Obstacles and risks in relaunching the HQCJ 

In 2023, the HQCJ effectively “restarted” from scratch — all sixteen members were appointed in a single day. Over the course of two years, one member, Roman Ihnatov, stepped down, and his seat remains vacant. On August 12, the HCJ will decide whether either of the two candidates recommended by the Commission can be appointed to the position. Most likely, the HCJ will refuse to appoint either candidate, as such a precedent already exists.

While the work of the HQCJ has faced criticism, civil society has repeatedly noted that there have been no critical incidents that would undermine public trust in the institution. For example, the Public Integrity Council, which assists the HQCJ in judicial career procedures, has referred to constructive cooperation with the Commission, despite some disagreements and no grounds for distrust. Civil society has also expressed cautious optimism regarding the HQCJ’s performance — both in practice-based reviews and broader evaluations of its work. 

At the same time, the HQCJ has been subjected to pressure from the State Bureau of Investigation (SBI), a fact acknowledged by the Commission itself and by civil society organizations. The High Council of Justice, for its part, recognized that the SBI’s actions posed a threat to the authority of the judiciary. Interestingly, the SBI had previously submitted a request regarding the dismissal of former HQCJ Chair Roman Ihnatov, who described these actions as pressure.

It is worth noting that the current HQCJ members’ terms are scheduled to end in 2027. This means Ukraine will once again face a large-scale competition and a complete renewal of the Commission. However, as mentioned above, under current legislation, the new HQCJ will be selected by a Competition Commission formed by the Council of Judges of Ukraine, the Council of Prosecutors of Ukraine, the Ukrainian Bar Council, and the National Academy of Legal Sciences of Ukraine. The work of these institutions, particularly their questionable appointments to various competition commissions and their three-year failure to nominate members to the High Council of Justice, has been repeatedly criticized by civil society. These issues were also noted by the European Commission in its enlargement report. 

It is already clear that the next composition of the HQCJ will inherit a wide range of responsibilities from its predecessors:

1. Completing the selection of candidates for 1,800 local judge positions 
2. Finalizing the qualification assessment of approximately 1,500 judges, which could lead to many dismissals based on the results
3. A potential competition for the Supreme Court.

The competence and integrity of future HQCJ members will directly determine how effectively these tasks are carried out. Given the scale of the work ahead, the next HQCJ will either significantly clean up and renew the judicial corps, or cause it irreparable harm.

The issue of the new composition of the Competition Commission will become even more pressing if, on August 12, the High Council of Justice fails to appoint a new member to the HQCJ. In that case, the new Commission will immediately begin conducting a competition to fill the vacancy.

The presence of only one vacancy may be used manipulatively — framed as a “test run” for national stakeholders. Some may argue that they should be given a chance, and that appointing one more member to a body that already has 15 members would not significantly affect the institution’s work, even if the procedure is flawed. 

Appointing even a single candidate who has not undergone a fair competition would already pose a threat to the work of the HQCJ. In particular, the HQCJ applies a practice whereby individual members are responsible for specific processes. This gives them the autonomy to make decisions that do not require general discussion or a vote. At the same time, such a member can significantly shape the direction and pace of the procedure they oversee. If they are subject to external influence, this could lead to delays or even the derailment of, for example, a particular competition.

In this context, the appointment of “just one” member nominated by national bodies would be part of a broader strategy to exert pressure on the HQCJ. This strategy could involve gradually forcing current members to step down one by one — for example, by using criminal proceedings — and then replacing them, using the same mechanism, with more loyal members. 

In this way, filling “just one” vacancy would serve as an incentive to create further vacancies, including through pressure. Such a scenario could ultimately lead to increased persecution of HQCJ members.

Problems with the HQCJ competition could trigger a domino effect in other selections

The removal of the international component from the HQCJ selection process could set a dangerous precedent and influence Parliament’s decisions regarding the further involvement of independent experts in other selection bodies. The Competition Commission for selecting HQCJ members is the first in line where the participation of independent international experts is ending, even though the HQCJ itself has not yet had the chance to operate fully following its relaunch. 

For example, this situation could negatively affect the work of the Public Council of International Experts (PCIE), which assesses whether candidates for the High Anti-Corruption Court meet the criteria of integrity and professional ethics. The PCIE’s mandate is expected to expire in May 2026.

Similarly, in the coming years, the participation of international experts in competitions for posts in bodies such as the High Council of Justice, the Constitutional Court, and possibly the National Anti-Corruption Bureau is also expected to end.

A vivid example of the risks posed by fully nationalized processes is the unlawful decision by the Cabinet of Ministers not to appoint the head of the Economic Security Bureau of Ukraine (ESBU), despite a transparent competition and the backing of international partners. Even the presence of international experts on the commission and heightened attention from G7 ambassadors was not enough to prevent this unlawful decision. 

It is already possible to anticipate what may happen to future competitions if international involvement is discontinued. 

Undoing the progress

The experience of the HQCJ shows the journey of an institution in the process of being established. That path is not without missteps or criticism from stakeholders. At times, the institution has also faced political pressure, as in the case of the criminal proceedings initiated by the State Bureau of Investigation. 

Yet the HQCJ is not the only body undergoing formation. Stakeholders must therefore do everything possible to create the necessary conditions for the development of all such new or reformed institutions. A key prerequisite is an independent and transparent selection process, as the performance of any institution ultimately depends on its composition. A fair and high-quality competition ensures that worthy candidates trust the process and are willing to apply.

In recent years, it has been the involvement of independent international experts that has secured candidates’ trust in such selection procedures. However, the provision for this involvement is not permanent — it is governed by so-called “sunset clauses,” meaning that it is a temporary measure. This approach is logical: over time, Ukraine was expected to build robust domestic institutions capable of assuming full responsibility for competitions. 

However, practice shows that a single iteration of forming a body through an independent and transparent process is not enough to safeguard progress and trust, especially when future procedures are planned to be handed over to unreformed national bodies. It is important to prevent the gradual reshuffling of collegial bodies, where the absence of an independent selection process leads to increased pressure on appointed members.

Once again, the competitions for positions at the ESBU despite the government ultimately appointing a winner, and at the Constitutional Court of Ukraine illustrate the national bodies’ unpreparedness to assume full responsibility. In the ESBU case, the government unlawfully refused to appoint the competition winner, without any rational explanation other than political motives. In the Constitutional Court case, Parliament has delayed for nearly six months the appointment of judges from among independently selected candidates. The body conducting the competition has publicly stated that the delays and unlawful demands are coming from the Verkhovna Rada. 

While the participation of international experts is indeed a temporary measure, now is clearly not the time to end it. On the contrary, several more rounds of competitions are needed to preserve the progress made and ensure the sustainable development of these institutions. 

In fact, the idea of a competition commission selecting more than one composition of a body has already been reflected in law. For example, Parliament has twice voted on the term of international experts’ involvement in the selection process for the Disciplinary Inspector Service of the High Council of Justice. Ultimately, MPs supported a timeframe that would cover two full-scale competitions for the Service — a sound and reasonable approach.

To preserve and prevent

Members of Parliament can still save the HQCJ competition — a chance they can seize now. To this end, the Chair of the Verkhovna Rada’s Anti-Corruption Committee, Anastasiia Radina, along with her colleagues, has registered Draft Law No. 13382. The draft proposes extending the mandate of international experts so they can also participate in the selection of the next composition of the HQCJ in 2027. Parliament will have the opportunity to adopt this law in August, when it reconvenes for plenary sessions.

Passing this draft law is crucial to avoid setting a dangerous precedent that would block access to one of the key branches of power. This issue is especially critical in light of the political resistance to appointing independently selected candidates, as seen in the cases of the ESBU director and Constitutional Court judges. 

To avoid repeating the situation surrounding the HQCJ selection, the continued involvement of international experts in other competition commissions must be planned in advance. However, without broad support from civil society and international partners, such extensions are unlikely.

Who qualifies?

The status of a judge is the same for everyone, but the path to earning it can vary greatly. A special procedure and specific legal requirements make a HACC judge’s seat inaccessible to a large number of legal professionals. As a result, the HQCJ faces a major challenge: how to find 25 HACC judges, and more importantly, where to find them?

Currently, the position of HACC judge is open only to experienced lawyers, scholars, and judges who, among other things, have not worked as law enforcement officers, political figures, or staff of certain central government bodies, such as the NACP, ARMA, etc., within the last 10 years.

When HACC was established as a new body in 2019, it was staffed with professionals who met these criteria. But after nearly 6 years of court operation, it is safe to say that HACC has matured as an institution with strong values and practices that can positively influence the new legal professionals who join it.

It is therefore time to allow more qualified and ethical professionals with sufficient work experience to compete for a place on the Anti-Corruption Court.

However, lawmakers have a somewhat different opinion. Unfortunately, there has been no move to repeal the “special” experience requirement, and efforts to lift certain restrictions have not found parliamentary support.

For example, Draft Law No. 13114 was registered in Parliament to remove some of the existing restrictions for HACC competition participants. Despite the efforts of the Parliamentary Committee on Legal Policy to pass the draft before the new competition, MPs failed three times even to vote to include it on the agenda.

Subsequently, the relevant committee incorporated provisions from that draft law into another, No. 12331-2, in a renewed attempt to implement new rules before the next selection round. On May 14, the law was adopted, but without the provision that would have lifted the ten-year restriction for former state officials.

Still, the law did introduce some changes—candidates who failed or missed the qualification exam in the previous round will now have another chance to apply.

While this is a positive change, it will not significantly increase the number of candidates by itself.

How to find the best?

The newly adopted law also includes several procedural improvements for the competition. For example, lawmakers removed the additional HQCJ meeting, which should help accelerate the recommendation process for candidates who have passed the exam and the integrity check.

Also, by analogy with IQ testing, the fixed minimum passing score of 75% for the Ukrainian statehood test has been removed. From now on, HQCJ will determine the score threshold independently.

So, Parliament has in fact optimized the competition process. The next body responsible for improving the selection procedure is the HQCJ. The Commission must signal to the public and to potential candidates that it is prepared to enhance the process.

Transparency International Ukraine has analyzed and outlined recommendations that HQCJ can implement. Given the critical importance of this competition, specifically, the link between its outcome and financial aid, as well as the end of the PCIE’s mandate, we believe it is vital to attract more candidates and ensure transparency at all stages.

Based on the experience of the previous competition, we expect that before the start of the selection, the Commission will:

• approve and publish a clear competition timeline;
• properly test and validate all qualification exam tasks;
• establish threshold scores for cognitive ability and statehood history tests based on clear and publicly disclosed criteria;
• –  arrange transparent, criteria-based evaluation of candidates’ practical assignments.

We hope that the HQCJ will take lessons from the shortcomings of the past competition and demonstrate a high-quality approach in organizing the next one. This

Why is the ARMA fighting the draft law so hard?

It’s worth recalling that under the Ukraine Facility Plan, the government registered a draft law to strengthen the ARMA’s institutional capacity on December 30, 2024. Shortly after, on January 8 and 14, 2025, MPs submitted two alternative drafts: the first, by Oleksandr Tkachenko, Antonina Slavytska, and others; the second, by Oleksii Movchan, Anastasiia Radina, Yaroslav Zheliezniak, among others.

On February 12, 2025, the Verkhovna Rada adopted alternative draft law No. 12374-d in the first reading, which is intended to serve as the basis for a comprehensive reform of the Asset Recovery and Management Agency.

After that, an active discussion of amendments to the regulation for the second reading continued for more than a month. Finally, at its meeting, the Anti-Corruption Committee recommended the revised draft law for consideration in the session hall, noting significant improvements in managing seized assets.

It’s important to note right away that all versions of the ARMA reform were nearly identical when it came to introducing a competitive selection process for the Agency’s head and mandating an independent external audit. However, they diverged significantly on the issue of managing seized assets. While the government’s draft, still backed by ARMA, proposed regulating asset management procedures through a Cabinet resolution, the revised version spells out these processes directly in the law, while also requiring further detail to be set out in bylaws. Experts argue that this approach is qualitatively better, as it leaves far fewer loopholes for potential abuse by Agency officials.

In addition, Draft Law No. 12374-d introduces a number of provisions that would significantly boost the transparency and efficiency of seized asset management. It expands public access to information on ARMA’s performance, establishes clear oversight mechanisms, and improves asset management procedures. At present, these procedures are not properly regulated: they are only loosely outlined in methodological recommendations approved by the ARMA’s own head. Convenient, isn’t it — when an Agency can single-handedly decide how it operates in such a critical area?

Such changes initiated by MPs on the Anti-Corruption Committee are entirely justified. It’s worth noting that full public access to the Unified State Register of Seized Assets — something the ARMA’s leadership now proudly claims as a voluntary step — was achieved only after persistent pressure from committee members.

Exposing ARMA’s inaccuracies and manipulations

An analysis of the ARMA’s rather active public communication suggests that the Agency’s primary concern is not the introduction of meaningful reforms, but ensuring that its current leadership can continue operating as it has. That’s why, across its publications, the ARMA mainly insists it has already “transformed” since 2023, a talking point that runs through all of its messaging in recent months.

However, when the ARMA addresses the reform, the clarity of its position shifts noticeably — a trend that became particularly obvious after the public discussion on April 15. Over the course of our monitoring, we have uncovered a whole series of manipulations and inaccuracies.

1. Criticizing an outdated version of the draft law

A significant portion of ARMA’s arguments is based on the outdated version of the draft law, not the current version under discussion. In particular, the ARMA continues to regularly cite:

• the involvement of arbitration managers and private bailiffs, even though these provisions were removed from the current version;
• “unknown management methods for Ukraine,” despite the fact that the draft law simply codifies and refines the existing manager selection process through Prozorro;
• claims about a supposed lack of consultations, even though, according to the Committee Chair, discussions with ARMA representatives were indeed held.

Such an approach raises serious doubts about the objectivity and professionalism of ARMA’s assessment of the draft law.

2. Contradicting their own proposals

Interestingly, many of the innovations the ARMA now opposes were ones it previously supported.

• Asset identification procedure. ARMA’s leadership previously endorsed the need for planning before transferring assets — exactly what the draft law now proposes.
• Regulating cultural assets. The ARMA itself once proposed introducing a dedicated mechanism for the assessment and management of cultural property. Yet now, the Agency claims such measures pose a threat, not only to its own operations but also to the Ministry of Culture.
• Speeding up asset transfers from prosecutors. The ARMA previously criticised prosecutors for delays, but now stands against the very reforms intended to solve that issue.

Such contradictions inevitably raise questions about ARMA’s true motives for resisting the draft law.

3. Claims of non-compliance with the Criminal Procedure Code

The ARMA claims that the draft law disregards the Criminal Procedure Code of Ukraine, but these statements are just as manipulative as the others.

Draft Law No. 12374-d clearly outlines the ARMA’s interaction with prosecutors and investigative bodies, within the limits of what can be regulated by the law on the ARMA. Moreover, it introduces differentiated deadlines for transferring various types of assets, based on their complexity, directly addressing the real problems the ARMA itself once raised.

Agency officials should have known that amendments to the Criminal Procedure Code of Ukraine must be made through a separate law. Therefore, they could not have been adopted simultaneously with the changes to the law on the ARMA.

Moreover, in its public statements, the ARMA claims that the draft law assigns prosecutors functions that are not typical for them. In reality, the draft law clearly distributes powers and responsibilities between prosecutors and the ARMA. More importantly, prosecutors are already responsible for transferring assets under current law — a process the draft merely seeks to clarify and improve.

By the way, the SAPO, for its part, generally supports Draft Law No. 12374-d — contrary to the ARMA’s repeated claims that prosecutors oppose it. And this distortion of reality doesn’t stop there. For instance, the Law Enforcement Committee did not even consider the draft law at its meeting, yet the ARMA publicly announced that “the Law Enforcement Committee supported ARMA’s proposals and expressed readiness to cooperate to strengthen the Agency’s institutional capacity.” In other words, the ARMA once again spread false information.

What Draft Law No. 12374-d really changes

ARMA’s public discussion of the draft law on April 15 not only amplified dubious and unreliable claims but also revealed the Agency’s attempts to find allies for its narrative. However, the subsequent refutations of ARMA’s claims of support show not only the manipulative nature of its communication, but also that Draft Law No. 12374-d genuinely strengthens the entire anti-corruption system — something other government agencies clearly recognize.

This is because the draft law addresses several long-standing problems in ARMA’s operations.

1. Regulating asset identification procedures: The draft law introduces a clear mechanism for analyzing assets, which will prevent absurd transfers to the ARMA — like a box of women’s dresses or three rolls of (new) toilet paper.

2. Improving asset management procedures: The draft law takes into account the specifics of different asset categories — both simple and complex — and introduces tailored procedures with clearly defined deadlines. Currently, these deadlines are practically nonexistent, allowing the ARMA to delay management processes indefinitely. Moreover, the new provisions aim to prevent the ARMA from transferring assets to competitors, thereby eliminating the need for the Anti-Monopoly Committee involvement.

For example, in the case of Morshynska, the ARMA cited a prolonged delay in obtaining a concentration permit from the AMCU as the reason for terminating the contract with the asset manager. In reality, it was the AMCU that stalled the special procedure for transferring strategic enterprises into management.

3. Increasing transparency: The draft law expands ARMA’s public reporting obligations, requiring the Agency to disclose more detailed information about the condition of assets, income generated from their management, and overall performance results.

Unfortunately, despite ARMA’s public assurances of openness and transparency, specific information on the effectiveness of seized asset management remains difficult to find in the Unified Register of Seized Assets.

4. Unblocking the management of corporate rights linked to the aggressor state: The draft law addresses a problem the ARMA itself has repeatedly raised — yet now, for some reason, the Agency opposes the solution.

5. Addressing the issue of sanctioned assets: The draft law clarifies that assets seized in criminal proceedings and recovered through sanctions must be transferred to the SPFU for enforcement of the relevant decisions.

By the way, the inclusion of this provision could also explain ARMA’s resistance. After all, the Agency’s leadership was so eager to keep control over sanctioned assets that almost the entire team showed up at the High Anti-Corruption Court’s Appeals Chamber, and still lost the case. Against the backdrop of this “struggle” over sanctioned assets, the ARMA once again revealed its selective communication and glaring inconsistency.

***

Overall, it appears that the real reason behind the ARMA’s resistance to Draft Law No. 12374-d is its reluctance to implement effective asset management mechanisms, along with greater transparency and external oversight.

At the same time, the ARMA’s leadership began promoting claims about the “political coloring” of the reform — a surprising move, given that Draft Law No. 12374-d addresses real problems repeatedly highlighted by the ARMA itself, the Accounting Chamber, other institutions, expert organizations, and international partners. In the context of war and the economic challenges facing Ukraine, such changes are essential to ensure the seized assets are used to their fullest benefit.

Time goes on, judges are not elected

The High Qualification Commission of Judges (HQCJ) holds a competition to the Anticorruption Court, and this is not the only selection it conducts. Simultaneously, 550 judges are being selected to appellate courts, which is also important in the context of the personnel crisis in the judiciary. Given that the Commission has just started assessing those who would like to become judges of the HACC, it already seems that the competition is “a little” delayed. Back in March, the HQCJ hoped to complete this selection by the end of 2024, but nowadays, it is clear that this is impossible. The deadline was postponed to May 2025, according to fresh forecasts.

The qualification assessment has just started, and those candidates who meet the requirements of the competition are in for a test, a study of the dossier, and an interview. In addition, in the course of 45 days, the Public Council of International Experts (PCIE) will have the right to hold joint meetings with the HQCJ on the candidates’ compliance with the criteria of integrity and professionalism. 

So, as we can see, there is still a huge chunk of work ahead within this competition. It appears that the HQCJ has adopted quite a thorough approach. 

The workload on the Commission today is considerable. After five years of downtime, in June 2023, the HQCJ finally resumed its operation with a new composition. It got entrusted with many new tasks immediately. Among them is the development of a regulatory framework for the assessment of all judges and candidates for judges under the new legislative requirements.

Therefore, only this summer, the Commission approved the Regulation on the Qualification Test, and soon, the public discussion of the General Regulation on Qualification Assessment should be completed. Without these preparatory stages, it is useless to hope for a quality competition on the part of the HQCJ.

It seems that such smoothness and consistency should have resulted in the unconditional success of the selection, given such preparation. But this, unfortunately, has not happened. This is vividly demonstrated by the issues on November 4 and 5 when testing cognitive abilities (IQ) within the competition to the appellate instance. Due to technical malfunctions of the system, the results of these defective tests had to be canceled, and their schedules were postponed. This affected the competition to the Anti-Corruption Court; according to the latest plan, on November 11, the same testing was to be passed by the candidates to the HACC, but it was again postponed for an indefinite period.

As we can see, the HACC competition has many organizational problems and delays, but the decisive factor is not the very fact of such obstacles, but the reaction and approaches to solving them.

The public should see what is happening within the competition

Compared to the first selection of judges to the HACC, the updated HQCJ managed to correct many mistakes, but the issue of transparency and openness of the competition remains relevant. It was a matter of complaints back in 2019 and still is, since the issues haven’t really changed.

Notably, the new regulatory framework of the Commission again fails to consider the demand of experts and the public for transparency. We saw this back in the summer during the public discussion of the draft Regulation on the Qualification Test where, for example, the members of the HQCJ ignored the proposal of the public to publish the completed practical tasks of the participants together with an assessment indicating the name of the candidate.

“The qualification assessment is carried out transparently and publicly,” states the draft of the new Regulation, but, unfortunately, it is difficult to find real things in this document that would indicate transparency. There is a risk that even the decisions with the scores of the candidates for the qualification assessment will not be published, and neither will joint decisions of the PCIE and the HQCJ, which we observed during the first selection to the HACC. 

This will hinder full-fledged tracking of all stages of the competition. The more doubts there are about unpublished results at different stages of the selection, the more opportunities there will be to challenge and question the choice of the HQCJ.

Therefore, the HQCJ still has room for development to remedy the situation. Although not all processes can be within its control, such as technical malfunctions, it is only the will of the Commission members that is needed to solve a significant part of the problems.

We expect that the HQCJ will finish the competition for judges of the HACC and the HACC AC successfully, and it will ensure the highest possible quality of the process, but to achieve this, it needs to ensure maximum transparency, efficiency, and objectivity. What we need is some changes in approaches. Here are the key ones.

1. The HQCJ should develop procedures and methodologies for assessing participants in advance, as well as regularly review them in accordance with current needs. Effective management of the competition is pointless when the Commission has no timely developed tools to assess participants.
2. The HQCJ should provide public access to the decisions made within the framework of the competition and stream its meetings. Trust in the judiciary can be built only if the selection is absolutely transparent.
3. The Commission should also publish the practical tasks completed by the candidates within the test, as this is a critical aspect of transparency in the competition and, accordingly, the trust in the selected judges.

Are we doomed or not?

Selection goes on slowly, and this is definitely not good. But along the way, we have managed to solve one of the most acute problems that could disrupt the second HACC competition—the expiration of the term of office of the PCIE on November 6.

On October 8, MPs, with the majority of our recommendations, adopted Law No. 3996-IX, which extended the powers of the PCIE for another year and a half, thereby ensuring a competitive selection of judges to the HACC with an increased level of independence and objectivity. The draft law, which is to improve the IQ testing of future judges, has also passed the first reading.

These steps are preparations that will allow for developing an effective model for the selection of judges for more than one competition in the future. By the way, the second selection of HACC judges will be immediately followed by the third one because 11 current HACC judges of the first instance would like to become judges of the HACC Appeals Chamber, which will again increase the number of vacant positions in the Anti-Corruption Court.

Filling the HACC with reliable judges is, first of all, the need of Ukrainian society for integrity, professionalism, and unblemished reputation since these representatives of the judiciary will administer justice in regard to senior corrupt officials. Moreover, this is a necessary step on our European integration path.

What is a Shadow Report?

Joining the European Union is a complex process, a multi-layered one. Therefore, the European Commission cooperates a lot with representatives of public authorities and receives much information from them about the progress of reforms and changes in Ukraine, its achievements, including in the fight against corruption.

However, our European partners realize that focusing only on the data provided by the authorities will not do; it is important to know the stances of various stakeholders. The Shadow Report is actually one of the documents created by experts and civil society at the request of European partners. Moreover, this format can be called traditional in the course of candidate countries’ integration into the EU. The report is called “shadow” because it is not a document developed and published by the authorities.

Since Ukraine is just starting negotiations with the EU, the partners turned to Ukrainian CSOs for the first time with a request for such a comprehensive alternative analysis. This document covers the main issues from Chapter 23 Justice and Fundamental Rights of the European Commission’s Report on Ukraine in 2023. In the process of negotiations on accession to the EU, it will be “opened,” that is, it will be considered first, and it will remain “open” throughout the process of our accession to the EU. It will be closed last at the final stage of negotiations—after the approval by all EU member states.

That is, the accession of Ukraine to the EU is impossible until it fulfills all the points of this section, and this work must be carried out by our authorities throughout the period of integration into Europe. 

Last year, the European Commission already presented the key findings of the 2023 EU Enlargement Report on Ukraine as a candidate country, where it also described our effectiveness in the fight against corruption. Now, in the Shadow Report, civil society experts assess the degree of implementation of the recommendations provided by the European Commission and analyze legislative and political initiatives, as well as compare how these provisions are consistent with the legal framework of the European Union and the expectations of civil society and stakeholders. The report analyzed the progress Ukraine achieved in each of the listed areas, starting from June 2023 to July 2024, and the data for August 2024 are presented in a separate annex to it. 

The broad topic of justice and fundamental rights cannot be analyzed by one organization. That is why this first report was compiled by the coalition of civil society organizations.

Considering many years of expertise, knowledge, and experience, non-governmental organizations divided the work on the report into separate areas. The Agency for Legislative Initiatives covered the section on judicial reform, the Tomorrow’s Lawyer program analyzed the reform of the prosecutor’s office and the bar, the Ukrainian Bar Association dealt with the problems of legal education reform, and the Human Rights Centre ZMINA described challenges in the protection of fundamental rights and freedoms.

We at Transparency International Ukraine predictably delved into the problems of anti-corruption.

Describing the issues of countering corruption, we focused not only on our own experience. Our experts conducted an extensive survey of the opinions of other civil society representatives. This, in our opinion, has helped us come up with comprehensive recommendations and assess the current situation.

We already know that the report has been read by our European partners, who will subsequently shape the position on Ukraine. That is, it has already reached the addressees.

The contents of the anti-corruption section

While working on our section of the report, TI Ukraine focused on similar documents from other candidate countries. Notably, such shadow reports are public and available not only in Ukraine. This means an additional responsibility, so it requires a well-balanced and reasoned approach.

In general, the Anti-Corruption section consists of 8 parts:

• the National Anti-Corruption Strategy and the State Anti-Corruption Program;
• anti-corruption institutions;
• restoration of mandatory submission and verification of e-declarations of officials;
• corruption risks management, conflict of interests, institution of whistleblowers;
• restoration of political party reporting;
• results of an independent external assessment of the NACP’s effectiveness;
• legislative regulation of excessive influence of oligarchs and lobbying;
• investigation of anti-corruption cases by the National Police of Ukraine, the State Bureau of Investigation, and the Security Service of Ukraine.

After analyzing all these areas, we identified 94 problems and, accordingly, provided our 94 recommendations.

I realize that 94 recommendations may prove too many. The recommendations provided by us are comprehensive and applied, covering areas related to prevention and fight against corruption. We have been talking about some problems raised for a long time, but there are also those that arose precisely in the process of negotiations with the European Union.

What do we want the European Commission to pay attention to?

Selection and evaluation of personnel in anti-corruption bodies. Although Ukraine has already achieved a lot in this area, both at the legislative and practical level in competitions for management and other positions in anti-corruption institutions, several issues remain. For example, the current matter of the competition to select judges of the High Anti-Corruption Court.

The most pressing challenge now is the term of office of the Public Council of International Experts (PCIE).According to the law, it is formed for six years, and the term expires in November 2024, given the operation of the PCIE and the selection of HACC judges even before the launch of the court. The candidates admitted to the competition havenot even passed the first stages of testing; so, it is difficult to imagine that the HACC competition will end in November. Questions may arise regarding the authority of the PCIE.

In my opinion, ideally, we should have a fully operational PCIE until we fill all the vacant positions of HACC judges, including those that will appear after the end of the active competition, as some judges from the first instance will move to the appellate court. A draft law has already been registered in the parliament, which, with certain improvements, can solve this problem. However, it has not yet passed the second reading. Less and less time remains for its adoption.

Independence of institutions. Anti-corruption bodies should be able to independently make decisions that directly affect their productivity. For example, the SAPO still does not have full procedural independence. Although parliamentarians have introduced many improvements in the work of this body relatively recently, and the SAPO was finally granted the status of a separate legal entity, this is not enough.

The initiation of criminal prosecution and approval of the main investigative actions against MPs still depends on the politically appointed Prosecutor General. The head of the SAPO must have such powers. This is a significant problem considering the number of cases involving MPs that are being processed by the NABU and the SAPO. It can be assumed that the number of such cases will significantly increase with the restoration of the declaration requirement.

In addition to the not entirely justified special guarantees of MPs and other entities, the SAPO head should be provided the opportunity to apply for extradition to the competent body of a foreign state for greater procedural independence.

Effectiveness of the trial. In this area, the most talked-about topic recently has been the institution of plea agreements. In 2023, the number of criminal proceedings under consideration by the HACC was record-high—288. In 2023, the Anti-Corruption Court passed 45 sentences in the field of official and professional activity related to the provision of public services, of which 18 featured the approval of plea agreements.

Simplification of court proceedings, which can include the conclusion of such agreements, means adhering to international recommendations on the use of means to eliminate delays in the administration of criminal justice.

The existing draft law, aimed at developing the institution of agreements, needs significant revision and further voting in the second reading. Increasing the number of opportunities to conclude plea agreements for corruption and corruption-related criminal offenses must be accompanied by adequate safeguards against their abuse.

Firstly, replacing the actual punishment with a probationary period should be allowed if criminal proceeds of the accused get confiscated, as well as if they expose another person or pay an increased fine. Secondly, it is necessary to provide an opportunity for the court to request the collected materials of the pre-trial investigation or to oblige the prosecutor to send the materials of the pre-trial investigation to the court together with the indictment and the plea agreement. Thirdly, a fairly frequent recommendation in such matters is to summarize the case law of the HACC regarding the verification of agreements for compliance with the requirements of criminal procedural legislation.

***

Here, I have listed only several important problematic aspects in the operation of anti-corruption organizations, which are currently troubling Ukrainian society, and, accordingly, should be the focus of the European Commission.

Describing the problems in the fight against corruption in the report, we focused on carrying out the maximum number of necessary reforms and integrating European legislation into Ukrainian realities.

We have the same goal as the authorities do, but we might have different views of whether we have done enough, the priorities of reforms, achievements in various areas, and the ways to such achievements.

We will find out soon whether the European Commission has heeded our warnings.

European integration is a lengthy process, and the public sector will produce perhaps many more similar reports. The content of the sections of the subsequent shadow reports will most likely differ from the first one and may differ from this year’s one. 

This motivates us to actively follow the processes in the country and signal problems to the authorities and partners. Only with the joint efforts of the authorities, the public sector, and European partners will Ukraine be able to join the European Union.

Challenge One: Prosecuting Senior Judges

Judges are the category of persons from whom we expect professionalism, impartiality, and integrity. But as we can see, not all judges have these crucial qualities.  

Although we call the new high-profile investigation of the NABU the “Kniaziev Case,” we should remember that, according to available information, searches were carried out regarding as many as 18 people, many of them being the judges of the Supreme Court, and so far, only two defendants have been detained. 

Of course, this is a strong blow for Ukraine. But this case should still be considered positively from the perspective of the activities of our anti-corruption system. On the night of May 15-16, we saw that, despite various circumstances and hostilities in the country, the SAPO and the NABU had been conducting the investigations we could only dream of 10 years ago. Nevertheless, such investigations are another indicator that it is imperative to continue the reform of the judicial branch of power in Ukraine.  

The case of the judges of the Supreme Court can well illustrate that the system of checks and balances, which we have been talking about for years, does yield results. Anti-corruption agencies are doing their job. Detectives and anti-corruption prosecutors are not afraid to conduct an investigation against senior corrupt officials for several months, catch them “red-handed,” as well as proactively publicly communicate about such proceedings the very next day after the high-profile detention of the head of the Supreme Court himself. However, now the NABU and the SAPO have an extremely difficult task — to bring this investigation to trial and, ultimately, win such a high-profile case in court.

But this case will also be a challenge for the judicial self-governance. We have already seen how quickly the Supreme Court terminated Kniaziev’s powers as a result of expressing no confidence in him — a process that could have lasted more than 20 days took place in a few hours. And this is not a matter of proof or his guilt to me, it is a matter of the reputation of the judge, in such a high position, when his actions and reputation directly affect the attitude to the entire judicial system in Ukraine.

But, even after losing the position of the head, Kniaziev remains a judge of the Supreme Court. Many further steps in this case will depend, for example, on the decisions of the High Council of Justice. All because of judicial immunity. 

To conduct further investigative actions against Kniaziev and assign him an interim measure, a decision of the High Council of Justice is required. And the speed of consideration and adoption of such a decision by the HCJ will also be a clear indicator of the readiness of the judicial self-government bodies for self-cleansing. 

Then, depending on the total number of judges who will be involved in this case, the question of replacing them may potentially arise. If we are really talking about 18 judges — this is almost 10% of the total composition of the court. It is not yet known how effectively the Supreme Court will be able to carry out its activities after the loss of so many people from among its staff. The scale of the declared scheme is unknown because the case may relate not only to one decision regarding Zhevaho.

Of course, we would very much like to believe that both the HCJ and the HQCJ will be ready to work effectively with these challenges, but, unfortunately, there is no full confidence in this yet because we have not seen examples of such work. These bodies themselves are still in the process of reform, and the case with the judges of the Supreme Court could be evidence of their successful upgrading.

Challenge Two: Maintaining Competitive Selection of Judges

In 2016-17, the competition for judges of the Supreme Court and its head was one of the first of its kind after the Revolution of Dignity, not only among the selections for judicial institutions, but also in general within the framework of public administration reform. And the Kniaziev case prompted discussions of whether such a selection was sufficiently effective. 

It is important to understand that competitions are not a panacea for corruption. This is not about choosing idols, but about competitive and transparent selection of the best available candidates. And only time will tell how candidates will prove themselves in their positions. 

That is why it is good that we already have effective bodies that are able to investigate and prosecute violations of the law, even if such violations are committed by judges. Especially if they are committed by judges.

Of course, according to the results of this case, it will be necessary to draw conclusions about the competitive procedure used to elect judges of the Supreme Court and find out why, after the selection, so many of them are involved in corruption cases. However, some warnings and risks in the selection to the Supreme Court were voiced before.

All these questions are another confirmation that the judicial reform should be continued. And the Kniaziev case should show everyone that as far as anti-corruption justice is concerned, judges are not unpunishable or protected, they will be brought to justice if their crimes are proven. 

In general, when we talk about a new format for the selection of candidates for judges, there is something to improve in this process. At very least, it is necessary to set out the procedure so that the decision of the Public Council of Integrity and independent international experts during the selection, for example, was decisive or at least directly influenced the final result. 

During the preliminary selection of judges to the Supreme Court, the conclusions of the Public Council should have been considered, but were not mandatory for consideration, did not have a final impact on the result of the decision of the HQCJ. And now we see that this definitely needs to change. By the way, it was with regard to some of the defendants in the case that the PIC presented negative conclusions or had reservations.

Challenge Three: Continuing Fight against Corruption at All Levels 

If this case with the Supreme Court is not a point of no return, then what is? Reconstruction is already well underway in Ukraine, and professional and independent courts will play a crucial role in its transparency. That is why the Kniaziev case will undoubtedly be indicative of how Ukraine is ready to confront the challenge of corruption in the judicial system.

This is what society within countries expects, and what international partners want from us. Therefore, if we want to receive large international investments in reconstruction, we must show that our judicial system is capable and ready to work professionally and impartially. 

All these things need to be carried out in parallel — changing the system and changing the staff. Because changing people without updating the rules will not yield any result.

That is why we need to continue implementing the best practices for judicial reform, which will work effectively in Ukraine, and hold accountable those who undermine all such efforts from the inside.

The society is constantly waiting for verdicts for corruption, and for some reason, the opinion has already taken root that bribe-takers continue to live with impunity. But this is not true — after the start of the work of the HACC, the situation has changed quite noticeably.

During the entire period of operation, the Anti-Corruption Court issued decisions in 101 cases concerning 130 persons. At the same time, as we can see, there were 37 sentences precisely in the course of the war year. In total, we have 89 indictments (including 29 by agreement) and 12 acquittals.

79 HACC verdicts were contested in the appeal, 35 in the cassation.

Why did the number of sentences increase in 2022? The fact is that corruption cases are complicated a priori. Often it takes years for them to be considered in court, and the more complicated the case or the more intricate the scheme implemented by the corrupt officials, the more time it takes to consider such proceedings in court. And since we support the effectiveness of the anti-corruption system, the honesty and fairness of sentences, such terms of consideration of cases should be taken with restraint. Moreover, the HACC considers criminal proceedings several times faster than the local courts before its creation.

How does the HACC judge?

The Anti-Corruption Court receives cases in which:

1. the offense was committed by or in relation to a senior official;
2. the value of the subject of the crime or the damage caused by it is 500 or more times higher than the subsistence minimum for able-bodied persons at the time of the crime (on January 1, 2023, it is starting from UAH 1,432,000);
3. civil forfeiture is considered — a mechanism that allows recovering unreasonably received assets of civil servants to the national budget.
4. the confiscation of assets of russians and other persons who supported russia’s aggression in Ukraine is considered.

In general, these are very different cases. For example, there may be a case of confiscation of assets from russians under a lawsuit from the Ministry of Justice or proceedings for false declarations. Or a complex scheme that was exposed by NABU-SAPO may be considered — it contains dozens of volumes of evidence (for example, in the case of the Rotterdam + formula or the “gas case,” which deals with the schemes of ex-MP Onyshchenko). Moreover, the representatives of the defense and prosecution play an important role in the proceedings — the stronger they are, the more heated the trial and the greater the likelihood that it will be delayed.

That is, all cases of the Anti-Corruption Court are different, and therefore are considered in different ways and require an individual approach and different amounts of time. However, we have an average value and limits on the duration of criminal proceedings.

And given that now the HACC has more than 220 criminal proceedings against more than 500 people, the number of cases that will be considered by the court in 2023 will increase again.

What awaits us in the future?

Why indeed should we look back on the entire previous period of the HACC performance? And when can we finally witness the verdicts for the “Big Fish”? 

In fact, the Anti-Corruption Court still has such expected proceedings regarding Onyshchenko, Zlochevskyi (the legendary story of the super bribe to the heads of the NABU and the SAPO), Nasirov (yes, the one within which he was covered with a blanket), Chaus (who hid his bribe in three-liter jars and buried them in the garden), Yurchenko (the case of “buns”), Bakhmatiuk, Mykytas (two cases!), and many others. And there are also cases of MPs and false declarations regarding: Shol, Herasymov, Volynets, Pashkovskyi, Kamelchuk, Shakhov. 

One should not forget that it is the HACC that also considers the lawsuits of the Ministry of Justice regarding the confiscation of russian assets. Recent cases include the confiscation of property of russian rectors: Torkunov, Falaleev, and Polukhin, as well as five russian parliamentarians Paikin, Liabikhov, Kolbin, Kovitidi and Bakharev.

And in relation to each person involved in these cases, the NABU and the SAPO have their own evidence, positions that will subsequently lead to the final decisions of the Anti-Corruption Court on them. The “Big Fish” will finally receive sentences, and it is very likely to happen in 2023. How many of them will be indictments — we’ll see. But we believe that all these decisions will be fair.

This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.