ALI Feature for Dzerkalo Tyzhnia
Last week, the European Commission adopted the annual Enlargement Package, which provides a detailed assessment of Ukraine’s current state and progress on its way to the EU. The assessments were accompanied by recommendations for priority reforms.
In the Ukraine Report, the European Commission noted that “despite the continuation of Russia’s war of aggression, Ukraine has shown remarkable resilience and commitment to its European path.”
Brussels emphasises that “following the first Intergovernmental Conference in June 2024, the screening of the acquis is progressing smoothly. If Ukraine fulfils all the conditions, the Commission looks forward to opening negotiations on the clusters, starting with the Fundamentals, as early as possible in 2025.”
One of the key pillars of the Fundamentals cluster is the justice sector, which includes the EC’s screening of the Ukrainian judiciary, public prosecution service, bar, enforcement system and legal education. What does the European Commission recommend for Ukraine?
Justice sector development strategy
The first and one of the main recommendations of the EC is to develop and adopt a new medium-term strategic document for the justice system, which should cover optimisation of the court network, the judicial system and court management, strengthening of the Supreme Court and improvement of the procedure for selecting its judges, updating procedural codes, enforcement of court decisions, alternative dispute resolution, digitalisation, as well as reform of the bar, legal education and judicial training.
The Presidential Office is currently working on this document. Last week, Iryna Mudra, sectoral Deputy Head of the Presidential Office, spoke at the event “Ukraine’s path to the EU: key findings from the Shadow Report on Chapter 23 “Justice and Fundamental Rights” presented the key provisions of the draft Strategy for the Development of the Justice System and Constitutional Justice for 2025–2029.
In addition to adopting the Strategy, Mudra promises to develop an Action Plan with specific deadlines, responsible bodies, and KPIs. The main thing here is that the deadlines should be realistic and take into account the institutional capacity and the number of tasks already undertaken by the key bodies responsible for judicial reform, namely the High Council of Justice and the High Qualification Commission of Judges.
It is also important that reforms in key areas are proposed with respect to the independence of the judiciary and the CCU and accepted by key stakeholders. In this case, the chances of reform success increase significantly.
In 2019, Ukraine already had a negative experience of judicial and prosecutorial “reforms” by Ruslan Riaboshapka. Our country cannot overcome the negative consequences of this “reform” even five years later.
Institutional capacity of key judicial bodies
A significant number of the EC’s recommendations concern the institutional capacity of the HCJ, the HQCJ, and the Public Integrity Council.
For example, the report states that the President (the competition is ongoing) and the congress of lawyers (the competition has not been announced for three years) should fill four vacancies in the High Council of Justice and one vacancy in the HQCJ (the winner of the competition will be announced by the end of the year).
Equally important for the European Commission is the launch of the HCJ Service of Disciplinary Inspectors. Interviews with candidates who have successfully passed the competition will commence at the HCJ already next week.
The EC Report also refers to increasing the institutional capacity of the High Anti-Corruption Court (HACC) by appointing 25 new judges: 15 for the first instance and 10 for the appellate court.
Next week, candidates for HACC judges will start taking exams. On 6 November, the President signed a law extending the powers of the Public Council of International Experts, which, together with the HQCJ, will check the integrity of candidates for this court for 18 months.
Qualification assessment and competitions for judicial positions
The qualification assessment of judges, competitions to the courts of appeal and the aforementioned competition to the HACC have been going on for more than a year. Unfortunately, the results are rather modest. Over the year, about 170 judges completed the qualification assessment. This is only 10% of those who had to pass it as of the beginning of the resumption of this procedure.
However, notwithstanding the slow pace of the assessment, the EC notes that cooperation between the HQCJ and the PIC “is generally positive, despite some differences in the assessment of integrity.”
This is a good sign for Ukraine, as, after four years of suspension, it has finally made at least some progress in cleansing the judiciary.
At the same time, the European Commission notes that “the HQCJ should systematically ensure transparency and proper reasoning in its decision-making, and the HQCJ and the PIC should further improve cooperation.” There are certain problems with this, as there is currently an ongoing discussion between the Parliament, the HQCJ and the PIC regarding the latter’s access to judicial files.
This situation also has a historical component. NABU and the NACP provided the previous HQCJ and PIC with analytical information on judges in a way not prescribed by law.
This was effective, but it stopped at the beginning of this year due to the overload of these bodies with their own functions.
At the time, the HQCJ was not ready to collect and process such data on its own (and, accordingly, provide it to the PIC). Now, the situation has improved, but the system still fails from time to time. This has had a negative impact on the quality and pace of judge assessment until at least 2024. If the situation is not comprehensively corrected, it will also affect the pace of competition procedures, especially for candidates to courts of appeal.
The European Commission understands the problem, so it has made an interesting recommendation to solve it: “The NABU and NACP should increase analytical support to the HQCJ, and the latter should also develop its own capacities.”
In the Shadow Report on Chapter 23, “Justice and Fundamental Rights,” NGOs proposed an option for the HQCJ to develop its “own capacities” – to create a separate analytical unit within the HQCJ that would collect and process information on judges and judicial candidates from open and closed state registers for the purpose of competitions and qualification assessment for the HQCJ and the PIC. This means that analytical reports previously prepared by the NABU and NACP will be produced by the HQCJ itself.
This will require certain legislative changes, but the option proposed by the EC also requires them. Therefore, in the near future, we will have a broad expert and political discussion not only about the PIC’s access to judicial files but also about who should fill them in and how.
The European Commission also recommends “strengthening the capacity and effectiveness of the PIC, in particular by providing support staff and improving access to files.” In fact, the presence of a strong analytical unit within the HQCJ, which will provide PIC members with the same amount of analytical data as HQCJ members, will solve capacity issues for both bodies and even for the HCJ, which needs information from judicial and candidate files to perform its functions.
The EC also drew attention to the Supreme Court’s decision in Judge Usatyi’s case, in which the Grand Chamber deviated from its previous practice of qualification assessment, which threatened to disrupt it in relation to 180 judges. The author of this decision is Grand Chamber Judge Oleh Kryvenda. ZN.UA warned in its publications that he could not be elected as a judge of the Grand Chamber of the Supreme Court (GC SC) due to his questionable integrity. However, the Administrative Court of Cassation and its Chair, Mykhailo Smokovych, who is now running for election as a Constitutional Court judge, did not pay attention to Kryvenda’s low integrity.
As a result, Ukraine received far from a diplomatic warning from the EC for this decision, and the GC SC received another split among judges because, judging by the number of dissenting opinions, the decision in the Usatyi’s case was made with a minimal advantage, which gives a chance for common sense to prevail in other similar cases.
Integrity of judges
The integrity of judges of the Supreme Court and higher courts is also in Brussels’ sights. The EC report states that “to enhance the judiciary’s accountability and public trust in it, Ukraine should adopt legislation revising the system of judges’ declarations of integrity.”
“An upgraded system should include, for judges of the highest courts, a temporary but meaningful verification procedure that involves independent experts” – this is, in fact, a clear requirement of the European Commission, for which the judges of the Supreme Court and higher courts should thank not only Vsevolod Kniazev, who has already been dismissed from the Supreme Court for corruption but also those judges of the GC SC and especially judge Kryvenda who voted for the decision in the case of Usatyi.
The European Commission explicitly states that “corruption risks in the Supreme Court still need to be adequately addressed, in particular through the use of improved integrity declarations and verifications by the HQCJ, as well as asset declaration checks and lifestyle monitoring by the NACP, and an improved selection of Supreme Court Judges on the basis of the new legislative framework and unified criteria for evaluating the integrity of judges, approved by the HCJ.”
So, on the obvious side, Brussels is proposing stricter requirements for the integrity checks of judges of the Supreme Court and higher courts. What is not obvious is that it is unclear how they should differ.
New court to hear cases involving central authorities
Following the abolition of the District Administrative Court of Kyiv (DACK) in 2022, cases against central authorities (except for the president and parliament) are temporarily heard by the Kyiv District Administrative Court. The European Commission understands that this cannot continue and strongly recommends that a new court be created for this purpose “with the involvement of independent experts and a credible integrity and professionalism check of candidates.” They also strongly recommend completing the qualification evaluation of former DACK judges.
Training of judges
This year, the European Commission is also focusing on judicial training. The EC officials are good diplomats, and when they insist on the need for institutional reforms at the National School of Judges “to strengthen managerial and operational capacities” and “modernise training curricula and teaching methods”, this can only mean one thing: Ukraine needs a deep reform of the judicial education system.
In the Shadow Report, the civil society sector also drew attention to the low-quality and outdated education methods currently provided by the NSJU.
Therefore, in the short run, Ukraine will need to decide whether to rebuild the structure of the National School of Judges and change its management (which has not changed since the Yanukovych – Portnov era) or even eliminate it and build a modern Training Centre almost from scratch. This is not about changing the signboard but about changing approaches to managing the School and training judges. For this purpose, comprehensive functional, HR and financial audits of the NSJU should be conducted, and decisions should be made based on their results.
Instead of conclusions
The report contains many other recommendations, such as reforming the bar, ensuring the uniformity of judicial practice, strengthening prosecutorial self-government, and improving the enforcement of court decisions.
Ukraine will receive the next report on its progress in a year’s time.
Working groups are currently working on the Fundamentals cluster to develop roadmaps for each of the cluster’s areas. The European Union will measure Ukraine according to them.
As stated in this year’s EC report, “democracy, the rule of law and fundamental values will continue to be the cornerstones of the EU’s Enlargement Policy. EU membership remains a strategic choice.”
The last sentence of this quote may well become a national idea for the next five years because the path to the EU and the speed of its passage depend on our own choices and shared responsibility.
Author of the material:
