Dismissal Without a Verdict: Legal Boundaries and Case Law in Matters Involving Public Officials
Author: Yurii Bauman, Attorney, Chair of the NAAU Committee on Administrative Law and Procedure
Category: Administrative Law · Practice · Published: 11 June 2025
Contents
- The Red Line
- Two Tracks
- A Principle at Risk
- Lessons from Strasbourg
- Pitfalls
- Afterword
- Questions & Answers
A public official is suspected of wrongdoing, and society demands a reaction. But can that official be dismissed before a court delivers a verdict? Where is the boundary between cleansing the public service and upholding the right to a defense? This is ultimately a question of trust in the state, not just a procedural nuance.
The Red Line
A public official vested with authority bears not only political or moral responsibility but also legal responsibility, including disciplinary liability. These rules are set out in the Law “On Civil Service” and other special acts, such as the Law “On the National Police.”
A disciplinary offense is not any mistake but a culpable unlawful act or omission. It can include a breach of the oath or service discipline, violations of professional ethics, improper performance or disregard of duties, as well as conduct that discredits a state body or harms the reputation of the service. This is an autonomous legal category. The existence of a disciplinary offense does not depend on whether the conduct shows signs of a criminal offense.
Legislation provides several disciplinary sanctions: remark, reprimand, warning of partial service non-compliance, and the ultimate measure — dismissal. The choice depends on the nature and gravity of the offense, any recurrence, and the official’s prior conduct.
A service investigation is a mandatory stage. Its goal is not formal confirmation but establishing all relevant facts. The findings must be recorded in a report that forms the basis for further decisions. A superficial or incomplete investigation is a ready-made ground for a court to overturn the sanction.
Two Tracks
A criminal proceeding may run in parallel with the disciplinary process. They differ in legal nature, grounds, and consequences, and the law draws a clear line between them. For example, Article 77 of the Law “On the National Police” provides separate grounds for dismissal: as a disciplinary sanction, and upon a final criminal conviction.
The mere existence of a criminal case is not an automatic ground for dismissal. Such a decision is possible only where a disciplinary offense has been established.
The Supreme Court consistently affirms this separation (e.g., judgments of 28.02.2020 in cases No. 825/1398/17 and No. 818/1274/17; 20.10.2020 in No. 340/1502/19; 17.11.2022 in No. 480/9492/20; 07.02.2020 in No. 260/1118/18; 06.03.2020 in No. 804/1758/18; 30.08.2022 in No. 120/8381/20-a; 22.02.2023 in No. 200/11036/20-a; 14.03.2023 in No. 320/1206/21). The service commission must independently assess the facts and decide whether a disciplinary offense is made out.
A Principle at Risk
The presumption of innocence, guaranteed by Article 62 of the Constitution of Ukraine and Article 6(2) of the European Convention on Human Rights, applies to disciplinary bodies as well. The ECtHR emphasizes that the wording in disciplinary acts must not sound as if a person has already been found guilty (Allen v. the United Kingdom; Allende de Ribemont v. France). Even a hint in a decision or public statement can amount to a violation.
If a service-investigation report states that an individual “received an unlawful benefit” before any court verdict, that is a direct path to a finding that the dismissal is unlawful for violating the presumption of innocence.
Lessons from Strasbourg
ECtHR case law sets standards of fair process in disciplinary matters involving public servants (Article 6 ECHR). The “civil” limb applies where the dispute affects the right to work (Vilho Eskelinen and Others v. Finland). The Court distinguishes criminal-law assessment from an appraisal of conduct through the lens of public-service ethics (X. v. Austria; C. v. the United Kingdom; Ringvold v. Norway).
Legal certainty matters just as much: grounds for disciplinary liability must be foreseeable (Oleksandr Volkov v. Ukraine). Even if the proceeding is not criminal, it must satisfy core fairness standards: adequate notice, the right to be heard, evidence, and a reasoned decision (Denisov v. Ukraine).
Pitfalls
Typical errors that lead courts to quash dismissals include haste, formalistic investigations, conflating legal concepts, relying on public outcry, and vague grounds. Key questions:
- When to launch a service investigation: entry in the Unified Register vs. service of suspicion?
- Are disciplinary offenses being quietly replaced with corruption offenses that actually require a court judgment (para. 10 part 1 Art. 77 of the National Police Law; Supreme Court judgment of 02.10.2019 in case No. 804/4096/17)?
- Have concrete breaches of the job description been properly recorded?
- Were procedural guarantees respected: the right to be heard, to adduce evidence, and to receive a reasoned decision?
The Constitutional Court of Ukraine (case No. 1-15/99, decision No. 9-rp/99) has noted that the stage of criminal prosecution begins with the service of an indictment. In practice, detention or service of suspicion too often becomes an unjustified trigger for disciplinary procedures.
Afterword
Bottom line: dismissing a public official before a court verdict is permissible only where a disciplinary offense is clearly proven and the procedure is fully respected. Disciplinary proceedings are autonomous, do not replace the criminal process, and must respect the presumption of innocence. Wording, evidence and procedural guarantees are the keys to a lawful decision.
Published: 11 June 2025
The original text was first published on Yur-Gazeta: yur-gazeta.com/…/zvilnennya-bez-viroku-…
Questions & Answers (Administrative and Criminal Law)
When is dismissal before a verdict lawful? When the service investigation establishes a disciplinary offense and the sanction is proportionate. Can media buzz be a ground for dismissal? No. You need facts and admissible evidence within a proper disciplinary procedure. How to avoid breaching the presumption of innocence? Avoid criminal-law phrasing in disciplinary acts; describe conduct using public-service standards. What does a defense lawyer do here? Audits the procedure, evidence, and wording; builds a legal position with Supreme Court and ECtHR references.
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Disclaimer: this material is for general information only and does not constitute legal advice. For advice on a specific case, please seek individual legal assistance.