Desired and Real. How the judicial reform progressed in 2023 and what needs to be done in 2024

In 2023, only 12% of citizens trusted Ukrainian courts. It is not surprising: society was shocked by a number of high-profile scandals. Only the story about the exposure of the head of the Higher Court of Ukraine Kniaziev for a bribe of almost 3 million dollars and the death of a National Guardsman at a roadblock under the wheels of a car driven by the (allegedly drunk) head of the Makariv District Court of the Kyiv region, Oleksii Tandyr, caused a great scandal.

To restore trust, the judicial system should be cleaned. This is also necessary for the integration of Ukraine into the European Union. Many steps have already been taken. But this year also promises to be difficult. Together with the DEJURE Foundation, we summarize and outline the year 2024.

 

Outcome No.1: Restarting the Higher Council of Justice

In January 2023, the renewed Higher Council of Justice became operational, a body that appoints and dismisses judges, as well as considers complaints against them. All candidates were checked for integrity and compliance with the criteria of professional ethics, which was conducted by a special Ethics Council, which consists of Ukrainian and international experts. Today, the Higher Council of Justice consists of 17 members, four more positions are still vacant: two representatives each must be proposed by the president and the congress of lawyers.

After a two-year pause, the Higher Council of Justice is again considering complaints against judges. More than 14,000 of them have accumulated. By the end of the year, this state body considered about one and a half hundred complaints. But there were only six prosecution decisions, and five of them were warnings. In addition, the Higher Council of Justice leaves many complaints without consideration or refuses to open proceedings. And it is not always possible to find a clear explanation in the decision. And this reduces trust in this government body.

Thus, the Higher Council of Justice refused to prosecute the judge of the October District Court of Poltava, Hanna Adrienko, instead of dismissing her, although this judge delayed 49 cases of drunk drivers, and they were simply closed due to the expiration of the statute of limitations. Also, this government body did not resume the process of disciplinary proceedings against the odious "Maidan judge" Viktor Kytsiuk, which would have entailed his dismissal.

On the other hand, representatives of the Higher Council of Justice began to deal with high-profile cases. In particular, Valerii Markov, judge of the Kuznetsovskyi City Court of the Rivne region, was dismissed for drunk driving.

This is especially evident against the background of the complete failure of the work process of the previous members of the High Council of Justice. Data on the coordination of the actions of individual members of the High Council of Justice with judges of the District Administrative Court of the city of Kyiv regarding the consideration of disciplinary cases are worthy of attention recorded on the "tapes of Pavlo Vovk" (wiretaps of conversations of the head of the District Administrative Court of the city of Kyiv). Or systemic cases, when there were cases of attempts to hide violations of the prohibition of judges who made arbitrary decisions.

Also, the Higher Council of Justice began to promptly consider prosecutors' submissions on the detention of judges. It is primarily about those who are suspected of corruption and treason. Thus, with the consent of the representatives of the Higher Council of Justice, more than ten judges have already ended up in pretrial detention centers. Among them is the notorious Vsevolod Kniaziev. 

Another long-awaited step took place in June 2023. Then the representatives of the Higher Council of Justice appointed a new composition of the High Qualification Commission of Judges of Ukraine. Thus, 16 members of the Higher Qualification Commission of Judges of Ukraine were also selected according to the updated rules. For the first time, international experts were among the members of the Competition Commission.

As a result, the current composition of the Higher Council of Justice is better than the previous one, but this is still not enough to establish the rule of law in Ukraine. The public will closely monitor the activities of the body in 2024.

 

Result No. 2: restart of the Higher Qualification Commission of Judges of Ukraine

In 2023, 18 people applied for each of the 16 seats in the Higher Qualification Commission of Judges of Ukraine. The competition included several stages: collection of documents, information from the National Anti-Corruption Bureau of Ukraine (NABU), The National Agency on Corruption Prevention (NACP) and the public, interviews with the best candidates. During this process, major scandals were avoided, but the public had doubts about the integrity of two members of the High Qualification Commission of Judges of Ukraine, namely Liudmyla Volkova and Volodymyr Luhanskyi. Also, in December 2023, the Foreign Intelligence Service received information that the current head of the High Qualification Commission of Judges of Ukraine, Roman Ihnatov, has citizenship of the Russian Federation. Ihnatov himself denied it. And the representatives of the Higher Qualification Commission of Judges of Ukraine announced that they would make inquiries to the relevant bodies and created a working group to verify the information.

It is worth reminding that the previous composition of the Higher Qualification Commission of Judges of Ukraine discredited itself. Some of the documents of judges' files were hidden, requests for access to public information were ignored, interviews with judges were often conducted behind closed doors. Therefore, it is not surprising that by 2019, less than one percent of the nearly 3,000 judges examined by the commission were fired. And the purpose of the qualification assessment is to determine whether the current judge is suitable for the position he holds or whether he should be dismissed.

For example, Vladyslav Deviatka was recognized as a virtuous and worthy "judge of the Maidan". Volodymyr Ponomarenko also passed the evaluation successfully, and just a few months later he was caught for bribery. Also, former members of the Higher Qualification Commission of Judges of Ukraine defended the reputation of Oleh Hlukhanchuk, who drove a car drunk and was rude to a patrolman.

In order to avoid such manipulations in the future, the new composition of the Higher Qualification Commission of Judges of Ukraine together with the Public Integrity Council agreed on a joint list of 18 indicators for evaluating judges. These include, for example, the dubious origin of property, the adoption of decisions with gross violations of the law, major restrictions on the right to peaceful assembly, etc.

The result of the first two months of the new qualification assessment is 12 recommendations for dismissal, although not without questions to the Commission. Thus, the representatives of the Higher Qualification Commission of Judges of Ukraine determined that Oksana Myroshnychenko, judge of the Holosiivskyi District Court of Kyiv, is not suitable for the position. She is the "judge of the Maidan" and justified in her court decisions drivers who drove cars while intoxicated. And the judge of the Pokrovskyi District Court of the Dnipropetrovsk region, Iryna Yedamenko, underestimated the value of the property in the declarations and "did not know" about the land plot registered in her name.

 

Result No.3: restarting the update of the judicial system

The Higher Qualification Commission of Judges of Ukraine has not worked for almost four years. And this body is responsible for the formation of the judicial system. So more than 2,000 vacant positions have accumulated (or 25% of the total number). In addition, many judges are retiring as the evaluation approaches, so the number of vacancies is only increasing.

The worst situation is in the appellate courts: according to Serhii Chumak, a member of the Higher Qualification Commission of Judges of Ukraine, the share of open vacancies there has exceeded 50%. This affects the workload of judges and the speed of processing cases.

In September of last year, competitions for 560 positions in local and 550 positions in appellate courts started in parallel. In November, it was planned to increase the number of members at the High Anti-Corruption Court of Ukraine, where the volume of work increased due to the receipt of new categories of cases.

Before the new year, the Verkhovna Rada of Ukraine also improved the procedure for qualification assessment and selection of judges. During the new selection, not the representatives of the Commission, but the judge himself after a successful evaluation will choose the place of work: the more points, the higher he is in the general rating and has a greater choice. That is, the one who took the first place chooses first; the second chooses the next and so on. The new law also simplified and accelerated the selection to courts of first instance (cancelled re-examination of selected candidates, shortened the term of their training, etc.).

There is also a rule that obliges judges from liquidated and reorganized courts to undergo a qualification assessment (hello to the judges of the District Administrative Court of the city of Kyiv).

After all, the Commission can conduct qualification assessment without the presence of the candidate. This decision blocked the practice, when many judges did not come to interviews because they seemed to be ill.

There are also drawbacks: from now on, the criteria of integrity are approved by the representatives of the High Council of Justice, in consultation with the Council of Judges of Ukraine. This can lead to significant manipulation of judicial governance and severe restrictions on what is considered unethical behavior. These and other mistakes will have to be corrected in new legislative initiatives in 2024.

 

Task No.1: clean up the Higher Court of Ukraine

After the high-profile bribery case in the Higher Court of Ukraine with the participation of its chairman Kniaziev, it became clear that without cleaning the Higher Court of Ukraine, the judicial system will not be positively evaluated. We will remind that, according to law enforcement officers, 13 more judges of the Higher Court of Ukraine probably played a criminal role in this bribery case in the amount of almost 3 million dollars.

Judge for yourself whether they have drawn conclusions. By a majority of votes – 108 out of 148 – the judges of the Higher Court of Ukraine voted for the new chairman Stanislav Kravchenko, who was distinguished by a negative opinion of the Public Integrity Council.

Such a result could be expected, because the selection of judges to the Higher Court of Ukraine in 2017-2018 can hardly be called successful: 80% of candidates with negative conclusions of the Higher Court of Ukraine were appointed.

In the midst of the scandal with Kniaziev, both the National Security and Defense Council of Ukraine (NSDC) and the president stressed that all judges of the Higher Court should be checked by the Higher Council of Justice. The answer of the People's Deputies was three draft laws (No. 9454, 9643, 9643-1), which immediately sparked a debate as to whether they would do more harm than good. Be that as it may, the Verkhovna Rada of Ukraine is in no hurry to consider them promptly: the documents have been gathering dust for several months.

In fact, effective mechanisms for checking judges already exist. One of them is declarations of integrity, which judges have been submitting since 2016. It seems that the representatives of the Higher Qualification Commission of Judges of Ukraine adopted them.

In November 2023, the Commission approved a new version of the declaration of integrity. Lying is grounds for disciplinary action, which can lead to dismissal. And there have already been such precedents. Thus, the Higher Qualification Commission of Judges of Ukraine caught the judge of the Higher Court of Ukraine, Olha Stupak, lying about the origin of her property. After the recommendation of representatives of the High Qualification Commission of Judges of Ukraine, the final decision on dismissal is taken by the High Council of Justice. Other anti-corruption bodies, in particular, the National Agency on Corruption Prevention (NACP), may collect and verify information in the process of analyzing declarations.

In order to restore trust in the Higher Court of Ukraine, public activists suggest launching a new round of verification. An independent party – the Public Council of International Experts – can handle this role. According to DEJURE, this Council, which helped select judges of the Higher Anti-Corruption Court of Ukraine, showed the best selection results so far.

 

Task No.2: to introduce full-fledged disciplinary responsibility for judges 

In 2024, an important unit, namely the Service of Disciplinary Inspectors, should become operational in the secretariat of the High Council of Justice. The inspectors will be the first to analyze the complaint against the judge, look for information to establish the truth, and prepare a draft decision for the members of the High Council of Justice.

Currently, the process of forming such a service is in an active phase. A commission has already been formed with the participation of members of the Higher Council of Justice and international experts; it will select inspectors on a competitive basis. Acceptance of documents continues. Candidates will pass examinations, integrity checks and solve situational tasks.

Until the Service of Disciplinary Inspectors is formed, this work will be performed by the members of the High Council of Justice themselves from November 22, 2023. In order for the society to trust the reformed governmental body, it must prevent manipulations with the sequence of consideration and long postponements of consideration of socially important cases. The High Council of Justice must determine whether the complaint meets the criterion of public interest according to the agreed rules. For this, the representatives of the High Council of Justice decided to consider complaints not in chronological order, but taking into account new prioritization criteria.

Thus, priority is given to complaints against judges that may lead to their dismissal, as well as complaints against those judges undergoing qualification evaluations or participating in competitions. Complaints against judges involved in incidents that caused significant public interest are also a priority. The latter primarily concerns those involved in criminal proceedings on corruption and treason, as well as judges whose actions undermine the authority of justice (for example, driving under the influence of alcohol).

 

Task No. 3: to create a truly independent Higher Administrative Court of Ukraine

The District Administrative Court of the city of Kyiv has become synonymous with top corruption due to its unique jurisdiction. This court considered all cases concerning state institutions that are physically located in the capital. And these are the central authorities. Therefore, the court could influence key state decisions. It was the District Administrative Court of the city of Kyiv that canceled the new spelling, declared the nationalization of PrivatBank illegal, reinstated Roman Nasirov and stopped the process of renaming the Ukrainian Orthodox Church of the Moscow Patriarchate (UOC-MP). And the list goes on...

Ideally, the jurisdiction of the former District Administrative Court of the city of Kyiv, which is currently in the process of liquidation, should be divided into two different courts: 1) Kyiv City District Administrative Court with local and Kyiv level cases, as in other district administrative courts; 2) The Higher Administrative Court of Ukraine with cases of the national level. Only in this way will it be possible to eradicate the problem of hyperconcentration of power. The memorandum with the  International Monetary Fund (IMF) already provides for the commitment "by the end of December 2023 to create a new court that will consider administrative cases against national state bodies."

While neither the Kyiv City District Administrative Court nor the Higher Administrative Court of Ukraine has been established, all cases of the Kyiv City District Administrative Court are considered by the Kyiv District Administrative Court (i.e., a regular regional court). Therefore, corruption risks remain quite high. The Kyiv City District Administrative Court has already been involved in high-profile stories. For example, about blocking the transparent process of certification of seafarers. They also made a decision there in favor of the scandalous Bohdan Lviv, who wants to be reinstated in the staff of the Higher Court of Ukraine.

 

Task No.4: conduct a transparent competition to the Constitutional Court of Ukraine

Currently, five out of 18 judges' seats are vacant in the Constitutional Court of Ukraine. They need to be filled in according to a new competitive procedure, as recommended by the European Commission in order for Ukraine to maintain its status as a candidate for accession to the European Union.

Now candidates for the position of the Constitutional Court of Ukraine will be evaluated by a new government body – the Advisory Group of Experts. This group of experts includes six people: one representative each from the President, the Parliament, and the Council of Judges of Ukraine. Three more members are represented by international organizations that provide assistance to Ukraine in the field of reforms and the rule of law.

Some concerns have already arisen regarding the three Ukrainian members of the Advisory Group of Experts. Thus, the Council of Judges of Ukraine delegated the ex-head of the Higher Court of Ukraine, Yaroslav Romaniuk, who supported the "dictatorial laws of January 16". The Verkhovna Rada of Ukraine elected Natalia Kuznetsova, who, as noted in Avtomaidan, is a member of a public organization created by regional People's Deputies Serhii Kivalov and Andrii Portnov. And the judge of the Sixth Appeal Administrative Court, Volodymyr Kuzmenko, appears on the "tapes of Pavlo Vovk" as someone who listens to the advice of Pavlo Vovk.

One way or another, high hopes are placed on the Advisory Group of Experts. If they choose worthy candidates, it will help create at least some balance in the Constitutional Court of Ukraine.

The latest appointments of judges show that they want to leave the Constitutional Court of Ukraine "manual". In particular, the parliament appointed Olha Sovhyra, a people's deputy from the "Servant of the People" party, as well as Viktor Kychun, a friend of Fedor Venislavskyi, a former representative of the president in the Constitutional Court of Ukraine, as a judge. At the same time, the appointment of Sovhyra was scandalous, because it was done in violation of Article 148 of the Constitution of Ukraine on the requirement for political neutrality. And the people's deputies decided not to stop there: in 2024, among the 29 candidates for the three seats of judges of the Constitutional Court of Ukraine – two deputies from the "Servant of the People" party Oleksandr Kopylenko and Pavlo Pavlish. There are also dubious persons among the 16 candidates from the Ukraint Council of Judges.

 

Purification-2024

The year 2024 will be crucial for judicial reform. It is expected that the High Council of Justice, the Service of Disciplinary Inspectors, and the High Qualification Commission of Judges of Ukraine will be fully operational. And as a result, ten years after this demand was stated on the Maidan, the judicial system can finally be cleaned both as a result of consideration of disciplinary complaints against judges and in the qualification evaluation process.

Above all, society expects justice for those who have become a symbol of disregard for judicial ethics. These are the judges of the Kyiv City District Administrative Court and the Pechersk District Court of Kyiv, and agents of the Russian Federation in the Higher Court of Ukraine, and in general all those who cannot explain the origin of their million-dollar fortunes and politically motivated decisions.

Ukraine may not have another such chance to restart the judicial system. Therefore, the bodies of judicial administration, people’s deputies and civil society must work in such a way that at the beginning of 2025, they are not ashamed of this work either in front of their Western partners or in front of themselves. 

Read this article in Ukrainian and russian.