Overcoming staff shortage and rebuilding trust: how the judicial system is being integrated in the EU

On December 14, the European Council announced a historic decision to start accession negotiations with Ukraine and Moldova. The decision was preceded by a resolution of the European Parliament and a decision of the European Council of 23 June 2023 to grant Ukraine candidate status for membership in the European Union.

The European integration process comprises three conditional dimensions: (1) Legal dimension: adaptation of strategic documents to reflect changes in the legal system of both the candidate country (Ukraine) and the EU; (2) Political dimension: coordinated actions of the legislative, executive, and judicial branches to enforce new legislation, and (3) Institutional dimension: effective work of institutions for the coordination, management, and monitoring of the European integration process.

Thus, each branch of government, including the judiciary, has its own specific tasks, the timely implementation of which brings Ukrainian society closer to EU membership.

On 17 June 2023, the European Commission published a recommendation for the European Council and the European Parliament to grant Ukraine the status of a candidate country. In the same document, the European Commission stated that Ukraine had started judicial reform and had a strategic vision for its implementation.

The Commission also identified a number of areas, where Ukraine is recommended to make the greatest efforts as a part of the judicial reform, specifically the following: legislative guarantees of the independence and impartiality of judges; open selection of judges based on objective criteria of candidate quality; codes of ethics and automatic assignment of cases to judges.

The European Commission also identified a shortage of judges in Ukraine as a significant problem.

This shortage resulted from the process of judicial evaluation initiated in 2016, which led to about 2,000 judges resigning, and was exacerbated by the termination of the powers of the High Qualification Commission of Judges (HQCJ) in 2019.

Stressing the low level of public trust in the courts, the Commission noted that verification of the integrity of the members of the High Council of Justice (HCJ) and the HQCJ, the bodies responsible, among other things, for the selection and evaluation of judges, is an important step for Ukraine. The vetting of candidates for the HCJ, as well as the formation of a full-fledged composition of the HQCJ, have been completed.

The HQCJ is now tasked with organizing the process of selection of judges in a way that is focused, first of all, on the integrity of the judicial corps. If this is done, the implementation of the Strategy for the Development of the Judiciary and Constitutional Justice for 2021-2023, and hence the judicial reform, can be successful.

Therefore, the key expectations of the judicial authorities in Ukraine from not only the EU, but also Ukrainian society are the integrity of judges and their transparent and honest selection.

The Ukraine 2023 Report of the European Commission is the latest document on the status of European integration reforms, including judicial reform.

The report’s recommendations include: resuming the selection of judges on the basis of an improved legal framework, including clear criteria of integrity and professionalism and a strong role for the Public Integrity Council (PIC); resuming the evaluation of judges, which was suspended in 2019; taking effective measures to eliminate corruption risks in the Supreme Court; starting the creation of a new administrative court to hear cases involving central government bodies, ensuring that this court is staffed by properly vetted judges; completing the qualification assessment of about 2,000 judges with the proper involvement of the PIC.

Let’s take a closer look at resuming the selection of judges in order to eliminate the shortage. At the moment, Ukraine is losing judges at a rate of slightly less than one judge per day. The highest staff shortage is observed in appellate courts. As of December 2023, there were 698 vacant positions in the appellate courts system. That’s more than the number of working judges (659).

On December 15, the High Qualification Commission of Judges launched an unprecedented open selection for more than 500 vacant positions of judges of appellate courts.

This selection is unprecedented for a number of reasons.

First, this very fact of a selection for the positions of judges of an appellate instance is historic. Previously, judges of the appellate courts were appointed by the Verkhovna Rada of Ukraine exclusively from among working judges. It was a non-transparent and somewhat politicized process. Now, both judges and practicing lawyers and scholars are invited to participate in the competition.

Second, the number of judges that the HQCJ plans to select through the open competition is unprecedented. The HQCJ plans to select about 500 judges of the appellate courts, which will constitute 56% of the total number of judges of the appellate courts in Ukraine.

Third, the current members of the HQCJ, who were themselves first elected in an open competition, express a principled attitude to the issue of integrity during the competition and take responsibility for selecting judges in cooperation and partnership with civil society. Civil society will be represented by the Public Integrity Council, which will conduct a comprehensive integrity check of the candidates.

The new composition of the PIC was formed in August 2023 and comprises 20 lawyers, journalists and representatives of the civil society specializing in fighting corruption and reforming the justice system.

The competition for judges of the appellate courts will be decisive for the institutional capacity of the judiciary to effectively work on the tasks that determine the speed of Ukraine’s integration into the EU.

We hope that an open and transparent competition will become an incentive for society to learn to trust the state and its judicial system.

Without a transparent competition for the appellate courts, it is impossible to ensure that the judicial system of Ukraine complies with European standards. It is also impossible to build a sustainable democracy without public trust in the courts.

eurointegration.com.ua