".< /p>

The constitutional nature of a judge's observance of ethical norms determines the requirements for a judge as a citizen of his state. In the Law "On the Basic Principles of State Policy in the Field of Affirming Ukrainian National and Civil Identity" it is established that such principles are, in particular: the formation of an active civic position based on respect for human rights, the spiritual values ​​of the Ukrainian people, and national identity;defense consciousness and civil stability; patriotism...

The standards of integrity of judges should include patriotism and the manifestation of active citizenship, which is currently a condition for the survival of the Ukrainian state. Is it sufficient to establish a judge's integrity if he complies with the laws and observes the norms of professional ethics? Is it enough not to show an anti-Ukrainian position? In my opinion, no. Considering the special status of the judge, his exclusive mission in the administration of justice, the lack of an active civic position, the neutral-indifferent attitude of the judge to the need to preserve the Ukrainian national identity undermines the principles of state and national security of Ukraine.

According to the current legislation of Ukraine (in particular, the Law "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine") citizens of Ukraine are not prohibited from entering (exiting) the temporarily occupied territories of Ukraine freely and without hindrance.< /p>

However, is it safe to visit TOT? Are the rights and freedoms of Ukrainian citizens living in these territories or visiting them ensured? The question is rhetorical.

On June 25, 2024, the ECtHR announced a decision on the merits of the interstate case "Ukraine v. Russia (regarding Crimea)", in which it indicated that the Government of Ukraine provided comprehensive evidence that effectively and beyond any doubt demonstrated large-scale

and systematic violations by representatives of the Russian Federation and persons under its control of the rights and freedoms protected by the Convention on the protection of human rights and fundamental freedoms and the Protocols to it. The ECtHR also made findings regarding systemic violations related to the right to life, the prohibition of cruel treatment, the right to liberty and personal integrity.

As noted, according to the Constitution and laws of Ukraine, a judge has a special (special) legal status, which is characterized by the presence of certain requirements, restrictions on the occupation of this position and guarantees of his activity. In my deep conviction, this also applies to visits without urgent reasons to the ILO and the aggressor state.

Visit by judges (candidates for the post of judge), even in the absence of a direct prohibition of the law, the TOT and/or the territory of the aggressor state without an urgent need (for example, for the purpose of recreation, communication with friends, etc.) indicates a lack of citizenship, as well as harms the authority of justice.

As for the determination of the urgent need to visit the TOT and/or the territory of the aggressor state, it is related to an exceptional situation/vital necessity, when a person has a good reason for staying in these regions, when a vital issue cannot be solved in another way , than a personal visit to these areas. It is important to understand that such a visit by a judge (judge candidate) takes place despite the threat to one's own safety and the safety of loved ones living in the TOT, and, beyond any doubt, to the state and national security of Ukraine. Therefore, the reasons for visiting these territories must be valid.

The position of the Ukrainian special services and the NSDC

While researching this problem, I made relevant requests to our special services and the National Security Council regarding the presence of risks of visits by citizens of Ukraine who are judges or candidates for the position of judges, in terms of the national security of Ukraine.

These agencies are convinced that the currently regulated requirements and restrictions for judges mainly concern the corruption component and conditional ethical principles, but do not take into account the real and projected factors of the recruitment vulnerability of current judges and candidates for the position of judge , as well as national self-awareness and civic position.

Domestic spies and counterspies believe, based on the discovered forms and methods of activity of the special services of the Russian Federation, that the risks of recruitment by the special services of the aggressor state of citizens of Ukraine, primarily from the so-called "risk category" (who visited or are visiting the TOT, the territory of the aggressor state) are objectively real.It is appropriate to note that on July 24, 2024, the website of the Foreign Intelligence Service published an article entitled "Risks faced by Ukrainians who travel to the Russian Federation during the war".

The position of the Main Directorate for Countering Systemic Threats to State Management of the Department for the Protection of National Statehood of the Security Service of Ukraine is that in the conditions of the armed aggression of the Russian Federation against Ukraine, any so-called "urgent need" of such a departure incommensurate with the predicted risks and threats, primarily directly to the life and health of a person (judge/candidate), as well as state security and national interests of Ukraine in case of detention of such a person, his recruitment, etc.

The Main Intelligence Directorate of the Ministry of Defense of Ukraine noted that the special services of the aggressor state constantly conduct measures aimed at gathering information, as well as creating (documenting) compromising materials about citizens of Ukraine with the aim of further recruiting them. The risks of recruiting citizens who visited the territory of the Russian Federation or the TOT of Ukraine are growing significantly due to the high activity of the special services of the aggressor state there and their sufficiently wide capabilities. Citizens of Ukraine who visited the TOT of Ukraine and/or the territory of the Russian Federation were subject to mandatory "filtering measures" special services of the aggressor state.Representatives of the state authorities of Ukraine (in particular, the judiciary), considering the specificity of their activities and access to sensitive information, as well as persons with whom they communicate or are in family and friendly relations, constitute a special interest for the special services of the aggressor state.

Therefore, the presence of the specified persons on the territory of Ukraine and/or the territory of the Russian Federation with a high probability may lead to risks of threats to their life and health, the implementation of approaches and recruitment offers by the special services of the aggressor state under various pretexts, including using means of influence in the form of blackmail.

Ukrainian special services warn that the appointment of such citizens of Ukraine to public positions, in particular the positions of judges, significantly increases their intelligence capabilities and the interest in them of the special services of the aggressor state, and also creates a threat to the national security of Ukraine.

In their opinion, the requirement to show civic/national self-awareness, respect for Ukrainian statehood and patriotism, especially in the conditions of prolonged armed aggression of the Russian Federation against Ukraine and after the end of the legal regime of martial law, should be one of the main criteria of judicial integrity.</p >

Legitimate conclusion

The above convincingly proves both the validity of the practice of the VKKS, VRP and GRD of such an indicator as "visiting the TOT and/or the territory of the aggressor state without an urgent need", as well as the need to enshrine it in the Unified indicators for assessing the integrity and professional ethics of a judge ( candidate for the position of judge).

Undoubtedly, the fact of a judge/judge-candidate visiting the International Criminal Court and/or the territory of the aggressor state in itself is not an unconditional indicator of dishonesty and violation of ethics by the judge. Its assessment depends on specific behavior under certain life circumstances. Only an unequivocal statement of the absence of an urgent need to visit the TOT of Ukraine and/or the territory of the aggressor state can create grounds for refusing a candidate the appointment to the position of a judge or the subsequent stay of a person in the position of a judge of Ukraine.

If a Ukrainian judge is not a model of human and citizen behavior, a personification of national self-awareness and a civic position, then observing other indicators of integrity loses its meaning.

Opponents of establishing such an indicator for assessing the integrity and professional ethics of a judge also justify their position by the fact that this indicator is of an evaluative nature, and therefore there are no clear and unambiguous criteria for its determination. In my opinion, this is not a convincing argument, since the law provides for a large number of evaluative concepts, which VKKSU and VRP determine in each specific case, taking into account all the circumstances of the case. In fact, establishing compliance/non-compliance of the judge's activity with the requirements of the law — in most cases, it depends on the subjective assessment of each of the members of a certain body (VKKSU, VRP).

My colleague — Serhiy Burlakov, a member of VRP, researching this problem, referred to the scientific achievements of Professor Halyna Zymovets, who defines integrity as the inner virtue or moral quality of a person, strong> and by ethics he understands mainly a set of rules of conduct established for a certain social or professional group of persons.

Virtue — it is a characteristic of a person's behavior in the aspect of his compliance with moral norms inherent in this or that society. The scope of this concept depends on culture and era. Over time, the scope of the meaning of such concepts may change, because they have an evaluative nature and describe moral norms that largely depend on society.The content of the concepts under consideration can be modified depending on those moral imperatives formed by society at a certain stage of its development.

There is no doubt that at the current stage of its development — in the conditions of a bloody struggle for the survival and preservation of sovereign Ukraine and the Ukrainian people — Ukrainian society has already formed a moral imperative which denies visits by judges and candidates for judges of the International Criminal Court of Ukraine and the territory of the state/aggressor without an urgent need. Currently, the word is on the normalization and effective use of this moral imperative.

Oksana Kvasha, member of the Supreme Council of Justice, doctor of legal sciences, professor, leading researcher (part-time) of the department of criminal law, criminology and judicial system of the Institute of State and Law named after V. M. Koretsky of the National Academy of Sciences of Ukraine

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Ukrainian Pravda, November 27, 2024