Decision of the Constitutional Court of Ukraine: “The constitutional provisions on the independence of judges are outweighed due to the legal uncertainty of Article 375 of the Criminal Code of Ukraine”
On June 11, 2020 the Constitutional Court of Ukraine adopted the Decision upon the constitutional petition of 55 People's Deputies of Ukraine regarding the compliance of Article 375 of the Criminal Code of Ukraine (hereinafter - the Code) with the Constitution of Ukraine. By this decision, the Court declared the challenged article of the Code unconstitutional.
It should be noted that Article 375 of the Code establishes criminal liability of judges for pronouncing a ‘knowingly unjust’ sentence, decision, ruling or resolution.
The petitioners emphasised that the combination of the words "knowingly unjust" is evaluative, its content is not defined by law, which does not ensure the predictability of the application of the disputed provision of the Code. According to the People's Deputies of Ukraine, Article 375 of the Code contradicts the principle of the rule of law, which violates the requirements of a number of articles of the Basic Law of Ukraine.
In resolving the issue raised in the constitutional petition, the Constitutional Court of Ukraine proceeds, in particular, from the fact that Article 375 of the Code does not establish criteria for determining which sentence, decision, ruling or resolution of a judge (judges) is ”unjust” and the meaning of the combination of the words “knowingly unjust” has not been disclosed, which may lead to an inconsistent understanding of the composition of the crime, the qualification of which is carried out according to this norm.
The Decision emphasises that the criminal law (Article 375 of the Code) must meet the requirements of legal certainty, clarity, consistency and predictability. This is a guarantee that a judge will administer justice on the basis of the rule of law and the effective exercise by everyone of the constitutional right to judicial protection.
Establishing criminal liability for a “knowingly unjust” court decision creates risks and opportunities to influence judges. In the Court's view, the constitutional requirements for the independence of judges are nullified by the legal uncertainty of Article 375 of the Code.
Given the above, the Constitutional Court of Ukraine found that Article 375 of the Code contradicts the principle of the rule of law, namely its element such as legal certainty, and does not comply with the principles of independence of judges, binding court decisions, and therefore contradicts Articles 8.1, 126.1, 126.2, 129.1, 129.2.9 of the Constitution of Ukraine.
Having established the inconsistency of Article 375 of the Criminal Code of Ukraine with the Basic Law of Ukraine, the Constitutional Court of Ukraine considers appropriate to postpone the repeal of this article for six months from the date of the Court's decision on its unconstitutionality. In this connection, the Verkhovna Rada of Ukraine shall bring the normative regulation established by this Article into compliance with the Constitution of Ukraine, as well as with this Decision.
The Decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
