Weekly analytics for 23 – 28 April 

Under Threat: Institutional Independence of the HQCJ

Event

On April 17, the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) announced that Oleksandr Luhanskyi, current member of the High Qualification Commission of Judges of Ukraine (HQCJ) and retired judge, had been served with a notice of suspicion for a corruption-related criminal offense. According to the NABU’s release, in 2011, Luhanskyi obtained an academic degree diploma that was not legally recognized at the time. He subsequently used this diploma to get a 15% salary and pension bonus, thereby unlawfully receiving over half a million hryvnias from the state budget.

CPLR’s assessment

1. The HQCJ is a judicial self-governance body tasked with selection of judges, filling judicial vacancies, conducting qualification assessments, and transferring of judges between courts. According to Article 92 of the Law of Ukraine “On the Judiciary and the Status of Judges”, there are sixteen members on the HQCJ, eight of whom must be appointed from among current or retired judges. The Commission is deemed duly constituted if at least eleven members have been appointed, including at least six current or retired judges.

In 2023, the HCJ selected a new composition of the HQCJ from among candidates who had successfully passed a competitive selection process involving international experts. Nevertheless, the Commission’s activities have continued to be accompanied by periodical scandals. For example, last year, Roman Ihnatov, who was elected under the judicial quota and served as Head of the HQCJ, resigned. This step was likely driven by pressure following media reports alleging he held Russian citizenship. This information was neither confirmed nor refuted by the Security Service of Ukraine. More recently, the State Bureau of Investigation conducted searches at the office and residence of the current Deputy Head, Oleksii Omelian, who is also a judge. The HQCJ had assessed these actions as an encroachment on the Commission’s institutional independence and an attempt to disrupt the competition for judicial positions in appellate courts. Thus, these events suggest an emerging trend of attempts to remove members of the HQCJ, particularly those who were selected from among judges or retired judges, through the use of criminal proceedings.

2. On March 6, the Selection Commission for the appointment of candidates to the HQCJ announced the list of candidates admitted to the competition. However, the term of office for the current membership of the Selection Commission, which includes international experts, is expiring in early June of this year, casting doubt on the ability to complete the competition. The next membership of the Selection Commission will be formed from among candidates proposed by the Council of Judges, the Council of Prosecutors, the Council of Attorneys, and the National Academy of Legal Sciences. The integrity of these nominating bodies continues to raise concerns among civil society in general and within the legal community in particular. Moreover, in 2024, the European Commission emphasized the need to strengthen the independence of the Council of Prosecutors from the Office of the Prosecutor General and to strengthen its integrity. The Commission also recommended reloading the bodies of the National Bar Association of Ukraine, including the Council of Attorneys. Furthermore, the report noted that the reform of legal education remains unfinished.

3. The specific issues arising with respect to individual members of the HQCJ reveal broader legislative and implementation challenges that must be addressed urgently to ensure the stable functioning of both judicial self-governance bodies and the judiciary as a whole. In particular, these challenges include the lack of a clearly defined status of the HQCJ members and the guarantees of their independence, certain flaws in the criminal procedure legislation, gaps in the selection procedure for HQCJ membership, and lack of effective mechanisms for ensuring the Commission’s accountability.

Interference into the HQCJ’s activity would lead to the suspension of critical processes – namely, the qualification assessment of judges and the holding of competitions for vacant positions in appellate and local courts. Successful completion of these processes is a key component of Ukraine’s negotiations for the European Union accession. Any impeding or delay in these processes would be highly undesirable given the political, legal, and security reasons.

Therefore, the challenges outlined above must be addressed immediately to ensure that the judicial system operates effectively and independently, without becoming a battleground for competing influences, and to prevent judicial reform from turning into an endless, self-perpetuating process.

While refraining from assessing the actions of law enforcement agencies, CPLR’s experts highlight the risk that the HQCJ could lose its quorum in case at least two more members appointed under the judicial quota are dismissed or their powers are terminated. This risk is further increased by the fact that, in January, the HCJ failed to appoint a new member to the Commission to fill the vacancy left by the termination of Roman Ihnatov’s mandate and, thus, announced a new competition.