Судову реформу в Україні можна буде вважати успішною лише тоді, коли суддівський корпус наповниться професійними та доброчесними суддями. Підвалини поведінки майбутнього правника закладаються ще в університеті, тому правнича освіта в Україні повинна бути якісною.
Стан правничої освіти близький до критичного – роботодавці не задоволені рівнем знань та вмінь випускників правничих шкіл, самі випускники правничих шкіл демонструють низькі результати на вступних іспитах до правничої магістратури. При цьому підготовкою юристів займаються сотні закладів освіти, а кількість правників-випускників в рази перевищує попит на ринку.
Збройне вторгнення росії спричинило серйозні втрати у якості підготовки правників. Значна частина як студентів так і викладачів правничих шкіл вимушено переїхала в безпечні регіони України та за кордон, а частина студентів та викладачів залишились на тимчасово окупованих територіях. Багато з них не мали повноцінного доступу до навчання після прийняття рішення про відновлення освітнього процесу. Заклади освіти стикнулись з проблемами фінансового та організаційного характеру.
Попри загальні часткові позитивні зміни, що відбувались останніми роками, ще дуже багато необхідно зробити для того, щоб юридична освіта відповідала найкращим світовим практикам та забезпечувала потребу, зокрема, в суддівських кадрах.
Продовження реформи правничої освіти, зокрема чітке розмежування правничої освіти і освіти правоохоронців, посилення вступних вимог та ліцензійних умов, посилення боротьби з недоброчесністю та оптимізація мережі закладів освіти визначено є частиною євроінтеграційних вимог до України.
Наше бачення проблем та необхідних кроків для їхнього вирішення в Карті реформи правничої освіти.
Renewal of the Supreme Court
The competitive selection for the Supreme Court (SC) in 2016–2017 turned out to be a failure, since two-thirds of the winners faced serious public concerns, and the presidents of all four cassation courts within the new Supreme Court were exclusively former heads of high specialized courts. From the outset, the SC is filled with low-integrity judges, including Russian agents. Corruption scandals, judges covering for their colleagues from the SC and other courts, have underscored the critical need for a comprehensive renewal.
Vetting the integrity of current judges is essential to eliminating corruption risks and restoring public confidence in the judiciary. Furthermore, an open and transparent competition to fill Supreme Court vacancies, with the involvement of the public and international experts, would ensure an efficient and fair judicial system, accountable to society and free from external influence.
The PCIE, composed of six experts nominated by international organizations, works alongside the HQCJ to vet the integrity of current Supreme Court judges and participate in the selection of candidates for vacant positions.
Vetting current Supreme Court judges:
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The PCIE and HQCJ jointly check the integrity declarations of current SC judges, which cover their entire lives.
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The HQCJ and PCIE submit a motion to the HCJ based on the identified violations.
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The HCJ prioritizes disciplinary proceedings based on HQCJ submissions and, if sufficient grounds are found, dismisses low-integrity judges from office.
Selection of Supreme Court judges:
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The HQCJ and PCIE jointly conduct an open, competitive selection process for vacant SC positions.
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The PCIE performs a "positive selection" by voting for candidates.
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The HQCJ recommends the appointment of judges based on their ranking.
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The HCJ submits its recommendation for the appointment of judges to SC positions.
New Quality of Administrative Justice
Cases involving the review of decisions made by national-level government bodies hold significant state and political importance. Therefore, such cases require a high-quality judicial body, the High Administrative Court (HACU), where judges should be selected through a strict, merit-based process in an open and transparent competition, with the involvement of international experts.
It is equally important to conduct an open and transparent competition for the vacant positions of judges in the Kyiv City District Administrative Court (KCDAC), a court with the same territorial jurisdiction as the liquidated District Administrative Court of Kyiv (DACK).
Establishment of the High Administrative Court (HACU) with jurisdiction over cases challenging the decisions of all national-level government bodies, including those of the HQCJ and the HCJ.
The PCIE (or a similar body) vets candidates for the HACU to ensure their integrity, competence, and practical skills for handling cases in the HACU.
A competition for the HACU must be announced within twelve months from the date the law on the HACU comes into force.
The HQCJ and the PCIE jointly select candidates for the HACU.
The PCIE conducts "positive selection" by voting for candidates.
The HQCJ selects candidates for the Kyiv City District Administrative Court (KCDAC) through an open and transparent competition.
The HCJ submits its recommendation for the appointment of candidates to the HACU and KCDAC based on the HQCJ recommendations.
Rebooting the Judicial Corps
Judicial reform has been ongoing since 2016, but its progress has been uneven across different areas. The most notable success was the competition for the High Anti-Corruption Court, where candidates were selected by a commission (PCIE) composed entirely of international experts nominated by international organizations. In contrast, selection bodies where half of the members were representatives of the Ukrainian judiciary, such as the Ethics Council, delivered worse results. The competition for the Supreme Court was particularly flawed by the compromised composition of the HQCJ.
As Ukraine moves towards EU membership, the most effective way to renew the judiciary is to ensure that all members of selection bodies are nominated by international organizations. Following the example of the PCIE, such bodies should not only have veto power but also conduct a ranking evaluation of candidates (positive selection).
In 2023, the HCJ appointed new members of the HQCJ from a shortlist provided by the Selection Commission. Despite the lack of transparency in the candidate selection stage prior to interviews, most low-integrity candidates were eliminated from the competition. The first months of judicial qualification assessment have shown relatively effective cooperation between the HQCJ and the Public Integrity Council (PIC), which gathers and analyzes information on the integrity and professional ethics of judges.
As organizations monitoring judicial reform, we are tracking the HQCJ's key functions regarding the cleansing of the judiciary and the selection of high-integrity judges for vacant positions through our special project HQCJ: Accomplishments and Problems. This will help evaluate how effectively judicial governance is performing its functions, or highlight the need to reassess approaches to the formation, evaluation, and disciplinary responsibility of the judiciary.
Providing for the completion of the qualification assessment (QA) of judges previously evaluated under the old procedure without PIC involvement.
Definition of “full access to judicial dossier materials” in law for the PIC and PCIE, allowing data processing.
Establishment of "reasonable doubt" as the standard of proof within the QA.
Selection of 2100 high-integrity judges for vacant positions, including in HACC, KCDAC, and HACU.
Thorough qualification assessment of 1884 judges, recommendations for dismissal of the DACK and Maidan judges, and continuation of the QA for all low-integrity judges pending their HQCJ plenary interview.
Proper review of current SC judges and selection of high-integrity judges for vacant SC positions.
Holding an open competition to renew the HQCJ Secretariat leadership.
Creation of a robust analytical center within the HQCJ Secretariat and restoration of public access to judicial dossiers and the Register of Declarations of Family Ties and Integrity.
The NSJU is responsible for the training, retraining, and professional development of judges and court staff through educational programs and training sessions. However, outdated curricula and low quality of training without due focus on practical skills lead to a lack of qualified professionals to fill vacant positions in courts, as well as to formal rather than actual improvement in judges’ knowledge.
Another problem is corrupt “secondments” to the NSJU, which some judges exploit to avoid fulfilling their duties in their respective courts.
Shortening the duration of training based on workload.
Aligning educational programs with European standards.
Providing training on judicial ethics and integrity.
Seconding expert judges to the NSJU, rather than those seeking to avoid their court duties.
The reformed HCJ began its work in early 2023. The Ethics Council, with international experts holding the casting (prevailing) vote, vetted the current members of the HCJ and selected candidates in a competition for approval by appointing authorities. However, misunderstandings by some foreign experts regarding the local context, along with the lack of interview broadcasts and public communication, led to the appointment of some low-integrity candidates to the HCJ.
As organizations monitoring judicial reform, we have unfortunately observed predominantly negative trends in the HCJ’s work: see The “Rebooted” High Council of Justice: Wins and Fails. If the rebooted HCJ continues to obstruct the judiciary's cleansing process, it will confirm the need to reconsider the approaches to forming this body, or even its very existence.
Prevent judges from avoiding the qualification assessment (QA) and disciplinary cases by retiring.
Expand the HCJ’s authority to verify compliance with anti-corruption laws and confirm the legality of judges' assets.
Establish clear mechanisms ensuring timely review of priority disciplinary cases, maintaining the deadlines to review HQCJ submissions on the dismissal of judges.
Grant the right to appeal disciplinary chambers decisions to complainants and the Service of Disciplinary Inspectors in all cases.
Resume the review of disciplinary complaints and HQCJ submissions on judge dismissals after a judge’s reappointment or reinstatement.
Define the standard of proof and decision-making process regarding judges and retired judges acquiring foreign citizenship.
Dismiss low-integrity judges based on HQCJ submissions.
Suspend consideration of the judge’s retirement until the completion of the qualification assessment or if there is a complaint about a significant disciplinary offense.
Approve the Unified Indicators for Assessing the Integrity and Professional Ethics of a Judge (Judicial Candidate), taking into account the HQCJ and PIC positions.
Appoint high-integrity professionals to the Service of Disciplinary Inspectors through transparent and fair competition.
Ensure the fair review of thousands of disciplinary cases against judges;
Conduct a timely review of priority disciplinary cases according to the established mechanism.
Respond promptly to information about judges or retired judges acquiring foreign citizenship.
The SJA is subordinate to the HCJ and is responsible for court funding, staffing, training, organizational support, and the implementation of information technologies.
Despite the systematic underfunding of the judiciary, the main issue is the SJA’s inefficient use of allocated funds. Former SJA leaders were involved in the “Vovk tapes” scandal, took bribes to influence Supreme Court judges or misappropriated property by abusing their power.
Additionally, the SJA unevenly distributes funds, with financing for similar courts differing significantly, or allocates resources to the production of meaningless branded merchandise. The SJA is also characterized by excessive bureaucracy and slow digitization.
Administrative functions in courts are carried out by court presidents. Given the corruption risks, it is advisable to eliminate the positions of court president and deputy president, transferring their powers to court administrator and judges' assemblies.
Elimination of the positions of court president and deputy president (except the Supreme Court) and the transfer of their powers to the court administrator and judges' assemblies.
Conduct an open and transparent competition for the head of the SJA with the meaningful involvement of international experts;
Conduct open and transparent competitions for leadership positions within the SJA;
Perform a comprehensive audit of operations, establish a "Reform Office," and implement an effective and transparent process management systems (e.g., OKR);
Increase accountability for judiciary expenditures;
Prioritize court funding according to their specific needs;
Focus on digitalizing the judiciary and fully implement the Unified Judicial Information and Telecommunication System.
The Council of Judges of Ukraine is the highest judicial self-governance body. It convenes the Congress of Judges of Ukraine and ensures the implementation of its decisions. Its activities should be focused on strengthening the independence of courts and judges, as well as providing legal and social protection to judges. However, for many years, the CJU has shielded low-integrity judges and exerted pressure on whistleblowing judges. Additionally, CJU has actively opposed judicial reform, sabotaging the implementation of laws aimed at cleansing the system and delegating low-integrity members to selection commissions; this information is available in our special project, Failures of the Council of Judges.
In addition, the Venice Commission has repeatedly recommended that Ukraine should simplify its system of judicial governance.
Liquidate the Council of Judges and transfer its powers to the HCJ, where most members are judges elected by judges.
New Quality of Legal Education
Judicial reform is impossible without high-quality legal education. The issues of corruption and academic dishonesty that plague the educational system must be addressed to create an effective and fair judicial system in Ukraine. Despite a large number of law school graduates, there is already a significant shortage of professional and decent candidates for more than 2,000 vacant judge positions. The reform of legal education is urgent, as emphasized by the European Commission and G7 ambassadors. This reform is crucial to ensuring Ukraine has enough professional and honest judges, lawyers, and prosecutors in the future.
Separation of legal education from the training of specialists for law enforcement agencies.
Eliminating the legal education requirement for leaders of government agencies where it is not necessary.
Reducing the number of law schools.
Abolishing extramural study for law students.
Establishing higher admission standards for law schools.
Improving the Unified State Qualification Exam by raising the threshold score and enhancing the quality of assignments.
Implementing transparent, competitive distribution of state-funded enrollment.
Modernizing curricula.
Reformed Bar and Prosecution
An independent, professional and accountable Bar is a key prerequisite for access to justice. The Ukrainian National Bar Association (UNBA) and the Bar Council of Ukraine (BCU) are controlled by individuals associated with state traitor Viktor Medvedchuk. The BCU has repeatedly made decisions that violated the law “On the Bar,” as well as the rights and safeguards of lawyers’ activities. Adopting a law on the bar that aligns with the Constitution of Ukraine and European standards, while rebooting bar self-governance with transparent qualification and disciplinary procedures and accountable self-governance bodies, is key to reforming the Ukrainian Bar.
reboot legal self-governance on the national level (BCU, High Qualification and Disciplinary Bar Commission):
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Lustration (10-year ban on current national-level bar self-governance bodies members from serving in reformed bar bodies);
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Creation of a selection commission of independent experts to vet the integrity of candidates applying to bar self-governance bodies;
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Election of bar self-governance bodies members through direct voting by lawyers via an electronic platform.;
Abolition of mandatory UNBA membership for lawyers and allowing the functioning of several bar associations.
Introduction of a unified and transparent qualification exam.
Establishment of a High Qualification Bar Commission — a body responsible for conducting the qualification exam.
Allowing lawyers to independently choose how to enhance their professional development.
Regulation of disciplinary procedures, ensuring the professionalism and independence of the bar disciplinary bodies.
Transparent budget processes and reporting of bar self-governance bodies with audit oversight.
Comprehensive reform of the prosecution service has not yet been implemented, which is a crucial condition for the successful reform of the justice system as a whole. The prosecution must be reformed based on principles of personnel renewal, integrity, and compliance with international standards to ensure its effective functioning and strengthen trust in the legal system.
