“Quite a Lot of Challenges.” How Is Judicial Reform Progressing in Ukraine”? Partner material by EU Project Pravo-Justice together with hromadske.ua

At the end of June, the European Commission announced in the format of an “oral” report that Ukraine had fulfilled two out of seven recommendations that are mandatory to keep the status of a candidate for EU membership. Therefore, the judicial reform in terms of conducting competition-based selection to judicial government bodies and the adoption of media-related were marked as “fulfilled”. The next assessment is expected to be released in October, when the European Commission is expected to present a written report on Ukraine’s implementation of the recommendations.

hromadske spoke with the Team of the EU Project Pravo-Justice, which promotes the development of the rule of law in Ukraine in accordance with European standards, about the progress of judicial reform; successes and obstacles on the way to its implementation.

1. What is happening with the judicial reform?

The most extensive and comprehensive judicial reform in the independent Ukraine was launched shortly after the Revolution of Dignity, in 2016, and received a new impetus in 2021. The goal of the reform has been to improve the justice system so that the rule of law principle is established in practice, and the judiciary becomes effective and fair. All this is necessary, in the first place, to restore public trust in the judiciary; and also for the sake of Ukraine’s integration into the European Union.

In particular, one of the stages of the judicial reform consisted in the completion of the integrity assessment of candidate members of the High Council of Justice (HCJ) and the rejuvenation of that body; alongside the restoration of activity of the High Qualification Commission of Judges (HQCJ). The reform of the selection of justices of the Constitutional Court of Ukraine (CCU) shall be mentioned separately.

Thus, the renewed HCJ became operational this January, after the extraordinary XIX Congress of Judges elected their quota of eight HCJ members. This is how the authority of the independent constitutional judicial governance body was restored. The HCJ currently counts 17 members. Four positions are still vacant. The selection of candidate HCJ members is carried out with the help of a specially created Ethics Council радиEthics Council, which checks them for compliance with the criteria of professional ethics and integrity. The EU Project Pravo-Justice has been providing expert and logistical support at all stages of operation of this body.

The HQCJ started its work in June of this year. That was preceded by a long competition procedure with the participation of international experts. The competition consisted of several stages. The EU Project Pravo-Justice provided expert support to the Selection Commission in the process of selecting candidate HQCJ members. Thus, the Selection Commission processed 305 dossiers of candidates; held 61 interviews; selected 32 candidates who meet the criteria of integrity and professional competence.

2. What are these bodies, and why are they important?

HCJ and HQCJ are the two main judicial government bodies, which select judges; submit applications for their appointment; dismiss and bring to disciplinary responsibility.

At the time of the beginning of the full-scale invasion, neither HCJ nor HQCJ were operational. The full composition of the HQCJ was disbanded in October 2019, and most of the HCJ Members resigned a few days before February 24, 2022. Thus, the HCJ’s membership was not authorized to make any decision.

That caused a lot of problems, because after the intensification of hostilities and the occupation of certain regions of Ukraine, the courts in those territories suspended their operation, and the judges were transferred to other courts. Thus, over the year 2022, due to hostilities and occupation, judges from 135 courts were transferred to the territories controlled by Ukrainian government.

The HCJ should be responsible for the distribution of judges among courts, but before it became operation, those powers were exercised by the President of the Supreme Court.

3. What are the tasks the HCJ and the HQCJ are facing?

The HQCJ and the HCJ are facing a lot of challenges. For example, since August 2021, the HCJ has no authority to consider disciplinary complaints against judges. That is why there more than ten thousand pending disciplinary complaints and they continue piling up.

At the end of May, the Verkhovna Rada adopted in the first reading the draft law on unblocking the disciplinary function of the HCJ. In particular, it suggests to allow the HCJ considering disciplinary complaints before the establishment of the Disciplinary Inspectors Service (DIS). There is another draft law on the status and peculiarities of the formation of the DIS of HCJ. The experts of the EU Project Pravo-Justice have provided support in the development of draft laws, which are necessary for the restoration of the disciplinary function of the HCJ and the launch of the DIS of HCJ.

The main task of the HQCJ is the selection of judges. Competitions for judicial positions have not been held in Ukraine for almost four years. Since then, almost two thousand positions have become vacant. This constitutes about one fourth of judicial offices They shall be filled in, as this affects the workload of judges and the speed of trials. Proposals are currently being developed in Ukraine to improve the selection procedure for judicial positions. They are aimed, in particular, at streamlining and speeding up some stages of selection; reducing the duration of mandatory special training of judges; and clarifying the norms for checking the candidates’ integrity. The Project experts are also active members of the respective working group.

In addition, in 2016, a qualification assessment of all sitting judges has been introduced, which the previous composition of the Commission never completed. About 360 judges cannot administer justice, because their five-year term of office has expired, but they have not yet been appointed for lifetime.

The experts of the EU Project Pravo-Justice state that the lack of judges that arises in connection with these problems affects the quality of justice and makes it difficult for citizens to get access to it. This is a big challenge even for a four-year mandate of the HCJ and the HQCJ.

In the opinion of the EU Project Pravo-Justice Team, if these two bodies cope with these tasks, it will certainly increase the level of trust in them and in the judiciary in general. Not only does the protection of human rights and freedoms depend on this, but also the scope of investment in the country, development of businesses and the State as a whole.

4. What about the Constitutional Court reform?

The European Commission noted “good progress” regarding the introduction of competitive selection of justices of the Constitutional Court of Ukraine. It is this recommendation that is the first one on the list of the “candidacy seven”.

The CCU consists of eighteen judges. According to the existing legislation, the President, the Verkhovna Rada and the Congress of Judges appoint six justices each after holding the relevant competitions.

On July 27, 2023, the Verkhovna Rada, adopted in the second reading and as a whole, the law on clarifying the provisions on the competitive selection of candidate justices to the CCU, which changes the procedure for the competitive selection of justices to the Constitutional Court. According to it, the selection of candidates will take place with the help of the Advisory Group of Experts (AGE), which will check the moral qualities and professional competence of the candidates. The AGE will also be composed of the members delegated by international organizations and the Venice Commission, who will have the decisive vote.

The EU Project Pravo-Justice has provided expert support throughout the process of developing legislative amendments to the procedure of competitive selection of justices to the Constitutional Court of Ukraine and will continue supporting the CCU reform by supporting the operation of the AGE.

5. How long will it take to complete the judicial reform?

The selection of new judges and the completion of the qualification assessment of the sitting judges will depend on the work of the new HQCJ members. These stages of the reform are the most time-consuming, and it is difficult to predict when they will be completed.

If we talk about the President’s Strategy, there is still a lot of work to be done. This includes the setup of a new network of courts across the country; the launch of the institute of justices of the peace; the creation of the High Court on Intellectual Property (HCIP), and much more. The experts of the EU Project Pravo-Justice note that these tasks do not look unrealistic even in the conditions of war with the russian federation. All interested stakeholders should intensify their efforts to implement the reform, because its result pre-conditions Ukraine’s European future.

The text was first published in hromadske.ua.