On September 4, 2023, the Chairman of the Commission Roman Ihnatov met online with representatives of the joint delegation of the European Commission for Democracy through Law – the Venice Commission and the Directorate General for Human Rights and the Rule of Law (DG-I) of the Council of Europe.
The event was also attended by HQCJ member Roman Sabodash, Head of the Council of Judges of Ukraine Bohdan Monich, Head of the Council of Europe Office in Ukraine Maciej Janczak, representatives of the judiciary, international experts, and other stakeholders.
The purpose of the meeting was to discuss the draft law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the introduction of additional procedures to strengthen public trust in the judiciary” (draft law No. 9454 [Ukrainian]), which provides for the use of polygraphs for judges and candidates for the position of a judge.
Roman Ihnatov expressed the position that the use of such a tool is unacceptable, it cannot be used to determine the integrity of a judge and his or her ability to administer justice. The Chairman of the Commission noted the opinion of polygraph experts – due to a certain psychotype, a person, without being guilty, may be nervous before the procedure, which will lead to false results. He expressed doubts as to how the polygraph data will be used and interpreted and cited an example from the international practice of using psychophysiological surveys as an additional voluntary means of tracking behavior in law enforcement bodies. However, the Chairman of the Commission noted, this poses a threat to the independence of judges. Mr. Ihnatov also warned against the wording of Article 591 regarding the monitoring of the activity of courts in general, emphasizing the exclusively individual, not collective nature of legal liability under Article 61(2) of the Constitution of Ukraine.
The Commission member Roman Sabodash noted that the introduction of such measures would lead to the formation of ordinary measures for vetting judges not related to disciplinary liability, and emphasized the need to use other tools and abandon the use of a polygraph. He noted the opinion of the Public Integrity Council, which also does not support the draft law, and has significant reservations on this issue.
As a reminder, on August 4, 2023, the Chairman of the High Council of Justice appealed to the Venice Commission and the Directorate General for Human Rights and the Rule of Law (DG-I) of the Council of Europe to provide a joint opinion on the draft law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the introduction of additional procedures to strengthen public trust in the judiciary” (draft law No. 9454).
The draft opinion will be submitted for adoption at the 136th plenary session of the Venice Commission on October 6-7, 2023.