Weekly analysis for 03 — 09 February

Roman Smaliuk, Roman Smalyuk

The Supreme Court has once again revised the approach to the procedure for conducting judicial qualification assessments

Event

On January 15, 2026, the Grand Chamber of the Supreme Court (GC SCU) adopted a decision in case № 990/62/24, in which it stated:

• “qualification assessment constitutes a single procedure governed by a unified regulatory framework, but applied in two distinct situations (on two grounds): either to assess a judge’s compliance with the position held, or to determine a judge’s (or a candidate for judicial position) capacity to administer justice in the relevant court” (para. 56);
• “in cases involving a judge appointed for a five-year term or elected for an indefinite term prior to the entry into force of Law № 1401-VIII, where the Public Integrity Council has issued an opinion confirming a judge’s failure to comply with the criteria of professional ethics and/or integrity, the assessment procedure does not conclude with the findings by a panel of the High Qualification Commission of Judges that the judge meets the requirements of the position in the relevant court. Instead, it requires the adoption of a decision by the High Qualification Commission of Judges sitting in plenary session, which overrides the negative opinion of the Public Integrity Council by a vote of no fewer than eleven members of the Commission” (para. 68).

CPLR’s expert assessment

1. The 2016 amendments to the Constitution of Ukraine concerning the judiciary introduced a mandatory qualification assessment for all judges to determine their compliance with the positions they hold. Until December 30, 2023, para. 20 of Section XII (Final and Transitional Provisions) of the Law of Ukraine “On the Judiciary and the Status of Judges” provided that such compliance was to be assessed by panels of the High Qualification Commission of Judges of Ukraine (HQCJ, the Commission) in accordance with the procedure established by law. This language gave rise to numerous disputes as to which authority is competent to issue the final decision in cases where the Public Integrity Council (PIC) issued an opinion. Under paragraph 2 of part one of Article 88 of the Law “On the Judiciary and the Status of Judges”, the Commission could override a PIC opinion only in its plenary session.

For a long time, the GC of the SCU adhered to the position that, in cases involving judges appointed prior to the 2016 constitutional amendments and where a PIC opinion had been issued, the assessment procedure was not concluded with a panel decision of the HQCJ confirming compliance with the position held, but instead required a decision of the Commission sitting in plenary session.

2. On December 30, 2023, Law № 3511-ІХ of 9 December 2023 entered into force, revising paragraph 20 to provide that, following a qualification assessment, a decision on compliance or non-compliance with the position held must be made by an HQCJ panel, or – where provided by the law – by the Commission sitting in plenary session. Such decisions must be adopted in accordance with the rules governing decisions on the confirmation or non-confirmation of a judge’s (or judicial candidate’s) ability to administer justice in the relevant court.

Given these legislative amendments, the GC of the SCU, in its judgment of June 13, 2024 in case № 9901/198/20, revised its previous approach and held that, prior to December 30, 2023, a final decision following the qualification assessment, even in the presence of a PIC opinion, fell within the competence of an HQCJ panel. The PIC subsequently stated that this decision “effectively nullifies qualification assessments of compliance with the position with respect to 180 judges”. The European Commission also drew attention to the potential negative impact of this decision on the qualification assessment process.

3. Accordingly, in case № 990/62/24, the GC of the SCU departed from the conclusion reached in case № 9901/198/20 and effectively reverted to its earlier case-law, which had been consistently applied for several years (the GC, in its decision, referred to 10 similar rulings adopted between July 2020 and October 2023). In the view of the CPLR’s experts, this shift contributes to ensuring the uniform status of judges (particularly with respect to undergoing qualification assessment for compliance with the position held under a single procedure applicable to all judges) and to enhancing the overall effectiveness of the qualification assessment system. This includes ensuring meaningful involvement of the PIC in the assessment process.

At the same time, the absence of institutional safeguards against repeated changes in the GC’s approach to cases of this category remains a concern. Potentially, in a future case involving similar circumstances, the SCU might once again revert to the approach adopted in case № 9901/198/20. Such legal uncertainty increases the risk of judicial challenges to decisions of the HQCJ concerning qualification assessments conducted with PIC opinions, where panels of the Commission adopted decisions confirming judges’ compliance with the positions held prior to December 30, 2023.

4. It should be also noted that there remains a category of judges for whom the GC of the SCU has effectively established “simplified” conditions for undergoing a qualification assessment. Specifically, in cases №№ 990/383/24, 990/45/24, and 990/341/24, the GC deemed the qualification assessment procedure completed for judges as to which the PIC had issued opinions, but panels of the HQCJ had found them to comply with the position – while the HCJ, due to the absence of a fully authorized membership of the HQCJ, submitted recommendations to the President of Ukraine for their lifetime appointment based on the provisions of Law № 679-IX of June 4, 2020.