President Vladimir Zelensky appointed 114 judges to local courts in early May this year. In particular, there are 11 judges in administrative judges, 10 in economic judges, and 93 in general judges. Now they have not yet begun to perform their duties. In the meantime, the president plans to sign several more decrees on the appointment of judges.
Who are the newly appointed judges, will they satisfy the shortage of personnel in the judicial system, and why did the parliament want to strengthen the president’s powers to appoint judges?
Five-year judges
24 of the judges appointed by President Zelensky were those whose five-year term had ended. They passed an assessment carried out by the current composition of the High Qualification Commission of Judges.
We are talking about judges who started working before 2016. Then, according to the law, judges were first appointed for a five-year term, and after that they could extend it indefinitely - by decision of the Verkhovna Rada. President Petro Poroshenko's judicial reform removed the five-year rule and stripped parliament of the power to make appointments, arguing that it was necessary to guard against political influence among judges.
Today, about 800 more such judges still do not have the authority to administer justice.
In order to reappoint judges whose term of office was ending, the High Qualification Commission of Judges conducted their preliminary qualification assessment. Despite the fact that after Vladimir Zelensky came to power in mid-October 2019, the Verkhovna Rada terminated the powers of the entire composition of the VKKS. Its new composition began working only at the beginning of June 2023.
A judge works without authority: he must come to court, like other judges, but cannot consider cases. This also affected the workload of other judges.
According to the High Qualification Commission of Judges, as of May 20, 2024, local courts are two-thirds full (the shortage is almost 1.5 thousand out of 5 thousand positions), and the appellate court is half full (701 positions are vacant, with a total number of positions of 1,357 ). The highest special courts (this is the High Anti-Corruption Court and its chamber, as well as the High Court for Intellectual Property, which has not yet started working) are missing 55 judges, and in the Supreme Court - 39 judges.
“Today, from 22% to 61% of judge positions remain unfilled, depending on specialization and authority. Some courts do not administer justice due to the absence of judges. This affects both the access of citizens and businesses to justice, as well as the workload of judges, and, as a result, affects the timing of cases. It is clear that immediately after the signing of the Decrees, the problem will not be completely resolved, because the announced competitions will continue until 2025, but this is definitely “light at the end of the tunnel,” Deputy Head of the Presidential Office Irina Mudraya wrote on her Facebook page after the appointment of judges.
"Old" competitors and reservists
At the beginning of April 2017, the Higher Qualification Court announced a selection for the position of judges of local courts. Of the 4,128 candidates, 700 passed the qualifying stage. Of these, 370 were lawyers who did not have experience working in the judicial system as an assistant judge.
Subsequently, the candidates underwent testing of moral and psychological qualities in the form of testing and an interview with a psychologist and a special test, studied for nine months at the National School of Judges of Ukraine, and also passed a qualifying exam in the form of a written anonymous test on knowledge of legislation and an anonymous written practical task on writing a court decision according to the specialization of the local court: general, administrative or economic.
Before the termination of its powers in November 2022, the Higher Qualification Committee did not have time to formulate the final rating of these candidates, since they had not yet checked their practical work.
In September 2023, the new composition of the Higher Qualification Court announced a competition for more than five thousand vacant positions in local courts. Candidates have been allowed to participate in it since 2017. 20 of those who passed interviews and were recommended then were appointed by President Zelensky in early May of this year.
According to VKKS member Vitaly Gatseluk, there are several reasons for the lengthy appointment of judges.
“Firstly, even in an ideal situation, selection for the position of judge cannot be too fast a priori. Secondly, the intensification of judicial reform processes after the Revolution of Dignity required a restructuring of the entire justice system in accordance with the public demand for justice, the instrument of which was new practices of applying integrity standards to candidates for positions in the public sector, in particular for the positions of judges. And here, many already launched competitions have slowed down against the backdrop of structural restructuring and personnel renewal of judicial management bodies. Thirdly, the model for selecting judges of the first instance until recently provided for a cumbersome process with many stages,” he said in a comment to “Gratam”, adding that this is why the parliament, on the initiative of both the Higher Qualification Court and the OSD, in December 2023 simplified the selection procedure for local courts.
According to Gatseluk, the current composition of the Higher Qualification Court made the most of the resource of candidates for the positions of judges who participated in competitions several years ago, but these procedures were not completed then.
“To do this, we not only announced a competition in September 2023, but also found tools to ensure that data on candidates was updated (this was hyper-important, given, in particular, the martial law), held the most transparent competition in December, when candidates one after another in accordance with a rating, they could choose any of the open vacancies, and after that they spent almost the entire winter and spring interviewing candidates live, which was provided for by the new law,” Gatseluk noted.
Another 15 judges appointed by Zelensky were candidates included in the reserve of judges for local courts in 2019, and 55 candidates included in the reserve in 2023.
Distribution into “baskets”
The appointment of judges was positively received by the judiciary and the public sector.
“In conditions of personnel shortage, the adoption by the President of Ukraine of such decisions is extremely important for ensuring the right of citizens to access to court,” the Supreme Court statement says, in particular.
Chairman of the Council of Judges Bogdan Monich, in a commentary to “Gratam,” noted that these appointments will be able to improve the personnel situation in the judicial system if new judges are sworn in within a short period of time. He is also awaiting the appointment of other judges, for which the SCJ submitted a proposal to the President.
Member of the Supreme Court of Justice Alexander Sasevich, in turn, clarified that the signature of the head of state is awaiting submissions on the appointment of 64 judges submitted by the current composition of the Supreme Court of Justice, and 49 by the previous composition. Three of the latest list of judges have already been recommended for dismissal by the current composition of the Supreme Court, so the proposals for their appointment will be withdrawn.
At the end of April, during one of the round tables on the appointment of judges, Irina Mudraya, Deputy Head of the Presidential Office for Issues, including the Judicial System, said that she divided all ideas about the appointment of judges into two “baskets.”
“The first basket is of judges who were selected by the new composition of the High Qualification Commission of Judges and the High Council of Justice starting in 2023. The second basket consists of submissions that were received to update the composition of the VKKS and VSP. I will try to “launch” the proposals proposed by the new composition of the HQCC and the Supreme Council as soon as possible for the president to sign the decrees on the appointment,” Mudraya explained.
In a comment to "Gratam", the Deputy Head of the Presidential Office for Issues clarified that it is not yet clear what will happen to the ideas about the appointment of judges by the previous composition of the Supreme Court.
“At the moment, the Office of the President has about 50 submissions for the appointment of judges, sent by the previous composition of the Supreme Court. At the same time, we already have several judges who were nominated for appointment as judges by both the previous and the new composition of the Supreme Court. In addition, we began to receive applications from candidates who asked to return the Supreme Court’s submission to them to appoint them as judges. However, given that the direction of such submissions is the competence of the High Council of Justice, it is logical that the revocation should also be carried out by them. Accordingly, while we do not have a final figure for the number of candidates who will remain as a result of the new competitive selection, it is premature to talk about the fate of the submissions from the previous composition of the SCJ,” she noted.
According to Mudra, the swearing-in of judges will take place after several more appointment decrees are signed.
Powers of the President
In parallel with the appointment of judges, the Verkhovna Rada intensified the process of considering bill No. 9439, which provided for strengthening the powers of the president to appoint judges. Previously, the head of state had such powers, but in 2016, parliament amended the legislation and gave him a ceremonial function: he is only required to sign the submissions submitted by the High Council of Justice.
The above-mentioned bill was registered in the Verkhovna Rada a year ago. According to the text of the draft law, during martial law and within one year from the date of its termination or cancellation, the president may return the proposal for the appointment of a judge to a position in the Supreme Court for re-consideration if he receives information from the Security Service of Ukraine, the National Anti-Corruption Bureau of Ukraine indicating that the future judge commits actions that may threaten the national security of Ukraine or harm national interests. In this case, the Supreme Court reconsiders the issue of submitting a proposal to the head of state to appoint this person to the position of judge.
The Main Scientific and Expert Department of the Verkhovna Rada Office in its opinion on the bill noted that granting the president such a right (albeit temporary) “can be interpreted as interference in the procedure for appointing judges and be regarded as a violation of the principles of independence of judges and the judiciary as a whole.”
“In addition, the very fact of the SBU and NABU receiving information about the commission of illegal actions by a candidate for the position of a judge that fall under the elements of a particular criminal offense cannot be considered a sufficient basis for the president to make a decision by which the person is actually denied appointment to the position of a judge, since the presence of the above-mentioned “information” is not unconditional evidence of a person’s guilt in committing some illegal act,” says the conclusion of the scientific and expert department of the parliamentary apparatus.
The Venice Commission insisted that the president's role in appointing judges should be "ceremonial."
In its conclusion to the then draft law, which provided for a reduction in the powers of the head of state to appoint judges, in September 2015 the commission noted that “... the President of Ukraine still plays a ceremonial role: he appoints candidates nominated by the High Council of Justice, whose proposals will be binding for the President. The law will have to regulate possible delays or “deadlocks” in the appointment of judges by the President of Ukraine.”
The High Council of Justice in its conclusion on this bill (*The Supreme Council provides conclusions on all bills related to judicial reform) noted that the head of state participates in the formation of the composition of the judiciary, in accordance with constitutional rights, probably meaning that the vesting of his powers returning petitions for the appointment of judges would be a violation of the Constitution. The head of state, according to the Basic Law, has the authority only to appoint judges on the proposal of the Supreme Court.
At the same time, the Supreme Court did not object to the possibility of empowering it to reconsider the issue of submitting a proposal to the president on the appointment of judges if it received information from the SBU and NABU that such a person has committed actions that may threaten national security, which is also provided for by the draft law .
“I would like to draw attention to the structure of this norm - it is of a dispositive nature, and gives the President the right, and not the obligation, to return a proposal on the appointment of judges if such information is received. And we are not saying that this mechanism is ideally written out by the authors in the bill and will be used by the President in exactly this form. In addition, I am sure that if adopted in the first reading, the draft will be modified by the second reading,” noted Irina Mudraya, commenting on such an initiative to “Gratam”.
As a result, the Verkhovna Rada rejected this bill during its meeting on May 23.
