On 4 November, the European Commission released its Report within the 2025 European Union Enlargement Package, assessing Ukraine’s progress across all negotiation chapters, including the rule of law, the reform of the prosecution service, law enforcement agencies, anti-corruption policy, and the security sector. The EU notes Ukraine’s progress on its path towards European integration, yet calls for the acceleration of structural changes and the safeguarding of the independence of key institutions.

Experts from the Agency for Legislative Initiatives analysed the recommendations of international partners under Chapters 23 and 24, specifically, concerning judicial reform, the reform of the prosecution service, the fight against organised crime and related areas. Most recommendations echo the assessment provided by civil society organisations led by the Agency for Legislative Initiatives in the Shadow Report presented earlier.

The European Commission has clearly set out the main reform priorities for the year ahead. Specifically, Ukraine needs to take the following steps in implementing judicial reform:

• Adopt a medium-term strategy for the development of the justice system and constitutional adjudication, ensuring a coherent vision and the sustainability of reforms.
• Reinstate international experts on the Selection Commission for appointing members of the High Qualification Commission of Judges (HQCJ). At the same time, the procedure for selecting and nominating Ukrainian experts to this body should also be revised.
• Adopt legislation to improve the system of integrity declarations submitted by judges, including the temporary involvement of independent experts delegated by international partners to verify the declarations of judges of the higher courts. To minimise corruption risks in the Supreme Court, such experts should also be temporarily involved in the selection of new Supreme Court judges. This would enhance the accountability of the judiciary.
• Refine the constitutional procedure in line with the recommendations of the Venice Commission.
• Promptly address the staffing shortage in the courts by accelerating competitive selection procedures and qualification assessments.
• Strengthen the institutional capacities of the High Council of Justice (HCJ) and the HQCJ — including through the development of IT and analytical departments — to speed up judicial appointments.
• Reinforce public oversight bodies, particularly the Public Integrity Council, by improving access to case files, enhancing its analytical capacity and establishing an independent secretariat.
• Note that the refusal of the Bar to delegate representatives to judicial governance bodies adversely affects the balance within the system.
• Strengthen the Service of Disciplinary Inspectors by ensuring adequate financial and institutional support.
• Begin renewing the Ukrainian Bar and reform the bodies of judicial, Bar, and prosecutorial self-government — the Bar Council of Ukraine, the Council of Judges and the Council of Prosecutors — an issue on which the European Commission has repeatedly insisted.

The EU draws particular attention to the developments taking place within the prosecution service, which are causing concern. It emphasises that the sphere must be shielded from political influence and that prosecutorial independence must be ensured:

• The procedures for appointing and dismissing the Prosecutor General must become more objective, transparent and merit-based in line with European standards, in order to reduce the risk of politicisation. The European Commission expects this to be reflected in the relevant legislative amendments.
• Despite positive steps — including the restoration of the independence of the NABU and the SAPO in July 2025 — several harmful provisions remain in the new Law No. 4555-IX. These include those that allow, during martial law, the transfer and appointment of prosecutors to regional prosecutors’ offices and to the Prosecutor General’s Office without competition, as well as those granting the Prosecutor General access to any pre-trial investigation materials (except for materials of the NABU and the SAPO). The European Commission is convinced that this undermines meritocracy in the prosecution service and creates risks of undue interference in criminal cases. It therefore stresses the need to revoke such provisions and that until new amendments are adopted, their application should be suspended. 
• The European Commission assessed negatively the decision of the Prosecutor General to abolish the personnel reserve shortly before the reserve list of candidates with high integrity and professionalism had been finalised. European partners link this decision to the politicised nature of the procedure for appointing the Prosecutor General.

In the security sector, the European Commission notes the lack of tangible progress in reforming the Security Service of Ukraine. In the EU’s view, the SSU should focus on national security and its investigative functions should either be transferred to other law enforcement agencies or limited strictly to national security matters, with appropriate safeguards against abuse. Among the priority steps for Ukraine, the EU also highlights:

• the need to complete the crime analysis based on the SOCTA methodology;
• the need to approve the Strategy for Combating Organised Crime for 2026–2030;
• the continued need to conduct competitive selections for middle and senior management positions in the National Police of Ukraine and the State Bureau of Investigation, with the participation of independent experts delegated by international partners;
• the European Commission notes that the appointment of a new Director of the Economic Security Bureau of Ukraine after prolonged delays was a positive step. At the same time, the reform of the ESBU must continue. The agency’s strategic development plan should be revised, and a re-attestation of staff should be carried out. The EU considers it necessary to strengthen the ESBU with financial, human and technical resources, as well as to ensure its proper operational independence.

Thus, the European Commission sees Ukraine’s efforts to implement reforms and acknowledges that progress is being made — though, it appears, not enough. It emphasises that the pace of change in the justice system, the prosecution service, and the security sector needs to accelerate. The readiness of the authorities not only to declare intentions but to implement them in practice will become the key indicator of genuine European integration maturity.

The project will be implemented jointly with the following key judicial institutions: the Supreme Court, the High Council of Justice, the High Qualification Commission of Judges of Ukraine and the Constitutional Court of Ukraine. To this end, the project partners signed a Memorandum of Intent on 23 October 2025. On behalf of the Agency for Legislative Initiatives, the Memorandum was signed by Svitlana Matviienko, ALI’s Executive Director.

On behalf of the judiciary, the Memorandum was signed by Stanislav Kravchenko, President of the Supreme Court; Hryhorii Usyk, Chairman of the High Council of Justice; Andrii Pasichnyk, the Chairman of the High Qualification Commission of Judges of Ukraine; and, on behalf of and in accordance with the order of the Acting President of the Constitutional Court of Ukraine, Judge Oleksandr Vodyannikov of the Constitutional Court of Ukraine. 

The Memorandum was signed under the auspices and, in the personal presence of, Jakob Granit, Sida’s Director-General, the project donor. 

The project starts in October 2025 and is to last for 30 months. The project aims to strengthen the capacity of the judiciary and constitutional justice by digitalising internal processes in key institutions and designing new solutions for interacting with the public. The project’s achievements are expected to be scalable and extendable to other judicial institutions, particularly the higher, specialised, appellate, and first-instance courts. This approach will contribute to the comprehensive modernisation of the entire judicial system.

This project is an integral part of the tasks outlined in the Roadmap on the Rule of Law and the Ukraine Facility Plan 2024–2027, which are essential for Ukraine’s further path towards EU membership.

On 23 October 2025, in Kyiv, a coalition of civil society organisations led by the Agency for Legislative Initiatives (ALI) presented the Shadow Report to the European Commission’s 2024 Report on Ukraine. The report covers Chapters 23, ‘Judiciary and Fundamental Rights’ and 24, ‘Justice, Freedom and Security’ — chapters that the European Union considers fundamental to Ukraine’s integration process. The presentation became a platform for open dialogue between government, experts and European partners — about Ukraine’s progress towards EU integration and the challenges that still lie ahead.

The main goal of the Shadow Report is not criticism but to propose a roadmap for strengthening the state on its path to the EU. This was underlined by Svitlana Matviienko, Executive Director of the Agency for Legislative Initiatives: 

The document contains more than 500 specific recommendations covering the rule of law, judicial independence, reform of law enforcement agencies, human rights protection and the fight against corruption and organised crime. The practical value of this analytical work was emphasised by Oksana Tsymbrivska, Head of the EU Project Pravo-Justice:

The event took place on the eve of the release of the new EU Enlargement Report, in which the European Union will assess Ukraine’s reform progress. As Katarína Mathernová, EU Ambassador to Ukraine, noted, the accession process should be measured not by speed, but by resilience:

Taras Kachka, Deputy Prime Minister for European and Euro-Atlantic Integration, stressed in his remarks that cooperation between government, civil society and international partners is the key to reform effectiveness:

The importance of mutual support between government and civil society was also highlighted by Iryna Mudra, Deputy Head of the Office of the President:

She added that despite challenges, the President and his team have acted within their powers and at the necessary pace: ‘Over the past year, everything within the President’s powers has moved forward without delay’.

Experts, meanwhile, pointed out that progress in the justice sector remains uneven. Karyna Aslanyan, Head of the ‘Rule of Law’ Area at the Agency for Legislative Initiatives, noted: 

Yevhen Krapyvin, Head of the ‘Law and Order’ Area at the Agency for Legislative Initiatives, emphasised the need to ensure the full independence of the prosecution service — a key to fostering a European justice culture:

The Shadow Report is the result of joint work by the Agency for Legislative Initiatives, Transparency International Ukraine, the Human Rights Centre ZMINA, Tomorrow’s Lawyer, Europe Without Barriers, European Pravda and the Ukrainian Bar Association. Its aim is to provide a comprehensive, independent assessment of Ukraine’s implementation of the European Commission’s recommendations, identify reform gaps and outline priorities for the next phase of the country’s movement towards EU membership.

The Shadow Report was prepared by a coalition of civil society organisations led by the Agency for Legislative Initiatives, under a grant provided by the EU Project Pravo-Justice, implemented by Expertise France. The content is the sole responsibility of the authors and does not necessarily reflect the views of the European Union.

The document assesses Ukraine’s progress under Chapters 23 (“Judiciary and Fundamental Rights”) and 24 (“Justice, Freedom and Security”) of Negotiation Cluster 1, “Fundamentals of the Accession Process”. Progress in this cluster plays a decisive role in Ukraine’s EU accession negotiations.

The period reviewed by experts spans from September 2024 to August 2025 for Chapter 23 and includes earlier data up to August 2025 for Chapter 24. One of the key achievements during this period was the approval of the Rule of Law Roadmap, whose recommendations will serve as guidance for opening negotiations under Cluster 1. The roadmap is the result of close cooperation between state authorities, civil society representatives, and international experts.

The Shadow Report highlights not only Ukraine’s progress but also the challenges and shortcomings in implementing European standards in areas such as the rule of law (courts, prosecution, legal profession, legal education), the fight against corruption and organised crime, the protection of fundamental human rights and freedoms, as well as visa policy, migration, and related fields.

Experts from the participating civil society organisations (CSOs) have formulated over 500 recommendations, ranging from legislative amendments to institutional reforms. These are designed to help public authorities address current challenges, secure sustainable results, and, together with international partners, set clear reform priorities.

The preparation of shadow reports is a standard practice for all EU candidate countries. In Ukraine, this work has been carried out systematically since 2024, when a coalition of CSOs first produced an alternative analysis to the European Commission’s Report. That document was positively received by the European Commission and the expert community, with its recommendations subsequently reflected in the Rule of Law Roadmap.

Despite the challenges surrounding the opening of Cluster 1, Ukraine must continue to pursue reforms with consistency and strengthen its institutions, demonstrating its ability to meet European standards regardless of external political dynamics. This approach not only enhances the prospects for successful accession negotiations but also reinforces the state from within. The 2025 Shadow Report, prepared by the CSO coalition, serves as an important instrument for public oversight — helping to identify gaps and encouraging more effective implementation of reforms that bring Ukraine closer to EU membership.

The Report includes the following sections:

1. Judicial and prosecution reform, combating organised crime (selected topics excluded), cooperation in the field of drug control, counter-terrorism and judicial cooperation in criminal, civil and commercial matters — Agency for Legislative Initiatives;
2. Fighting corruption and certain aspects of combating organised crime — Transparency International Ukraine;
3. Protection of fundamental rights and freedoms, selected topics on combating organised crime, legal and illegal migration and granting asylum to refugees (asylum seekers) — the Human Rights Centre ZMINA;
4. Bar reform — Tomorrow’s Lawyer;
5. Legal education reform — Ukrainian Bar Association;
6. Visa policy, Schengen and external borders, certain aspects of legal and illegal migration and euro counterfeiting — Europe Without Barriers.

The Shadow Report was prepared by a coalition of civil society organisations, led by the Agency for Legislative Initiatives, within the framework of the EU Project Pravo-Justice grant, implemented by Expertise France. Its contents are the sole responsibility of the authors and do not necessarily reflect the position of the European Union.

On 8 October, the Verkhovna Rada of Ukraine (VRU) failed to vote in favour of appointing two judges to the Constitutional Court of Ukraine (CCU), while the President, through his decrees, appointed two new members to the High Council of Justice (HCJ) and 20 judges to general jurisdiction courts.

In an attempt to balance the public perception of ‘defeats and victories’, these three developments revealed opposite tendencies within the justice system — formal progress on the surface, yet the persistence of old approaches to decision-making. The Agency for Legislative Initiatives analyses how this may affect the further course of judicial reform and Ukraine’s European integration.

The appointment of two members to the HCJ is a long-awaited decision. The President had, for a long time, failed to appoint candidates who had already been vetted and recommended by the Ethics Council. The High Council of Justice now consists of 17 members out of 21, which strengthens its institutional capacity — until recently, the HCJ had been operating on the verge of a quorum. This will now allow for more effective consideration of disciplinary cases and decisions on the appointment and dismissal of judges, as well as the disciplining of those who previously could not be held accountable due to an insufficient number of members.

At the same time, the authorities once again ignored candidates from civil society — including those with experience in the judicial system — whose nominations had repeatedly been supported by international partners.

Yet Zelenskyy continues the flawed practice of issuing ‘personal decrees’, whereby each judge is appointed individually. This allows the use of the so-called ‘basket system’, where candidates are divided into two conditional ‘baskets’: those who may be appointed immediately and those who are to be held back.

Such selectivity creates personal dependency — where each newly appointed judge seemingly owes gratitude to the President personally rather than to the system. Consequently, it poses a risk to judicial independence and could lead to political bias in the future.

The failed vote on the Constitutional Court judges signalled a systemic inability to uphold domestic laws and EU-integration commitments. The Verkhovna Rada had already delayed the selection process by more than eight months. When the vote finally took place, it appeared that the Servant of the People majority simply lacked the necessary votes. No one wished to negotiate with other factions over the candidates. Everything seems rather banal: no votes for ‘our people’ — no votes at all. Moreover, this does not block the EU-integration process, as the President recently appointed two CCU judges under his quota — Oleksandr Vodiannikov and Yurii Barabash. Instead of responsibility, there is cold calculation. Yet experience shows there are always enough votes when it is necessary and convenient.

It is ironic that it was the Verkhovna Rada itself that, several years ago, amended the law to introduce a competitive selection for the CCU with the participation of an independent advisory body — in this case, the Advisory Group of Experts (AGE). This was intended to make the competition transparent and to prevent political influence.

Now, however, when the mechanism has worked and those shortlisted through the new competition involving international experts have reached the final stage, Parliament has simply failed to implement the very law it adopted. Moreover, some MPs are attempting to shift the blame onto the AGE, claiming that it selected the ‘wrong’ candidates. Yet the problem does not lie with the experts, but with the deputies themselves, who are blatantly refusing to follow their own rules.

What happens next? The competition for vacancies from the Verkhovna Rada will have to start from scratch: once again announcing the selection, engaging the AGE, and spending months on vetting, interviews and so forth. But the greatest harm is done not so much to the process as to the people.

For those who took part in open competitions, this sends a clear message — even if you win fairly, you may simply never be appointed. Meanwhile, politicians gain another opportunity to restart the process and select more ‘loyal’ candidates.

In effect, Parliament is not only stalling the fulfilment of EU-integration obligations but also demotivating those who are ready to change the system from within — taking, once again, two steps back.

The events of 8 October vividly illustrated one of the main problems of Ukrainian reforms — they stop where political interest begins. On the one hand, the High Council of Justice has received new members and a chance to become effective, while the Constitutional Court remains mired in uncertainty.

When the authorities block the appointment of judges selected through independent competitions, they are not merely retreating from European standards — they are demonstrating that even laws already passed can be devalued by political expediency.

In the summer of 2025, the Grand Chamber of the Supreme Court (SC GC) delivered a ruling that sparked a public outcry among the media and civil society organisations — headlines spoke of the ‘reinstatement’ of a judge with Russian citizenship, Arina Litvinova, allegedly with the right to lifelong payments. However, as the saying goes, the devil is in the details. A close reading of the SC GC’s decision revealed that this was far from the case. At the same time, Litvinova’s story exposed a number of issues that concern not only individual cases and personalities, but also the independence of the judiciary itself. So, what is really at stake? Let us unpack it in this piece.

Judge Arina Litvinova had served in the notoriously controversial Kyiv District Administrative Court (KDAC) since 2008, until its dissolution in December 2022. Afterwards, she no longer exercised judicial powers, though her formal status as a sitting judge — and her entitlement to judicial remuneration — remained. In 2023 alone, she earned 1.6 million hryvnias. Like other KDAC judges, Litvinova was required to undergo a qualification assessment, following which she would either be dismissed or transferred to another court.

In April 2024, it emerged that Litvinova had held a Russian passport since 2002. The public learned of this from an investigation by Skhemy journalist Heorhii Shabaiev. According to the investigation, Litvinova’s parents also hold citizenship of the Russian Federation.

Litvinova had deliberately concealed this information. As early as 2018, when she began undergoing qualification assessment, her questionnaire and responses were published on the website of the High Qualification Commission of Judges. In reply to the direct question of whether she held citizenship of another state, the former KDAC judge simply answered: ‘No’.

After the investigation was made public, Litvinova attempted to take an honorary retirement — unsuccessfully. The authorities responded swiftly: the Security Service of Ukraine (SSU) confirmed her Russian citizenship, filed a complaint against her with the High Council of Justice (HCJ), and the HCJ decided to suspend and dismiss her from office. It seemed, at that point, a happy ending. 

However, in June 2025, the Grand Chamber of the Supreme Court overturned this decision of the HCJ. In the media space, Litvinova was hastily ‘reinstated’ — even though this did not in fact happen legally. The Supreme Court was quick to issue a clarification, explaining that its ruling did not mean reinstatement in office, the right to honorary retirement or lifelong payments. So, what, then, did this decision actually mean?

The High Council of Justice had dismissed Litvinova as part of disciplinary proceedings, despite the fact that her judicial powers had already expired on 31 October 2024. In the view of the SC, this contradicted not only the HCJ’s own regulations but also the Constitution of Ukraine and the Law on the Judiciary.

Specifically, Article 126 of the Constitution directly provides that a judge’s acquisition of citizenship of another state is grounds for the termination of his or her powers. This also prevents the judge from taking honorary retirement or receiving lifelong financial support. The mechanism operates automatically and does not require disciplinary proceedings, since the powers have already been terminated through another procedure. In other words, the SC GC restored legal logic but did not reinstate Litvinova and did not alter the substance — the constitutional norm applied, and it is binding.

The decision of the Grand Chamber of the Supreme Court regarding Litvinova also brought some clarity to the case of Bohdan Lvov, former head of the Commercial Cassation Court. Around his Russian passport — likewise uncovered by journalists from Skhemy back in September 2022 — a whole saga unfolded. Lvov tried by every possible means to prove his Ukrainian citizenship and deny holding citizenship of another state. Moreover, he sought reinstatement at the Supreme Court. He almost succeeded — the Kyiv District Administrative Court (KDAC) ruled in his favour. However, the decision was later overturned by the Sixth Administrative Court of Appeal, where the SSU confirmed that Bohdan Lvov did in fact hold a Russian passport. The former judge never accepted the ruling and continues to consider his dismissal from the SC unlawful, even announcing his intention to appeal to the European Court of Human Rights (ECtHR).

Nevertheless, the SC GC’s decision in the Litvinova case once again confirmed that the then President of the Supreme Court, Vsevolod Kniazev, had acted within his powers. He removed Lvov from the court’s staff precisely based on the Constitution, as a judge holding foreign citizenship.

This means that the former judge’s powers should remain terminated, and he should not be entitled to reinstatement or to honorary retirement with lifelong benefits. Yet, as in Litvinova’s case, it will ultimately be for the Supreme Court to put an end to the matter — something it has been in no hurry to do for more than a year.

The cases of Litvinova and Lvov have highlighted a much deeper problem. With no diplomatic relations between Ukraine and Russia, the only source of information about citizenship status is certificates issued by the SSU. Legally, in the Litvinova case, the Supreme Court defended both the right and the procedure. Yet it also created another dilemma: the independence of the judiciary — and, in essence, the fate of any judge — now directly depends on what the SSU writes in its letter.

In effect, the Security Service of Ukraine has gained a new lever of influence over every judge — it can determine who may remain on the bench and who may not. This poses a threat not only to the process of cleansing the system of potential agents of influence but also to the independence of those judges who hold no foreign citizenship. Unconvincing evidence may become a basis for manipulation and discrediting members of the judiciary, or for removing disloyal judges from office. How Ukraine will manage to reconcile the rule of law with security needs is one of the greatest challenges ahead.

At the same time, the state lacks an effective mechanism not only for checking whether officials hold passports of another country, but also for preventing reinstatement or retention in office of those who are indeed found to have Russian citizenship.

The introduction of such a tool — or at least a clear procedural algorithm — would help to cleanse state and local authorities, as well as the courts, of potential traitors and Russian spies. The Agency for Legislative Initiatives noted this in its Shadow Report to the 2023 European Commission’s Report on Ukraine. This issue must be regulated by law and placed under the supervision of the High Council of Justice to avoid any violation of judicial independence. For example, such individuals should be prohibited from holding public office until there is convincing evidence that they do not possess citizenship of the russian federation. If these facts are not confirmed and the person has already been dismissed, compensation could take the form of the repayment of salary for the period of verification.

The Litvinova case highlights one of the key problems of Ukrainian justice — the lack of transparent and comprehensible procedures. In this instance, the decision of the Grand Chamber effectively reaffirmed the supremacy of the Constitution. Yet to external observers, it sounded quite the opposite — as another example of chaos within the judicial system. This shows how the absence of timely communication within the judiciary affects its reputation. Firstly, the HCJ and the Supreme Court demonstrated different approaches to Litvinova’s dismissal or removal. Secondly, there was misinterpretation — whether deliberate or not — of the Supreme Court’s ruling by some civil society organisations, which triggered a scandal that was extinguished only after the Supreme Court provided detailed clarification of its decision.

At the same time, this underlines the critical need to regulate such issues in law — to prevent Russian citizens from holding positions of power while safeguarding judicial independence. Without clear answers, every new case like Litvinova’s will turn into a crisis of trust in the judiciary, both domestically and abroad.

On 16 September, the Verkhovna Rada voted to establish new courts — the Specialised District Administrative Court (SDAC) and the Specialised Administrative Court of Appeal (SACA). They will replace the dissolved District Administrative Court of Kyiv, notorious for its anti-Ukrainian rulings. The SDAC and SACA will handle an extremely sensitive category of cases — lawsuits against the Cabinet of Ministers, central executive bodies, the National Bank, the National Anti-Corruption Bureau of Ukraine, the Specialised Anti-Corruption Prosecutor’s Office, the National Agency on Corruption Prevention and other key institutions. It took Parliament nearly three years to reach this decision. According to the Ukraine Facility Plan (the Plan), the law should have been adopted by the end of 2024.

At the same time, the commitments also state that the competition for positions at the SDAC and SACA must be announced by the end of September 2025, so that Ukraine does not fail to deliver on the key benchmarks of the Plan. By adopting the law just two weeks before the deadline, Parliament has effectively left the judiciary no chance to conduct this procedure within normal timeframes. Between the first and second readings, Draft Law No. 13302, designated as urgent by the President, gathered dust in the Verkhovna Rada for nearly three months. It is evident that the political leadership was not particularly interested in establishing new higher specialised courts, yet at the last moment, MPs remembered the benchmarks (and the funding tied to their fulfilment) and did eventually vote. The law still requires the President’s signature. Next, the High Council of Justice and the State Judicial Administration must determine the necessary number of judicial posts in the new courts, while the High Qualification Commission of Judges of Ukraine (HQCJ) must announce the competition.

The adopted law allows civil servants with seven to nine years of experience to apply for judicial positions, which creates an obvious conflict of interest. Representatives of the executive branch would, in effect, be able to adjudicate decisions made by their former employers. In other words, the state would be judging the state. Apart from the inevitable constant recusals of judges, the very structure of these courts differs from existing higher specialised courts, above all the High Anti-Corruption Court (HACC). This raises the risk that in future the establishment of the SDAC and SACA may be declared unconstitutional. For example, there has already been a submission to the Constitutional Court recognising the HACC as unconstitutional, which the Court has failed to resolve over the past five years.

The competition for positions in the new courts will be conducted by the HQCJ together with a new advisory body — the Expert Council. It consists of three international experts with a casting vote and three Ukrainian judges. In practice, this means a judicial quota in both the HQCJ (eight members) and the Expert Council (three members), which is entirely unjustified and unclear. Moreover, civil society has raised objections regarding two of the three Ukrainian judges in the Expert Council.

The selection of judges for specialised courts should follow procedures that have already been tested and proven effective. One such example is the Public Council of International Experts, composed exclusively of foreigners, which oversees the competition for the HACC.

In addition, for the past three years, administrative cases of Kyiv residents have temporarily been heard by the Kyiv District Administrative Court (KDAC). The Kyiv City District Administrative Court (KCDAC), meanwhile, still exists only on paper. Judges are expected to be appointed there at best in 2026, when the HQCJ fills more than 1,800 vacant posts in local courts. Of these, over 50 judges are to be selected for the KCDAC.

Thus, in the end, new specialised courts will indeed be established. Yet at present, this does not look like a victory. Their creation entails several risks, among them the strengthening of political influence. It remains unclear where these fantastically independent judges will come from if the state intends to select civil servants to adjudicate disputes against the state.

The most important task now is to ensure an impartial and transparent selection of judges who are as virtuous and independent as possible. They must have no loyalty to the state, no political connections and no corruption risks. Otherwise, what was the point of it all? Simply to create yet another controlled court?

The institution of plea bargains was introduced into Ukraine’s Criminal Procedure Code back in 2012. Its logic is straightforward: the prosecutor may conclude an agreement with a suspect or accused person at any stage of criminal proceedings. The prosecution saves resources, while the defence receives a predictable, agreed punishment, in exceptional cases even below the minimum threshold set by the sanction of the article.

In ordinary criminal cases (theft, robbery, fraud and so on), plea bargains have never gained popularity. In contrast, at the High Anti-Corruption Court (HACC), their use has been growing exponentially. Society often perceives this as injustice and a ‘buyout’ for the corrupt. At the same time, experts stress that plea bargains are not about avoiding punishment but about ensuring the inevitability of punishment for a greater number of offenders. Still, where is the line between fairness, resource efficiency and public trust?

In 2024, more than 10,000 plea bargains were concluded, mostly in cases of crimes against property and drug-related offences, according to official statistics. The total number of judgments in criminal proceedings was about 77,400. In other words, around 14% of them ended with plea bargains.

At the same time, Ukrainian courts operate a simplified procedure without the examination of evidence (Article 349 of the CPC of Ukraine, which serves as a substitute for plea bargains). Since 2020, even ‘written proceedings’ have been possible in cases of criminal misdemeanours, without a court hearing. The key here is the admission of guilt. According to statistics, more than 80% of defendants (in both crimes and misdemeanours) plead guilty, so the issue lies not in proving guilt but in determining the severity of punishment.

At the same time, the simplified procedure is unpredictable and provides far fewer guarantees than a plea bargain. Neither the prosecutor nor the judge owes the accused anything at all, they merely take it into account as a mitigating circumstance. This is not an agreement (a contract). In practice, this results in an extremely low percentage of acquittals, since in most cases there is no dispute over guilt, and the issue is only the severity of punishment. Everything rests on informal practices — the judge may show leniency and humanity in this matter, as the accused has cooperated with the investigation and admitted guilt. Yet going beyond the limits of the sanction is possible only in exceptional cases, and only to a minor extent.

Global practice looks quite different. In the United States, 95–99% of criminal proceedings end with plea bargains. In the United Kingdom — about 70%, in EU countries — on average more than 50%. In Ireland, this figure reaches 90%.

The case law of the European Court of Human Rights also points to the usefulness of such a mechanism. Concluding plea bargains makes it possible to save resources of both the state and private individuals. A suspect does not have to spend large sums on a lawyer or endure the stress of a lengthy trial with an unpredictable verdict. Meanwhile, the prosecutor and the court also save time and money. Thus, a plea bargain becomes a rational choice, advantageous for both sides.

In Ukraine, one often hears complaints that ‘the institution of plea bargains has not worked’ since 2012. This is indeed true, except for one category of proceedings — high-level corruption cases heard by the HACC. In these cases, plea bargains are increasingly often concluded. Over six years of the Court’s operation, half of its judgments have been concluded in this way. Moreover, in most cases, this happens at the pre-trial investigation stage, which indicates the parties’ real use of procedural economy tools and their desire to reduce the time needed for evidence gathering and the transfer of a case to court.

The dynamics after November 2024 proved particularly telling when Law No. 4033-IX came into force. Before that, the share of plea bargains in the HACC ranged between 25% and 40%. In contrast, Law No. 4033-IX, adopted within the framework of the Ukraine Facility Plan, introduced certain improvements to the institution of plea bargains, albeit in a less ambitious version than the Government had proposed. Yet even under these conditions, the new rules produced a positive effect — 66% of convictions at HACC were delivered based on plea bargains. In comparison, in ordinary courts, only 14% of cases are concluded in this way.

Has Ukraine’s criminal justice system become more effective thanks to the institution of plea bargains? Undoubtedly yes, since a plea bargain is not about avoiding punishment. On the contrary, it is a mechanism for ensuring the inevitability of punishment. This has allowed detectives and prosecutors to concentrate on other proceedings, often more complex and large-scale. In other words, it has freed up resources for a greater number of suspects and criminal schemes.

Yet society does not hear this message. People often say that ‘plea bargains are not fair’. The reason lies in the lack of communication from the Specialised Anti-Corruption Prosecutor’s Office (SAPO) and the HACC. They have failed to explain to the public why concluding plea bargains is effective for the criminal justice system. Moreover, the criteria by which the SAPO proposes or agrees to a plea bargain, if it was not the initiator, are not transparent. All the arguments about the rational choice of the individual or the maximisation of criminal prosecution by exposing more corrupt actors do not feature in the public communication of these bodies.

In addition, the court must verify whether a plea bargain serves the public interest. But how is this to be defined? HACC judges interpret the meaning of public interest differently, and their practice diverges. Some judges proceed from public expectations — whether the decision they make will correspond to the demands of citizens. Others focus on resolving the case as quickly as possible with minimal state expenditure, the need to expose other criminal offences and so forth. Thus, the very concept of ‘public interest’ remains evaluative and ambiguous. The absence of a unified approach only reinforces the perception of unfairness.

High-profile cases only add fuel to the fire. The obligations to transfer UAH 2 million to the AFU from the Mayor of Poltava, Oleksandr Mamai, UAH 6 million from MP Oleksandr Trukhin or UAH 500 million from former Minister Mykola Zlochevskyi provoked a storm of debate. Fines amounting to tens of thousands of hryvnias, against the background of multimillion-dollar donations, are perceived by society as an outright attempt to ‘buy out’. A voluntary donation looks like a substitute for punishment, and the entire judicial process appears to be a farce. Yet this is not the case, since we do not know how many resources were saved, how many incriminating testimonies were provided by these convicted individuals, or what the long-term effect of these plea bargains will be.

Explanations — simplified, but considering the secrecy of pre-trial investigation — could be communicated periodically by the leadership of the SAPO and the HACC. Interpreting the ‘policy’ of concluding plea bargains is itself a form of accountability to society, rather than juggling ‘dry’ statistical data without proper interpretation. After all, data without interpretation can be turned in any direction.

The conclusion of plea bargains in HACC cases is increasing and demonstrates its effectiveness. Yet this instrument lies on the edge of public trust. Unless people are given clear explanations of how the process works, it will continue to be perceived as unfair.

Public outrage over plea bargains is understandable. At the same time, it reflects the dominance of a deontological (values-based) approach — ‘to jail every last corrupt official’, so to speak. Yet the resources of the criminal justice system are limited. It is necessary to distinguish between more and less significant proceedings, that is, to prioritise efforts. Combating crime must be viewed dynamically — we could spend all the resources of detectives and prosecutors on prosecuting one ‘notorious’ corrupt official, while dozens or even hundreds of others continue committing crimes. In this way, we absolutise the moral imperative of punishing each individual offender without noticing how others escape liability.

Instead, the fight against corruption can be seen as a system, and the consequences of plea bargains can be considered through a consequentialist approach to justice. That is, to accept that a particular defendant may receive a lighter sentence, but thanks to their cooperation, it becomes possible to expose large-scale schemes and bring dozens of others to justice. This ensures the inevitability of punishment for a greater number of corrupt actors.

As early as the 18^th century, Cesare Beccaria wrote in his treatise On Crimes and Punishments: ‘The certainty of even a mild punishment will always make a stronger impression than the fear of one more severe, if attended with the hopes of escaping’. These words remain relevant today, though they are still not understood by most politicians who propose to criminalise something, increase sanctions and believe that criminal law can resolve any social problem.

On 24 January 2025, Members of Parliament registered Draft Law No. 12439 ‘On Amendments to the Criminal Procedure Code of Ukraine to Improve Safeguards for Business Entities during Criminal Proceedings’. On 25 February, it was adopted at first reading, and on 27 August, the Verkhovna Rada Committee on Law Enforcement recommended that the draft law be adopted in full. On 1 September, the comparative table for the second reading was published. 

The draft law was prepared in line with the decision of the NSDC of 23 January 2024, ‘On Urgent Measures to Ensure Economic Security during Martial Law’. That decision recommended establishing additional safeguards for protecting the legitimate interests of entrepreneurs in the course of criminal proceedings. Furthermore, the Decree of the President of Ukraine No. 30/2024 of 26 January 2024 established the Council for Entrepreneurship Support under Martial Law as an advisory body to the President of Ukraine.

According to the explanatory note to Draft Law No. 12439, members of the Council for Entrepreneurship Support, together with business representatives and relevant experts, have been regularly reviewing and addressing problem situations faced by the business community during the performance of law enforcement agencies’ duties. Based on the results of these in-depth discussions, the corresponding draft law was prepared.

Against this background, business associations supported the draft law at its first reading. However, the version prepared for the second reading, while preserving the main idea of the draft law, was supplemented with provisions that have raised concern. At present, it is being criticised by civil society organisations (Transparency International, the Centre of Policy and Legal Reform, the Anti-Corruption Action Centre, ‘Mezha’, Automaidan, the Centre for Investigative Journalism, and others). Government bodies — the NABU, the SAPO and the ESBU — have also joined in the criticism. The Agency for Legislative Initiatives has weighed in with its own analysis.

Draft Law No. 12439 introduces amendments to both the Criminal Code and the Criminal Procedure Code of Ukraine. However, the title of the draft law makes no reference to changes to the Criminal Code, thereby violating Article 116 of the Rules of Procedure of the Verkhovna Rada of Ukraine. 

It is proposed to supplement the Criminal Code of Ukraine (CC of Ukraine) with Article 41-1 ‘Compliance with Official Positions of State Authorities’, reading as follows: ‘An act committed by a person on the basis of explanations provided by authorised central executive bodies regarding the application of tax legislation, customs legislation or legislation on public procurement shall not constitute a criminal offence’.

This provision of the draft law undermines established approaches to determining the legitimacy of circumstances that exclude the criminality of an act. Under it, a person could avoid criminal liability for tax evasion, smuggling, abuse of office and similar offences if there is an explanatory note from a state financial control body (the Ministry of Finance of Ukraine, the Accounting Chamber, the State Audit Service of Ukraine, the State Tax Service of Ukraine, the State Customs Service of Ukraine, the Antimonopoly Committee of Ukraine, or other central and local executive authorities exercising control within their competence). Such an explanation may contradict both current tax, customs or public procurement legislation and the interpretation issued by another state authority.

Approaches to the extensive interpretation of legal norms are contested in legal theory. At present, the power to interpret laws lies with the courts when adjudicating specific cases, and conclusions on the application of law set out in rulings of the Supreme Court are binding on all public authorities applying the relevant legal provision in their work (Part 5 of Article 13 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’). In other words, any narrowing (for instance, in case No. 415/2182/20 concerning the perpetrator of the crime of aggression) or broadening (for instance, in case No. 453/225/19 concerning domestic violence) of a legal norm must be carried out by the Supreme Court, drawing on judicial practice. Granting such powers to executive authorities is a misstep not only from a theoretical standpoint. It also creates opportunities for abuse, when the necessary ‘explanations’ may be obtained through corrupt means and become part of schemes to circumvent the law.

As the Economic Security Bureau of Ukraine notes: ‘Explanations provided by authorised bodies would become not merely proof of good faith in court, but an automatic “alibi” that blocks the very initiation of criminal proceedings. Such explanations could be obtained regarding tax, customs or public procurement legislation. This would not only create unequal conditions for businesses but also increase corruption risks’.

• On the Legal Status of the Victim

1) The provisions regulating the legal status of the victim in criminal proceedings are improved by granting the right to receive written information on the nature of suspicion and charges, to collect evidence, and to obtain without delay an extract from the Unified Register of Pre-trial Investigations, as well as the resolution initiating a pre-trial investigation.

2) The investigating judge, the trial judge and the victim are granted the right to initiate an expert examination in criminal proceedings.

The legal status of victims in criminal proceedings is indeed not secured by sufficient guarantees of participation. For a long time, victims remained outside the focus of the criminal justice system, with noticeable change only recently in cases of war crimes. In other categories of cases, however, the retributive approach still prevails over the victim-centred one. In other words, the state places greater emphasis on punishing the offender than on restoring the victim’s rights and compensating for harm. As a result, there are persistent problems such as poor communication between victims and law enforcement agencies, practices that lead to secondary victimisation and similar issues.

The 2020 study ‘Rights of Victims of Violent Crime in Ukraine’ set out a series of recommendations providing such guarantees to victims, including the possibility of initiating expert examinations before an investigating judge or court. Accordingly, part of these recommendations is proposed for implementation in the CPC of Ukraine through Draft Law No. 12439, which can be regarded as a positive aspect of the draft law.

• On Property Issues:

3) The procedure for recognising a material object as physical evidence is clarified, in particular regarding the time limits for issuing such a ruling. The rules governing temporary access to items and documents, their legal status, and the execution of such orders are also refined.

4) The method of recording the course and results of a search is specified by adding provisions granting the defence counsel, the victim, their representative or legal representative the right to record the course and results of a search freely by means of audio or video using any available devices.

5) The list of documents to be attached to a motion for the seizure of property is expanded. These include documents confirming the delivery or dispatch of a copy of the motion for seizure of property to the suspect, the accused, another owner or holder of the property, or to their defence counsel, legal representative, representative or civil claimant. Such motions may be considered in the absence of the prosecution if they fail to appear without a valid reason.

The seizure of property is one of the most problematic aspects for businesses and is widely criticised as a practice of ‘pressuring business’. This is particularly acute in wartime, when enterprises operating in the defence industry face heightened scrutiny — including scrutiny of their contractors — that often ends in indefinite freezing of accounts, effectively paralysing economic activity. Property seizure is a relatively straightforward procedure for law enforcement, since investigating judges generally grant such motions. By contrast, lifting a seizure is an extremely difficult process due to the absence of clear time limits and the lack of initiative from law enforcement bodies and the prosecution. The introduction of a maximum four-month period for freezing funds, with further extension allowed only by a reasoned court ruling, is a positive step towards countering the practice of ‘perpetual seizures’.

Favourable changes also include provisions under which, if a court has already refused a motion for seizure of property or for a preventive measure, law enforcement bodies may not submit the same motion again without new grounds (Part 8 of Article 132 of the CPC of Ukraine). A motion for temporary access to items and documents must now be considered within a maximum of 15 days. If the party that filed the motion fails to appear at the hearing, it will remain without consideration (Parts 4 and Part 8 of Article 163 of the CPC of Ukraine). Where the seizure of property has been lifted, the property must be returned to its owner no later than 30 days. This provision is intended to put an end to the practice of delaying the return of property — for example, by sending it for ‘expert examination’ (Part 5 of Article 174, Article 175 of the CPC of Ukraine).

Taken together, these changes are generally positive. However, attempts to solve problems with property seizure by amending the CPC of Ukraine — beginning with the ‘Maski-Show Stop’ laws Nos. 1, 2 and 3 since 2017 — highlight the limits of such legislative measures. There is also a need to develop proper disciplinary practice within law enforcement and prosecutorial bodies, holding them genuinely accountable in cases of delay, abuse and similar misconduct.

• On Measures to Secure Criminal Proceedings:

6) The provisions governing the general rules for applying measures to secure criminal proceedings are improved. In particular, the powers of the investigating judge or the court are detailed, allowing them — when considering a motion for the application of such measures at the request of the parties or on their own initiative — to question the suspect, the accused, a witness, the victim or an expert, or to examine any items or documents relevant to deciding the motion. 

These legislative proposals appear excessive and inconsistent with the principles of criminal procedure. The draft law proposes to expand the powers of the investigating judge and the court by granting them the right to summon witnesses and experts and to examine items when deciding on motions to apply measures to secure criminal proceedings (Part 6 of Article 132 of the CPC of Ukraine), for example, when ordering the seizure of property. Such powers go beyond the impartial role of the court in an adversarial process and move towards the ‘active’ court of the inquisitorial model, where the judge does not simply evaluate the evidence presented as a neutral arbiter but actively shapes its scope — for instance, by requesting additional materials. For this reason, these amendments must be regarded as negative.

• On the Initiation of Criminal Proceedings:

7) Applications reporting the commission of a criminal offence must now ‘contain sufficient data on circumstances that may indicate the commission of a criminal offence’ (amendments to Articles 214 and 303 of the CPC of Ukraine)

In effect, this represents a return to the 1960 CPC of Ukraine, which distinguished between grounds and reasons for initiating a criminal case (opening a pre-trial investigation). This issue has long been debated in academic literature and professional circles and became known as the ‘abolition of the automatic initiation of criminal proceedings’.

Previously, the ‘filtering’ of unpromising crime reports was carried out through the institution of initiating a criminal case. This allowed, by means of a preliminary inquiry (Article 97 of the 1960 CPC of Ukraine), a refusal to initiate proceedings if a statement or report contained no grounds or reasons for doing so. A major step in criminal procedure reform was the abolition of this institution and the introduction of the Unified Register of Pre-Trial Investigations, into which all crime reports were to be entered, with criminal proceedings automatically initiated on their basis (Article 214 of the 2012 CPC of Ukraine). In other words, investigators, inquiry officers and prosecutors were not supposed to establish the four elements of a criminal offence or search for evidentiary information but simply to register the report of a crime as a matter of fact (an allegation that it had been committed).

In practice, the ‘automatic’ procedure helps prevent the non-registration of crime reports, a widespread problem given that failures to register criminal proceedings based on victims’ complaints remain significant. Registration figures continue to affect evaluations of law enforcement performance, which are often judged by statistical indicators expected to show constant growth. As a result, victims of offences such as bodily injury, theft, robbery and fraud have had a greater chance of seeing justice. At the same time, these provisions are viewed negatively by business representatives, since the ability to initiate criminal proceedings without sufficient grounds enables the use of criminal justice as a tool for exerting pressure on businesses. 

Both positions have their strengths and weaknesses. However, the overall logic of the 2012 CPC should remain unchanged: if the fact of a criminal offence is not confirmed, the criminal proceeding must be closed. The question then becomes an organisational one — what materials are required, who exercises oversight, and how much time and resources the process takes. Most of these problems stem not from the criminal procedure framework itself but from enforcement and organisational practice.

In this regard, the draft law advances an unbalanced approach to protecting business by reverting to the ‘filtering’ practices of the 1960 CPC. This would harm other categories of proceedings, particularly victims of common crimes. Accordingly, such proposals should be regarded as negative.

• On Jurisdiction and Case Registration by the ESBU:

8) A suspect, their defence counsel, or the representative of a legal entity under investigation is granted the right — if circumstances are identified during the pre-trial investigation confirming a violation of investigative jurisdiction — to file a motion with a higher-level prosecutor requesting a change of jurisdiction (amendments to Article 216 of the CPC of Ukraine).

9) Information on offences under Article 191 of the CPC of Ukraine may be entered into the Unified Register of Pre-Trial Investigations only by the head of a prosecution body (amendments to Article 214 of the CPC of Ukraine).

Jurisdiction over criminal offences essentially concerns specialisation: as a rule, all criminal offences are investigated by the police. In cases defined by the CPC of Ukraine, however, specialised bodies take over — such as the SSU, the NABU, the SBI and the ESBU. The prosecutor may change jurisdiction if an authority is ineffective — for instance, if a particular body (such as the ESBU) lacks sufficient resources — or due to other priorities, such as the SSU’s focus on war crimes.

Since 2012, however, jurisdiction in Ukraine has increasingly become a rigid mechanism for assigning specific ‘criminal procedure work’ to a specific body, leaving little flexibility. This trend has been reinforced by changes regarding NABU’s ‘exclusive jurisdiction’ and the special rule that only the Prosecutor General may assign cases to the ESBU (Part 5 of Article 36 of the CPC of Ukraine). At the conceptual level, the Rule of Law Roadmap (the key EU integration document in this area) provides for amendments to the CPC of Ukraine in the fourth quarter of 2027 to improve the institution of jurisdiction. These are expected to include: clear delineation of the investigative powers of pre-trial investigation bodies; a clear procedure for transferring cases from one investigative authority to another; and the introduction of liability for prosecutors for violations of jurisdiction. Similar provisions are contained in the Action Plan for the Overarching Strategic Plan for Reforming Law Enforcement Agencies for 2023–2027, adopted in 2024.

Thus, instead of working together with the Government on a comprehensive solution to the problem of jurisdiction, Members of Parliament propose only a partial fix in the form of allowing motions to change jurisdiction. Yet the grounds for considering jurisdiction to have been violated may not always be substantiated due to lack of information — for example, the absence of details on the resolution changing jurisdiction or the reasons for it. The effectiveness of this tool in addressing the broader problem is minimal. In any case, the issue of jurisdiction requires a comprehensive solution.

Continuing the idea of ‘adjusting jurisdiction’, it is proposed to grant only the head of a prosecution body the authority to register crimes under Article 191 of the CC of Ukraine (offences in the sphere of economic activity committed by officials of a business entity). At the same time, except for a business entity in which the share of state or municipal ownership in the authorised capital exceeds 50 per cent (jurisdiction of NABU). Thus, this provision concerns exclusively the jurisdiction of the ESBU.

The Constitution of Ukraine (Article 131-1) defines the prosecutor as the direct organiser and procedural supervisor of pre-trial investigation. The prosecutor is responsible for the investigation strategy and makes the key decisions in criminal proceedings (notification of suspicion, application to the investigating judge regarding measures to secure proceedings, submission of the indictment to the court), since it is the prosecutor who conducts the public prosecution in court. Unlike the ‘passive’ model of the prosecutor, who only supervised legality under the 1960 CPC, the current CPC provides for the presence of the prosecutor ‘from the beginning to the end of the investigation’.

In this regard, it should be noted that regardless of who enters the information into the URPTI, in ESBU cases, the prosecutor (a group of prosecutors) will, in any case, be appointed by the head of the prosecution body. Thus, there cannot be a situation in which investigators independently enter information into the Register and conduct the investigation, since from the very beginning it is necessary to interact with the prosecutor — especially for adopting any procedural decisions that affect the rights and freedoms of the subject of criminal prosecution.

Therefore, the proposed provision, on the one hand, corresponds to the conceptual foundations of the CPC of Ukraine, although it is unclear why it is established exclusively for ESBU proceedings under Article 191 of the Criminal Code of Ukraine. This inconsistency is rightly pointed out by the Bureau itself. At the same time, a special procedure for registration is provided only for special subjects (Article 481 of the CPC of Ukraine), such as Members of Parliament. That is why it is necessary to speak of a comprehensive solution to the issue of jurisdiction and the relationship between the pre-trial investigation body and the prosecution, since such amendments appear selective and have a hidden purpose.

The hidden purpose may be ‘additional control’ over ESBU proceedings. On the one hand, this would appear to protect businesses from abuses by the ESBU; on the other hand, if the prosecutor sees the materials first, then in cases of distrust towards the prosecutor and situations where ESBU detectives must act quickly, this could harm the proceedings. These and other scenarios that could be modelled go beyond the scope of procedural law. Preventing such violations should take place at the level of disciplinary liability, anti-corruption restrictions, professional ethics and the application of internal control mechanisms.

In view of this, we consider that such amendments to Article 214 of the CPC of Ukraine may negatively affect the independence of the ESBU and, therefore, its effectiveness. Moreover, the prosecutor who exercises procedural supervision in ESBU cases already has full control powers over the proceedings, since they appear in it immediately after the information is entered into the URPTI. What the hidden purpose of granting the prosecutor such powers may be can only be guessed. Thus, such amendments are negative.

• On Searches:

10) The grounds for urgent searches (Part 3 of Article 233 of the CPC of Ukraine) are narrowed. An urgent search is possible only in the case of the immediate pursuit of persons suspected of committing a serious or especially serious crime provided for in Section I (Articles 109, 110, 111, 112–114-1), Section II (Article 115), Section VII (Article 201), Section IX (Articles 257, 258, 260, 265-1, 269), Section XIII (Articles 305, 307), Section XIV (Articles 328–332-2), Section XV (Articles 345–347, 348–350), Section XVII (Article 368) of the CC of Ukraine.

11) A motion for the legalisation of the results of an urgent search must be submitted without delay, but no later than 72 hours (previously — simply ‘without delay’). The motion is considered by an investigating judge with the participation of the owner of the property temporarily seized during such a search, the owner of the dwelling or other possession in which the search was conducted, or their representatives.

The proposed changes in this part of the draft law can generally be assessed positively, especially since they aim to implement the ECtHR judgment in Korniyets and Others v. Ukraine (July 2025). However, concern is caused by the removal of such a constitutional ground as ‘saving property’ (Article 30 of the Constitution of Ukraine), under which, according to the position of the Supreme Court, material evidence is understood. Previously, an urgent search could be conducted in cases related to (1) saving human life and property or (2) the immediate pursuit of persons suspected of committing a criminal offence. If the draft law is adopted, the grounds for ‘saving property’ will be removed. 

Such narrowing appears unnecessary given that abuses of this ground should have been neutralised by the legalisation of search results by an investigating judge — especially in the event of adoption of the draft law, with the participation of the person (or persons) whose property was searched or their representatives. However, in certain proceedings where there is information precisely about the threat of destruction of material evidence, for example, in NABU cases, such narrowing of grounds may create significant problems and lead to ineffective investigation. In addition, it will make it impossible to conduct an urgent search in cases concerning the offer, promise or giving of a bribe, or abuse of influence, without a relevant ruling by an investigating judge.

In any case, the problem of urgent searches requires comprehensive changes not only of a procedural nature but also at the institutional and enforcement level.

• Familiarisation with Materials:

12) The procedure for familiarisation with pre-trial investigation materials before their completion is detailed. The list of decisions that may be appealed during pre-trial investigation is expanded, including the decision of an investigator, inquiry officer or prosecutor to refuse a motion for familiarisation with pre-trial investigation materials under Article 221 of the CPC of Ukraine.

Familiarisation with pre-trial investigation materials is an important stage of criminal proceedings, since without it, it is impossible to fully form the defence’s position in an adversarial process. Moreover, at the stage of pre-trial investigation, partial disclosure of case materials is possible (before their completion). Addressing these issues, given the practice of pre-trial investigation, is an important step in strengthening guarantees for business in criminal proceedings, which is the aim of the legislative initiative. Such changes are positive.

Draft Law No. 12439 represented a consolidated position of business communities, lawyers and criminal justice specialists regarding the resolution of regulatory problems in criminal proceedings involving business. It was developed pursuant to the decision of the NSDC of January 2024, following a comprehensive discussion of problems with unlawful ‘pressure’ on business by the Council for Entrepreneurship Support under the President of Ukraine. The version of Draft Law No. 12439 adopted at first reading in February 2025 fully achieved its declared aim of protecting business, although it was not without shortcomings.

However, by the second reading, the main negative changes were introduced — (1) granting executive authorities the power to determine in certain cases what constitutes a criminal offence (by issuing explanations), and (2) narrowing the independence of the Economic Security Bureau of Ukraine in criminal offences under Article 191 of the CC of Ukraine that fall within its jurisdiction.

Thus, a tactic has been applied that has become quite common in Parliament recently — to submit for consideration large-scale draft laws that contain provisions desirable for certain groups in society. In this case, the draft law contains a significant number of positive changes desired by the business community, to which controversial provisions have been added concerning the ESBU, the initiation of criminal proceedings, the impartiality of the investigating judge and the court, granting executive authorities the power to interpret legal norms, narrowing the grounds for urgent searches in cases requiring the saving of property, which undermines the effectiveness of anti-corruption proceedings, and so on.

In view of this, the draft law cannot be adopted at second reading in its current form and requires substantial revision — first of all, the removal of the negative amendments introduced for the second reading, as well as adjustment of the wording of certain provisions of the legislative initiative supported by the Verkhovna Rada of Ukraine at first reading, in order to avoid an imbalance in criminal procedure.

On 22 July 2025, the High Council of Justice (HCJ) announced the start of forming a new Selection Commission (SC) — the body responsible for appointing members of the High Qualification Commission of Judges (HQCJ). The HQCJ must complete the qualification assessment of sitting judges and fill more than two thousand judicial vacancies. It is precisely the High Qualification Commission of Judges that will determine how, and by whom, justice will be administered in Ukraine in the coming years — and potentially for decades to come.

In response to the HCJ’s announcement, the Council of Judges (CJU), the Council of Prosecutors (CPU), and the Bar Council of Ukraine (BCU) also declared the start of the candidate selection process. Under the current legislation, however, the SC will be formed without the involvement of international experts. Their mandate expired back on 1 June.

At present, the law stipulates that this path must be followed, yet past experience and public mistrust towards certain appointing bodies raise many questions. In particular, who will guarantee the quality and impartiality of the selection if it is carried out by representatives of unreformed institutions?

On 12 August, the High Council of Justice appointed the 16^th member of the HQCJ — Ihor Kushnir, a retired judge of the Supreme Court. This leaves roughly a year to establish the Selection Commission, which will have to meet not only the requirements of the law, but above all the expectations of society.

It is vital to ensure a genuine and transparent review so that the selection does not become a mere formality allowing ‘convenient’ candidates to enter the Commission. The decisions of the Selection Commission will directly affect both the independence of the judiciary and the quality of its personnel. Therefore, its members must meet high standards of integrity, professionalism and independence and enjoy the trust of the public.

On 22 July, the High Council of Justice also approved the Methodology for the Assessment of Candidates. This is a comprehensive document covering the evaluation of reputation, professional experience, authority and integrity. At the initiative of HCJ member Roman Maselko, the procedure was supplemented with requirements to submit a declaration, a motivation letter and references. Yet this is only one of the prerequisites. Another safeguard must be the verification of candidates’ independence, namely the absence of conflicts of interest, ties to political forces, questionable decisions and the like.

The new composition of the Selection Commission is now to be formed by four self-governing bodies: the Council of Judges, the Bar Council, the Council of Prosecutors and the National Academy of Legal Sciences. On paper, these are representatives of the legal community. In reality, however, some have long since discredited themselves in the eyes of the public.

For instance, the Council of Judges has repeatedly nominated individuals to selection bodies whose integrity was questioned by the public. Among them were the so-called ‘Maidan judges’ Volodymyr Kuzmenko and Yurii Triasun, as well as Yaroslav Romaniuk, the former Chief Justice of the Supreme Court of Ukraine under Yanukovych. Moreover, the CJ itself requires renewal: since 2019, it has been headed by Bohdan Monich, who has also faced criticism from civil society.

Even more doubts surround the Bar Council. Its chair, Lidiia Izovitova — a long-time associate of state traitor Medvedchuk — has occupied the post for 13 years. The BCU’s mandate formally expired back in November 2022. Yet the congress of advocates, which should have renewed the Council’s composition, has never been convened, with the war cited as a reason. Instead, invoking institutional continuity, they unilaterally extended their mandate until the end of martial law — in direct breach of the Law on the Bar.

Notably, congresses of judges and prosecutors have been held repeatedly — even during the full-scale invasion. 

Delegating candidates to the Selection Commission for the HQCJ, however, appears to be another matter: the BCU not only announced the start of the process, but completed it within just a couple of weeks.

Still, in both cases, the legitimacy of any actions by the BCU is highly questionable. The decisions of the unreformed Bar Council are like expired kefir: the packaging may remain intact in law, but its contents are extremely unsafe to consume.

Nevertheless, on 12 August, the BCU delegated three lawyers to the Selection Commission, claiming they had ‘impeccable reputations and public authority’. These were Oleksii Shevchuk, Hanna Kolesnyk and Oksana Kadenko. Do these claims reflect reality? Hardly. According to journalists, Oleksii Shevchuk has been implicated in high-profile cases: a corruption scheme involving the illegal departure of men abroad, and the disappearance of 10,000 military first-aid kits supplied from the United States worth over 33 million hryvnias. An inquisitive reader can also search for Shevchuk’s clients online — the list speaks for itself. The Qualification and Disciplinary Commission of Advocates of the Kyiv Region attempted to strip Shevchuk of his licence to practise law for violations of the rules of professional ethics. However, the decision was overturned, and Shevchuk went on to become the spokesperson of the Ukrainian National Bar Association (UNBA).

Kolesnyk and Kadenko are likewise closely connected to and dependent on the leadership of the NBAU and the Bar Council. At the initiative of the BCU and the UNBA, Hanna Kolesnyk was appointed Acting Head of the Bar Council of Kyiv in defiance of the law. Only advocates of the region are entitled to elect the Head of the city Council. Yet the BCU declared the elections to the Bar Council of Kyiv invalid and installed its own candidate — Kolesnyk.

Kadenko, for her part, has been a consistent critic of the Free Legal Aid system. She was elected to the Khmelnytskyi Regional Council from the regional branch of the political party All-Ukrainian Union ‘Batkivshchyna’ and is a member of the party’s council faction. This raises serious doubts about her political neutrality, which is crucial when selecting candidates for the HQCJ. Kadenko has also argued that to reform the Bar, it is necessary to abolish the two-term limit for holding offices, preferably to remove limits altogether. Such an approach contradicts both European standards and the basic logic of self-governance.

It seems that sitting judges or those in retirement are reluctant to risk their reputation by serving on a Selection Commission that includes delegates from the Bar Council. Sources in the CJU report that as of 18 August, only two individuals have submitted their applications, although at least six are required for the three vacant posts. The CJU will therefore likely extend the deadline for submissions.

The Bar Council has once again failed the test of maturity and cast doubt on the future composition of the Selection Commission, proving yet again that Ukraine is not ready, at this stage, to carry out selection and appointment to key positions without the involvement of international experts.

At the same time, this situation is further evidence that the reform of the Bar is overdue. Back in 2023, the European Commission stressed the need for this reform in Ukraine: ‘the self-governance system and resource management of the Bar should be improved and made more transparent and accountable. The qualification and disciplinary procedures for lawyers require significant improvements in law and in practice. The process for admission to the profession remains weak and prone to corruption risks, which undermines the credibility and independence of the profession’. 

On the eve of the expiry of the mandate of international experts in the Selection Commission, more than 80 civil society organisations called on Parliament and the President to extend and preserve the involvement of foreigners in such commissions. In June 2025, MPs registered Draft Law No. 13382 to that effect. The authors propose at least three years of guaranteed international participation to ensure that the selection of HQCJ members does not degenerate into yet another behind-the-scenes arrangement for ‘insiders’. Judging by the judges’ reaction to the advocates delegated by the BCU, such concerns have already been borne out. After all, without the quota of the Council of Judges, the Selection Commission cannot function.

At present, Draft Law No. 13382 is under consideration by the Verkhovna Rada Committee on Legal Policy. For now, there appears to be neither a public hearing nor political will to advance it. However, MPs assure us that the draft law remains on the agenda. This was reported by representatives of Transparency International Ukraine, who attended a meeting of the Committee last week.

Moreover, on 31 July the spokesperson of the European Commission stressed the need to reinstate the participation of international experts in the Selection Commission with the right to a decisive vote. This is at least some clarity from the EU, as for quite some time it had maintained neutrality on the issue.

There remains a small chance of preserving the quality of selection even without the involvement of international experts. The formation of the Selection Commission must be open and transparent to society, and above all, independent. To achieve this, at least four things are needed: 

1. Clear criteria for assessing integrity and ethics — including checks not only of declarations, but also of participation in past competitions, positions in high-profile cases, ties to political forces and the like.
2. Openness and independent monitoring — so that the public can see not only the formal questionnaires, but also how candidates are assessed by the HCJ, which will establish the SC.
3. Delegation only of those whose legitimacy and reputation are beyond dispute. This means: no disciplinary sanctions, proven qualifications, no objections from the Public Integrity Council, and so forth.
4. Considering the opinion of civil society when voting for the new composition of the Selection Commission. Candidates who raise substantiated doubts among the public should never be allowed to serve on any commission.

Otherwise, the selection process and the work of the Selection Commission will not meet the requirements of the EU or the expectations of the public.

At this stage of justice sector reform — and in light of the past two weeks of struggle for the independence of the SAPO and NABU — it has become abundantly clear that abandoning international experts in any of the selection commissions is far too premature. The candidates delegated by the Bar Council are yet another argument for why the participation of foreigners in selection bodies remains critically necessary.

Parliament should therefore adopt Draft Law No. 13382 without waiting for yet another prod from our European partners. That would demonstrate the agency of the Ukrainian Parliament on its path towards the EU.