The “Rebooted” High Council of Justice:
Wins and Fails
One of the key steps taken in 2021–2022 to propel the judicial reform was the reboot of the High Council of Justice (HCJ, Council) — the agency that appoints and dismisses judges as well as governs disciplinary liability.
The High Council of Justice was previously “famous” for outrageous decisions in favor of unscrupulous judges, which was the reason and the prerequisite for its reboot.The current composition of the HCJ has been formed under new rules which provide for a competitive selection of HCJ members with the involvement of international experts.
But has this part of the judicial reform really accomplished the results that society expected? In this analytical material, civil society organizations DEJURE Foundation, Automaidan and Anti-Corruption Action Center describe the key positive practices and fails of the “rebooted” HCJ. What is more, since the updated legislation provides for open voting of HCJ members on some issues, in the analysis, we have the opportunity to identify specific HCJ members who are responsible for a certain decision.
The High Council of Justice takes steps to increase the transparency of its activities and inform society about the consideration of disciplinary cases and personnel decisions.
The High Council of Justice formed the full composition of the HQCJ, which unblocked and continued the qualification assessment of judges and competitive recruitment for vacant positions of judges.
The High Council of Justice summarized its practice in cases on judges’ and prosecutors’ disciplinary liability, which makes judges and complainants more informed regarding the Council’s approaches to considering disciplinary complaints.
The “new” HCJ decided to continue with the practice of the previous compositions, turning down disciplinary complaints against judges without due motivation and assessing the content of such complaints.
Even though, at the end of 2023, the HCJ introduced prioritization of considering disciplinary complaints against judges, in practice, these standards were never implemented, since the reporting members of the HCJ themselves are the ones who decide what complaints to follow up on, and which ones can be put on the back burner.
the “new” High Council of Justice fails to provide rapid consideration of cases that have significant public interest and require the fastest possible resolution to cleanse the judiciary of unscrupulous judges. It continues to ignore the problems of Kyiv District Administrative Court and started considering only several disciplinary cases against individual judges.
Despite the Council's right to refuse retirement with large payments to judges against whom a disciplinary case has been opened, and which may result in dismissal, the HCJ often misuses this right and approves “honorable” retirement of unscrupulous judges.
The HCJ does not maintain a consistent practice, which results in potentially different decisions regarding different judges who committed similar violations.
The HCJ tolerates systematic similar violations by judges by applying insufficient disciplinary sanctions, which do not motivate judges to refrain from violating the laws which resulted in liability for other judges.
Along with all other cases in which judges do not receive an adequate punishment from the High Council of Justice, but receive at least some penalty, there are also cases where judges do not bear any responsibility at all despite clear violations of the law.
The High Council of Justice tries to obstruct activists and civil society in their fair criticism of judges.
In 2024, the High Council of Justice filed a number of motions to the President of Ukraine on appointment of individuals on the positions of judges who applied back in 2019. Experience has shown that consideration of relevant HQCJ recommendations by the HCJ is a mere formality, since the Council put forward even those candidates who probably concealed negative facts about themselves or even openly lied to the HQCJ and the HCJ.
The High Council of Justice is one of the key elements in the entire judicial system of Ukraine, since under the Constitution of Ukraine, it is the HCJ that makes key personnel decisions regarding judges: from filing motions to appoint individuals as judges to dismissing judges. And the disciplinary liability of judges that must be ensured by the HCJ is an important safeguard against arbitrary decisions, flagrant violations of the law, or unethical behavior of judges. Furthermore, the HCJ doing its job with integrity is a prerequisite to prevent other government agencies from interfering with the administration of justice.
The above list of the HCJ’s fails is not exhaustive. The project includes only the most remarkable and infamous cases of questionable decisions made by the current composition of the High Council of Justice. The list of failures (and hopefully achievements) is regularly amended and expanded. However, what has already been described also gives us an opportunity to draw certain conclusions.
What is the reason for these failures?
First, we should note that some of the shortcomings in the HCJ’s work are partially caused by imperfections of the law, which requires at least the following changes:
expanding opportunities for complainants to appeal decisions of Disciplinary Chambers regarding (not) bringing judges to disciplinary liability. Currently, the law allows such an appeal only with the permission of the same chamber whose decision is being appealed. This may lead to situations when chambers make contradictory decisions, judges are subject to inadequate disciplinary sanctions or do not face liability at all;
expansion of the HCJ’s authority to open disciplinary cases against judges on its own initiative. As shown in the above example of judge Kozina, the current provision of Article 49 of the Law of Ukraine “On the High Council of Justice” creates a situation when the High Council of Justice cannot necessarily consider facts independently unless they are expressly mentioned in the complaint that the Council receives.
However, procedural changes alone may not be enough. Even though the “rebooted” HCJ was formed competitively, there were significant questions regarding the quality of this competitive selection. Among other things, the Ethics Council let many questionable candidates through — due to issues with legality of property acquisition, covering up for Maidan judges, attending the temporarily occupied Crimea after the occupation began. The Congress of Judges, which has the biggest quota in the HCJ, also selected far from the best candidates put forward by the Ethics Council — in particular, judges gave preference to their questionable colleagues over changemakers.
The quality of the HCJ’s work is primarily determined by its composition. And if the listed practices in the Council’s activity remain, this will mean that judges are incapable of exercising judicial governance in a way that is necessary for the country’s survival and development. This would be yet another proof that the current model, where cleansing of the judicial corps is up to its own representatives, is completely ineffective.
In that case, evidently, it would be necessary to change the principles of formation of the Council, in particular, replace most judges who are fighting to maintain the status-quo with true agents of change.
