High Council of Justice: Chair Election 2.0

In January 2025, the High Council of Justice (HCJ), the main constitutional body of judicial governance responsible for appointing and dismissing judges, bringing them to disciplinary responsibility, and, most importantly, ensuring the independence of the judiciary, was left without its head.

The two-year term of office of Hryhorii Usyk, HCJ Chair, has come to an end, and an attempt to elect a new chair on 27 January was unsuccessful. Hryhorii Usyk received nine votes, while HCJ member Oleksandr Sasevych, who also ran for the position, received six votes out of the minimum required 11. Two HCJ members did not support any candidate.

Currently, the body is temporarily headed by HCJ Deputy Chair Dmytro Lukianov, but his term of office will expire at the end of February. In mid-March, the four-year term of office of two HCJ members under the quota of the Congress of Judges of Ukraine, namely Inna Plakhtii and Vitalii Salikhov, will expire.

In this article, we will try to clarify what is happening inside the High Council of Justice, how it affects the HCJ and the judiciary, when new members may be elected, and whether there is a chance to elect a new chair on 20 February, as scheduled in the agenda.

Quorum and the risk of losing some functions

The High Council of Justice must consist of 21 members – 10 under the quota of the Congress of Judges and two members each from lawyers, prosecutors, scholars, the President and the Parliament. The Head of the Supreme Court is an ex officio member of the HCJ but, for objective reasons, does not work there every day. The HCJ quorum (and, accordingly, its powers) varies for different issues. It is at least 14 members, for example, for the appointment of judges.

In 2022, the HCJ did not work for almost a year, as there were three to six members in office at that time. Some of its functions were not performed at all, and some were transferred to the Head of the Supreme Court (for example, temporary secondment of judges and changes in court jurisdiction). Everyone saw how Vsevolod Kniazev’s excessive, almost imperial powers ended up in a year. We should not have any more such dangerous experiments not only in the judiciary but also in any other body because, as we know, “power tends to corrupt, and absolute power corrupts absolutely.”

At present, the HCJ has only 17 members (including Supreme Court President Stanislav Kravchenko). This is because the President has not appointed members according to his quota for almost two years. The third “presidential” competition for these positions is currently underway, as the winners of previous competitions did not satisfy the President and his competition commission.

The Ukrainian Bar Congress has not even started competitions under its quota for more than three years. This has long been a cause for serious concern within the country and for reaction from our European partners, who strongly advise us to prevent prolonged non-appointment of HCJ members. That is why the draft Rule of Law Roadmap (Titles 23 and 24 of the Fundamentals cluster) envisages holding an online bar congress as one of the measures on Ukraine’s path to EU accession. This will ensure that the election of judicial governance bodies or the re-election of bar self-government bodies does not take years.

The powers of two HCJ members will expire in three weeks. Only 15 members will remain in the HCJ. Formally, there is a quorum. However, some of the HCJ’s disciplinary functions will be blocked even with this number.

According to the law, the HCJ panel reviews decisions of disciplinary chambers to bring judges to disciplinary responsibility, but members of the disciplinary chamber that made the decision to discipline a judge do not participate in such meetings.

Thus, with only 15 HCJ members, the review of decisions of the disciplinary chambers will be blocked. Since these chambers each have five HCJ members, and 11 members are required for the plenary to be competent, it will be impossible to dismiss traitorous judges, corrupt officials, and all those who have decisions of chambers in which five HCJ members participated. This excludes recusals, illnesses, business trips, holidays, etc.

Extension of HCJ members’ powers

Of course, the most logical solution in such circumstances would be for the Congress of Judges to elect two of its representatives as soon as possible and for the President to appoint two HCJ members according to his quota.

However, the vetting of candidates who have expressed a desire to be elected to these positions is still ongoing. For example, on 14 February, Bohdan Monich, Head of the Council of Judges of Ukraine, informed that the Congress of Judges would convene “immediately after the Ethics Council presents candidates for the position of HCJ members.” However, the deadline for completing the vetting by the Ethics Council is unknown.

So, it appears that the instrument of preliminary vetting of candidates is quite correct in order to prevent the appointment of dishonest persons as HCJ members. However, this is the second “vetting commission” that has failed to provide candidates in time, and therefore, the work of the constitutional body is suspended or partially suspended (we recall that since the end of January, there has been no quorum in the Grand Chamber of the Constitutional Court of Ukraine, as the Advisory Group of Experts failed to vet candidates for CCU judges in time).

However, unlike the Law “On the Constitutional Court of Ukraine,” the Law “On the High Council of Justice” contains the following provision: “If the High Council of Justice may become incompetent due to the expiration of the term of office of an HCJ member, such HCJ member shall continue to exercise their powers until the day of electing (appointing) another person to their position, but in any case no more than three months upon the expiration of the term for which such member of the High Council of Justice was elected (appointed).”

There are two problems here at once. First, is there any reason to apply this provision now since the HCJ will not become fully incompetent in March but only in one of its functions? Second, this rule has never been applied before, so there is no working mechanism for its application, even if the HCJ interprets it in such a way that there are grounds for extending the powers of HCJ members Salikhov and Plakhtii.

We would like to remind that all this is happening amid the absence of a head of the High Council of Justice and the end of the term of office of HCJ Deputy Chair Dmytro Lukianov at the end of February (and, accordingly, the need to hold election for this position as well).

Second try

The re-election of the HCJ Chair is scheduled for 20 February, but there are several interesting nuances.

Back in January 2025, on the eve of the first election of the HCJ Chair, its members agreed that they would elect the Chair only if all HCJ members, including the President of the Supreme Court, were present at such a meeting.

On 27 January, these agreements were respected, but no one got the required 11 votes. At the same time, our sources in the HCJ say that one of the candidates was even campaigned for by the Presidential Office and the Parliamentary Committee on Legal Policy.

It remains a mystery how to implement the Rule of Law Roadmap, which envisages strengthening judicial independence. What kind of independence can we discuss if the political authorities try to influence the election of the HCJ Chair and some HCJ members “vote on command”?

However, commands do not end with the political authorities: Heads of some appellate courts also actively interfere with the election of the HCJ Chair. These are the ones who have been working in their positions for years, successfully bypassing the ban on third, fourth and fifth terms in office. By the way, the European Commission also requires that we deal with these stories, as reflected in the Rule of Law Roadmap. You can only imagine the internal resistance to its approval if it contains real measures to depoliticise and combat corruption and mutual cover-ups.

As for the announced date of the HCJ Chair election on 20 February, according to available information, HCJ members Usyk and Sasevych are planning to run for this position again. However, some members are scheduled to take leave during this period. Therefore, it will not be easy to fulfil the internal agreements on voting with all the existing members (unless they are recalled from their leaves).

Another interesting point is that on the same day, the consideration of the complaint of Pavlo Vovk, who is the former President of the Kyiv District Administrative Court, against the decision of the Third Disciplinary Chamber of the HCJ to bring him to justice in the form of dismissal is also scheduled. Usyk is the speaker in this case.

We would like to remind that during the consideration of Pavlo Vovk’s disciplinary case in the Disciplinary Chamber, there were such stories as mining of the HCJ building, failure of the voting system, power outages, change of courtrooms due to failing computer equipment, numerous motions, recusals, etc. It is an open question whether something similar will happen on the day of the HCJ Chair election. However, bearing in mind that this function of the HCJ may be blocked from March until new members are appointed to the High Council of Justice, there is no time to postpone this issue either.

Immediate tasks

So, either the HCJ will have a royal flush on Thursday or another postponement of important issues for an indefinite period. The HCJ Chair has a lot of tasks.

For example, special attention needs to be paid to establishing interaction between the HCJ members and the Service of Disciplinary Inspectors (SDI), which was launched at the end of last year.

According to HCJ member Oksana Kvasha (scholars’ quota), “The High Council of Justice has not found it easier due to the fact that the review of disciplinary complaints is now the function of disciplinary inspectors. The situation has become even worse for the HCJ, as there are problems with proper communication between the HCJ and the Service of Disciplinary Inspectors.”

International technical assistance (ITA) projects promised to help improve the work of the SDI. However, it is known that USAID projects have been suspended for at least three months. And the activities of some projects (such as IDLO) are of serious concern.

For example, from 14 to 16 February, the IDLO project funded SDI trainings in Zakarpattia, where disciplinary inspectors were taught about gender equality and social inclusion during the first session. These topics may be important, but how do they affect the way inspectors analyse disciplinary complaints about whether or not a judge has committed a disciplinary offence?

And during the second session, disciplinary inspectors studied the material on sexual harassment and a hostile work environment. Of course, there may be such complaints against judges (the HCJ recently considered a case of mobbing), but what is their percentage in the total number? One in ten thousand? And that one was closed due to lack of evidence.

Why the IDLO project teaches disciplinary inspectors, such a strange programme seems to be a rhetorical question. Perhaps because some ITA projects live by their own rules: they sell what they can raise funding for. Regulating this properly is also one of the HCJ’s tasks.

An equally important task is to hold a competition for the position of the Head of the State Judicial Administration of Ukraine. This issue has not been resolved for more than a year, and the main financial body of the judiciary has been functioning without a permanent head for a year and a half.

Instead of conclusions

In fact, the main task of the HCJ Chair, regardless of the name that will or will not appear on Thursday, should be to work on the real independence of the judiciary – in terms of interaction with other branches of government and within the judiciary, consideration of disciplinary complaints, protection of the authority of justice in the event of interference with the activities of a particular judge, and provision of financial guarantees for the independence of judges, etc. Of course, not independently, but at the level of the entire body: as the first among equals.

This can only be done by a person who is equidistant from all players in the political power, has no “debts” for their appointment, is not afraid to take responsibility for unpopular decisions, does not want to be convenient for everyone and is respected within the HCJ.

The High Council of Justice is the main constitutional body of judicial governance. The development (and successful reform) of the judiciary depends on its systemic work. We can only hope that all HCJ members fully understand this and are ready to take personal responsibility for it.