What the EU saw and didn’t see in its report on justice

Last week, on October 30, the European Commission published its annual report on all candidate states. Ukraine was allocated 100 pages - quite substantial, though less than last year. International partners generally provided an adequate assessment of what we have managed to achieve and what we have not on our path to the European Union, particularly in the sphere of justice.

Unfortunately, in 2024, Ukraine's progress in judicial reform was minimal. This was partly due to the political authorities' reluctance to make necessary decisions and partly due to the lack of impetus from international partners (including the EU), which often proves decisive. Let's take a closer look at what stands in the way of EU accession and the successful completion of the long and challenging judicial reform.

Advertisement:

Supreme Court reform

Once again, the European Commission emphasizes the need to cleanse the Supreme Court (SC), particularly by reducing existing corruption risks through improved integrity checks of its judges via declarations of integrity. The report also clearly states that the process of selecting judges for the SC needs to be changed through new legislation and unified criteria for assessing integrity. This need was discussed after the major corruption scandal involving former SC head Vsevolod Knyazev, but no significant changes were made in 2024.

It is also important that this year the European Commission suggests not only improving the procedure for checking integrity declarations but applying it to all judges, not just those in the Supreme Court.

International partners expect this to be included in the new law, which should be adopted "as soon as possible." Implementing this recommendation will undoubtedly support the main goal of the reform - cleansing the judiciary. Besides the urgent need for the Supreme Court's renewal, there are many other judges whom the previous composition of the High Qualification Commission of Judges (HQCJ, essentially the "HR department of the judiciary") allowed to complete assessments without proper checks of integrity and professional ethics.

Specifically, many appellate judges underwent "initial qualification assessments" before the creation of the Public Integrity Council (PIC - assists the HQCJ in vetting judges' integrity) through a very superficial procedure that could not even result in dismissal. Additionally, in 2019, the PIC withdrew from the process, citing manipulation and disregard for their opinions by the HQCJ. Even with the Council's participation in the process, the then-HQCJ "amnestied" the majority of judges of low integrity.

Out of nearly 3,000 judges who went through the procedure, only 15 were dismissed.

The report also highlighted certain Supreme Court decisions that harm judicial reform. Notably, the recent decision by the SC's Grand Chamber regarding judge Vitaliy Usatyi, in which, according to the European Commission, "the court deviated from its previous practice and put the qualification assessment of judges involving the Public Integrity Council at risk." This decision could allow 180 judges with questionable integrity to avoid qualification assessment and, potentially, dismissal.

Typically, such comprehensive documents do not focus on individual decisions. This shows how significant and genuinely dangerous the Supreme Court's stance is. Furthermore, the unreformed SC could harm not only judicial but also other reforms Ukraine has already undertaken or plans to implement on its path to the EU.

And it seems that the EU has started to recognize this.

Turtle pace of the qualification assessment and consideration of complaints against judges

Despite the European Commission praising the resumption of qualification assessment of judges, it also notes its slow pace. One of the main reasons for this is the ongoing issue of access to judges' dossiers for members of the Public Integrity Council (PIC). In 2023, the Verkhovna Rada ostensibly granted the PIC full access to these materials, but DEJURE Foundation had already pointed out that the wording of the law might not solve the problem.

Unfortunately, this turned out to be true - currently, the PIC can only "view" the information but not work with it. This raises the question of whether its members can, for example, accurately calculate the income of a judge and their family members. Recently, the Parliamentary Legal Policy Committee, chaired by Denys Maslov, rejected a relevant amendment that could have resolved this issue.

The European Commission's report specifically emphasized the need to enhance the PIC's capacity, particularly by expanding access to information. The report also touched upon the capabilities of the HQCJ itself. It states that considering the significant workload of the HQCJ (the selection of over 1,000 judges for first-instance courts, competition for 550 appellate positions, qualification assessment of current judges), the Commission's capacity should also be strengthened by reforming its secretariat in particular.

NGOs previously noted that such reform should begin with replacing its head, Olena Ponomarenko, with a new leader selected through transparent competition. The European Commission also commended the adoption of joint indicators for the HQCJ and the PIC.

Unfortunately, Brussels overlooked an important issue. This pertains to the interaction between the High Qualification Commission of Judges and the Public Integrity Council.

The report mentions "some discrepancies in practices," but the reality is that there is a significant problem with the Commission frequently ignoring or disagreeing with the PIC's findings on the lack of integrity of judges. This includes judges who have "exonerated" drunk drivers, certain judges involved in Maidan cases, academically dishonest judges, and others. Considering that this is incompatible with judicial positions in EU countries, it is surprising that the newly relaunched body, rebuilt with significant joint efforts by Ukraine and the EU, turns a blind eye to this.

The public has repeatedly highlighted this issue, informing EU officials that despite jointly established criteria for assessing integrity with the PIC, the renewed HQCJ does not always adhere to them and agrees with negative opinions only in 42.5% of cases. If the HQCJ continues to keep judges with evident integrity issues in their positions, a complete cleansing of the system cannot be expected. Thus, more clarity from the European Commission on these issues would be welcome.

The report also reiterated the need to conduct and complete the qualification assessment of all judges from the liquidated District Administrative Court of Kyiv (DACK), notorious for its arbitrary and anti-Ukrainian rulings. This is something Ukrainian society has long awaited. The European Commission also criticized the High Council of Justice (HCJ), noting the slow pace of judge dismissals and the consideration of disciplinary complaints.

The report pointed out that the Council had dismissed only four judges as a result of qualification assessment. In reality, this number is somewhat higher; at least 30 judges have been dismissed or will be definitively dismissed as a result of both qualification assessment and disciplinary cases. Although the HCJ's disciplinary function was only restored in November 2023, this number is still alarmingly low, given the public importance of high-profile cases involving judges.

Despite the Council's prioritization of such cases,

at this rate, the cleansing of the judiciary will almost never be completed. There is some hope for the newly created Service of Disciplinary Inspectors, which is about to start operating and could partially relieve the HCJ's workload - the European Commission noted it as one of the few achievements this year. However, the final decisions on dismissing judges with integrity issues will still be made by HCJ members.

If they do not change their approach, the judicial system's renewal and Ukraine's European integration will remain in jeopardy. This once again confirms that the reform of the HCJ (the second of the seven points for which Ukraine received candidate status and the opening of EU accession talks) has not gone as well as hoped. The reason lies in the judicial members of the Ethics Council (Volodymyr Siverin, Yuriy Tryasun, Lev Kyshakevych), who selected the candidates.

They, along with other questionable Ukrainian commission members, were delegated by the Council of Judges of Ukraine (CoJ) - an outdated and corrupt body influenced by the judicial mafia led by the head of DACK, Pavlo Vovk. This has also affected how the HCJ functions today - certain members, such as Vitaliy Salikhov and Serhiy Burlakov, elected under the judges' quota, systematically sabotage and delay case reviews. NGOs have repeatedly pointed out the need to liquidate the CoJ, and a corresponding draft law has already been submitted.

However, either these organizations were not persistent enough in their calls, or the European Commission continues to overlook them, as the report does not mention the Council of Judges at all.

No European integration without bar reform

For the second consecutive year, the European Commission has highlighted the critical state of the bar in Ukraine and the need for its reform. The report explicitly states that Ukraine has not made any progress in this area. It notes that as part of the reform, Ukraine must reform the bar's governing bodies, primarily the Ukrainian National Bar Association (UNBA), based on a transparent procedure.

It is also crucial to address issues previously mentioned, such as the qualification and integrity of lawyers, improve the admission process to the bar, which is vulnerable to corruption risks, financial management, disciplinary proceedings, and establish a system for the professional development of lawyers. The European Commission also mentions that the High Council of Justice has yet to receive two members from the bar quota. This is because bar leaders, fearing a loss of power, have been blocking the convening of the Congress of Attorneys for two years.

This Congress is also supposed to elect a new composition of the bar's governing bodies. This acknowledgement is positive. The question remains whether these statements will motivate the Ukrainian authorities to achieve next year what they failed to accomplish this year.

What does the European Commission say about legal education?

The report notes Ukraine's progress in the reform of legal education, which remains an EU priority.

DEJURE Foundation and partners have worked on this for years, and it is starting to bear fruit. Specifically, the Rada passed the law on individual educational trajectories, allowing the revision of legal education standards. Admission requirements for law schools were strengthened, the first Unified State Qualification Exam for law graduates was held, and the government abolished the training of legal professionals in colleges.

This progress is significant for the overall state of justice, as the higher the teaching standards and the better the training of law students, the more professional and ethical personnel the judiciary, prosecution, and legal profession will have. Ukraine continues to work intensively on the reform of legal education. A working group established at the end of last year has already approved the concept of the draft law on legal education, and work on the draft law text and other necessary regulatory acts is nearing completion.

However, to advance toward European integration, several additional important steps must be taken. In particular, it is necessary to separate legal education from the training of law enforcement professionals. Ukraine must also continue to strengthen and unify legal education standards, admission rules, and enhance the requirements for the licensing of law schools and funding of legal education.

Issues such as combating corruption and plagiarism, as well as modernizing curricula with an emphasis on ethics, practical training, EU law, and international exchanges, remain urgent. To achieve this, at least one comprehensive law and a series of subordinate acts need to be adopted and implemented. The European Commission also addressed the topic of child-friendly justice.

Ukraine needs to formulate procedures and criteria for determining the best interests of the child, which will also ensure these interests are met. This is a cross-cutting principle used both within and outside the justice system. Achieving this will require the adoption of appropriate legislation.

The EU also emphasizes the need to develop alternative services that provide child-friendly justice and free legal aid.

Through thorns to the EU: what else is needed for progress in judicial reform?

Throughout the recommendations for both the judiciary and other bodies, the European Commission's call for the involvement of independent international experts in selection commissions for judges and judicial bodies runs like a red thread. This practice was what initially helped move judicial reform from a standstill. It began with the High Anti-Corruption Court (HACC), whose selection process was conducted by the Public Council of International Experts (PCIE - a body composed entirely of reputable judges and prosecutors from EU countries and other Ukrainian partners).

This ensured the success of the selection for this court. Currently, the PCIE continues the selection process for the HACC, which is also noted in the report. Later, this practice, albeit heavily modified, extended to competitions for the High Council of Justice (HCJ), the High Qualification Commission of Judges (HQCJ), the Constitutional Court, etc.

Selections are conducted by foreigners alongside Ukrainian experts, who are often delegated by representatives of the "judicial mafia" - associates of judges from the still-not-fully-liquidated District Administrative Court of Kyiv (DACK), the Head of the Council of Judges of Ukraine Bohdan Monich, and others. This significantly reduced the quality of such competitions. Examples from the HCJ and HQCJ, which are noted in the European Commission's report, show that the practice of combining international and Ukrainian experts in selections is far from ideal.

In light of this, it is worth reverting,

at least for a transitional period, to a model where integrity assessments are conducted solely by foreigners, without the participation of our judicial bodies, the "judicial mafia," or political and other "elites" interested in preserving the status quo. Another problematic issue is the term of these international councils' mandates.

Specifically, the mandate of the Public Council of International Experts, which selected members for the HACC, was set to expire in November 2024. After some debate, it was extended legislatively, but only for a year and a half, which may still be insufficient to complete two selection rounds for the court. However, a new major problem looms: on June 1, 2025, the mandate of the Selection Commission involving international experts responsible for selecting the HQCJ members expires.

They will be replaced by Ukrainians delegated by the Council of Judges, the Bar Council, the Council of Prosecutors, and the National Academy of Legal Sciences of Ukraine. The outcome is not hard to predict. Soon after, the mandates of other commissions with international members will also expire.

Clearly, a systemic solution is needed that does not involve extending the term of each council "by a year or two" (which lawmakers may not suddenly agree on), but rather "tying" their functioning to a milestone indicating that international experts are no longer needed. Such a milestone could be, for example, a decision by the European Commission declaring Ukraine ready for accession or the closure of negotiation chapters 23 and 24, which concern the "fundamental" cluster - justice and human rights. This proposal is often criticized by reform opponents, arguing how a country can join the EU if its judges are selected by foreigners.

This is a flawed logic, as when Ukraine is ready to become an EU member, it will mean that the international experts have fulfilled their role. Otherwise, members of key judicial governance bodies will continue to be selected by representatives of the judicial mafia through their influential operatives within the system. This way, judicial reform may never be completed, and Ukraine's European integration will hang by a thread.

Limiting the involvement of international experts to a fixed number of years will always encourage reform opponents to delay critical steps until the "inconvenient" international experts' mandate expires. What does the European Commission think about this? It's hard to say, as despite mentioning "independent experts" as an essential element of future competition processes and analyses, the issue of extending the current commissions' mandate is not raised.

At the same time, the European Commission emphasized that it has been waiting for two years for the creation and formation of a High Administrative Court (HACU) "with the participation of international experts" to review national-level decisions by state bodies, replacing the long-dissolved KDAC. This point is also included in the memorandum with the International Monetary Fund. Previously, international partners insisted that the HACU should be established similarly to the HACC, meaning judges should be selected by the PCIE or an equivalent body composed entirely of foreigners.

However, in the report, the European Commission not only fails to emphasize that international experts' participation must be 100% but also does not stress that their voice should be decisive in mixed commissions.

This seemingly small detail suggests that international partners and the European Commission might be willing to soften requirements and deviate from a proven model to a weaker one. This trend is concerning, given the previously mentioned issues during the HCJ selection process.

Lowering these standards and insufficient attention from the EU would mean that Ukrainian justice institutions would be inadequately built, which would harm the rule of law, Ukraine's capacity to resist aggression, and its path to EU membership. The European Commission's report is important and useful for improvement on the path to the EU, but it clearly could not encompass all the necessary aspects for comprehensive judicial reform. Other aspects also require urgent change.

DEJURE Foundation, together with partners, has developed a "Judicial Reform Roadmap" outlining, step-by-step, what further changes are needed to renew the justice system in Ukraine.

To be continued?

The enlargement report has another flaw, or rather, a characteristic feature. It is merely a general reflection on what (did not) happen over the year and lacks dates or specific measures that Ukraine must take, along with the consequences of failing to meet obligations within a set timeframe. This does not provide motivation for the Ukrainian authorities to pursue the difficult yet necessary judicial reforms.

If Ukraine wants to join the EU, and the European Commission wants these reforms to be implemented, it is critically important to reflect all these aspects in other documents that have a certain timeframe and are tied to specific progress. Efforts are needed from both sides: the EU should clearly outline with dates and specific actions what still needs to be done, and we need to carry it out. Otherwise, there is a high probability that the "legislative magic" will not happen.

EU accession is not just a box to check at the finish line.

It is, above all, the development of institutions, during which Ukraine must become as similar as possible to other EU countries. Otherwise, the essence will be replaced by form, bringing neither security, nor stability, nor well-being to citizens, and the entire accession process will be more of a fiction than the real change people aspire to.

Mykhailo Zhernakov, Executive Director of DEJURE Foundation Maria Hlushko, Communications Manager of DEJURE Foundation

If you notice an error, select the required text and press Ctrl + Enter to report it to the editors.