Judicial Power. What Is Inhibiting the Reform of Local Courts and Courts of Appeal?

For the first time since the beginning of the Great War, 248 new judges took the oath to the Ukrainian people to “independently, fairly, and professionally exercise justice on behalf of Ukraine” on 5 July in the Ukrainian House. The day before, President Zelenskyy appointed 214 judges to local courts and one judge to the Supreme Court. Another 114 judges were appointed in May, waiting to take the oath for almost two months (while receiving a judicial remuneration).

During the oath, Zelenskyy wished the judges that “each “decision in the name of Ukraine” strengthened respect for the courts and Ukraine on the whole.” Ruslan Sydorovych, Deputy Chair of the High Qualification Commission of Judges of Ukraine, which held the competition for local courts, noted that “248 judges account for 5% of the judiciary of Ukraine.” He also expressed hope that this “will have a significant positive impact on citizens’ access to justice throughout the territory of Ukraine.”

We described competitions in detail in the previous article. Now, we are going to consider what generally happens in local courts and courts of appeal during the war and how they perceive the judicial reform, which, at this stage, mostly concerns them.

Spoiler: it is perceived differently and often resisted.

In the Language of Numbers

As of 24 June, there are 3,592 judges working in local courts (out of the fixed number of 5,035 positions). 650 judges are working in the courts of appeal (out of the fixed number of 1,357 positions).

To recall, the High Qualification Commission of Judges (HQCJ) has recently completed the competition for 560 positions of judges of local courts. However, only 390 candidates received recommendations. HQCJ also launched a competition for 550 positions of judges for courts of appeal. By the end of the year, it promises to announce another competition for local courts for the record number of 1,000+ judge positions.

It is considered that although competitions (most likely) will be taking place for about two years, in 2027, personnel shortages in the courts will be largely overcome, and most vacancies will be filled. At the same time, the system will receive a certain number of outside experts: lawyers and scientists in appellate courts and lawyers and attorneys in first-instance courts. Is that really so?

New Judicial Map

To answer this question, we need to know how many courts and judges Ukraine needs.

The war changed everything, in particular in courts: some of them had to be closed (70+ courts), and judges had to be sent to administer justice in other courts (500+ persons); new categories of court cases appeared in all instances, and jurisdictions (war crimes, military crimes, compensation for lost property, social security of military personnel, etc.); many premises were ruined or partially damaged (15 and 116 premises, respectively).

Over the past two and a half years, there has been a large population migration between regions. In addition, many Ukrainians moved outside the country. Taking this into account, no one can clearly say the number of courts and judges we actually need and in which regions. Unfortunately, there is no detailed analysis of these processes either.

The situation worsened because, before the full-scale invasion, Ukraine failed to develop and approve a new judicial map corresponding to the new administrative and territorial system effective since December 2020. So, currently, even the functioning courts do not correspond to their districts, and the names of more than 50 courts are still Soviet. “Leninskyi District Court of Kirovohrad City” sounds like mockery.

You might think, how is it possible during the eleventh year of the war? But it is: the 2017 reform of local courts, which stipulated their expansion (and discarding Soviet names) and should have been implemented in 2019–2020, stayed a reform on paper. And no new actual map has been approved for four years.

Although there is some progress, during the war, even in Zakarpattia Oblast, which is the farthest from the front line, the launch of a pilot project for court expansion developed with the help of our European partners has failed. They say they are unaware of how many people will live there after the war.

This is a clear argument, but it preserves the situation indefinitely and slows down the “main reform of the country.” After all, it directs new competitions to local courts in the wrong way: if judges are appointed to “old” local courts in 2026–2027, then procedures for transferring these judges to new ones may continue for several more years.

So, what can we do?

The Supreme Court insists on developing and approving a new judicial map as soon as possible, stressing that even if the courts are expanded now “on paper,” without the actual relocation of judges between the premises, this will still be a step forward because it will significantly reduce the number of procedural transfer of court cases between small courts. The number of judges can also be regulated after the victory, and new premises can be built in districts with a shortage of existing ones.

There is also a significant problem with the substantially uneven workload that judges have in different courts. Sometimes, it varies by more than ten times, and then each judge of such a court works for three, five, or even seven judges while receiving the same salary and having the same number of assistants and court hearing secretaries.

The judicial system generally considers 4.5 million cases and case files annually (information for 2023). When it is done by 4.5 thousand judges, not everyone can withstand such a load. Just last week, ten people were dismissed: eight resigned, and two more were fired due to low qualifications and dishonest behaviour within the framework of judicial lustration procedures.

Another important issue is the feasibility of courts considering all cases currently assigned to their jurisdiction. Shall cases concerning the sale of milk or apples at the market without appropriate permission be considered by courts?

Without regulating the jurisdiction issues and the number of courts and judges, it will be impossible to address the matter of workload and, therefore, the quality of justice because an excessive number of cases affects both the terms of their consideration and the quality of court decisions.

Today, the Council of Judges of Ukraine and the Verkhovna Rada Committee on Legal Policy take care of issues related to the new map. However, after amendments were made to the Constitution of Ukraine in 2016 (and taking into account recommendations of the Venice Commission regarding these amendments), “the court shall be set up, reorganised, and liquidated by law,” the draft of which is submitted to the Parliament by the President of Ukraine.

So, the ball is definitely on the presidential office’s side, which will decide when to take this step: whether to approve a new map now, at least for regions where hostilities are not taking place or to leave everything for “after the war.”

“Timeless” Court Presidents

However, the matter is not only on the judicial map. The actions of many presidents of local and appellate courts also inhibit the reform.

Within the 2014–2018 reform framework, new rules were established for the term of office of court presidents. Since 2016, a judge can hold the position for no more than six consecutive years (two three-year terms). This was done, particularly within the framework of fighting corruption in courts, reducing the influence of court presidents on judges and office employees, and reducing the risks of corruption from such influence.

New rules did not satisfy most court presidents because they had been used to rule the courts for decades. Therefore, several ways were invented almost immediately to circumvent these rules, which most court presidents apply quite successfully. This component of judicial reform slowed down.

This way, Yaroslav Holovachov, President of the Kyiv Court of Appeal (the court where four judges were arrested for corruption six months ago), prematurely resigned three months before the expiration of the term of office. Another judge was elected as the court president for two weeks, two weeks after Holovachov returned to his position and started a new six-year term.

Are Kyiv Court of Appeal judges not aware of the fact that these are additional corruption risks? They are perfectly aware of it. Moreover, in court, judges sometimes bring bribes to each other in the middle of the day, wrapped in a package of coffee or hidden in a bottle of cognac.

Why are they doing this? Perhaps it is because Yaroslav Holovachov is a talented leader and an excellent manager. Or maybe because he allows them to bring each other “coffee” and “chocolates.”

The story of the “third term” also occurred in the Halytskyi District Court of Lviv, but there, a judge (Kateryna Kotelva) posted her story on Facebook: “The meeting of judges has just elected the president of Halytskyi District Court in Lviv – Iryna Romanivna Volosko for the third term in a row. I voted ‘against’ the approval of the meeting’s decision.”

Another similar story is the election of the head of Krasnoarmiiskyi City District Court of Donetsk Oblast for a third term. However, there is a catch: the court has been closed for some time, but its president is the same person (Olena Fil) as before the temporary closure. Some judges were against such an appointment, but who cares about the opinion of the minority?

A case that was not less outstanding took place in the Economic Court of Chernivtsi Oblast. According to the judges of this court, Oleh Proskurniak, the court president, received the position in exchange for dismissing the pregnant head of the office. Courts of three instances and two jurisdictions have been dealing with this story for a year because the dismissed head of the office is trying not only to return to her position but also to recognize one of the judges of this court (Volodymyr Baitaliuk) as the father of her child. That is, the meeting of judges allowed the court president to keep his position because he “cleaned up the dirt” after one of the judges. It looks like the Middle Ages and the times of the Inquisition rather than a country trying to become part of the EU and NATO.

A few years ago, the Council of Judges of Ukraine even “played along” with court presidents and actually legalized all their schemes. The Supreme Court, on the contrary, believes that there cannot be any third terms. Stanislav Kravchenko, the Supreme Court President, responded to our request to comment on the “third term of court presidents” and said: “The Supreme Court does not accept and does not tolerate such actions of court presidents and meetings of judges. If we strive to develop the judiciary, the rotation of persons holding administrative positions shall take place in compliance with the general logic of judicial reform.”

At the same time, the Supreme Court adds that the problem has another component. Sometimes, there is no one to replace the court president, whose second term is ending because a good judge and a good manager are not identical concepts.

It is evident that the existing situation requires immediate interference of the legislator and a clearer definition in the law of the rules for court president rotation. If the majority of judges in Ukraine still do not realize that the law is not a manual in a post office that says “Do this, don’t do that,” then it will be necessary to supplement the Law of Ukraine “On the Judiciary and the Status of Judges” with a clear norm regarding the number of years of tenure in administrative positions and the number of years of “rest” from them, taking into account the previous years of court management.

The issue of leadership in the judiciary and appropriate training also requires attention (we will devote a separate article to these issues because the judicial reform almost did not affect the National School of Judges of Ukraine).

Front-line Courts

Analysis of the functioning of local courts and courts of appeal would be incomplete without describing the working conditions of courts in the front-line regions. In 2022, the jurisdiction of cases of some courts was changed, and judges were transferred to all corners of Ukraine. Currently, some courts in Donetsk, Kherson, Zaporizhzhia, and Kharkiv Oblasts operate near the line of contact.

The most complicated is the situation in Donetsk Oblast. The premises of some of the working courts have been ruined, so the judges have moved to the “neighbours.” This way, judges from Dymytrovsky City Court of Donetsk Oblast also work in the premises of the already mentioned Krasnoarmiiskyi court.

Several courts work remotely. At the same time, no criteria establish when a court should change its jurisdiction and when it should continue working remotely or in the usual mode.

The situation is made even more complicated by the lack of not only electricity but also water. In Pokrovsk, Selydovo, and Kurakhovo, water is available only two days per week, moreover, by hours. No one knows how the courts should survive the winter under such conditions.

Judges are trying to get transferred to other, calmer regions. However, in most cases, the HQCJ refuses to transfer them, referring to the Supreme Court’s request “not to touch these judges.”

We asked the Supreme Court what is the reason for such a request. Don’t the judges from the frontline regions deserve better living and working conditions? The Supreme Court explains that they are regularly asked by prosecutors, representatives of law enforcement agencies, and lawyers not to close frontline courts.

So, judges have the same status, salaries, and conditions. Of course, this affects the desire of people from these regions to work in their positions.

Regulating the work of courts in frontline regions is long overdue. There were attempts to do this as early as 2022, but the Verkhovna Rada refuses to vote for the remote operation of courts, motivating this by the fact that the parliament does not work online. However, we are discussing the territories close to the contact line. One cannot see that the parliament holds its meetings in those regions.

It also requires attention that judges and employees of court offices from frontline regions do not receive additional payments for working in hard conditions. At the same time, some representatives of other state bodies get such allowances.

Instead of Conclusions

Currently, Ukraine is in the active phase of reforming the courts of first and appellate instances. The appeal section has not been replenished with new personnel for more than ten years, the first instance section has not yet reached its critical level of renewal that would not permit it to roll back. That is why resistance to reforming at these levels is currently the highest, and corruption cases are, unfortunately, not rare.

The HQCJ started the competition to courts of appeal last year, and it should end next year with the appointment of 500+ new judges. The competition to local courts, which the HQCJ plans to announce at the end of this year, will probably end in 2026–2027 with the appointment of 1,000+ new judges.

They will certainly change the shape of Ukrainian justice. However, new judges will come to courts where the “old” presidents have been ruling for years (with all existing schemes, extra-procedural communication with the parties to cases (the case of the president of the Poltava Court of Appeal, Serhiy Halonkin), the “telephone right” and other attributes of the “old” system).

Therefore, we may not see a new quality of the judiciary, a new outlook, and a significant reduction in corruption risks, even with the appearance of new judges in courts, who will follow the old rules and will not be able to change anything for at least another five years.

This already poses a very important task for Ukraine: to resolve the issue of the reign of the “old” court presidents and to get rid of monopolies at the level of all courts of appeal, which are actively resisting new rules and trying to cement the situation for years. This, of course, also prevents an effective fight against corruption in the judiciary.

Therefore, judicial reform will be completed in Ukraine only when the judges, who understand the laws best of all, are the first to follow them and use their powers to serve society, not the political authorities, oligarchs, or their selfish interests. But until then, more than one war will have to be won within the judiciary.