Weekly analytics for 23 – 29 October

Relevant Parliamentary Committee Proposes to Improve the Judicial Selection Process

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On October 25, 2024, the Committee on legal policy recommended draft law № 11425-д “On amendments to the Law of Ukraine “On the judiciary and the status of judges” concerning the peculiarities of the qualification exam” for parliament’s consideration.

This draft law establishes that a candidate for a judicial position shall be deemed to have passed the qualification exam if he/she:

1. achieve at least 75 percent of the maximum score on the assessment covering the history of Ukrainian statehood, general legal knowledge, and the relevant court specialization;

2. achieve at least 75 percent of the maximum score on the practical task related to the relevant court specialization;

3. successfully complete the cognitive abilities assessment.

Additionally, the previous requirement for a passing threshold of at least 75% correct answers on the IQ test has been removed. The High Qualifications Commission of Judges of Ukraine (HQCJ) is now empowered to independently determine the passing score for cognitive ability assessments. Furthermore, the obligation for candidates seeking positions in local courts to complete practical tasks across all existing specializations of general jurisdiction courts (civil, criminal, administrative, and economic) has been eliminated. Instead, candidates will have the option to choose a single specialization.

The need to implement these amendments stems from two key factors. First, in response to the critical shortage of judges in local courts, the HQCJ of Ukraine plans to announce a competition for 1 250 judicial positions in the upcoming months. Second, the Law of Ukraine “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and certain legislative acts of Ukraine on improving judicial career procedures” № 3511-IX, of December 9, 2023, introduced significant revisions to the current law, which established the requirement for candidates for the position of a judge of local court to undergo interviews with the HQCJ and fundamentally changed the procedures for taking the qualification exam. These changes include the introduction of a mandatory cognitive abilities assessment, which will impact candidates’ further participation in the selection process, as well as assessments on the history of Ukrainian statehood, general legal knowledge, and each court specialization – administrative, economic, and general (civil and criminal). Candidates shall also complete practical problem-solving tasks for each court specialization. Integrity checks for future judges were carried out by the HQCJ during the final stages of judicial selection for local courts in the first half of 2024. However, the new rules for conducting the qualification exam have raised concerns among Commission members, as increasing the number of assessments for candidates from three to nine appears obviously excessive, especially in light of the acute shortage of judicial personnel.

CPLR’s assessment

The optimization of the selection process for candidates for judicial positions at local courts is both urgent and necessary in the context of ongoing judicial reform and Ukraine’s Euro-integration intentions. On one hand, the procedure for selecting judges should be free from unnecessary bureaucratic formalities; on the other hand, it must effectively serve a dual purpose: identifying candidates with the appropriate level of professional experience, high legal competencies, and personal achievements, while simultaneously preventing the inclusion of untrustworthy individuals who are prone to corrupt practices and have already discredited themselves through dubious or unlawful actions. The CPLR and Legal Reforms positively assess the novelties proposed in draft law № 11425-д in light of the following arguments.

Firstly, streamlining the selection process is essential for reducing the duration of competitions for judicial positions in local courts. In October 2024, the President of Ukraine signed another set of decrees appointing judges whose judicial careers began in 2017, and in some cases, even earlier. Unfortunately, it has already become a “good” tradition in Ukraine for the judicial selection process to take between three to seven years. Prior to the enactment of the Law of Ukraine “On Improving Judicial Career Procedures,” candidates for judicial positions in local courts were required to take two theoretical exams: the first assessed their knowledge of general legal norms, while the second was tailored to the specific court specialization they selected. Candidates were also tasked with drafting a judicial decision relevant to their chosen specialization. Some candidates sought to apply for two specializations to enhance their chances of success in the competition. However, there was no requirement for future judges to take exams in all four specializations outlined in the Law of Ukraine “On Improving Judicial Career Procedures” for local courts. In practice, it is hard to imagine a legal professional who could master the diverse nuances of civil, criminal, administrative, and economic law equally well. Typically, lawyers specialize in a single area of law, while law enforcement officers and civil servants focus on the competencies relevant to their respective agencies. Judges also receive their specializations based on decisions made during meetings of judges, as specified in the Law of Ukraine “On the Judiciary and the Status of Judges”.

Secondly, the excessively complicated selection process for judicial appointments often discourages potential candidates from participating in the competition. The public’s attention to the selection of judges is extraordinary, and the standards for the integrity of future guardians of justice are exceptionally high. Furthermore, the schedule for judicial competitions is never published in advance and often includes elements of unpredictability. Consequently, the lack of preparedness for increased public scrutiny, combined with the uncertainty surrounding at least a tentative timeline for the various stages of the selection process, leads many qualified candidates to withdraw from judicial selections.

Thirdly, there is no scientifically validated evidence suggesting that candidates for judicial positions who achieve high scores on cognitive ability assessments administer justice more effectively than those with lower scores. A notable case in point is the competition for the positions of disciplinary inspectors within the High Council of Justice, where the passing score for the cognitive ability assessment was set at 100 points. As a result, only 67 candidates (representing 19% of participants) out of 350 successfully passed the cognitive ability assessment. Subsequently, the candidates completed situational tasks designed to assess their capacity to apply their knowledge and experience in performing their official duties. The results revealed that just over half of the candidates (33 out of 65) scored more than 50% of the maximum possible score (100 points), with only 17 candidates achieving scores over 75%. During personal discussions, candidates expressed concerns about the extreme difficulty of the cognitive assessment, noting the high percentage of mathematical tasks among the questions, insufficient time to provide adequate answers, and the exceedingly high passing score that proved challenging to attain. Obviously, the High Qualifications Commission of Judges of Ukraine (HQCJ) must reconsider its approach to assessing the results of cognitive ability tests for future judges. Otherwise, it risks facing significant challenges related to the number of candidates and a lack of viable options, particularly when considering not only their cognitive abilities but also their adherence to other legal requirements.

In summary, the adoption of draft law No. 11425-d is both necessary and timely. The improvement of the selection process for local court judges aims to enhance its efficiency and ensure the institutional capacity of the HQCJ of Ukraine, especially in light of a judicial shortage that ranges from 20% to 60% across various levels of the judicial system.

Amendments to the Criminal Code Related to the Ratification of the Rome Statute of the International Criminal Court

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On October 24, the euro-integration law “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in Connection with the Ratification of the Rome Statute of the International Criminal Court and amendments thereto”, which was adopted by the Verkhovna Rada on October 9, officially came into effect. This ratification took place on August 21.

On October 25, Iryna Mudra, the Deputy Minister of Justice of Ukraine, submitted the ratification instrument for Ukraine’s accession to the Rome Statute of the International Criminal Court (hereinafter referred to as the RS, ICC) to the UN Secretariat. Consequently, the Rome Statute (excluding Article 8 concerning Ukrainian citizens) and the associated amendments will enter into force for Ukraine on the first day of the month following the 60th day after the submission of the ratification instrument for deposit with the UN Secretary-General. This date will be December 25, 2024.

CPLR’s expert assessment

Overall, this law (the significance of which we have already mentiioned) is five years overdue. Its delay cannot be justified by technical or legal reasons, as most of its provisions almost repeat those of the law “On Amendments to Certain Legislative Acts of Ukraine Regarding the Implementation of International Criminal and Humanitarian Law”, which was adopted on May 20, 2021 and submitted to the President of Ukraine for signature on June 7, 2021, however was never signed.

For clarity in legal application, it would have been advantageous for the Law of October 9 and the Rome Statute to come into effect simultaneously and operate in harmony. Unfortunately, that did not happen. As a result, for the next two months, the term “international treaties” in Article 438 of the Criminal Code of Ukraine will not encompass the Rome Statute. Furthermore, according to paragraph 3 of Article 12 of the Rome Statute, Ukraine will only formally confirm its recognition of the ICC’s jurisdiction over crimes of genocide, crimes against humanity, and war crimes starting from November 21, 2013, after a two-month waiting period. Regarding the crime of aggression, this recognition will take effect from July 17, 2018, the date when the amendments adopted by the Assembly of States Parties to the Rome Statute concerning the crime of aggression came into force.

Key Provisions and Flaws of the Law of October 9

1. The Criminal Code has been supplemented with a new article, 442-1, titled “Crimes Against Humanity”. This article lists the forms of relevant acts as outlined in Article 7 “Crimes Against Humanity” of the RS, and the note accompanying this article provides clarification of terms “attack against civilian populations”, “forced disappearance”, “crime of apartheid”, “extermination”, and “torture”.

However, the definitions provided in this new article do not align with those in paragraphs 1 and 2 of Article 7 of the RS. For instance, the Criminal Code shall penalize coercion into forced pregnancy (as specified in the RS) rather than the act of forced pregnancy itself. Furthermore, persecution is defined based rather on sex than gender, diverging from the RS terminology. The definition of torture is limited to “intentionally causing severe physical pain or physical or mental suffering”, without mentioning the specific victim “a person who is in custody or under the control of the accused”. Moreover, it fails to clarify that “torture does not include pain or suffering arising solely from lawful sanctions that are inherent to those sanctions or caused by them accidentally”, as stated in the RS.

Definitions for other terms included in paragraphs 2 and 3 of Article 7 of the RS, such as “enslavement”, “forced pregnancy” “persecution”, and “gender” are not provided.

These omissions may lead to significant challenges in applying the provisions of the new article, particularly given that the ICC and other international courts have already established binding practices in this area. Additionally, the lack of clarity may result in potential appeals to the ECHR with complaints about an unfair trial.

2. Although the titles of certain articles in the Criminal Code have been revised (such as Article 437, now titled “Crime of Aggression” instead of “Planning, Preparation, Initiation, and Conduct of an Aggressive War” and Article 438, which is now titled “War Crimes” instead of “Violation of the Laws and Customs of War”) the language used does not align with corresponding crimes defined in Articles 8bis, 8, and 6 of the RS.

Firstly, this means that the definitions of aggression and genocide in the RS will differ from those in the Criminal Code.

Secondly, as a result, to determine whether a particular act qualifies as a war crime, it would be necessary to reference both the RS and its protocols, alongside numerous other international treaties and the ICC case law and ad hoc tribunals. Fourth, liability for war crimes will arise only in cases of violations of the laws and customs of war as stipulated in international treaties to which the Verkhovna Rada has consented. In other words, in cases of violations of the customs of war not covered by Ukraine’s international treaties, there will be no accountability. This contradicts the requirements of international humanitarian law.

Third, Article 438 of the Criminal Code does not include a contextual element, specifically stating that the relevant crimes are committed “as part of a plan or policy or as part of a widespread or systematic commission of such crimes”. Without these words, it becomes more difficult to distinguish these crimes from many related crimes specified in other articles of the Criminal Code, complicating the legal qualification of such crimes and delaying their investigation and judicial proceedings.

Fourthly, liability for war crimes will only apply in cases of violations of the laws and customs of war as outlined in international treaties to which the Verkhovna Rada has consented. This means that in cases of violations of the customs of war not covered by Ukraine’s international treaties, no liability will be incurred. Such limitations contradict the principles of international humanitarian law.

3. Chapter VI of the Criminal Code, titled “Complicity in a Criminal Offense” has been supplemented with a new Article 31-1 “Criminal Liability of Military Commanders, Other Individuals Acting as Military Commanders, and Other Superiors”. While some of the shortcomings identified in the corresponding draft law, which we previously highlighted, have been addressed, one significant flaw remains unresolved.

Article 26 of the Criminal Code defines complicity as the intentional joint participation of multiple individuals in the commission of an intentional criminal offense. However, the actions of a military commander or other superior do not fit this definition, as they do not participate in the commission of the same intentional criminal act. Instead, Article 31-1 addresses different crimes and various types of culpability, indicating involvement in a criminal offense. Given this and the fact that criminal liability is grounded in the commission of a specific act defined in the Criminal Code as a crime, it would have been more appropriate to define the liability of military commanders and other superiors as a sui generis crime – unique in its nature and characterized by its own specific features. The authors of the draft for the new Criminal Code of Ukraine tried to use this approach in Articles 11.4.6 and 11.4.7.

Despite some shortcomings in the law, its adoption and entry into force should be welcomed.

However, prosecutors and judges must keep in mind that the actions specified in Articles 438, 442, and 442-1 of the Criminal Code fall within the scope of international humanitarian law. While some of these actions may be similar to other offenses defined in the Criminal Code (such as deprivation of life, infliction of serious or moderate bodily harm, torture, unlawful deprivation of liberty, enforced disappearance, hostage-taking, human trafficking, rape, or other forms of sexual violence) there is no need to classify them additionally under Articles 115–122, 127, 146–149, 152–155, or any other articles from Chapters I-XIX of the Special Part of the Criminal Code even in cases where the sanction specified in those articles (or sections of articles) is more severe than those outlined for Articles 438, 442, and 442-1.

It is important to note that Ukraine ratified the Rome Statute (RS) with declarations. The third declaration specifies that for seven (7) years after the RS comes into force for Ukraine, the country will not recognize the jurisdiction of the International Criminal Court (ICC) over crimes listed in Article 8 (including any amendments to that article) if such crimes are likely to have been committed by its citizens. Consequently, until December 25, 2031, Ukraine will maintain jurisdiction over its citizens in cases involving war crimes explicitly listed in Article 8 of the RS and will not refer these cases to the ICC.

Corruption Disease Affecting the Medical-Social Expert Commission and Prosecutors: Will Upcoming Political Decisions Bring About a Cure

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In early October, the State Bureau of Investigations uncovered a substantial corruption scheme involving Tetiana Krupa, head of the Medical-Social Expert Commission (MSEC), and her son, the director of the regional Pension Fund in Khmelnytskyi. Investigators discovered $100,000 in cash, medical documents showing signs of forgery, and lists of military “evaders” complete with names and fabricated diagnoses in Krupa’s office. A subsequent search of her residence led to the seizure of over $5.24 million, €300,000, more than 5 million UAH, luxury jewelry, and documents suggesting possible money laundering through various business ventures. Later, journalist Yuriy Butusov reported that 49 prosecutors in the Khmelnytskyi region, including the regional prosecutor, had been granted disability status with Krupa’s assistance.

Following these events, on October 22, the National Security and Defense Council of Ukraine (NSDC) adopted a resolution “On Combating Corruption and Other Offenses in the Process of Establishing Disability Status of Public Officials” (Presidential Decree № 732/2024). Under this resolution, the Ministry of Health, jointly with law enforcement agencies and regional military administrations, must establish working groups to review decisions of the MSEC. Additionally, a plan should be developed to digitize the disability assessment process for public officials, and an audit of disability-related pension payments shall be conducted. The Presidential Decree enacting the NSDC resolution also provides for the preparation of draft laws on liquidation of the MSEC and revision of the system and procedures for calculating pensions of public officials, including prosecutors.

On October 24, the draft law №12149 “On Amendments to Certain Laws of Ukraine Regarding Specific Issues of Pension Provision for Prosecutor’s Office Employees” was registered in the Verkhovna Rada. The proposed amendments would enable the recovery of pension payments that were overpaid due to abuses by the pensioner (including the submission of documents containing signs of forgery and/or inaccurate health information, which served as the basis for pension assignment and payments) or due to unsubstantiated decision made by authorized officials on the recognition of disability. Additionally, the draft proposes to eliminate part 9 of Article 86 of the Law “On the Prosecutor’s Office,” which currently permits prosecutors with Group I or II disabilities to receive a pension amounting to 60% of their monthly salary.

CPLR’s assessment

Presidential Decree No. 732/2024, issued on October 22, 2024, aims to provide a prompt response to the growing and widespread corruption associated with the Medical-Social Expert Commission (MSEC) and the prosecutor’s office. It outlines specific measures to address these issues, along with timelines for their implementation. However, like any swift decision, it is not without its shortcomings.

According to this decree, the State Bureau of Investigations, the National Police, and the Security Service of Ukraine, in collaboration with the Pension Fund, are tasked with conducting an audit of disability-related pension payments for public officials within one week. However, the existing laws governing these agencies do not grant them such authority. Moreover, as stated in the decree, the audit findings must be reported to law enforcement agencies, yet the State Bureau of Investigations, the National Police, and the Security Service of Ukraine are precisely those agencies. This raises concerns regarding the audit’s impartiality, particularly given the procedural dependence of these agencies on the prosecutor’s office.

Furthermore, last year, law enforcement agencies were tasked with “immediately taking measures to expose corruption offenses and criminal violations related to official duties within the military-medical expert evaluation system” (paragraph 6 of Presidential Decree №576/2023, “On the NSDC Decision of August 30, 2023, “On Military-Medical Expert Evaluation in the Armed Forces of Ukraine””). However, there is currently no official information on the effectiveness of this directive’s implementation, raising doubts about whether the outcome will be any different this time.

The timelines specified in Decree № 732/2024 also appear unrealistic. Draft laws regarding the liquidation of the MSEC and the conduct of repeated reviews of MSEC decisions must be submitted to the Verkhovna Rada within a “one-month period” and “immediately” (effectively allowing just two months and one week). Simultaneously, working groups are to be established, and the same repeated reviews are to be conducted, with results expected to be reported within three months. Additionally, a plan for digitizing all stages of the MSEC process must be developed and approved. Clearly, the preparation and implementation of these regulatory decisions will require significantly more time than the timeframe set by the NSDC resolution.

Government Resolution No. 1317 of December 3, 2009, titled “On Issues of Medical-Social Expert Evaluation,” stipulates that an initial MSEC decision is subject to review by the regional MSEC, while a decision by the regional authority is reviewed by the central MSEC. Without amending this resolution, there is no effective mechanism to identify or review potentially unjustified MSEC decisions (subparagraph “v” of paragraph 2 of the Decree). Moreover, Article 8 of the Law “On the Rehabilitation of Persons with Disabilities in Ukraine” states that MSEC decisions are “mandatory for implementation by executive authorities, local self-government bodies, enterprises, institutions, organizations, and rehabilitation facilities, regardless of type and form of ownership.” Thus, this provision of the law also requires amendments.

Additionally, paragraph 3 of the NSDC resolution advises the National Agency on Corruption Prevention to develop and submit proposed amendments to the Criminal Code and Civil Procedure Code of Ukraine by December 31, 2024. These amendments would establish criminal liability for the MSEC chair and members for illicit enrichment and designate them as defendants in civil cases concerning the identification of unjustified assets and their recovery in favor of the state (civil forfeiture).

Article 368-5 of the Criminal Code (“Illicit Enrichment”) and Part 2 of Article 290 of the Civil Procedure Code of Ukraine, which address civil forfeiture, apply solely to individuals formally authorized to perform state or local government functions. Under subparagraph “g” of paragraph 2, Article 3 of the Law “On Corruption Prevention,” MSEC chairs and members are classified as equivalent to such individuals for the purposes of this law, but they are not formally recognized as such.

The NSDC resolution also references the NACP report , “Top 10 Corruption Risks in Medical-Social Expert Evaluation Related to Disability Determination,” emphasizing the need to integrate its findings into the new Anti-Corruption Strategy. However, these findings and corresponding countermeasures should have been incorporated into the State Anti-Corruption Program as early as two years ago.

Addressing this issue effectively requires comprehensive solutions. The NSDC resolutions seem to have been hastily adopted in response to public outrage fueled by recent media coverage. This creates the impression of yet another attempt to placate the population and simulate a “response” to the identified abuses.

The proposals outlined in draft law № 12149, which aims to deprive prosecutors of their pensions related to disability, partially address the issue. However, the mechanisms governing the appointment and calculation of various pension types for both prosecutors and civil servants also require reform and unification.

The recommendations provided in the NACP’s report on corruption risks associated with the activities of the MSEC should not only be considered during the development of a new Anti-Corruption Strategy but must also be addressed immediately through amendments to current anti-corruption legislation. Individuals classified as equivalent to those authorized to perform state or local self-government functions under the Law “On Corruption Prevention” should also be held legally accountable for illicit enrichment and other corrupt practices.

To effectively combat corruption, comprehensive and sustained measures are essential, along with timely responses to every instance of misconduct, rather than reacting only after high-profile corruption scandals. Corrupt practices must become unprofitable, and accountability for such actions must be inevitable.