Setting up the Disciplinary Inspectors Service: a Task from the European Commission for 2024, which Ukraine Must Fulfill

On October 19, two interrelated laws came into force: the one on changing the status and procedure of formation of the Disciplinary Inspectors Service (DIS) of the High Council of Justice (No. 3378-IX) and another one on the immediate resumption of proceedings regarding disciplinary liability of judges (No. 3304-IX). Not only have these laws restored one of the HCJ’s key functions, which is disciplinary oversight, but also have initiated the competition-based creation of the DIS. On December 19, 2023, the HCJ announced a competition to fill 26 vacant positions at the DIS. Why is it important for Ukraine?

First, on November 8, 2023, the European Commission published a report on Ukraine within the framework of EU enlargement. One of the tasks that Ukraine faces in 2024 is setting up the Disciplinary Inspectors Service based on a transparent and meritocratic selection procedure.

Second, the consideration of cases related to disciplinary liability of judges has not been carried out for more than two years, starting from August 2021. The fact is that Law No. 1635-IX on the procedure for the election (appointment) of the HCJ members and the activities of the HCJ disciplinary inspectors provided for the creation of the DIS after checking the integrity of the then HCJ members with the support of a dedicated auxiliary body – the Ethics Council. As a result of the full-scale Russia’s invasion, that process got protracted and took place against the background of the HCJ losing its authority, which was only restored on January 8, 2023. After that, the discussion of a new model of the DIS’operation was launched, which ended with President Volodymyr Zelenskyi signing the aforementioned laws.

Thus, in accordance with the new legislation, disciplinary complaints will be temporarily considered by the High Council of Justice, before the DIS becomes operational. Thus, the authority of a disciplinary inspector will be exercised by a member of the HCJ Disciplinary Chamber (reporter), determined by the automated case allocation system. As a result, starting from November 1 to December 6, the HCJ Secretariat allocated 13,443 cases that piled up in the absence of a disciplinary function with the Council. Taking into account the new cases that continued to come in; as of December 6, their total number was 14,454. This is quite a challenge for the entire judicial system.

These powers should subsequently be delegated to the Disciplinary Inspectors Service. It should help to sort out the backlogs; organize and speed up the consideration of disciplinary complaints in accordance with the highest European standards of justice. According to Hryhorii Usyk, Chairman of the HCJ, its formation is number 1 priority on the Council’s agenda. The law defines the DIS as an independent structural unit within the HCj, which is set up to implement the disciplinary powers of the High Council of Justice in respect of judges. It is composed of 24 disciplinary inspectors, the Head of the Service and his/her Deputy. They are appointed to positions for a period of five years based on the results of an open competition.

Thus, as part of the preparation for the competition, on December 7, the High Council of Justice established a selection commission for the competition-based selection of candidates to the positions of disciplinary inspectors. The commission consists of 6 members, three of whom were appointed based on proposals from international and foreign organizations. It is important to note that it is the international members who will have the casting vote when making decisions. A similar approach was previously used for the formation of the High Qualification Commission of Judges and the High Council of Justice itself.

Thus, members of the High Council of Justice Yuliia Bokova, Olena Kovbii, and Olha Popikova became members of the selection commission. In turn, the following members of the selection commission from the international organizations have been appointed: John Erhlich, retired judge, adjunct professor at the Seattle University School of Law, Pavol Zilincik, ex-member of the Judicial Council of the Slovak Republic, as well as Reda Moliene, ex-head of the National Court Administration of Lithuania.

We hope that the competition to the DIS will take place in compliance with all necessary standards and as soon as possible. After all, the creation of the Disciplinary Inspectors Service, which will be responsible for the implementation of the HCJ’s disciplinary powers in respect of judges and will act in accordance with the principle of functional independence from the High Judicial Council, will contribute to strengthening the independence of the judiciary in Ukraine and increasing the trust of citizens in its decisions. This, in turn, will contribute to bringing the Ukrainian judicial system closer to European standards.

The text was first published in the permanent blog of EU Project Pravo-Justice at LB.ua.