The Struggle for the Rule of Law in the Judicial System of Ukraine: A Hamster Wheel or the Wrong Strategy?

Iurii Barabash

Yaroslav Mudryi National Law University

Ukraine seems to have become the global leader in attempts to reform its judiciary. However, as recent ratings show, the country has made very little progress in improving its courts and in the rule of law in general (see Ukraine’s 89th position in the 2023 Rule of Law Index by the World Justice Project). Of course, the Russia-Ukraine war – which started with the annexation of Crimea in 2014 and continued with the full-scale invasion in 2022 – forms the crucial context for the judicial reform. Due to the war and related circumstances, we now have courts operating with 10 percent of the required number of judges.

One of the latest big challenges on this path has been the reform of the bodies responsible for selecting and disciplining judges – the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ). This reform was virtually blocked until the end of 2021 and was renewed under pressure from the European Union (EU) and other donors as these reforms were among the requirements for Ukraine’s EU candidacy (for further discussion of these reforms – and their relationship to Ukraine’s EU candidate status – see this blog post). It’s striking, however, that the main part of this reform was made after Russia’s full-scale invasion began.

The HCJ and HQCJ reforms have provided us with plenty of information about the Ukrainian judicial community. For example, over 100 Judges and retired Judges participated in the competition to sit on the HQCJ, the collective body responsible for the evaluation of judicial candidates and re-certification of current Judges. According to the law, HCQJ candidates’ integrity shall be assessed by a body called the Selection Commission composed of three international experts appointed by donors and three Ukrainian experts appointed by the Ukrainian HCJ.

The HQCJ Selection Commission had to select 32 candidates for 16 vacancies (two candidates per vacancy), eight of which are reserved for current or retired Judges. Given that, the Selection Commission had to propose at least 16 candidates for the “judicial” vacancies on the HQCJ. However, the Selection Commission managed to select only 10 candidates from over 100 applications. All other candidates (all of whom are current or retired Judges!) failed to meet the integrity requirements according to the Commission. From the candidates’ interviews published online, it’s clear that the most common deviation from the standards of judicial behaviour was receiving assets and property from unknown sources. Of course, there is no ground to claim that nine out of every 10 Ukrainian Judges do not meet usual integrity requirements, but still the figures are striking if not scandalous. Remarkably, many HQCJ candidates recognized in their interviews that corruption was a significant challenge for the Ukrainian judiciary but claimed that they personally were not aware of any case of judicial corruption.

It therefore comes as no surprise that Ukrainian society, politicians and NGOs working on the advancement of the rule of law demand a strengthening of the integrity checks for both Ukrainian Judges and HCJ and HQCJ candidates. Their voices became even louder when the then-head of the Ukrainian Supreme Court, Vsevolod Knyazev was arrested and accused of receiving a US$2.7 million bribe for facilitating a decision of the Supreme Court’s Grand Chamber in favour of one of the biggest Ukrainian business groups. After Knyazev’s arrest several politicians started to promote the idea that all Supreme Court Judges should have to take a polygraph test. 

Thus, Ukrainian judicial reform is beginning to look like a hamster wheel. Despite enormous efforts invested by the Ukrainian state, civil society and donors, one can find very little progress on the way to an independent and impartial Ukrainian judiciary able to protect the rule of law in the country. The question thus arises: how we deal with this problem?

Of course, the format of this blog post does not allow me to lay out all components of the necessary reform (and I am not sure that I have them all). However, I’d like to draw attention to the closed nature of the Ukrainian judiciary as one of the main barriers to reform.

From the very beginning, legal regulation of the legal profession in Ukraine has taken the approach that the legal profession should be split into three separate communities, with limited interconnection: the judiciary, the prosecution system, and the bar.

The bar united all lawyers under the power of the National Bar Association (NBA). In 2012 the NBA obtained the right to establish rules for the selection and sanctioning lawyers without any interference or even influence from the government or the judiciary. In 2016 the Ukrainian Constitution was amended with the bar monopoly clause (Art. 131). Since then, only NBA members can litigate cases in courts, which makes the NBA’s power over ordinary lawyers almost absolute.

The prosecution system, with the Prosecutor General’s office at the top, is also to a significant extent self-governed and protected from the influence of the judiciary and the bar. Rules for professional ethics and disciplinary proceedings are determined by bodies like conferences of prosecutors, the Council of Prosecutors and disciplinary commissions of prosecutors.

Finally, as I already mentioned, the judiciary is also a self-regulated and even closed system with several judiciary bodies (the Congress of Judges, the Council of Judges, the HCJ and the HQCJ) responsible for selection and integrity issues.

The phenomenon of three separate legal communities resulted in a situations whereby retired Judges with significant professional achievements wanting to join the bar were forced to undergo an internship with an accredited lawyer as a mandatory requirement for taking a bar exam and obtaining a certificate of attorney. (This practice was finally declared illegal by the Grand Chamber of the Supreme Court on 10 February 2021). Similarly, experienced prosecutors who want to join the bar also have to pass exams and complete internships as if they were recent graduates of law schools.

The complete separation of the three branches of legal profession from each other contrasts with European and American approaches to the legal profession. These approaches treat judges, prosecutors and lawyers as part of an integrated legal profession with shared standards and ethical requirements and approaches to professional integrity. Similarly, Ukraine has no common standards for accessing the legal profession (cf. for example, Germany’s clause “the ability to be a judge”, which is a mandatory requirement for joining the main legal professions).

Closed legal communities create a very specific atmosphere. The judiciary, the prosecution, and the bar in Ukraine seem to refuse to accept any outside critique and aim to protect their own influence and privilege at any cost. Solidarity and stability constitute their main priorities, and these are much more important to them than facilitating any institutional changes aiming to increase the efficiency of the legal profession and to strengthen the rule of law.

A striking example of prioritizing their privileges and stability over the rule of law is the judiciary’s right to elect constitutional Judges. According to the Constitution of Ukraine, the Congress of Judges (the highest self-governing body of the judiciary) elects six of the18 Judges on the Ukrainian Constitutional Court (Art. 148). The results of these elections are quite revealing. For 27 years of the operation of the Constitutional Court, the Congress of Judges has elected 21 constitutional Judges.  All elected Judges have been current or retired Judges. No lawyer, prosecutor or law professor was allowed to become a constitutional Judge elected by the Congress of Judges - even if they had prominent expertise in constitutional law. All elected Judges promised to the Congress virtually one thing– to protect the independence (and therefore, privilege and influence) of the judiciary.

This leads me to the conclusion that we cannot successfully conduct judicial reform without an institutional re-design of the whole legal profession and the framework of relations among its main branches. In order to strengthen the rule of law and the compliance of legal professionals with its requirements, Ukraine should re-establish the legal profession as a united and integrated community with common integrity standards. The judiciary, the prosecution system and the bar should operate as autonomous and independent, but still interconnected, communities open to public and professional criticism. It is one of the principles that should be implemented in the next round of the Ukrainian judicial reform to make it more successful.

Iurii Barabash is Professor of Constitutional Law and Vice-Rector for Research and Academic Affairs and Strategic Development at Yaroslav Mudryi National Law University, Ukraine, and a member of the IACL’s Executive Committee.

Suggested citation: Iurii Barabash, ‘The Struggle for the Rule of Law in the Judicial System of Ukraine: A Hamster Wheel or the Wrong Strategy?’ IACL-AIDC Blog (5 December 2023) The Struggle for the Rule of Law in the Judicial System of Ukraine: A Hamster Wheel or the Wrong Strategy? — IACL-IADC Blog (blog-iacl-aidc.org)