The reform was launched in 2014 after the Revolution of Dignity and the 2014 Ukrainian presidential election. The purpose of the reform is to bring the judiciary of Ukraine to European standards and to ensure the protection of the rights, freedoms and legitimate interests of citizens through timely, effective and fair resolution of legal disputes on the basis of the rule of law.[1]
Background
After Ukraine gained independence in 1991, the authorities were faced with the task of dismantling the outdated Soviet judicial system and creating a new one based on the principles of the rule of law and the protection of citizens' rights and freedoms. In 1992, the Concept of Judicial and Legal Reform was adopted, and in 1994, the Law on the Status of Judges was adopted. In 1996, the Verkhovna Rada approved the Constitution of Ukraine, which enshrined the division of state power into three branches: legislative, executive and judicial.
In general, the initial period of reforms was characterized by the consolidation of basic world standards for the independence of judges and the independence of the judiciary in Ukraine. But despite the positive legislative changes, the idea of building an independent judiciary was virtually ignored by the higher authorities. Political forces used the courts to their advantage, corruption flourished in the system, and the judiciary became financially dependent on the executive.[2]
Opinion polls of judges, lawyers and prosecutors showed a significant decline in confidence in Ukrainian courts. If from 1991 to 1996 the independence of the judiciary increased from 66% to 78%, then from 2002 to 2009 it fell from 74% to 40%.[3]
During Viktor Yanukovych's presidency, the reputation of Ukraine's judiciary has deteriorated significantly due to high-profile cases by politicians in opposition to the current government, most notably Yulia Tymoshenko and Yuriy Lutsenko. As the most controversial decisions were made by the Pechersk District Court of Kyiv, the idiom "Pechersk justice" spread in Ukraine, which meant passing unjust, politically motivated verdicts.[4]
Particularly harsh criticism was voiced by human rights organizations. For example, a 2011 Human Rights Watch report stated that "Yulia Tymoshenko's conviction, as well as arrests and trials of other former government officials, have undermined confidence in the independence of the judiciary."[5]
The beginning of the reform
In May 2014, Petro Poroshenko was elected President of Ukraine, in whose election program the reform of the judiciary was identified as one of the key tasks.[6]Borys Lozhkin, ex-co-owner of the UMH group, was appointed as Head of the Presidential Administration. His deputy was Oleksiy Filatov, a partner at the law firm Vasyl Kysil & Partners, which specializes in resolving investment, corporate and banking disputes. In 2013, Filatov was engaged in legal support of the agreement on the sale of UMH.[7]
Oleksiy Filatov's main task in the civil service was to ensure judicial reform. He was the coordinator of the Judicial Reform Council, an advisory body to the President of Ukraine formed in the autumn of 2014. The Council included ministers, judges, lawyers, scholars, activists, and scientists.[8]
The tasks of the Council were: preparation of proposals on the strategy of reforming the judiciary; establishing cooperation between state bodies, civil society and international organizations on the preparation of judicial reform; monitoring the implementation and analysis of the effectiveness of the reform; informing the public and the international community about the progress of the reform.
Amendments to the Constitution and laws of Ukraine
Judicial reform required amendments to the Constitution of Ukraine, as well as to a number of laws related to the judicial system. The Constitutional Commission, established by a presidential decree in April 2015, drafted amendments to the Basic Law. The commission consisted of more than 60 people: lawyers, scientists, MPs, public figures. Constitutional changes were developed in cooperation with the Venice Commission.
On July 2, 2016, the Verkhovna Rada adopted amendments to the Constitution: they were supported by 335 deputies with the required minimum of 300 votes. On this same day, the Law "On the Judiciary and the Status of Judges" was enacted, establishing a new framework for the judiciary directed at aligning Ukraine with European standards; the law especially emphasized the rule of law and the right to a fair trial.[9][10]
Other laws adopted as part of judicial reform include the Law on Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine and other legislative acts, the Law on Ensuring the Right to a Fair Trial, and the Law on the Supreme Court. The adoption of the law "On Advocacy" is expected.
An important step in the reform was the removal of the Verkhovna Rada from the appointment and dismissal of judges. These powers were vested in the High Council of Justice, an independent body of the judiciary.
The High Council of Justice consists of 21 members. Ten of them are elected by the Congress of Judges of Ukraine from among retired or not retired judges, two are appointed by the President of Ukraine, two are elected by the Verkhovna Rada of Ukraine, two are elected by the All-Ukrainian Conference of Prosecutors, two are elected by Congress of representatives of legal universities and research institutions. The President of the Supreme Court is an ex-officio member of the High Council of Justice.
Qualification assessment of judges
The initiators of the reform paid great attention to the personnel issue in order to overcome corruption among judges and increase public confidence in the profession. Judges were deprived of full immunity, which prevented them from being prosecuted for violating the law and the principles of fair justice.[11] For the first time in the history of Ukraine, lawyers and scholars were able to apply for the positions of judges.
Each judge had to go through a qualification assessment procedure, both for new candidates for positions in the courts and for those judges who had already worked in the judiciary before the reform. A special body was created for this purpose - the High Qualification Commission of Judges. It included judges, lawyers and scholars.[12]
The Public Integrity Council was established in 2016 to involve the public in the evaluation process of judges. Its purpose is to assist the High Qualifications Commission of Judges in establishing the compliance of candidates for the position of judges with the criteria of professional ethics and goodness.[13][14]
Atittude towards the reform
A September 2017 USAID survey found a relatively positive attitude toward Ukraine's judiciary. From the point of view of lawyers, the judicial system received the highest level of trust from all authorities - 38%. For comparison: only 12% of lawyers trusted the parliament and the government. The level of trust in the courts among ordinary citizens from 2015 to 2017 increased from 5% to 12%, while the parliament and government in 2017 were trusted by 8% and 10%.[15]
The head of the Venice Commission, Gianni Buquicchio, compared judicial reform in Ukraine to the revolution of Nicolaus Copernicus in science.[16]
The curator of judicial reform, Oleksiy Filatov, was satisfied[when?] with its progress, but at the same time stated that establishing fair trials would not be enough for full reform. According to Filatov, it was also necessary to reform the prosecutor's office and legal education.[17]
Successes of the Reform
The creation of the High Anti-Corruption Court of Ukraine (HACC) in 2019 showcased a step in combatting corruption by adjudicating high-profile cases of official misconduct. The HACC has allowed for the prosecution of MPs, former Fiscal Service heads, mayors, and other prominent officials, a direct attempt to confront entrenched corruption.[18][19] Additionally, mounting social pressure following the 2014 Revolution of Dignity catalyzed greater transparency through the introduction of a new electronic asset and interest disclosure system, forcing judges to disclose their assets, income, and expenditures.[18][19][20] This disclosure requirement culminated in the resignation of around 1,000 judges.[18] Paired with new comprehensive qualification assessment procedures, judicial reforms underscored the importance of the judiciary's integrity and professionalism.[21]
Challenges
Mykhailo Zhernakov, Director of the Dejure Foundation has criticized Ukraine's judicial system as continuously inefficient, underscoring its stagnant-decision making processes and high caseloads.[22] According to the Ministry of Justice, only 20% of judgements are carried out, showcasing serious issues with the system's functionality.[23] Moreover, the reforms' various attempts at reducing political influence have not entirely succeeded; the executive branch continues to exert significant control over the Ukrainian judiciary, undermining judicial impartiality and independence.[22][24][23] Similarly, corruption persists within the judicial branch of Ukraine despite the reforms' efforts to increase transparency, obstructing the administration of justice.[22][23] Additionally, some of the reforms emerged as problematic. The most notable example, "Lozovyi's Amendments," installed a new statute of limitations, altering the timeframe within which legal action could be initiated.[25] Originally intended to streamline the legal process, the amendments ultimately resulted in the dismissal of several high-profile corruption investigations.[25]
The progress of judicial reform in Ukraine faces various issues. Ukrainian academics Oleksandr Bandurka and Vladyslav Teremetskyi have stated the absence of a clear Action Plan as the main obstacle hindering effective implementation.[26] The future of judicial reform is further complicated by the ongoing Russo-Ukrainian war as the judicial sector faces infrastructure damage, resource and funding reallocations, and overall procedural disruptions.[26] In addition, Article 157 of the Ukrainian Constitution prohibits amendments during a state of emergency or martial law,[27] restricting the capabilities for judicial reform on the constitutional level.[26]
The judicial system of Ukraine is outlined in the 1996 Constitution of Ukraine. Before this there was no notion of judicial review nor any Supreme court since 1991's Ukrainian independence when it started being slowly restructured.
The Constitution of Ukraine is the fundamental law of Ukraine. The constitution was adopted and ratified at the 5th session of the Verkhovna Rada, the parliament of Ukraine, on 28 June 1996. The constitution was passed with 315 ayes out of 450 votes possible. All other laws and other normative legal acts of Ukraine must conform to the constitution. The right to amend the constitution through a special legislative procedure is vested exclusively in the parliament. The only body that may interpret the constitution and determine whether legislation conforms to it is the Constitutional Court of Ukraine. Since 1996, the public holiday Constitution Day is celebrated on 28 June.
The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine interprets the Constitution of Ukraine in terms of laws and other legal acts.
The All-Ukrainian Union "Fatherland", referred to as Batkivshchyna, is a political party in Ukraine led by People's Deputy of Ukraine, former Ukrainian Prime Minister Yulia Tymoshenko. As the core party of the former Yulia Tymoshenko Bloc, Batkivshchyna has been represented in the Verkhovna Rada since Yulia Tymoshenko set up the parliamentary faction of the same name in March 1999. After the November 2011 banning of the participation of blocs of political parties in parliamentary elections, Batkivshchyna became a major force in Ukrainian politics independently.
Early parliamentary elections were held in Ukraine on 30 September 2007. The election date was determined following agreement between the President Viktor Yushchenko, the Prime Minister Viktor Yanukovych and the Chairman of the Verkhovna Rada Oleksandr Moroz on 27 May 2007, in an attempt to resolve the political crisis in Ukraine triggered by the 2 April 2007 presidential decree on dissolution of Ukraine's parliament.
The High Council of Justice, or sometimes the Supreme Council of Justice is the national council of the judiciary of Ukraine, which submits motions to appoint, dismisses and disciplines judges. In 2021, the Ethics Council was created with the intention of selecting the members of the High Council of Justice in a way that would help to create an independent and efficient judiciary in Ukraine.
Reforms for the Future was a Ukrainian deputy group turned faction in its national parliament Verkhovna Rada created on February 16, 2011. Deputy Ihor Rybakov, is the group's faction leader. The faction supported the Azarov Government. All members of the group had individually already entered into the parliamentary coalition which supported this government. At its peak the group contained 21 deputies. In the parliament elected on 28 October 2012 that started its tasks on 15 December 2012 the faction was not re-created.
Volodymyr Dmytrovych Bondarenko was a Ukrainian politician who served as People's Deputy of Ukraine and as member of the citizens' association Choice. Bondarenko was the Head of the Kyiv City Administration from 7 March 2014 until 25 June 2014.
Valery Bondyk is a People's Deputy of Ukraine, member of Party of Regions fraction, Chairman of the Committee on the Judiciary, member of the High Council of Justice.
Sir Anthony Hooper, PC is a British retired judge, former professor of law, and a member of Matrix Chambers. He joined Matrix Chambers in 2013 after his retirement from the Court of Appeal of England and Wales. In 2013 he was appointed inaugural Judicial Fellow of the Judicial Institute of University College, London, where he is an Honorary Professor. He is an Honorary Fellow at Trinity hall, Cambridge. Since 2018, he has been helping to fight corruption and to reform judicial system in Ukraine.
The Centre of Policy and Legal Reform is a Ukrainian non-governmental think tank founded in 1996.
Parliamentary elections were held in Ukraine on 21 July 2019. Originally scheduled to be held at the end of October, the elections were brought forward after newly inaugurated President Volodymyr Zelenskyy dissolved parliament on 21 May 2019, during his inauguration. The elections resulted in an outright majority, a novelty in Ukraine, for Zelenskyy's Servant of the People party, which won 254 seats.
The High Anti-Corruption Court of Ukraine (HACC) is a Ukrainian court established on 11 April 2019. The court handed down its first sentence on 30 October 2019. Cases concerning corruption in Ukraine are to be brought directly to this court. The jurisdiction of the court covers crimes that caused damage of an equivalent of at least 31 thousand USD. Appeals are considered by a completely separate Appeal Chamber of the High Anti-Corruption Court.
Oleksiy Valeriyovych Honcharuk is a Ukrainian politician. He served as the Prime Minister of Ukraine from 29 August 2019 to 4 March 2020 following a landslide parliamentary election win. Honcharuk was replaced by Denys Shmyhal during the formation of the Shmyhal Government.
Andriy Volodymyrovych Portnov is a Ukrainian lawyer and politician. He was an honored Lawyer of Ukraine in 2004.
Taras Petrovich Tarasenko is a Ukrainian lawyer and arbitration manager. People's Deputy of Ukraine of the 9th convocation. He is a member of inter-factional union "People" in the Verkhovna Rada of Ukraine.
Larysa Golnyk is a Ukrainian judge at Oktyabrysky District Court in Poltava. She is a whistleblower against corruption of the Ukrainian judiciary. Golnyk was refused membership of the Ukrainian High Council of Justice by the Ethics Council in June 2022 because of a Facebook post in which she criticised her colleagues for an illegal re-election of the chair of the Oktyabrsky District Court.
The Ukrainian Ethics Council is a legal body of three Ukrainian and three international members created in 2021 to appoint members of the High Council of Justice. Anti-corruption organisations AutoMaidan, Dejure, and Anti-Corruption Action Center criticised the council's June 2022 appointments as including "tainted" judges and for refusing a well-known anti-corruption judge and whistleblower, Larysa Golnyk.
Andriy Yevhenovych Kostin is a Ukrainian lawyer and politician. As of 2022, he is a People's Deputy of Ukraine since he was elected to it 2019. Kostin was a candidate in the 2021 competition to become the new head of the Ukrainian Specialized Anti-Corruption Prosecutor's Office (SAPO). Civil society organisations Transparency International Ukraine, Automaidan, Anti-Corruption Action Center and Dejure stated that Kostin did not satisfy the integrity criteria of the competition. Kostin was not selected. Kostin was the Head of the Verkhovna Rada Legal Policy Committee for two years, from 2020 to 2022. On 27 July 2022, Kostin was voted by the Verkhovna Rada as the Prosecutor General of Ukraine.
Dejure Foundation or Dejure, created in 2016, is a Ukrainian non-governmental organisation that promotes judicial reform in Ukraine. Dejure analyses judges' integrity based on their records and monitors legal developments related to the judiciary of Ukraine.
↑ Ukraine law on the judiciary and the status of judges, Venice Commission, 21 October 2021, Wikidata Q123513973, archived from the original on 2 June 2023
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