Regarding the draft law on amendments to the Law of Ukraine “On the Judicial System and the Status of Judges” concerning certain issues related to the competition for judicial positions and the competition for positions in general appellate courts (No. 13114).

On September 14, 2023 (!), the High Qualification Commission of Judges announced a competition to fill 532 (and later 550) vacancies in the appellate courts. It is interesting to note that the competitions for civil and criminal specializations were held separately, even though the specific specialization within a given appellate court will be determined by the judges’ assembly. Currently, there are already more than 700 such vacancies, and their number is constantly growing.

For over 10 years, not a single judge has been appointed to the appellate courts. The situation is most critical in the area of criminal specialization. In the Kyiv Court of Appeals, for example, the number of cases per judge already exceeds 600, and every judge on the criminal division is already eligible for retirement. Civil judges often have to hear appeals in criminal cases in various regions.

At the same time, Ukraine is bound by international obligations: under Article 6(1) of the European Convention on Human Rights (hereinafter—ECHR)—to hear a case involving a criminal charge or a dispute in which a civil interest is at stake, within a reasonable time by a court established by law (a competent court); under Article 5(3) of the ECHR—to ensure that the case of a detained person is heard within a reasonable time; under Article 5(4) of the ECHR—to have a decision on detention reviewed without delay; under Article 2 of Protocol No. 7 to the ECHR—the right to an appeal against a conviction.

So what does this draft law propose? Some relaxations in light of the unfortunate experience of the previous competition for the High Council of Justice (of all candidates, only two judges for the first instance passed, and they have not yet been appointed). In particular, the period during which certain public officials (police officers, etc.) are barred from serving as VAKS judges has been reduced from 10 to 5 years, and the restriction on re-entering the competition within a year during martial law has been removed.

The High Qualification Commission of Judges will determine the passing score for the cognitive ability test on its own (an interesting note: the results could not be analyzed due to “copyright” restrictions held by PsyMetrics LLC, which organized these events) and the history of Ukrainian statehood.

The idea behind the 2016 judicial reform was to bring scholars and attorneys into the judiciary. However, the competitive selection processes still reveal a clear imbalance, even from the outset, for different participants.

For example, a first-instance judge intending to move to an appellate or cassation court need only submit a copy of her employment record book to confirm the required length of service (even if she was on maternity leave for the entire period). At the same time, a lawyer must collect copies of court decisions (3 to 5 per year), which amounts to about 50 documents.

Declarations. Lawyers who practice individually and are not sole proprietors (as recommended by the Ukrainian National Bar Association) must (if interpreted literally) include their clients’ personal data and the amount of fees earned over the entire year in their declarations. This could violate both attorney-client privilege and the right to respect for the private and family life of such clients (Article 8 of the ECHR), who did not expect such disclosure of information. A similar problem may also apply to the candidate’s close relatives.

A similar situation applies to disciplinary complaints throughout the candidate’s professional career, as well as a description of any legal liability incurred over the past 5 years (which may even include traffic fines) in light of the European Court of Human Rights’ (ECHR) established case law regarding the “right to be forgotten.”

But the biggest deterrent for lawyers is the potential public “shaming” by civil society organizations, whose activities were crucial in the early years following the Revolution of Dignity and during the vetting process; but as things stand now, implementing this procedure would lead to a staffing crisis in the courts, as it would take additional months (if not years) that we simply do not have.

A possible solution could be to temporarily suspend the relevant procedure and appoint the highest-ranked candidates to positions (for all vacancies existing as of the appointment date). After all, the exercise of state authority is about trust in citizens, and only then (if necessary) should the relevant procedures be applied in the event of disciplinary claims.

The relevant committee of the Verkhovna Rada has drafted a backup bill regarding the possibility of seconding first-instance judges to appellate courts, which would mean a complete failure of judicial reform, given the shortage of judges even in the first-instance courts.