Restricting the right to freely use the Unified State Register of Court Decisions on the grounds not expressly provided for by the Law of Ukraine "On Access to Court Decisions" is allowed only on the basis of a court decision - SC Grand Chamber

The High Council of Justice, whose competence includes, inter alia, the approval of the procedure for maintaining the Unified State Register of Court Decisions, cannot, when adopting decisions on the approval of this procedure or amendments thereto, assume the authority to establish certain grounds, not provided for by law, for restricting access to the USRCD (on the basis of a reasoned decision of the investigator or prosecutor), even if the purpose of establishing such grounds is to prevent unauthorised persons from obtaining information about the pre-trial investigation through full access to the USRCD.

Restricting the right to freely use the Unified State Register of Court Decisions on the grounds not expressly provided for by the Law of Ukraine "On Access to Court Decisions" is allowed only on the basis of a court decision.

The Grand Chamber of the Supreme Court emphasised this point in the case of the appeal against the decision of the High Council of Justice of 20 July 2023 No. 742/0/15-23, by which the procedure for maintaining the USRCD was supplemented by a provision on limiting (delaying) the provision of general access to the electronic resources of this Register on the basis of a reasoned decision of the investigator or prosecutor.

The plaintiffs in this case have argued that the aforementioned decision significantly restricts the rights of citizens (USRCD users) to access court decisions in comparison to the regulation established by the Law of Ukraine "On Access to Court Decisions". They have therefore filed claims with the Administrative Cassation Court within the Supreme Court as a court of first instance. The SC Administrative Cassation Court upheld the claims and declared the contested HCJ decision unlawful and invalid.

The HCJ and NABU disagreed with the judgment of the Administrative Cassation Court and appealed to the Grand Chamber of the Supreme Court.

The SC Grand Chamber stated that the right of access to judicial decisions is not complete (absolute), as there are certain types of information contained (or likely to be contained) in judicial decisions which may be subject to limited (deferred) access, or such access may be prohibited altogether.

According to the Law of Ukraine "On Access to Court Decisions", any restriction on the right of any person to obtain public information contained in court decisions must be in accordance with the constitutional principle of legality and serve the purpose for which such restriction is applied, and the purpose itself must prevail over the legitimate interest of the person seeking access to court decisions. Adherence to the principle of legality in restricting access to public information means that such restrictions should not only be established by law, but also prohibit the parties to relations in the field of access to court decisions, one of which is the HCJ, from directly or indirectly (covertly) introducing new restrictions.

In the context of the disputed legal relations, the HCJ did not have the legal authority to independently establish the grounds for restricting (delaying) general access to the electronic resources of the USRCD on the basis of a reasoned decision of the investigator and prosecutor.

As the Grand Chamber of the Supreme Court pointed out, within the competence of the public authority entrusted with the obligation to approve the procedure for maintaining the USRCD, the HCJ should specify the law on the basis of which access to this Register will be restricted, and not establish, prescribe and approve in its regulatory act rules for restricting general access to the USRCD, which it did not have and cannot have the competence to do, since such restrictions are established exclusively by law.

The Resolution of the Grand Chamber of the Supreme Court of 15 February 2024 ­in case No. 990/164/23 (proceedings No. 11-196заі23) - https://reyestr.court.gov.ua/Review/117340691.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.