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Courts Under Magnifying Glass. How Problems of HACC Reflect National Trends in Judiciary

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Courts Under Magnifying Glass. How Problems of HACC Reflect National Trends in Judiciary © Судебная власть Украины

In advanced countries, assessing the efficiency of courts has long been a common managerial practice. It resembles a regular medical checkup, allowing for timely identification of problems and necessary measures to be taken. International standards provide for a whole system of indicators: from the duration of case processing to the comparison of the costs of court proceedings with their outcomes. And these are not just numbers for the sake of numbers: they are used to make concrete management decisions that change the judicial systems of countries such as Austria, Germany, Canada, the United Kingdom and Australia for the better.

Unfortunately, there is still some resistance to such assessments in Ukraine: some do not see the need for them, while others consider them an infringement on the independence of the judiciary. However, a recent analysis of the work of the High Anti-Corruption Court (HACC) by the Accounting Chamber has clearly demonstrated the value of such an approach. The auditors identified both achievements and systemic problems of the court, substantively assessing its effectiveness.

This is a rare but successful example of how performance monitoring can help build a truly high-quality judicial system. After all, how can you improve something without measuring it?

First and foremost, this text is a call for the introduction of modern methods of assessing the work of courts at all levels of the system. This will allow not only to optimize costs but also to improve the quality of justice and citizens’ trust in the judicial system.

In its report, the Accounting Chamber named the pressure points affecting the efficiency of the HACC, but, hand on heart, its conclusions can easily be extrapolated to the Ukrainian judiciary as a whole. Undoubtedly, somewhere things are better, somewhere worse, but we will certainly not find those who were not affected by the problems mentioned by the Accounting Chamber.

We agree that the delay in case consideration is characteristic not only of the HACC but also for the entire judicial process in general. This is a typical mechanism for the accused to escape fair punishment.

In particular, the audit has revealed that in the period from 2019 to 2024, the HACC reviewed 46,439 cases and materials (which include, for example, determinations of investigating judges) in first instance and 4,702 cases and materials in the Appeals Chamber. The average duration of cases, at first glance, is quite short, from seven to ten days. However, these are mostly cases that have well-defined time limits and do not require final judgements. At the same time, the number of cases lasting more than one year at courts of first instance remains high, ranging from 39 to 49 percent.

One of the common ways to delay the consideration of cases is the well-known trick of replacing a judge. The vast majority of criminal proceedings are considered collegially by three judges. In case one of the judges is unable to continue consideration (due to vacation, business trip or transfer), he or she is replaced, after which the consideration of the case starts from the very beginning in accordance with the norms of the Criminal Procedure Code... And this trick can be repeated endlessly. If someone suddenly expresses disapproval of what is happening, you can always cite the shortage of staff. It is true that for some reason the shortage of staff hinders the timely consideration of the cases procedurally constrained by time limits, although no one denies that the problems with staff shortage in the system are serious.

Staff shortage poses one of the most difficult problems in court proceedings. In particular, the insufficient number of judges and understaffing of the HACC apparatus create risks of improper performance of the functions of the court. The expansion of jurisdiction to civil and administrative cases has increased the workload of the HACC, and the insufficient actual number of judges causes delays, increase in pending proceedings and decline in the efficiency of justice.

If we speak only about the HACC, 42 judges are needed to fill the staff of its first instance, but actually only 27 are working; the staff of the Appeals Chamber should consist of 21 judges, but in fact we have 11. Such a state of affairs does not contribute to the efficiency of the court either qualitatively or quantitatively. All the more so since in the near future hundreds of new detectives will appear in the staff of the National Anti-Corruption Bureau (NABU), which will increase the workload for the HACC.

In total, according to the High Qualifications Commission of Judges (HQCJ), there are about 2,060 vacant judicial seats (or robes) in the judicial system as of January 20, 2025. As a consequence, the shortage of judges in the courts, depending on the specialization and instance, ranges from 20 to 60 percent and even more. And if the capital is in trouble with personnel, imagine the situation in the Kharkiv or Kherson regions.

Sometimes the situation is already critical. Due to the lack of appointments over the last ten years, some appellate courts of the Sumy and Kharkiv regions are faced with the inability to form panels to consider cases. This can lead to the stoppage of criminal proceedings.

And even when there are those willing to serve in vacant positions, the bureaucracy delays the selection processes of judges to the point where such delay looks deliberate.

The High Qualification Commission of Judges, for example, has announced a competition to fill 1,800 vacancies in the first instance, but the process of selecting and appointing new judges may last until the end of 2025 or even mid-2026. The competition for 532 vacancies in the appellate courts has also been underway for over a year.

It’s no laughing matter, but the Accounting Chamber warned back in December 2024 that the lengthy procedure of the competition for vacant positions of HACC judges, announced by the HQCJ as early as November 23, 2023, creates risks of disrupting the implementation of the Ukraine Facility Plan for 2024–2027. As a result, in the first days of January, the HACC announced that the competition for positions in the Appeals Chamber, which had lasted for over a year, ended in nothing. Not a single judge was selected for the ten vacancies. And after the first stage in the first instance there were only seven applicants for the positions of 15 judges, of which, according to the optimistic scenario, three or four will reach the finish line.

The high workload of judges and lengthy procedures for their selection are the most important reasons that make it difficult to comply with the principle of reasonable time for the consideration of cases.

The average caseload of a trial judge in measured judiciaries of Germany or France is 50–60 cases per month. In the much more active judiciary of the United States, a trial judge may hear 100–150 cases per month. It is a lot, but in Ukraine the number is even higher: on average, one judge has about 200 cases per month. Of course, with such a race for quantity, the quality cannot avoid damage. Judges deal with a workload that exceeds the norm several times over. This leads to an increase in the time of consideration of cases and a decrease in the quality of justice.

That is why the problem of the lack of a system of indicators for assessing the quality of decisions requires special attention.

The HACC, for instance, does not keep records of decisions overturned or amended by higher instances, which makes it impossible to analyze the level of errors or shortcomings in court proceedings. Besides, the court has not defined criteria for the workload of judges, which makes it difficult to allocate resources rationally. The inclusion of such an indicator in the basic standards of work of both the HACC and other courts will increase the transparency and efficiency of the monitoring of decisions, and hence their effectiveness.

The automation of court proceedings in the HACC by introducing subsystems of the Unified Judicial Information and Telecommunication System (UJITS), in particular the electronic court and the integration of e-Case, is an important step to improve the efficiency of the organization of court proceedings. At the same time, shortcomings in the functioning of the UJITS and the D-3 document management software affect the efficiency and transparency of court proceedings.

The auditors of the Accounting Chamber state that the internal control system in the HACC meets regulatory requirements, but the issue of risk management remains unresolved, and the position of internal control specialist has been vacant since 2021.

Well, purely technical problems are also there: the government has not provided the court with proper premises for five and a half years, which creates additional obstacles to the fulfillment of its powers. The buildings where judges and staff work do not meet state construction standards.

Partial implementation of the measures of the State Anti-Corruption Program, in particular the introduction of single-judge courts, indicates gradual positive changes. However, a number of important initiatives aimed at improving court proceedings have not yet been implemented, which hampers the activities of the court, as noted in the report of the Accounting Chamber.

The findings of the audit emphasize the importance of introducing objective criteria for assessing the performance of the HACC. This will improve the quality of court proceedings, resource planning and transparency of processes necessary to restore confidence in the judicial system of Ukraine. These conclusions are also true for the rest of the courts.

 

Read this article in Ukrainian and russian.

 

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