Article 11.1.
Judiciary

The legislative framework for the activity of the judicial branch in Ukraine is the Constitution and the Law on the Judiciary and the Status of Judges (LJSJ). The Constitution of Ukraine guarantees the administration of justice in Ukraine exclusively by the courts, and any legal dispute or any criminal charge is subject to the jurisdiction of judges. Delegation of functions of judges is not allowed. The LJSJ is a specialized law that regulates issues related to the organization of courts and the composition of the judiciary (selection, service, dismissal, evaluation, etc.).

The judicial system in Ukraine consists of courts of three instances and is built on the principles of territoriality, specialization, and instantiation. The highest link in the judicial system is the Supreme Court. Additionally, there are two higher specialized courts in Ukraine — the High Court of Intellectual Property, which is in the process of launching, and the High Anti-Corruption Court (HACC). It is worth noting that there is also the Constitutional Court of Ukraine, which decides on the compliance of laws of Ukraine or other acts with the Constitution of Ukraine, provides official interpretation of the Constitution of Ukraine, and has other powers under the Constitution.

The main staffing body of the judiciary is the High Council of Justice (HCJ). Its powers include: direct participation in the appointment of judges; making a decision on the dismissal of a judge from office, granting permission for the arrest of a judge; conducting disciplinary proceedings against judges (for this purpose, the HCJ has disciplinary chambers), consideration of complaints against the decision of the authorities to bring a judge or prosecutor to disciplinary liability; appointment of HQCJ members. The HCJ consists of 21 members appointed by self-governing bodies of judges, prosecutors, attorneys, as well as the President, Parliament, and representatives of higher legal educational institutions and scientific institutions. From July 3, 2021, the Ethical Council has been involved in the selection of HCJ members, which provides conclusions on the candidates' compliance with the requirements of professional ethics and integrity.

In the judicial system, there are also several state bodies aimed at ensuring the functioning of the courts. For example, the High Qualification Commission of Judges (HQCJ) is responsible for the selection of judges and conducting qualification assessments, and the judicial protection service functions to ensure the protection (including judges and their family members) and maintain public order in courts.

It is best to consider the independence of the judiciary in Ukraine through the basic principles of judicial independence:

1) Qualification, selection, and training
The selection of judges in all cases is conducted by the HQCJ, but the selection procedure for local courts and higher courts (appellate courts, higher specialized courts, and the Supreme Court) is different. In particular, the selection procedure for local courts consists of a selection exam, special training, a qualification exam (assessment of practical knowledge), and considering recommendations regarding the selected candidates by the HCJ. However, the selection procedure for higher courts is conducted according to the qualification assessment procedure (see below). The LJSJ requires that the selection of candidates be conducted in a transparent and public manner. The public and the media may be present during the examination. To participate in the competition, candidates must submit asset declarations.

The LJSJ establishes the conduct of a qualification assessment of judges. The basis for conducting it may be a judge's application or a decision of the HQCJ. During the assessment, the competence, professional ethics, and integrity of the judge are checked. It takes place in two stages — passing an exam (an anonymous questionnaire and a practical task) and dossier review with an interview (the dossier contains information related to the activities of a judge or a candidate for the position of a judge for the entire period of work). The assessment is open and transparent, involving the Public Integrity Council (PIC) at the HQCJ, which has the right to submit its conclusions on the judges' compliance with the criteria of professional ethics and integrity. In case of a negative decision of the PIC regarding a judge, the HQCJ can decide to let a judge pass the qualification assessment only having 11 votes (out of 16). If the judge fails to pass the qualification assessment, they may be dismissed by the decision of the HCJ.

2) Accountability, removal from office, and dismissal
The Constitution of Ukraine sets forth an exhaustive list of grounds for dismissal and termination of a judge's powers. The law provides for the procedure of bringing a judge to disciplinary responsibility. The disciplinary proceedings are conducted by the HCJ disciplinary chambers, which, after considering the case, may issue a warning, reprimand or severe reprimand (with loss of the right to receive supplemental payments), temporarily suspend the judge from office with retraining, transfer to a lower court or dismiss him/her.

The law provides for a number of anti-corruption instruments to prevent corruption in the judiciary. First, judges are required to file annual asset declarations as provided for by the Law on Prevention of Corruption, as well as annual declarations of family ties and declarations of integrity. All declarations are public (with some data being kept confidential). Secondly, judges are subject to requirements to comply with the rules of ethical behavior. The main requirements for ethical behavior are set out in the Code of Judicial Ethics approved by the Congress of Judges of Ukraine. It sets forth general requirements for judges' behavior, as well as requirements for behavior during court proceedings and in extrajudicial activities. Violation of ethical standards may lead to disciplinary proceedings against a judge.

The judicial system in Ukraine is frequently at the center of political and corruption scandals. This affects the overall confidence of the population in the court. According to opinion polls in 2021, only 27% of professional lawyers trust the court, and among the public, this figure is even lower — 10%.

One of the important roles in such a low confidence rating was played by problems with ensuring the independence of the judicial system and judges. Only 6% of respondents agree that the courts in Ukraine are independent and are not influenced by politicians, authorities, oligarchs, etc. Among lawyers, this figure is slightly higher — 9%. Judges themselves rate the independence of the judicial system in Ukraine by an average of 5-8 points out of 10 (63% of respondents assessed this range). The reputation of the judiciary has been significantly affected by the recent corruption scandal involving an alleged bribe to the Head of the Supreme Court in May 2023.On January 31, 2024, he was released from the pre-trial detention centre on bail, and on February 6, the High Council of Justice suspended him from justice until April 6, 2024. The problem of ensuring the independence of judges and the judicial system is complex and requires a detailed study of every aspect of it.

1) Selection of judges
Full-fledged selection processes of judges in Ukraine have not been conducted since 2017. As a result, the shortage of judges is constantly increasing, and the average workload of judges is growing. In November 2019, the law terminated the powers of HQCJ members.

However, due to problems with the formation of the selection commission, the new composition of the body had not been appointed as of November 2021. Initially, the main reason was the Regulation on the Competition, approved by the HCJ. It allowed the HCJ not to consider the decision of the selection commission, which invalidated the competition procedure as a whole. As a result, international partners refused to delegate their representatives to the commission and the competition was blocked.

Later, the selection commission was formed and held its first meeting in January 2022. However, due to the war, the work of the commission was suspended and resumed in July 2022. In December 2022, 64 candidates for the position of HQCJ members were admitted to the interview stage. At the meeting on 1 June 2023, 16 members of the HQCJ were appointed. The reopening of the HQCJ is one of the seven recommendations of the European Commission regarding Ukraine's application for membership in the European Union. On 14 September 2023, the HQCJ announced a competition to fill 560 vacant positions of judges in local courts. They are expected to be filled by early 2024.

At the same time, on 20 August 2023, a law clarifying the provisions on the competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine (CCU) came into force. We hope that there will be fewer reasons to complain about "dubious appointments" to the Constitutional Court, and that the transparency of the procedures will motivate lawyers with an impeccable reputation to apply for the positions. Thus, the competition will be held with the help of a specially created Advisory Group of Experts. It will further assess the moral qualities and level of competence in the field of law of candidates for the position of a judge of the Constitutional Court.

The procedure for the selection of judges is generally well-defined by law. The experts we interviewed mostly gave positive assessments of the legal regulation of the selection of judges. At the same time, they believe that, firstly, objective data collected through these procedures have at best only an indirect impact on the results of the selection due to the peculiarities of their interpretation by the judicial governance bodies, and secondly, that the procedure for the selection of local courts should provide for more thorough checks of the integrity of candidates, in particular with the involvement of the PIC, as is provided for the selection of judges of higher courts.

At the same time, the implementation of legislative provisions in practice has a number of shortcomings, such as the HQCJ's reluctance to take into account obvious facts gathered and provided by NGOs and official bodies in accordance with the law. For example, in the selection of judges to the Supreme Court in 2019, the HQCJ selected 15 candidates despite the negative conclusions of the PIC. Among them were those who, in the opinion of the public, made illegal decisions against the participants of the Revolution of Dignity, or, for example, interfered with the operation of the automated system for distributing court cases. If we consider all the competitions, 44 candidates who received negative conclusions from the PIC during the competition became judges of the Supreme Court. One of the candidates who, despite the PIC's negative conclusion, became a judge of the Supreme Court and for a long time chaired the Commercial Court of Cassation, ended up in a scandal in late 2022, due to his citizenship of the aggressor state, which resulted in significant reputational losses for the institution.

Despite these challenges, there are positive aspects of the judicial selection procedure that interviewed experts point out. An indisputable positive aspect was the procedure for selecting judges for the HACC. It was conducted at a high level and did not allow candidates who did not meet the integrity criteria to pass the competition. A decisive role in the selection was played by a specially created Public Council of International Experts (PCIE), which, like the PIC, participated in the competition. However, the key difference between them was the PCIE's ability to effectively veto candidates. As a result, 42 candidates out of 113 were excluded from the competition due to the work of the PCIE because they did not meet the integrity criteria.

2) Qualification assessment of judges
In 2016, the procedure for mandatory qualification assessment of all judges began. It was introduced to test judges' integrity, competence, and professional ethics. The main task of the assessment was to purge the judiciary of persons who did not meet the criteria. The qualification assessment was not completed. It stopped along with the selection of judges due to the absence of the HQCJ's authorized composition. According to the HCJ, another 2,132 judges did not pass the mandatory qualification assessment. The qualification assessment of judges is due to resume on 16 October 2023, and the first 57 judges are expected to pass it by 31 October 2023. Thus, in this section, we will give a preliminary assessment of the procedure that is about to begin.

Despite a proper legislative framework, in practice, the mandatory qualification assessment of judges has proven to be completely ineffective. The number of judges who were dismissed based on its results is insignificant, and the procedure itself contained a number of critical shortcomings. In the opinion of the expert community, the reasons for the low efficiency of the qualification assessment procedure are: rapid pace of interviews (on average, 320 per month); not difficult enough anonymous written testing (only 0.2% of judges did not pass it); opaque assessment (written works of judges and assessments based on criteria were classified); consideration of cases by members of the HQCJ who have a conflict of interest and themselves committed actions for which they may be dismissed, etc. Furthermore, the HQCJ's cooperation with the public during the qualification assessment was not constructive. The reason for this was the unwillingness of the HQCJ to consider the conclusions of the PIC. Cases of its circumvention did not contribute to the effectiveness of the qualification assessment either. Thus, in one day, 34 judges of the Kyiv Administrative Court (KAC) (more on this court below) did not come to take the exam due to a sudden simultaneous illness. As a result, they never participated in the qualification assessment.

3) Accountability, removal from office, and dismissal of a judge
First of all, it is necessary to mention two types of dismissals of a judge: under general circumstances and special circumstances. In the first case, the judge resigns voluntarily, retires, or is dismissed for health reasons. In the second case, the dismissal is due to disciplinary misconduct, or as a result of a qualification assessment, or due to a breach of eligibility requirements. The two types of dismissals have different consequences. For example, if a judge retires (which is possible only after 20 years of service), the right to certain bonuses is retained, including a lifetime monthly cash benefit. In other cases, judges lose this right. Given this, judges mostly seek to end their service by voluntary resignation.
Judges often abuse their right to resign, even when there are special circumstances for their dismissal. The HCJ, in turn, actively assists judges in abusing this right. For example, several judges who had to be dismissed under special circumstances (failure to pass a qualification assessment) applied for voluntary resignation. Instead of considering the issue of dismissal due to failure to pass the qualification assessment, the HCJ simply accepted the applications. This provided the judges with a one-time payment, a monthly cash reward, and lifetime salary. Due to such actions of the HCJ, the judges did not face negative consequences (including the ban on holding the position of a judge in the future), and the state budget spends hundreds of thousands of euros annually for the salaries of judges.
At the same time, it is worth mentioning the courts that have not been liquidated since the start of the judicial reform in 2016, which are now in the process of liquidation. This means that they do not work, but the employees and, in particular, the judges who remain on their staff and do not administer justice, receive salaries. This is not just one court and not just one judge, but 43 such judges. There are four courts. All this time they have been receiving salaries. According to our estimates, for over 5.5 years, judges who do not administer justice have received UAH 225 million (~5,56 million euros) in salaries from the state and have not yet been dismissed or transferred. However, the fate of judges may be decided by a draft law that is currently in the final stages of adoption.

4) Independence of the judiciary (institutional independence)

Opinions of judges and experts on the independence of the judiciary are dramatically different. Surveys and statistics show that judges see institutions that seek to reform the judiciary, including the public and parliament, as the greatest threat to their independence. In addition, most judges do not believe that their colleagues and other members of the judiciary are interfering in their activities. The expert community, on the other hand, believes that internal influence is the greatest threat to judicial independence. Here are the most common ways of influence, according to experts:

1) Influence by the Head of the court
This practice most often takes the form of friendly advice, recommendations, consultations, requests or instructions. Such actions are often not perceived by judges as attempts to influence them. According to public opinion polls, "judges tend to tolerate illegal requests/demands from representatives of the judiciary or not even perceive them as interference". Yet, such informal influence is perhaps the greatest threat to judicial independence. Legislation does not provide heads of courts with much opportunity to exert pressure on judges. In practice, the methods of influence impede the effective work performance and significantly affect the psychological state of judges. For example, court heads can: impede the arrangement of vacations, business trips or training; instruct court staff to interfere with the system of automatic distribution of court cases; put pressure on the judge's office staff, fail to appoint court clerks; assign the worst offices, unequipped courtrooms, etc. A striking example of this practice is the case of a Judge, who received direct instructions from the head of the court on how to rule on a particular case. After delivering an "incorrect" judgement, the judge received threats from the head of the court, which can be heard in the published audio recording.

2) Influence from the HCJ and its members
The HCJ's influence is most often exercised through the use of mechanisms of bringing judges to disciplinary responsibility. To do this, they use fake complainants who submit false complaints against judges who demonstrate independence.They are then actively considered by the HCJ and a decision is made to bring the judges to liability. The case of the Head of Kyiv Administrative Court (KAC) is an example of a flagrant violation of the independence of individual judges, judicial governance agencies, and the judiciary as a whole. The head was accused of trying to seize state power. During the period from 2019 to 2020, detectives of the NABU managed to gather the information that may indicate the head’s intervention and their associates in the activities of the HCJ, HQCJ, CCU, NACP, and other authorities of Ukraine. The recordings of conversations between the head of the court and their colleagues contain evidence: providing instructions to individual judges on specific cases; bypassing qualification assessment; blackmail of heads of state bodies for closing cases; etc. However, the biggest story was the head’s conversation with their deputy, in which they discussed the prospects of satisfying the lawsuit to recognize the absence of a coalition in Parliament, which was the basis for dismissing the Parliament “to get back at the incumbent authorities”. In the described case, the HCJ defended the head even after the recordings of the judge's conversations were published in the media. The HCJ refused to grant the request to remove the KAC president from office, which allowed the head to continue to administer justice. These and other factors led to the liquidation of the District Administrative Court of Kyiv and the establishment of a new Kyiv City District Administrative Court.

3) Disciplinary liability of judges
The institution of disciplinary liability is widely used to exert pressure on judges by the HCJ, as well as on participants in court cases considered by the judge. It is due to the large number of disciplinary complaints that the HCJ has an excessive workload. For example, in 2020, the HCJ considered 13,425 disciplinary complaints (an average of 36 complaints in one day, including holidays and weekends). According to statistics, the HCJ does not apply harsh reprimands to judges. In 2020, they commonly applied warnings (in 51% of cases), reprimands (in 19% of cases), severe reprimands (in 15% of cases), but only 14 judges were dismissed based on the results of disciplinary complaints (9% of cases considered). Despite the rather large volume of disciplinary complaints, the expert community raises a number of concerns that cast doubt on the impartiality and neutrality of HCJ members:

1. Delays. Despite the statutory deadlines for disciplinary proceedings (60 days from the date of receipt of the complaint), it is almost always violated. The consideration time actually depends on the will of the HCJ member. For example, some cases can take years to be considered, while others can be considered within a month. This practice is widespread due to excessive discretion in determining the time limit for reviewing a complaint and the lack of liability for its violation.

1. Inconsistent practice. The HCJ's disciplinary practice is highly controversial. In similar or even identical situations, the HCJ’s decisions may be entirely different. Such decisions are often politically motivated. For example, the HCJ refused to open a disciplinary case against a judge who issued an unjustified search warrant for a civil society activist.

1. Violation of publicity. Previously, all HCJ meetings were broadcast online, but in November 2019, the HCJ adopted amendments to its Rules of Procedure, which stipulate that meetings may be broadcast only with the consent of all parties in disciplinary proceedings. In fact, such amendments led to the absence of broadcasting, as judges who are brought to justice usually oppose broadcasting. In addition, there are cases when disciplinary proceedings have only one party – a judge in respect of whom the HQCJ has issued a recommendation for dismissal or appointment. The situation even deteriorated further with the introduction of quarantine during the COVID-19 pandemic, as restrictions on the physical presence of other persons at the hearing were imposed. In addition, according to the public, the HCJ is a systematic violator of the Law on Access to Public Information, as it does not publish open data and fails to provide the requested information without valid reasons.

Preventing corruption in the judiciary
1) Declarations
Judges, unlike other officials, are obliged to submit three types of declarations instead of just one. In addition to the asset declaration required of all officials, judges also submit a declaration of family ties and a declaration of integrity. Judges' asset declarations are verified by the NACP, and a judge may be brought to administrative or criminal liability for falsifying them. At the same time, judges do not bear any responsibility in practice for false statements in the other two declarations (although the law provides for disciplinary liability). The absence of liability of judges for false statements in integrity declarations and declarations of family ties is the result of the HCJ's misinterpretation of the law. The fact is that the HCJ refuses to verify these declarations and claims that it is the function of the HQCJ alone. However, since the HQCJ has not been functioning for about two years, judges are not actually responsible. As a result, the effectiveness of declarations of integrity and family ties is minimal. This is confirmed by the experts and judges we interviewed, as well as official statistics – in 2020, no judges were brought to justice for failure to submit/indicate false information in these declarations. Accordingly, it is necessary to increase their effectiveness through proper application.

2) Codes of ethical conduct
In their professional activities, judges use the Code of Judicial Conduct, which was adopted in 2013 by the main body of judicial self-government - the Conference of Judges of Ukraine. The Code is based on a series of international documents, including the Bangalore Principles of Judicial Conduct. In 2016, the Council of Judges of Ukraine (COJ), together with international partners, developed a detailed commentary to the Code. It contains a detailed description of each article of the Code, analysis and examples of its application.
Despite the satisfactory quality of the Code of Judicial Conduct, the assessment of its application is controversial. On the one hand, the experts we interviewed positively assess the Code, pointing out that judges, in particular under the influence of the Public Integrity Council and the PCIE, are increasingly paying attention to its provisions in their work. On the other hand, the HCJ very rarely holds judges accountable for violating it, and in cases of prosecution, the HCJ's practice is ambiguous and politically biased.

Implementation in practice after State evaluation.