This week marks a year since the High Qualification Commission of Judges of Ukraine resumed its activities after almost four years of suspension. In essence, this means that two bodies of judicial governance, responsible for the implementation of judicial reform, have been working fully for a year – the High Qualification Commission of Judges of Ukraine and the High Council of Justice.

In May, Ukrainian President Volodymyr Zelenskyy appointed 114 judges to courts of first instance for the first time since the beginning of the full-scale invasion. And this is an unconditional victory, first of all, for common sense. After all, after the restoration of the work of the High Council of Justice and the High Qualification Commission of Judges of Ukraine, the main principles of which the electorate does not understand at all, it is necessary to move on to filling the courts with new personnel. And the presence of “living” judges in the courts, where the personnel shortage sometimes reaches 62% (appellate general courts), is a small but real result that can be presented to both strategic partners and voters.

Otherwise, both of them will start asking uncomfortable questions: why are there no judges at all in 11 courts, and only one judge works in 42 courts? Why is it not just difficult to get a court decision on a pension in the capital of our country, but almost impossible? Why was the notorious Administrative District Court of the city of Kyiv liquidated in December 2022, and 33,500 cases of this court in a year and a half are still not distributed among the judges of the Kyiv District Administrative Court, where there is also a significant shortage of judges?

So, in this publication, we will analyze how and where the procedures for appointing judges are moving as a component of judicial reform and whether the political authorities are ready not to interfere in these processes.

The appointment of 114 judges was preceded by a number of events of a political and personnel nature.

At the personnel level, the future judges overcame a seven-year (!) marathon of selection (forcibly stopped for four years due to the dismissal by the parliament in November 2019 of the previous members of the High Qualification Commission of Judges of Ukraine).

It consisted of training at the National School of Judges, several stages of exams (before and after training), choosing a court according to the place in the ranking (the candidate with the highest rating chooses the court first, the second in the ranking – the second, etc.) and a final interview at the High Qualification Commission of Judges of Ukraine. And by the way, about 10% of the winners of the competition did not pass it successfully. As a result, the High Qualification Commission of Judges of Ukraine provided recommendations for appointment to local courts to 390 candidates. Although this commission planned to fill all 560 vacancies for which the competition was announced.

If we take the general numbers of the 2017 selection, then only about 20% of the participants will eventually wear the judge’s robes. At the same time, some of them received recommendations for appointment as judges even during the work of the previous members of the High Council of Justice and the High Qualification Commission of Judges of Ukraine. But this part of the participants “delayed” from 2020-2021 in the office of the President of Ukraine, thus violating the Constitution of Ukraine (according to the Basic Law, the President of Ukraine must appoint judges within 30 days after receiving a submission from the High Council of Justice.

Our sources inform us that these appointments were blocked by Andrii Smyrnov, the profile deputy head of the office of the President of Ukraine at the time, because some of these candidates applied for positions in the “fashionable” Kyiv courts – Pechersk, Shevchenkivsky, District Administrative Courts of the city of Kyiv (that is, those where decisions are made against of central government bodies). Currently the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) are conducting an investigation against Smirnov on charges of illegal enrichment.

On April 26, the new deputy Iryna Mudra announced that she had conducted an inventory of the applications for appointment to the positions of judges, which had arrived at the office of the President of Ukraine at different times, and had divided the submissions into “two baskets”. The first basket is the judges selected by the new composition of the High Qualification Commission of Judges of Ukraine and the High Council of Justice. The second is the submissions received for updating the composition of the High Qualification Commission of Judges of Ukraine and the High Council of Justice. “I will try to “launch” the submissions proposed by the new composition of the High Qualification Commission of Judges of Ukraine and the High Council of Justice as soon as possible for the President of Ukraine to sign the appointment decrees.”

Iryna Mudra fulfills her promise to process submissions from the “first basket”. 114 judges have moved to local courts, 70 of them are newly appointed judges. Although they themselves cannot administer justice at the moment: the law requires them to take the oath of a judge for this. But it is definitely not worth delaying the swearing-in of the office of the President of Ukraine, because judges are already receiving salaries, and they are not engaged in hearing court cases.

Candidates from the “second basket” are still waiting for appointment, and the situation looks, to put it mildly, strange: they are not appointed, they are not refused appointment, some have already gone to the second competition and independently wrote a refusal from the court that the candidate chose in 2019 , in order to receive an appointment to the court that this candidate chose in 2023.

So it seems that the ceremonial role of the president has acquired some other meaning, not provided for by the Constitution of Ukraine. But the problem is also that the the representatives of the High Council of Justice do not react to this in any way, whose submissions, in fact, were distributed to “baskets”.

Even during the development of changes to the Constitution of Ukraine (regarding justice), which were adopted in 2016, Ukraine twice turned to the Venice Commission for the analysis of such changes. The Venice Commission then answered quite unambiguously that the role of the president should be exclusively ceremonial, and all decisions regarding judges should be made by the High Council of Justice. Let us quote one of the quotes of the High Qualification Commission of Judges of Ukraine: “The President of Ukraine plays a ceremonial role: he appoints candidates submitted by the Supreme Council of Justice, whose proposals will be binding on the President. The law will have to regulate possible delays or difficult situations in the appointment of judges by the President of Ukraine.”

Everything is quite clear. However, unfortunately, not for everyone.

In May, the parliament tried to adopt amendments to the law “On the Judiciary and the Status of Judges” (draft law No. 9439) and to give the President of Ukraine the authority to return to the High Council of Justice an application for the appointment of judges in the event of receiving information from the Security Service of Ukraine (SBU) and as the National Anti-Corruption Bureau of Ukraine (NABU) about the person for whom the application was made , which indicates that such a person has committed actions that may threaten the national security of Ukraine or harm national interests.

These attempts did not receive the required number of votes (216 – in favor): the parliament rejected the draft law, but the head of the Legal Policy Committee, Denys Maslov, noted: “This means that such a draft law or a similar one in essence can be re-introduced only at the next regular session of the parliament.” Only one question arises here: for what?

Both the High Qualification Commission of Judges of Ukraine and then the representatives of the High Council of Justice check judges and candidates, particular through such state bodies as the National Anti-Corruption Bureau of Ukraine (NABU), the Security Service of Ukraine (SBU) and almost two dozen other bodies, and if there are no comments (referred to in the draft law No. 9439), they submit an appointment to the President of Ukraine.

It is probably impossible to imagine a situation today when the Security Service of Ukraine (SBU) would have provided information about the cooperation of some person from the Russian Federation, and the plenary composition of the High Qualification Commission of Judges of Ukraine and the High Council of Justice simply took it and ignored it. And this would mean that together with them, the Public Council of Integrity, which checks candidates for appeal courts, or the Public Council of International Experts, which checks candidates for the High Anti-Corruption Court of Ukraine (HACC), would ignore such information.

So if the President of Ukraine and representatives of his office start appointing judges within 30 days, as recommended by the Venice Commission and established by law, then no more than two months will pass from the last round of checks to the moment of appointment.

Therefore, the simple fulfillment of the requirements of the law by all bodies involved in the procedures for the appointment of judges will testify to the success of the judicial reform, Ukraine’s readiness to join the European Union, and will undoubtedly contribute to the independence of the judiciary.

In addition to the completed competitions of the High Qualification Commission of Judges of Ukraine for courts of first instance, the commission is currently entering the active stages of competitions for appeal courts (for 550 judge positions), the Higher Anti-Corruption Court of Ukraine (HACC) (15 positions) and its Appeals Chamber (10 positions). Candidates who meet the requirements of the relevant laws have passed the admission stage and will soon begin the exams.

At the briefing dedicated to the first year of the commission’s work, the members of the High Anti-Corruption Court of Ukraine (HACC) noted that they had expected a larger number of participants. So, 2,076 people submitted documents to the appeals competition, and 1,840 were admitted. The commission expected that there would be at least 4,000 candidates at the stage of submitting documents.

In short, we have approximately three people for a place in the competition for appeals and six to seven people for a place in the competition for the High Anti-Corruption Court of Ukraine (HACC). Apparently, it is already possible to predict that with a high probability it will not be possible to fill all the vacancies in the appeal courts, where the situation with personnel is already quite difficult. For example, only four judges out of 25 work in the Sumy Court of Appeal. And the competition for the first instance showed that in regions where hostilities continue or that share a common border with the Russian Federation, many vacancies remained unfilled.

In fact, the situation with appeals is even more complicated than it seems at first glance. According to the most optimistic calculations, the High Qualification Commission of Judges of Ukraine will provide recommendations to candidates for general courts of appeal no earlier than July 2025. At the same time, the members of the High Qualification Commission of Judges of Ukraine themselves emphasize that this will happen if the legislator does not add some more urgent work to them (for example, a competition for the Higher Administrative Court, which we will describe separately). So, it is likely that new judges will be appointed to appeals no earlier than the beginning of 2026 (!).

Another challenge for the commission is the testing of the cognitive abilities of candidates for appeals and the High Qualification Commission of Judges of Ukraine, which will be carried out for the first time, and there are currently no tests specifically for judges. They should either be developed separately, or use the same ones as for disciplinary inspectors (where more than 80% of candidates were eliminated) or for the position of the head of the National Agency on Corruption Prevention (NACP).

Some members of the High Qualification Commission of Judges of Ukraine already clearly point out that the law contains a false requirement for candidates to score 75% of the points, because the cognitive ability test involves a slightly different calculation procedure. Therefore, during the briefing, the commission publicly admitted that they do not currently have any decision regarding this innovation.

The situation with testing knowledge of legal norms and preparation of practical tasks is much better. After all, 13 thousand tests and 200 tasks were developed for four specializations. The tests will be released soon so that candidates have time to prepare. The candidate will see the result of the test on the screen immediately after the end of the test, and the commission plans to check the practical tasks of the participants of the competition before the appellate courts by the end of the year.

The works of candidates for the High Anti-Corruption Court of Ukraine (HACC) will be checked more quickly, because the High Anti-Corruption Court of Ukraine (HACC) prioritizes this competition among other personnel procedures. The representatives of the High Qualification Commission of Judges of Ukraine plan to provide recommendations on appointing participants to the competition by the end of this year.

At the beginning of this material, we described the situation with the consideration of administrative cases in the capital after the liquidation of the District Administrative Court of the city of Kyiv. Currently, it is assumed that the powers of this court will be divided between two courts: ordinary administrative cases of Kyiv citizens will be heard by the Kyiv City District Administrative Court, and cases against the central authorities will be heard by the Supreme Administrative Court of Ukraine, which will function according to the example of the High Anti-Corruption Court of Ukraine (HACC).

The main question is when will it happen? After all, the resources of the High Qualification Commission of Judges of Ukraine are limited and the addition of new procedures will extend the terms of the existing ones. And although the draft law on the Supreme Administrative Court of Ukraine has not yet been submitted to the parliament for consideration, the creation of this court is provided for by almost all of Ukraine’s international obligations, including the action plan for the Ukraine Facility.

No less important is the further filling of courts of first instance with new personnel. In this way, 390 candidates will essentially simply replace the judges dismissed in 2023-2024, while the vacant positions in local courts are now almost one and a half thousand (and judges are still being dismissed).

The representatives of the High Qualification Commission of Judges of Ukraine promise to announce a new competition for local courts at the end of this year.

The selection of quality personnel is the second difficult stage of any reform (after the institutional one), and the reluctance of potential candidates to participate in such large-scale competitions will undoubtedly slow down the progress of both the judicial reform and all its derivative reforms, because in fact it will require additional competitions (as has happened now with a competition to the Constitutional Court of Ukraine), and therefore it will also require additional time, financial and human resources.

The office of the President of Ukraine notes that the candidates “are put off by the strict criteria for integrity checks.” “Understanding that tomorrow the whole country will find out when you, for example, violated traffic rules or did not pay alimony, people do not want to apply for the competition. In my opinion, in the process of selecting judges, it will be clear whether these requirements need to be revised,” says Iryna Mudra, deputy head of the office of the President of Ukraine.

In fact, it is not the integrity check as such that deters candidates, but the possible consequences of its excessive publicity (as compared to European countries). There are already examples when confidential information about persons who are in a temporarily uncontrolled territory was disclosed live. And such cases affect the desire to participate in the competition. As well as a special montage of videos with the answers of candidates on TikTok or memes on Facebook and Instagram.

Over the past ten years, judges have already become accustomed to various types of inspections, but representatives of other legal professions – lawyers and scientists (of whom there are many times more than current judges) are less willing to apply for competitions (in percentage terms). But they are, in fact, the new blood that everyone wants to pour into the judicial system and without which the system really cannot function properly.

Undoubtedly, the situation was worsened by war and uncertainty, as well as constant new (often ill-conceived) stages of reform. There have been several of these stages over the past five years (but this is a matter for a separate analysis).

Therefore, Ukraine is currently at an important stage of selecting judges for key courts. And they will define the vector of justice for at least the next 20 years. The main task now is not only to choose the highest quality and honest candidates (this is the basis!), but also to do it with the maximum respect for people and the profession, so as not to discourage good lawyers from going to competitions and qualitatively changing this country for the sake of victory and our future in the European Union (EU) and the North Atlantic Treaty Organization (NATO).

On May 21, 2024, the Agency for Legislative Initiatives participated in the round table on “Military justice: Canada’s experience and possible options for regulation in Ukraine“, organised by the Committee on Law Enforcement Activities of the Verkhovna Rada of Ukraine.

The event was attended by the head of the Law Enforcement Committee, Sergii Ionushas, Representative of the President of Ukraine to the VRU/Deputy Head of the Committee Galyna Mykhailiuk, Deputy Heads of the Committee Maksym Pavliuk and Hryhorii Mamka, Subcommittee Chairmen Oleksandr Danutsa and Vladlen Neklyudov, Committee member Volodymyr Zakharchenko, Canadian experts on military justice — Ms Robyn Hynes, Director General of Operations, Office of the DND/CAF Ombudsman, and Colonel Todd Murphy, Deputy Commander, Office of the Canadian Armed Forces. The roundtable was also attended by representatives of the Parliamentary Accountability of the Security Sector in Ukraine (PASS Ukraine) project, the Ministry of Defence of Ukraine, the General Staff of the Armed Forces of Ukraine, the Military Law Enforcement Service of the Armed Forces of Ukraine, the Prosecutor General’s Office, the Security Service of Ukraine, and the State Bureau of Investigation.

The issue of the functioning of the military justice system in Ukraine has become particularly acute since the beginning of Russia’s full-scale aggression against Ukraine. After all, creating a clear and fair legal mechanism designed to perform the law enforcement function in military formations and the function of justice for military personnel is one of the important components of the combat capability of the state’s armed forces. That is why studying the experience of Ukraine’s strategic partners and updating the relevant legislation is a priority in this area.

During the panel discussions, the participants discussed the following themes:

1. Overview of the Canadian military police system.
2. Powers and functions of the Canadian Armed Forces Ombudsman.
3. Canada’s experience in respecting the rights of servicemen and women when they are brought to justice.
4. Problems of functioning of military justice in Ukraine.
5. Problems of creating new bodies of the military justice system and military courts.

In addition, the event featured a presentation of the Green Book on Military Justice in Ukraine, which was prepared by the Agency for Legislative Initiatives in cooperation with the Parliamentary Centre (Canada) as part of the PASS Ukraine project and with the support of Global Affairs Canada under the Peace and Stabilization Operations Program (PSOPs).

The web version of the document will soon be available on the ALI website.

The Agency for Legislative Initiatives is a professional and impartial analytical centre open to constructive suggestions and criticism. A peer review procedure, or reviewing, ensures the high quality of our analytical products. However, even the best mechanism cannot fully protect against errors. Our public sector colleagues have fairly noted an incorrect reference in the report “Judicial Influence: Role of Courts in Reform Implementation in Ukraine.” We apologise to the readers for this error, and we are grateful to our colleagues for the opportunity to correct it. Such feedback allows us to improve our products and, at the same time, develops the reputation of our institution in Ukraine.

The text of the report has been updated, and the error has been corrected. In particular, in the thematic block on the substantiation of drawbacks of the draft law “On Restoring Trust in the Judiciary,” the reference to an incorrect source was replaced by a reference to the expert opinion of the following recognised experts: Tetiana Ruda – expert of the CPLR on Judiciary, PhD in law; Yevhen Zakharov – human rights activist, founder of the Ukrainian Helsinki Human Rights Union, director of Kharkiv Human Rights Protection Group; and Valentyna Telichenko – lawyer.

We take this opportunity to encourage the professional community to continue providing feedback on this report and our other analytical products.

The rule of law is one of the most essential principles for a democratic society, its driving force and unconditional value. Since its foundation, the Agency for Legislative Initiatives has consistently emphasised the observance of this principle in both state and social processes.

That is why, starting March 1, the Agency will begin in-depth work on justice.

• research and monitoring projects on various aspects of judicial reform – the process and results of the selection of judges to the courts of first instance and appellate courts, the functioning of the Public Integrity Council, the work of the Supreme Court, the High Anti-Corruption Court, the High Council of Justice, the High Qualification Commission of Judges, the State Judicial Administration, the courts of first instance and appellate courts, etc;
• analysis and research related to the prosecution reform;
• independent monitoring of the application of the Criminal Procedure Code (CPC) and related legislation;
• expert support in bringing national legislation in line with EU and NATO standards, based primarily on the rule of law;
• regular coverage of socially significant trials and documentation of war crimes committed by the russian federation by the ALI media project Watchers.Media for the possible use of collected and processed materials in international jurisdictions;
• continuation of the civic and political education course at the Ukrainian School of Political Studies, aimed at implementing the rule of law as a value in society and its leaders.

This area will be coordinated by Karina Aslanyan, a lawyer with ten years of professional experience in the justice field, focusing on judicial reform, sustainable development of the judicial sector in Ukraine, and good governance.

We will share all our findings and research on one of the critical reforms for Ukraine on the Laboratory’s resources.

Corruption is a systemic phenomenon in Ukraine. Many people are involved in any “scheme”: paymasters, perpetrators, power-holders. The ability to investigate and uncover the facts, to find everyone involved in each specific case, is essential for punishing criminals. However, catching everyone involved “red-handed” is a very painstaking and long process; it becomes difficult, if not impossible, to find and prosecute all accomplices.

Plea bargain is an important mechanism for speeding up investigations that exists in the world. Such a practice also exists in Ukrainian legislation, where it is called a plea deal. Specialised Anti-Corruption Prosecutor’s Office (SAPO) representatives note that currently, the laws regulating such deals impose certain limitations on the investigators and the suspects. Anti-corruption bodies claim that changing the laws currently regulating such deals would help them improve the effectiveness of investigations and bring to justice a greater number of guilty persons.

Let’s consider what plea and cooperation deals are, what their advantages are, and how it is implemented in Ukraine.

A plea deal involves an agreement between prosecutors and the suspect/accused under which the latter admits to committing the crime. This gives the suspect a chance to get a reduced term of imprisonment or a non-custodial sentence. The main advantage of such an agreement is the saving of time, as under it, legal proceedings do not drag on for years but, in most cases, are conducted very quickly and consist of one court session where the court approves the terms and punishments contained in the agreement between the accused and the investigators. Such a practice also saves public money and brings to justice a person who has confessed to committing a crime. 

A cooperation deal is a type or additional component of a plea deal. The suspect/accused, in addition to admitting their actions, provides the investigators with certain information or testimony. This allows the investigators to prosecute a greater number of persons who are complicit in the crime. This practice works well where there is limited evidence and/or the investigators find it impossible to join other suspects to the case on their own. For the accused, cooperation with the investigators usually contributes to a further reduction of punishment.

So, the main difference between the deals is that in the first case, the suspect/accused provides information about himself/herself, and in the second, also about other people.

In Ukraine, the plea deal is regulated by the Criminal Procedure Code, in particular Articles 468 to 476. Such deals may include a plea of guilty and, in addition, the provision of certain information to the investigators. In the case of a deal between the accused and the investigators, it must also be approved by the court hearing the case. According to a ruling of the High Specialised Court of Ukraine for Civil and Criminal Cases, the prosecutor and the accused may not set a punishment less than the minimum sanction of the relevant article when agreeing on the punishment. However, in the presence of mitigating circumstances (Article 66 of the Criminal Code), the parties may agree on a punishment that will be lower than the lowest limit established in the sanction of the article or switch to another, more lenient type of the main punishment (Article 69(1) of the Criminal Code). In Ukraine, such agreements are not yet as widespread as, for example, in the USA or the UK. According to a report by the Prosecutor General’s Office, in 2021, 6 percent of sentences were passed on the basis of plea deals, and in 2022, this share increased to 9 percent.

A peculiar feature of the plea deal in Ukraine is the inclusion of provisions on the cooperation deal if relevant agreements have been made (Article 472(1) of the Criminal Procedure Code of Ukraine). In certain cases, no plea deal is allowed without the cooperation provision. At the same time, there are no clear rules as to how cooperation with the investigation contributes to reducing the prescribed punishment. It all depends on how flexible both sides are on reducing the punishment, how valuable the information is to the investigators, and what punishment the prosecutor considers acceptable/sufficient. Therefore, under such circumstances, the investigators may bear reputational responsibility for the terms of punishment they agreed with the suspect if society does not approve of such agreements. Such issues can interfere with a rational assessment of a plea deal’s advantages and disadvantages in high-profile cases.

Let’s consider how the Ukrainian plea bargain mechanism can work in the case of the former Supreme Court president Vsevolod Kniaziev. The plea deal was used concerning charges under the relevant article on 57 occasions in 2022. However, most of them (53) were reached with charges under part one of that article, and only 1 under part four (as in the case of Kniaziev). At this stage of the investigation of the entire case, it is difficult for the investigators to prosecute other potential accomplices, the approximate number of which is 13, because the amount of evidence against them is insufficient. One of the possible ways out of this situation is Kniaziev’s testimony and information available to him. The suspect’s lawyers claim that he is ready to provide the investigators with information about all judges of the Supreme Court who were involved in the corruption scheme. However, the suspect does not agree to the minimum possible sentence (8 years in prison), which the SAPO can offer by entering into a plea deal with a cooperation provision.

It is worth noting that the prosecutor could, in the presence of mitigating circumstances (Article 66 of the Criminal Code), reach a deal with the accused on the imposition of a more lenient punishment than the corresponding sanction provides (i.e., in the case of Kniaziev, offer a sentence of less than eight years). However, criminal law contains a direct prohibition on the imposition on a person who has committed a corruption crime of a more lenient punishment, even in the presence of mitigating circumstances.

Currently, legal professionals and the general public are discussing improving the legislation and giving the prosecutor the right to propose a more “advantageous” term or type of punishment for the guilty person (for example, not eight years of imprisonment, as provided in the sanction, but just five years).

However, it then gives rise to an ethical problem. There is a choice: to punish the corrupt top judge (and him alone) or to join to the case and possibly successfully prosecute about 13 corrupt members of the Supreme Court but significantly reduce the punishment for the corrupt judge known to the whole country. How do other countries deal with it? Let’s consider the examples of the UK, Poland, Romania and the USA.

In the UK, a plea deal can be entered into between prosecutors and the accused at any stage of the trial. Sentence reductions in the UK system are highly regulated; if the defendant pleads guilty before or during the first court hearing, the prison term is reduced by a third (Art. 73 of the Sentencing Code). Afterwards, the possible reduction decreases accordingly with the progress of the case down to one-tenth of the sentence. According to official government statistics, in 70 percent of cases the accused plead guilty, and the case does not go to a jury trial. Deals on cooperation with the investigators, which require testimony and/or providing information to the investigators, are regulated by Article 74 of the Sentencing Code. According to the legislation, there are no clear rules for reducing the prison term if the suspect cooperates with the investigators. In such a case, the judge decides to reduce the term taking into account the information provided by the defendant and its usefulness. Therefore, when cooperating with the investigators, the accused can count on a reduction in the term of punishment for pleading guilty and, in some cases only, to receive an additional reduction from the judge for cooperation. The judge does not announce this reduction in open court but informs the prosecutors and the defence privately this is done for the safety of the defendants. For the same reason, there are no official statistics on the number of deals on cooperation with the investigators.

The plea deal regulations in Poland provide: if the term of imprisonment does not exceed 15 years, then any number of years of imprisonment can be chosen within the limits of the incriminated article (Art. 387 of the Criminal Procedure Code), but this term must be approved by a judge who checks the voluntary character of the deal and the proportionality between the offence and the punishment. Under a cooperation deal, the defendant must provide testimony or information and assist the investigation. As part of such a deal, the term of imprisonment may be significantly reduced (Articles 60-62 of the Criminal Code). In addition, a suspended sentence may be imposed, even if it is not provided for in a specific case.

In Romania, plea deal, regulated by Article 478 of the Criminal Procedure Code, is one of the key instruments of justice. If the maximum term of punishment for the offence committed does not exceed seven years, then upon pleading guilty, the defendant can expect to have their prison term reduced by a third. In the case of imposing a fine, the latter shall be reduced by one-quarter. The cooperation deal is regulated by Article 411 of the Criminal Code. If the defendant contributed to establishing the truth and bringing other accomplices to justice during the criminal prosecution and provided essential information for that purpose, his/her term of imprisonment may be reduced by half.

In the US, plea bargaining is very common. The 2023 study shows that plea bargaining is present in an impressive 98 percent of cases, highlighting its importance and prevalence in American legal practice. In federal cases, the accused and the prosecutor can agree on a plea bargain, but the sentence reduction is up to the judge. In such a situation, a mandatory reduction in the severity of the charged offence is provided for. The prosecutor can also ask the judge to impose a more lenient sentence, but the final decision is up to the judge. Importantly, the court may refuse to accept the agreement or to comply with the conditions described in it, in which case the accused may withdraw from the bargain, which will not affect the trial in any way. A cooperation deal requires assuming responsibility for one’s own actions. Pursuant to 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), an important emphasis is placed on the possibility of substantial assistance in the investigation or prosecution of persons who have committed the offence. This specific assistance may justify the imposition of a sentence that is below the statutory minimum. It is important to note that the reduction of the punishment due to substantial assistance is added to the reduction of the punishment due to accepting guilt. Substantial assistance is aimed at active participation in the investigation and prosecution of crimes committed by other suspects.

The plea deal is a very common phenomenon in the judicial procedures of the countries in question, in particular the UK and the USA. The Ukrainian regulation of plea deals is similar to those countries that were considered above. Considering judicial practices, when the court can additionally reduce the punishment, it can be said that the regulation is more lenient towards the accused.

Ukrainian legislation does not provide for a separate cooperation deal as such; it is implemented as one of the possible (or necessary – as determined by the prosecutor) terms of a plea deal. At the same time, cooperation with the investigation does not imply a guaranteed additional benefit to the accused if the prosecutor agrees to a plea deal without cooperation.

In all four considered nations, there are clear rewards: in the UK and the USA – an additional reduction of the sentence, in Romania – a reduction by half, in Poland, the court can even impose a suspended sentence or a significant reduction of the sentence. In Ukraine, an additional reduction of punishment can be negotiated with the prosecutor, but this requires the presence of special circumstances and a clear benefit to society. It is possible that the lack of clear guarantees of an additional reduction of the prison term discourages the suspects from entering into deals. The introduction of a regulated reduction of the sentence for cooperation within the framework of plea deals may increase both the desire of suspects to proactively ask for a deal and name the people involved in the “scheme” and also remove a certain “arbitrariness” of the prosecutorial decisions during the process of making decisions about punishment reduction.

The primary objective of the report is to draw attention to the phenomenon of judicial influence on the course of reforms within the Ukrainian context.

The process of implementing reforms is always long and complicated, and its success depends on many factors. Regrettably, the experience of reforms in Ukraine has not always been fruitful, as the outcomes of implementing changes are often not deemed satisfactory by either the authorities or the public. The final point in the debate about whether reform is effective is made by the courts that act as arbitrators in these disputes.

Making a particular decision in a particular case allows the courts to have a noticeable impact on the progress of the introduction of innovations. Particularly, the phenomenon of judicial influence was eloquently demonstrated in the resolution of cases pertaining to the lustration of officials who held positions during the tenure of Viktor Yanukovych, the re-attestation of police officers, the purging of courts from “Maidan judges” and the attestation of prosecutors of the Prosecutor General’s Office. Sadly, the results of judicial consideration revealed that innovations in these areas were not without mistakes, which have traditionally been associated with domestic reforms. As a result, there is a striking number of lawsuits and decisions against the Ukrainian government. This indicates that reforms that were meant to improve government institutions and renew personnel did not work out.

Five cases were chosen to systematically assess the phenomenon of judicial influence in Ukraine. These cases reflect massive appeals to the courts against the results of reforms and outcomes of state power purges through a policy of bans. The list comprises cases that represent the most recent high-profile court appeals for the period spanning from 2014 to 2023. Cases were selected so as to reflect the position of various courts regarding certain aspects of assessment of the specified areas. Considering this, the focus of the research was on those cases that had passed through all possible phases of a court appeal. This approach enabled us to capture, as accurately as possible, the general tendencies in the evaluation of reforms and measures to purge state power, which are typical of courts of various jurisdictions.

The list of cases studied by the Agency for Legislative Initiatives includes:

1. Appeal against the 2014 lustration procedure.
2. Appeal against the 2015–2016 police reform in terms of re-attestation of the personnel of the National Police of Ukraine.
3. Appeal against the dismissal of “Maidan judges”.
4. Appeal against the results of the 2019 certification of prosecutors of the Prosecutor General’s Office of Ukraine.
5. Ban on pro-Russian parties in Ukraine in 2022–2023.

The report does not offer an assessment of whether court decisions are enforceable, substantiated, or based on legitimate motives. Rulings, decisions, and resolutions of courts are used only as factual material to see how much court decisions affect the course of reforms in Ukraine. Moreover, to research the state of preparation of regulatory acts on reforms, draft laws, accompanying documents, provisions of applicable laws and by-laws and regulations that were in force at the time of the disputed legal relations emergence were analysed.

The gathered information forms the basis for the analysis and is current as of July 2023.

It was analysed in order to highlight the typical mistakes made by developers of reforms/lustration and the authorities authorised to implement them, which led to mass appeals to the courts.

Case studies on state power reform/lustration procedures include:

• analysis of reform/procedure design (the essence and goal of the reform/procedure, preparatory work and legal regulation);
• analysis of the process of reform/procedure implementation (implementation of legislation in practice at the national and local levels);
• analysis of entities appealing legal relations;
• study of the procedure for appealing the results of reforms/procedures (identifying reasons that caused such appeal and characteristics of claims filed by the complainants);
• analysis of appeal results containing an analysis of the reasoning for decision-making;
• analysis of responses to appeal results by civil society and government authorities (in particular, in terms of amendments to the legislation).

So, why did courts influence the results of staff purges? What lurks behind it? How can this practice be used in the future so that judicial influence does not transform into the Last Judgement for its developers? Read about it in the new ALI study “Judicial Influence: Role of Courts in the Reform Implementation in Ukraine.”

This report has been prepared as part of the “Civil Society for Ukraine’s Post-Ware Recovery and EU-Readiness” Project, which is implemented with financial support from the EU.

The content of the report is the sole responsibility of the Agency for Legislative Initiatives and does not necessarily reflect the views of the European Union.

When the new government launched large-scale reforms in 2014, everyone had high hopes: we would conduct a lustration, restart the law enforcement system, overcome corruption – and begin a full-fledged path to the EU.

But just as the best recipe can be spoiled by the quality of products, so the best reform can be killed by the quality of personnel, especially if they hold fast to their positions.

Since 2014, we have been witnessing high-profile cases regarding the mass reinstatement of officials who have passed the lustration, the return to the system of law enforcement bodies of dismissed policemen and prosecutors who did not pass certification, as well as the cancellation of decisions on the dismissal of “Maidan judges”. It would seem that the authorities tried to clean the state bodies of unscrupulous and unprofessional personnel but faced resistance from the judiciary. So, can we say that the courts purposefully influenced the reform process? And why did it happen? The Agency for Legislative Initiatives investigated this issue. This article describes our findings.

Experience shows that a wave of court appeals as a reaction to certain changes occurs when these changes significantly affect the scope of citizens’ rights. Turning to the courts, the “victims” try to restore their previous position, referring to the illegality of the innovations. Do they succeed in the future? Everything depends on the level of organization and implementation of changes prepared by the authorities.

Lustration. The dismissal from management bodies of persons involved in the usurpation of power by ex-president Viktor Yanukovych began in 2014. So far, the lustration check process has covered almost 500,000 officials.

However, many former political figures consider the procedure of personnel purges in power structures to be illegal. In addition, they also consider decisions made by authorized bodies to be illegal. This provokes a large number of appeals to the court by officials who have passed the lustration.

The situation worsened due to the decision of the European Court of Human Rights (ECHR) in the case “Polyakh and Others v Ukraine”, by which the lustration procedure in Ukraine was recognized as a violation of human rights. It is significant that after the entry into force of this decision, national courts, in more than 90% of cases, annul the dismissal orders. Ultimately, according to the Ministry of Justice of Ukraine, from October 2014 to June 2023, information on 466 officials was removed from the Register of persons who have passed the lustration by a court decision – they were reinstated. Therefore, the process of personnel purges in law enforcement agencies initiated in Ukraine did not withstand a court appeal. And this case was just one of the first in a whole series of similar cases.

Police reform. We observe a similar situation in the case of the renewal of police officers dismissed based on the results of certification in 2015-2016. This procedure was one of the significant events in the process of reforming the law enforcement system, as it aimed to select honest police officers who expressed a desire to continue serving in the newly created National Police of Ukraine.

The proposed design of the changes initially looked quite promising. However, hopes for the undisputed success of the restart of the National Police of Ukraine did not come true – after the announcement of the unsatisfactory results of the certification, about 3,300 police officers did not agree with them and filed lawsuits in administrative courts. It was in this that the active role of judicial authorities in the process of control over the legality of personnel purges was manifested.

As a result, on the basis of the decisions of the courts, a significant percentage of the police-plaintiffs were reinstated in their positions because, during the consideration of the cases, the courts found weak points in the certification procedure. In particular, according to the National Police of Ukraine, as of July 1, 2023, there are 3,931 police officers who managed to return to their posts based on court decisions. Such a position of the courts once again called into question the success of the implemented changes.

Personnel purges of the prosecutor’s office. Unfortunately, the negative experience of designing and implementing certification of police officers was not properly analyzed at the highest state level. As a result, the previous shortcomings were recalled four years later, when it was necessary to conduct the certification of prosecutors of the General Prosecutor’s Office of Ukraine.

According to the plan of the developers, only those prosecutors who were able to successfully pass the certification should have been transferred to the newly created Office of the Prosecutor General, which began work in January 2020. However, this time too, it was not without a wave of legal appeals. This is due to the fact that out of 1,083 prosecutors of the General Prosecutor’s Office who submitted statements of intent to pass the certification, only 643 (59%) successfully passed it. Those prosecutors who failed to get on this list decided to challenge the certification in court. So, in general, according to the Laboratory of Legislative Initiatives, based on its own analysis of information from the Register of Court Decisions of Ukraine, more than 400 lawsuits were submitted to administrative courts.

This time, although the courts did not recognize the complete failure of the attestation, they did reveal significant shortcomings during its development and implementation. Therefore, as a result of the judicial review, about 140 decisions were made in favor of the ex-prosecutors of the General Prosecutor’s Office.

Purges of the judicial system by “Maidan judges”. After the events of the Revolution of Dignity in 2013-2014, the question of bringing to justice the judges who took an active part in the suppression of public protests against Viktor Yanukovych’s regime became particularly acute. For this reason, a decision was made in 2014-2015 to conduct special inspections of judges in order to “restore legality and justice in society.”

According to official information from the Supreme Council of Justice, as a result of this procedure, 41 conclusions were made about the presence of signs of oath violation in the actions of 46 judges. On the basis of these conclusions, the Supreme Council of Justice adopted 25 decisions on submitting a petition to the president and parliament for the dismissal of 29 “Maidan judges”.

However, according to the results of the trial, some judges still managed to get these decisions overturned. One of the key reasons is the inadequate quality of the law that introduced the special inspection procedure. So, as of July 2023, in relation to six judges, the courts made final decisions to cancel their removal from office. This is more than 20% of the total number of judges who appear in dismissal applications.

The decisions of the courts have a significant impact on the final result of the success of the personnel purges in state bodies. Mass cancellation of the results of changes at the level of individual appeals is an example of the indirect but very tangible influence that Ukrainian courts have on public policy.

However, this is not because the idea of personnel purges in itself is wrong, it indicates, rather, that there are certain flaws in its design or implementation process. In general, the decisions of the courts are evidence that the Ukrainian practice of implementing such changes is traditionally accompanied by typical mistakes that cannot be overcome for a long time. So what’s the problem?

First, quite often, large-scale changes are based on weakly developed legislation. In connection with this, there are various inconsistencies and contradictions in relevant normative legal acts, national practice does not meet international standards, etc.

Secondly, even well-designed regulations do not guarantee 100% success of the reform. This happens because the provisions of the legislation are often violated during the direct implementation of the changes. For example, the authorities act contrary to their authority, improperly substantiate the decisions made, do not observe the deadlines for carrying out certain procedures.

Therefore, in the case of the presence of at least one of these aspects, the courts come into play, and based on the results of the cases, they recognize the reforms or some of their procedures as illegal.

So, in the end, the influence of the courts is one of the indicators that the vector of social changes is at least thought out and (in)correct. Unfortunately, the domestic experience of organizing previous attempts to restart state institutions and personnel renewal cannot always be called successful. The results of the court appeal reveal all the mistakes that were made by the developers of the innovations. However, there is also a positive point in this – judicial control acts as a safeguard and warns against repeating similar mistakes in the future. And this experience should be taken into account now when we are planning the reforms necessary for Ukraine’s full membership in the EU.

The text has been prepared as part of the “Civil Society for Ukraine’s Post-Ware Reconstruction and EU-Readiness” Project, which is implemented with financial support from the EU.

On September 14, 2023, the Agency of Legislative Initiatives (ALI) held an expert discussion on the results of a study on judicial influence on reforms in Ukraine. This study was prepared within the project “Civil society for post-war recovery of Ukraine and readiness for the EU”, which is financed by the European Union.

Context. Today, Ukraine has a real chance to fulfil its European integration aspirations and become a full member of the European Union. However, we still have to go through a long and difficult path of reforms. The key here will be the quality of these reforms. Therefore, it is extremely important to involve not only government agencies but also civil society and independent experts in the process of designing reforms.

During the presentation, participants discussed the phenomenon of judicial influence, its impact on the course of reforms, and possible steps to improve future reforms and cooperation between various stakeholders.

Oleksandr Zaslavskyy, director of the analytical direction of the Agency for Legislative Initiatives, moderated the discussion. He spoke about the main results of the study and key recommendations for lawmakers:

Oleksiy Tseliev, PhD in legal sciences, associate professor, expert of the Center for the Study of the Rule of Law of the Ukrainian National Academy of Sciences, noted that the practice of applying the new norms may differ from the plan — and this is a normal phenomenon.

Volodymyr Chaban, the chief national expert of the Pravo-Justice project, spoke about the possibilities of development and further work with the study of ALI:

Karyna Aslanian, an expert involved in the peer review of the study, shared her vision of the practical use of ALI research:

After taking into account the experts’ comments, the study will be published on the Agency of Legislative Initiatives’ website and sent to the relevant government agencies for further review and application in law-making activities.

Additional information:

The project Civil society for the post-war recovery of Ukraine and readiness for the EU is implemented with the support of the European Union. It is aimed at increasing the ability of the Cabinet of Ministers and the Verkhovna Rada to overcome the consequences of the war and on the way to Ukraine’s membership in the EU. The project plans to achieve this by providing expert and communication support from public organizations regarding developing and implementing relevant laws and policies.

More details about the project: https://parlament.org.ua/2022/09/19/ali-eu-readiness-consortium/ 

For additional information, contact Maria Hereles, Director of the Communications Department of the Agency of Legislative Initiatives, at mg@parliament.org.ua.

On September 13, 2023, the Agency for Legislative Initiatives (ALI) presented the study’s results, “The impact of judicial intervention: the role of courts of general jurisdiction in the course of reforms in Ukraine.” This work was prepared within the framework of the “Civil Society for Ukraine’s Post-war Recovery and EU-Readiness” project financed by the European Union.

Context. Today, it is already obvious that even such long-awaited and promising reforms as those that began after the Revolution of Dignity have not become successful cases. This happened for many reasons. And one of them is judicial intervention. However, to realise our European integration wishes, we must fulfil our obligations regarding implementing reforms and approximating Ukrainian legislation to EU legislation. An important criterion here will be not just the adoption of laws and the start of reforms but their sustainability. Therefore, it is necessary to design quality reforms without legislative gaps and shortcomings.

During the event, participants discussed the phenomenon of judicial intervention, its impact on the course of reforms, and possible steps to improve future reforms and cooperation between different branches of government.

The discussion was moderated by Svitlana Matviienko, executive director of the Agency for Legislative Initiatives. She talked about the very idea of the research and why it is worth paying more attention to this issue:

Oleksandr Zaslavskyy, director of the analytical direction of the Agency for Legislative Initiatives, spoke about the main results of the study and key recommendations for lawmakers:

Oleksandr Korniyenko, First Deputy Chief of the Verkhovna Rada of Ukraine, emphasized the importance of the integrated work of all branches of government in planning and implementing reforms:

Oleksandr Ilkov, Director General of the Government Office for the Coordination of European and Euro-Atlantic Integration, noted that the architecture of reforms should be built on balance:

Soon, the study “The Impact of judicial intervention: the role of courts of General Jurisdiction in the course of Reforms in Ukraine” will be published on the website of the Agency for Legislative Initiatives and will also be sent to the relevant state bodies for further review and application in law-making activities.

For additional information, contact Mariia Hereles, Director of the Communications Department of the Agency for Legislative Initiatives, at mg@parliament.org.ua.

On September 13, the Agency for Legislative Initiatives (ALI) will present the results of the study “The impact of Judicial Intervention: the role of General Courts in the reform process in Ukraine”. The paper was prepared within the framework of the “Civil Society for Ukraine’s Post-War Reconstruction and EU Readiness” project funded by the European Union.

The event will take place at 10:30 in the press centre of Ukraine Crisis Media Center (Khreshchatyk Street, 2 («Ukrainian House», Kyiv).

Context. Implementing reforms is always a lengthy and complex process, and their proper implementation is crucial in European integration and post-war recovery planning. However, the experience of reforms in Ukraine is not always positive, as the results of changes often do not meet expectations. Quite often, the final point in the debate on the effectiveness of a particular reform is put by the courts, which act as arbitrators in these disputes.

The event aims to present and discuss the results and key findings of the study: typical mistakes that accompany the reform process in Ukraine and recommendations that would reduce the risks of court interference in implementing state policy in this area.

Media representatives are warmly invited to attend. The working language is Ukrainian.

Contact person: Mariia Hereles, Head of Communications of the Agency for Legislative Initiatives, mg@parliament.org.ua, tel. + 38 063 531 61 06.