Weekly analysis for 09 — 15 September

Draft Law on Restoring Competitions for Civil Service Positions: Which Risky Provisions Are Proposed to Be Introduced in the First Reading

Event

On September 10, a meeting of the Committee of the Verkhovna Rada of Ukraine on Organization of State Power, Local Self-Government, Regional Development and Urban Planning took place, to consider the draft law “On Amendments to Certain Laws of Ukraine Regarding the Resumption of Competitions and the Improvement of the Procedure for Entering, Undergoing, and Terminating Civil Service” № 13478-1 (https://itd.rada.gov.ua/billinfo/Bills/Card/56817). The Committee recommended the Parliament to adopt the draft law as a basis in the first reading.

CPLR’s assessment

From a procedural standpoint, it is rather unusual that this draft law, submitted as an alternative to the government’s draft law (№13478) and which has already been withdrawn by the newly formed Cabinet, will now be considered in the absence of the main draft law, which has not yet been resubmitted. According to §110 of the Rules of Procedure of the Verkhovna Rada, Parliament shall consider alternative draft laws simultaneously with the main one. Therefore, there are full grounds to believe that this provision will not be adhered to.

Substantively, the alternative draft law, according to its authors, almost entirely (99.9%) replicates the government’s withdrawn draft. It contains a number of positive provisions, which were partially carried over from draft law № 6496 which was previously withdrawn by the former Government for unknown reasons (it was registered at the end of 2021 and sat without progress for more than 2.5 years) .

The provisions of the draft law that deserve support include the following: introduction of a reserve list for candidates who passed the competition and may subsequently be appointed to a position within a year; possibility of internal career advancement for civil servants; preferential rights to be appointed for candidates from among veterans and youth, provided they have equal professional competence; and some others.

At the same time, the draft law contains a number of significant shortcomings, including:

1) although competitions have not taken place for more than three consecutive years, the draft law still sets excessively prolonged timelines for their resumption: for Category “A” civil service positions (senior civil service) — starting from June 1, 2026, with up to 9 months allowed for announcement of such competitions; for Category “B” positions — from July 1, 2026, with up to 12 months allowed for announcements; and for Category “C” positions and for positions in local self-government bodies — from September 1, 2026, with up to 18 months allowed for announcements;

2) despite thousands of filled positions remaining inaccessible to citizens, the draft law provides managers with discretion regarding extension of service for individuals they directly appointed during martial law without competition. Such appointments continue until the law takes effect. As a result, competitions are being postponed: those already appointed without open selection will bypass it entirely, since after six months (for Categories “B” and “C”) and after one year (for Category “A”), the mere consent of the appointing official will suffice to extend their tenure.

3)  politicization of the composition of the Commission on the Higher Civil Service. A majority of its members (4 out of 7) are appointed by the Verkhovna Rada, the President, and the Government.

4) lack of provisions to restore stability in civil service and limit arbitrary dismissals caused by restructuring or changes in staffing levels without clear criteria. This does not respond to current challenges of high staff turnover, contradicts the European Commission’s recommendations in the EU Enlargement Package 2024, and runs counter to the commitments declared in the Verkhovna Rada’s 2025 Legislative Work Plan.

The aforementioned provisions of the draft law undermine public trust in the state’s personnel processes; contradict Article 38 of the Constitution of Ukraine, which guarantees equal access to civil service; and are inconsistent with Principles 8 and 9 of the OECD/SIGMA Good Governance Programme concerning the recruitment of competent personnel based on equal opportunity and merit, as well as the stability and the inadmissibility of unlawful dismissals.

CPLR submitted its proposals and comments on the draft law in advance, at the request of the relevant parliamentary Committee. However, during last week’s meeting, there was no substantive discussion to draw attention of MP Committee members to these issues.

Given the above, the significant shortcomings of this draft law can only be addressed during its preparation for the second reading, provided that this process is open to non-governmental institutions.

Conclusions: Adoption and entry into force of such a legislative act in the third quarter of 2025 is set as one of the objectives within the Roadmap on Public Administration Reform (Cabinet of Ministers of Ukraine Resolution № 475-r of May 14, 2025; responsible authorities — the NACS, the Cabinet of Ministers, the Verkhovna Rada of Ukraine).

Given the fact that it is already mid-September, it is unlikely that this deadline will be met, considering the procedures required for the second reading and the law’s signing, even though the matter concerns the opening benchmarks for launching the first cluster in Ukraine’s EU membership negotiation process.

To achieve the strategic outcome outlined in the Reform Roadmap – engaging qualified and integrity-driven personnel to the civil service based on meritocratic principles, using procedures aligned with European standards of public administration – it is logical to ensure cooperation between the draft law’s initiators and civil society in the area of governance and a joint search for a genuine alternative to the proposed provisions.

Military Courts or Military Specialization of Judges?

Event

On March 11, draft law № 13048-1 “On Amendments to the Law of Ukraine ‘On the Judiciary and the Status of Judges” Regarding the Establishment and Organization of Military Courts” (the Draft Law) was submitted for Verkhovna Rada’s consideration.

On September 12, the Plenum of the Supreme Court decided to postpone the review and issuance of the opinion on this draft law, as well as a similar draft law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” Regarding the Functioning of Military Courts” (№ 13048 of February 27, 2025) and to establish a working group tasked with consolidating positions on this matter.

CPLR’s assessment

1. According to amendments proposed by draft law № 13048-1 to the Law “On the Judiciary and the Status of Judges” (Articles 48, 52, 69), judges of military courts would perform military service not only in accordance with the law but also in accordance with the Regulation on Military Service in Military Courts, which is to be approved by the President of Ukraine.

However, according to paragraph 14 of Part one of Article 92 of the Constitution of Ukraine, the organization of the judiciary, judicial proceedings, and the status of judges are determined exclusively by the laws of Ukraine. No separate elements of a status of certain judges may be established outside the framework of a law.

For comparison, paragraph 12 of Part one of Article 92 of the Constitution of Ukraine provides that only the fundamentals of the civil service are to be established exclusively by a law (i.e., other aspects of civil service, aside from its foundations, may be established by regulations). Paragraph 6 of Part two of the same article establishes that military ranks are determined exclusively by laws, indicating that not all matters of military service are required to be governed solely by laws.

Similar provisions are also contained in draft law № 13048. According to the proposed new part 2 of Article 56-2 of the Law “On the Judiciary and the Status of Judges”, the procedure for awarding and promoting military ranks to judges of military courts is to be established by a regulation approved by the Ministry of Defense of Ukraine in coordination with the High Council of Justice, while the procedure for conferring higher military ranks is to be determined by the President of Ukraine.

2. According to part 1 of Article 80 of the Law “On the Judiciary and the Status of Judges” (as amended by the draft law), judges are appointed by the President of Ukraine, while the appointment of a judge to a local military court additionally requires a decision on conscription into military service.

Corresponding amendments are proposed to be introduced to part 7 of Article 81 of this Law and part 2 of Article 36 of the Law “On the High Council of Justice.” Furthermore, part 4 of Article 55 of the Law “On the High Council of Justice” is proposed to be supplemented with wording stipulating that the President of Ukraine releases from military service judges of local military courts, the Military Court of Appeal, and the Military Chamber of the Supreme Court.

However, the Constitution of Ukraine does not provide for the President to exercise such powers.

The Constitutional Court of Ukraine has repeatedly emphasized that the powers of the President of Ukraine are determined exclusively by the Constitution of Ukraine and cannot be extended by law or any other normative legal act (see rulings of April 10, 2003, № 7-rp/2003; April 7, 2004, №  9-rp/2004; December 17, 2009, № 32-rp/2009; and opinion of December 16, 2019, №  7-v/2019, among others).

Draft law № 13048 fails to adequately define the procedure for conscription of judges of military courts into military service or their release therefrom.

3. Certain provisions of draft law № 13048-1 fail to comply with the principle of legal certainty. The Constitutional Court of Ukraine, in numerous rulings, has clarified the interpretation of this principle as an essential component of the rule of law, which is not only recognized but also enforced in Ukraine (Article 8 of the Constitution of Ukraine).

Contrary to this, draft law № 13048-1 contains the following vague and contradictory provisions:

1) local military courts are designated to hear cases “concerning military personnel” (part 6 of Article 22 of the Law “On the Judiciary and the Status of Judges,” as amended by the draft law). However, the phrase “cases concerning” could be interpreted to include not only criminal cases and cases regarding administrative offenses, but also matters such as alimony enforcement, paternity determination, declarations of missing or incapacitated persons, and numerous other types of cases.

Thus, the draft law contains uncertainty regarding the jurisdiction of military courts.

The draft law № 13048 provides a clearer definition of the jurisdiction of military courts;

2)  a judge of the Military Chamber may be a person who is a ranking military officer or a former officer currently in reserve service or retired (paragraph 5, part 1, Article 38 of the Law “On the Judiciary and the Status of Judges” as amended by the draft law). However, under paragraph “b” of part 1 of Article 26 and part 1 of Article 32 of the Law “On Military Duty and Military Service”, military personnel must be released from service and removed from the military register upon reaching the maximum age for reserve service or if deemed unfit for military service by a military medical commission.

In other words, a person retired from military service cannot hold the position of a military officer.

The later principle is also reflected in other provisions of the draft law. For example, in the proposed amendments to paragraph 2 of part 2 of Article 69 of the Law “On the Judiciary and the Status of Judges”, it is stated that a citizen unfit for military service cannot be appointed as a judge of a local military court. Thus, if a person is unfit for military service in the position of a local military court judge, she/he is even less fit to hold a highly responsible position of a judge of the Military Chamber of the Supreme Court. Furthermore, according to the proposed new paragraph 12-1 of part 1 of Article 71 of the Law “On the Judiciary and the Status of Judges”, candidates for any military court judgeship must submit a military medical commission report confirming his/her fitness for military service;

3) according to part 3 of Article 112 of the Law “On the High Council of Justice” (as amended by the draft law), the grounds for releasing a judge of a military court from military service are based on the decision of the High Council of Justice to dismiss such a judge from office.

However, according to part 1 of Article 119 of the same Law (as amended by the draft law), the grounds for releasing a military court judge from military service are different – which is the termination of the judge’s powers on the grounds set out in paragraphs 1, 2, 3, and 5 of part seven of Article 126 of the Constitution of Ukraine.

At the same time, part six of Article 126 of the Constitution of Ukraine establishes the grounds for dismissing a judge from office, while part seven sets out the grounds for the termination of a judge’s powers.

All of these challenges could be avoided by focusing on ensuring military specialization for judges within the existing courts.