What are the next steps of judiciary reform?

In March 2023, the Selection Commission completed the competition for selecting candidates for the positions of members of the High Qualification Commission of Judges of Ukraine (HQCJ). It lasted for more than a year. During this time, out of 301 participants, the Selection Commission selected 32 candidates who met the criteria of integrity and professional competence and submitted the materials and documents on the persons recommended so that the High Council of Justice (HCJ) considers them. It is the HCJ that is supposed to interview, select and appoint 16 HQCJ members from the list of candidates proposed by the Selection Commission. Thus, one of the main bodies in the judicial governance system responsible for the selection and qualification evaluation of judges will finally become operational again after it suspended its operations for more than three years.

In early January this year, after almost a year-long pause, the newly selected members of the High Council of Justice started working again. The Congress of Judges elected 8 HCJ members under its quota, and then there was a total number of 15 members of the HCJ, the minimum number for this authority to duly operate.

Currently, the HCJ consists of 17 members who have been vetted by the Ethics Council for compliance with the criteria of professional ethics and integrity. In total, from November 9, 2021, to March 31, 2023, the Ethics Council vetted 4 current HCJ members and 111 HCJ candidates, having conducted 101 interviews with them.

Recently, the Ethics Council has completed vetting candidates for the position of HCJ member nominated by the President of Ukraine and started vetting candidates nominated by the Congress of Representatives of Law Schools and Research Institutions. Thus, in the near future, the number of members of this supreme body of judicial governance may reach 19 out of the 21 provided for by the Constitution.

However, with the relaunch of the HCJ and, hopefully, the HQCJ in the near future, the work on implementing judiciary reform is not over. So, what are the next steps towards its implementation?

Step 1. Overcoming staff shortage

Thus, at the end of 2022, 1840 judicial positions (28% of the maximum number of positions) remained vacant in the courts that were still operational, and their number continues to grow. Also, according to Hryhorii Usyk, Head of the High Council of Justice, more than 2,000 sitting judges have not yet passed the initial qualification evaluation, and 361 judges cannot administer justice because their 5-year appointment term has expired.

Staff shortage is an obvious problem that not only hinders citizens’ timely access to justice but also jeopardizes further functioning of Ukrainian judiciary. For example, in 2022, judges from the courts in the occupied territories were seconded not only to “follow cases” but also to courts where no proceedings could be conducted at all because there were not enough or there were no judges at all. Thus, as of the beginning of April, 3 courts in Ukraine do not administer justice because they do not have the authority to do so, 12 courts have only one judge, and 67 courts have 2 judges.

At the same time, filling vacancies with seconded judges is an interim solution, since only the formation of the HQCJ, which, as we have already noted, has not been operating since 2019, can systematically launch the process of filling the system with judges and staff. Unfortunately, the process may not go as fast as the current situation demands, in part because of the shortcomings of the competitive selection procedure of judges. On the one hand, it should become simpler and faster, and on the other hand, it should ensure that high standards are met.

Hopefully, it will be significantly improved in the near future through the efforts of a special working group established in mid-February 2023 under the Parliamentary Committee on Legal Policy. One of the possible steps in this direction could be to change the approach to the special training of candidates at the National School of Judges. Currently, as a general rule, it is to last twelve months for judicial candidates.

Step 2. Court remapping

The local self-government reform, the main phase of which was completed in 2020, was supposed to impact almost all areas of citizens interacting with the state, including justice. Given the new districts in the country, it was planned to remap local courts, thus striking a balance between their number and quality. In turn, this would make it possible to use budget funds more efficiently by saving costs spent on maintaining small courts: renovating premises, modernizing equipment, paying salaries to court staff, etc.

The work on drafting a methodology that would form the basis for court remapping began in 2021. It was planned to have been completed by January 1, 2023, but the full-scale invasion changed the plan. In particular, because part of the territory of Ukraine is occupied, the number of courts that cannot administer justice has increased dramatically. As a result, the workload of other courts has risen because territorial jurisdiction was temporarily changed. However, this part of the reform is still relevant, and budget constraints only make it more relevant.

Step 3. Reforming the Constitutional Court of Ukraine

Introducing a competitive selection of justices of the Constitutional Court of Ukraine is the first recommendation of the European Commission to Ukraine to make sure it maintains its EU candidate status. Thus, on December 13, 2022, a law was adopted to meet this requirement. From now on, the selection of candidates for the position of a justice of the Constitutional Court of Ukraine shall be carried out with the help of a specially created advisory body – the Advisory Group of Experts (AGE), which will assess candidates’ moral qualities and the professional competence in the field of law. The AGE is to consist of six people, but during the transitional period, three AGE members are to be international experts delegated by the Venice Commission and international organizations, and the rationale behind this step is clear.

It would seem that one of the key requirements from the European Commission has been fulfilled, and the law seems to meet the requirements of the Venice Commission, but unfortunately, not all the proposals of the Venice Commission were taken into account. Moreover, given the current version of the law, it is not possible to call it a truly European integration law.

First, the AGE will consist of six people, not seven as recommended by the Venice Commission. Moreover, international experts will not have a casting vote. That is, there are obviously very high risks that there might be political influence on the selection procedure.

Secondly, a significant drawback of the current law is that it is possible to appoint candidates who, in the opinion of AGE, do not meet the level of professional competence in law and do not have high moral qualities as CCU justices.

The current version of the law poses a serious threat to Ukraine on the path towards European integration. The Venice Commission and international organizations have refused to delegate their members to the AGE until the law is amended. Hopefully, the legislator will amend the law and take into account the recommendations of the Venice Commission. There is hope that this problem will be resolved positively as Ukrainian politicians have repeatedly stated that they promise to rectify the mistakes made.

Step 4. Digitalization of justice

It should be noted that Ukraine is one of the world leaders as far as digital transformation of public services is concerned. At the same time, the full-fledged transition of the national judiciary to smartphones and laptops is still yet to come.

The Unified Judicial Information and Telecommunication System (UJITS) was launched in January 2019. The system was supposed to gradually automate the lion’s share of court processes: document management, including between parties to cases, centralized storage of materials, automated case allocation, video conferencing, collecting and processing statistical data, and much more.

It was planned that in March of the same year, 8 of the 18 modules of the system would start operating in test mode. However, as of 2021, for one reason or another, only three are fully operational, namely the Electronic Cabinet subsystem, the Electronic Court subsystem, and the video conferencing module.

It should be noted that more than 4 years have passed since the UJITS was launched. During this time, the system has somewhat outdated and no longer fully meets the current user needs: some of its modules do not interact well with each other, and there are problems with updating them. Therefore, there is now an urgent need to carry out a full-fledged independent audit of the UJITS. It must not only determine the technical capabilities of the existing system and users’ functional needs but also plan further steps towards digitalizing court proceedings in Ukraine.

Steps 5, 6, 7...

In the context of judiciary reform, it should be noted that there are other no less ambitious tasks for the near future. First of all, it is forming the Service of Disciplinary Inspectors within the HCJ. It is on the basis of its conclusions that the HCJ can bring judges to responsibility, i.e., to perform one of the main functions assigned to this authority by law. It also includes establishing the High Court of Intellectual Property (HCIP) which is envisaged by the 2016 judicial reform. The competitive selection of HCIP judges launched in 2017 has not yet been completed. Moreover, it is also about setting up the Kyiv City District Administrative Court to replace the liquidated District Administrative Court of Kyiv as administrative justice in Kyiv and Kyiv region is currently inoperational. There are many other tasks on the way to transforming the Ukrainian judiciary to meet European standards. So, there is still a lot of work to be done.

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