Opanas Karlin
Partner, ESQUIRES
The public was stirred by the news that the State Bureau of Investigation (SBI) had notified a sitting judge of the Commercial Court of Kyiv of suspicion of high treason for issuing a “decision in the interests of the Ministry of Defence of the Russian Federation,” under which funds were recovered from Ukraine. It indeed sounds horrifying.
Let us try to examine, in the broadest terms, whether this is hype or treason.
The key facts concern the following:
- a) the timing of the court decision – September 2012 (more than 12 years ago);
- b) finality – the decision was upheld by the appellate and cassation courts (thus entered into legal force);
- c) the amount recovered – only slightly more than 1% was actually recovered (UAH 38.6 million of the UAH 3.1 billion claimed);
- d) reversal – in March 2014 the decision was reviewed due to newly discovered circumstances (i.e., circumstances unknown to the court during the initial proceedings); the claim was fully dismissed (the new decision entered into legal force); the court ordered reversal of execution and issued a writ for recovery of UAH 38.6 million from the Ministry of Defence of the Russian Federation;
- e) since 2014 the decision ordering recovery from the Russian Ministry of Defence has not been enforced, and the effectiveness of the government’s actions to enforce it remains debatable.
The judge issued a public statement countering the allegations made by the prosecutor and the SBI. However, this article aims to address the matter from a broader perspective.
Who Judges the Judges?
The essence of the suspicion, from its “objective side,” comes down to the judge’s adjudication of a commercial dispute and the issuance of a judicial decision with which law enforcement authorities disagree.
Is such a suspicion compatible with the principles of judicial independence and the binding force of judicial decisions?
The Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe states that judges are not obliged to explain the reasoning behind their decisions, judicial decisions cannot be reviewed outside the appellate procedures established by law, and the executive and legislative branches must refrain from criticizing them (§15, §16, §18 of the Appendix). Similar provisions appear in the Opinions of the Consultative Council of European Judges (No. 11 (2008), No. 3 (2002)).
For some time, whether law enforcement agencies may evaluate or question a judicial decision (especially one that has entered into force) remained a matter of debate. The issue was ultimately resolved by the Constitutional Court of Ukraine in its decision of 11 June 2020 No. 7-r/2020, which reviewed the constitutionality of Article 375 of the Criminal Code (criminal liability for rendering a knowingly unjust judgment).
According to the Court, the wording of Article 375 allowed abuse by investigative bodies, enabling them to prosecute a judge merely because, in the subjective opinion of an investigator, prosecutor, or any other person, a judicial decision is “unlawful” (particularly when they disagree with it).
Referencing Article 126 of the Constitution of Ukraine and the Venice Commission’s 2010 Report on judicial independence, the Court emphasized that “a final judicial decision cannot be reviewed except in cases established by procedural law, which precludes an investigator or prosecutor from assessing such a decision when undertaking actions that may result in criminal prosecution of a judge.”
These conclusions do not mean that judges enjoy impunity: law enforcement may prosecute bribery, unlawful interference, or even treason. There is only one “taboo”: the prosecution cannot be based on their own “more expert” evaluation of whether a judicial decision was lawful.
The Elephant in the Room
According to the publicly available SBI materials, the suspicion is based precisely on law enforcement’s conclusions regarding the unlawfulness of the decision. The alleged degree and “obviousness” of factual and legal distortions within the decision are presented as evidence against the judge.
Meanwhile, circumstances that would typically form the basis of such a criminal accusation—collusion, communication with “organisers” (Yanukovych and Azarov)—are not established, but merely “reasonably assumed,” derived from the supposed illegality of the decision itself. The subsequent actions of the appellate and cassation judges, who upheld the decision and were not deemed accomplices, remain unexplained. Law enforcement resolves this by sophistry: if the decision was “obviously unlawful,” someone must have influenced them.
Thus, typical of “high-profile” cases, everything is done inversely:
– the circumstances within law enforcement’s direct competence (e.g., documenting collusion, communications, awareness of the alleged scheme) are not established and rest on assumptions,
– while matters outside their competence—the legal analysis of a judicial decision—form the basis of the accusation.
Notably, it took 12 years to perform this “analysis.”
Completely overlooked is the fact that the decision was reviewed by competent bodies (appellate and cassation courts), which upheld it as lawful and reasoned.
A Turn in the Wrong Direction
In March 2014, the disputed decision was reviewed due to newly discovered circumstances, reversed, and a new decision issued fully dismissing the claim. The same judgment ordered reversal of execution and recovery of UAH 38.6 million from the Russian Ministry of Defence into the Ukrainian state budget. A writ of execution was issued.
The Cabinet of Ministers of Ukraine then only needed to submit the writ for enforcement. For this, a Russian court had to recognise the Ukrainian judgment.
In October 2015, the Moscow Arbitrazh Court refused to recognise and enforce the judgment of the Commercial Court of Kyiv. The Cabinet missed the deadline to appeal, abandoned enforcement efforts for eight years, and during this period managed to lose both the writ and the case file.
In March 2023, the commercial court restored the government’s deadline and issued a duplicate writ. The Cabinet announced the possibility of recovering UAH 38.6 million from the Russian Ministry of Defence, including from frozen Russian assets abroad. This was seen as a long-awaited chance to set a precedent for recovery against frozen Russian assets in the West.
Subversive Activity
(This section is purely legal in nature; non-lawyers may wish to skip it.)
The overarching object of high treason is Ukraine’s national security; the direct object consists of sovereignty, territorial integrity, inviolability, defence capability, and state, economic, and information security.
Economic security is indeed included. However, not every action that results in budget expenditures constitutes an encroachment upon economic security. Nor does every action detrimental to economic security satisfy the elements of this crime.
First, for budgetary expenditures to threaten economic security, they must reach strategic magnitude, capable of undermining the national economy on a macroeconomic scale (e.g., default, cessation of social payments). This is inherently evaluative.
Second, the objective manifestation of the act is essential.
High treason has only three forms:
- a) siding with the enemy during armed conflict;
- b) espionage;
- c) providing assistance to a foreign state, organisation, or their representatives in conducting subversive activities against Ukraine.
Thus, interpretation of “subversive activities”—a term undefined in Ukrainian law—becomes crucial.
The Supreme Court has held that “forms of subversive activity may vary,” meaning that orientation, not form, matters (e.g., ruling of 27.10.2021, case No. 759/7443/17).
By reference to UN General Assembly Declarations No. 36/103 and No. 2131 (XX), the Court concludes that subversive activities are actions of foreign actors aimed at undermining the foundations of Ukraine’s national security and causing significant harm to sovereignty, territorial integrity, inviolability, defence capability, or economic or information security (e.g., rulings of 06.12.2021 and 21.12.2022).
However, these Declarations do not define subversive activities nor distinguish them from other hostile external influences such as “interference.” Their descriptions apply broadly to actions aimed at depriving a state of its autonomy in determining its political or economic system.
The Supreme Court’s approach—treating any action that aims to harm security as “subversive”—does not fully correspond to the Declarations nor to the logic of Article 111 of the Criminal Code, which clearly distinguishes the purpose of harmful conduct (the object) and its manifestation (the objective element). Otherwise, the definition becomes circular and fails to overcome the presumption of innocence.
A more precise approach might analyse legislation on national security risks. For example, the now-repealed Law “On the Foundations of National Security of Ukraine” (2003–2018) identified “intelligence and subversive activities of foreign special services” as a key threat. Current legislation similarly assigns the Security Service of Ukraine responsibility for countering intelligence and subversive activities.
This narrows the scope of what may constitute subversive activity—but would require the SBI to prove facts they evidently do not possess.
The Treacherous Chronos
The judge is accused of taking an action (issuing a decision) harmful to Ukraine’s economic security by assisting Russia in conducting subversive activities through alleged deprivation of funding of “one of the spheres of public life.” The sphere is unspecified.
From a retrospective standpoint—after 2014 and 2022—the human mind tends to infer causation where none existed. The SBI’s statement claims: “According to the investigation, these funds were used to finance the so‑called ‘special military operation’.” Imagining that Russia preserved this relatively small amount for nine years, only to use it in 2022, strains credulity.
In 2012, Ukraine’s leadership felt secure in power, and society largely did not view Russia as an enemy. A lawsuit in favour of a Russian state body did not appear particularly scandalous.
The absence of aggression or evidence of plans for aggression at that time requires viewing the case in isolation. This creates reasonable doubt that a single judicial decision ordering recovery of a relatively small amount (in the context of the state budget) could jeopardise Ukraine’s economic security.
One may feel that the article is overly sympathetic to the judge. This is merely the inevitable consequence of professional deformation of an advocate, combined with a “nostalgia for the future” of Ukrainian justice, free from the traits of “revolutionary expediency” and the ineptitude of law enforcement.
Source: Korrespondent