Competitive Maze: What Draft Law No. 13114 Aims to Simplify to Select HACC Judges

On March 18, 2025, Denys Maslov, Chairman of the Verkhovna Rada Committee on Legal Policy, together with other MPs, submitted Draft Law No. 13114, which proposes improvements to certain procedures for the competitive selection of judges, including the selection process for the High Anti-Corruption Court.

One of the reasons for submitting this draft law was the disappointing results of the competitive selection for HACC judges, as no candidates for the HACC Appeals Chamber advanced to the interview stage after the practical task, and only two candidates for the HACC first-instance court successfully passed all stages of the competition.

Transparency International Ukraine has thoroughly analyzed this draft law, focusing on the provisions most relevant to the HACC competition, and has prepared recommendations for its improvement.

Brief conclusions:

• Lawmakers propose reducing the “cooling-off period” from ten to five years for former law enforcement officers applying for the position of HACC judge; however, this change is incomplete, as it does not apply to former employees of NABU and SAPO.
• The proposed restriction on access to the entire dossiers of judicial and military candidates is disproportionate.
• The absence of clear guidelines for the HQCJ when independently setting the threshold score for the Ukrainian statehood history test may undermine the significance of this stage of the competition.
• The draft law does not include proposals to amend or abolish the requirements for specific length of service (as a lawyer, judge, or scholar) for HACC judge candidates, nor does it address the issue of appealing test results.

Our recommendations:

• Reduce the restriction period for participation in the HACC competition from ten to five years, also for former employees of NABU and SAPO.
• Reject the proposal to fully classify information from the dossiers of judges and judicial candidates who are in military service; instead, allow classification only of particularly sensitive information about military personnel.
• Establish clear, transparent, and competency-based criteria for setting the average permissible score for the Ukrainian statehood history test.
• Consider abolishing the requirement for specific previous work experience (as a judge, scholar, or lawyer) for candidates applying to become HACC judges.
• Ensure the possibility of an administrative appeal (review within the HQCJ, rather than in court) of test results.

What is it like now?

Currently, the legislation provides that:

1. Former employees of all law enforcement agencies, as well as employees of the NACP, ARMA, AMCU, the State Financial Monitoring Service, and certain other bodies, may participate in the HACC judge competition only after a ten-year “cooling-off period” following their dismissal.
2. The threshold score for the Ukrainian statehood history test may not be lower than 75%.
3. Lawyers who have previously participated in a competition for a judge position may not apply for a new competition in the same court and instance within one year.
4. Dossiers and family declarations of judges and judicial candidates must be publicly accessible.
5. Only candidates with sufficient professional experience as a lawyer, judge, and/or scholar may become a HACC judge.
6. The legislation does not allow for an administrative appeal (i.e., within the HQCJ) of test results; only judicial appeals are possible.

What do MPs propose to change?

The draft law proposes targeted amendments aimed at increasing the number of applicants for the competitions, streamlining certain selection procedures, and addressing the issue of public access to dossiers and declarations of family ties of judges and candidates.

For example, taking into account the HQCJ’s proposals, MPs seek to:

1. Reduce the ban on participation in the HACC judge competition from 10 to 5 years for former employees of the prosecutor’s office, Ministry of Internal Affairs, National Police, SBI, SSU, BES, Tax Police, and other law enforcement agencies (excluding NABU and SAPO)
2. Completely lift the 10-year ban on participation for former employees of the NACP, ARMA, Accounting Chamber, State Financial Monitoring Service, and central tax and customs authorities
3. Maintain the 10-year ban on participation for former employees of NABU and SAPO
4. Allow the HQCJ to independently determine the average permissible threshold score for the Ukrainian statehood history test
5. Suspend, for the duration of martial law and for one year after its conclusion, the restriction preventing candidates from reapplying for a competition in the same court and instance if they already participated in a qualification assessment within the past year
6. Limit public access to dossiers and declarations of family ties of judges and candidates if they or their relatives or close associates are serving in the military or are located in temporarily occupied territories.

Risks and disadvantages of the proposed amendments

Unequal five-year restriction on competition participation for former law enforcement officers

The draft law aims to significantly ease the so-called “negative requirements” for candidates for the position of HACC judge, as outlined in Article 7, Part 4 of the Law on the High Anti-Corruption Court. This refers to reducing the ban on participating in the competition for the position of HACC judge from 10 to 5 years for former employees of the prosecutor’s office, Ministry of Internal Affairs, National Police, SBI, SSU, BES, Tax Police, and other law enforcement agencies (excluding NABU and SAPO). It also includes the complete removal of the 10-year ban for former employees of the NACP, ARMA, Accounting Chamber, State Financial Monitoring Service, and central customs and tax authorities.

At the same time, the draft proposes to retain the ten-year restriction for former employees of NABU and SAPO—an inconsistent step that excludes from the competition some of the most specialized lawyers in the anti-corruption field.

In the explanatory materials accompanying the draft law on the High Anti-Corruption Court, these restrictions were justified as necessary to reduce the risk of bias in judicial decision-making. In fact, these restrictions were intended to establish a so-called “cooling-off period” for individuals who would work directly with HACC judges.

In our view, it is illogical for the authors of the draft law to consider a five-year “cooling-off period” sufficient for former employees of the SSU or the SBI, while deeming it insufficient for former employees of NABU and SAPO. Employees of most of the bodies for which the draft law proposes to reduce the participation restriction also investigate corruption-related criminal cases, just like NABU and SAPO. Clearly, the goal of reducing potential bias among former detectives and prosecutors can be achieved in less than ten years.

In addition, conflicts of interest can be addressed through challenges and recusals, and potential bias could just as easily be attributed to lawyers representing defendants in NABU-SAPO cases. However, lawyers generally face no restrictions on participating in the selection process for the position of HACC judge.

Therefore, to ensure equal opportunities for participation in the HACC judge competition and to enhance both the quality and quantity of the candidate pool, the restriction on participation for former employees of NABU and SAPO should be reduced from ten to five years.

Disproportionate restriction on access to the full dossiers of candidates or judges serving in the military

The authors of the draft law also propose significantly restricting access to the dossiers and integrity declarations of judges and judicial candidates if they, their relatives, or close associates are serving in the military or are located in temporarily occupied territories.

Thus, during martial law, the draft law proposes to completely restrict access to the dossiers and declarations of family ties of judges and judicial candidates who are serving in the military. Also, during this period, information about family members or close associates who are also serving in the military will not be available in the dossiers of judges and judicial candidates.

It should be emphasized that, since the beginning of the full-scale invasion, the HQCJ has independently restricted access to all dossiers and declarations of family ties and integrity, contrary to Article 85, Part 7 of the Law of Ukraine on the Judiciary and the Status of Judges. This was allegedly permitted under Decision No. 9 of the Council of Judges of Ukraine, dated February 24, 2022. To date, neither the HQCJ nor Parliament has addressed this issue comprehensively, despite the fact that the Commission has provided dossiers and declarations in response to public information requests.

Even though the Supreme Court considers such a restriction to be legal, proportionate, and necessary in a democratic society, we believe it is inappropriate to impose a general limitation on access to all dossiers of judges and candidates for judicial positions who are serving in the military. Instead, a selective classification of sensitive information in the dossier—such as the date and place of military service, rank, position, and similar details—could be applied. At the same time, information related to career history, disciplinary offenses, property status, and other key details relevant to public oversight—whose disclosure would not cause harm—should remain publicly accessible.

Therefore, Parliament should reject the proposal to fully classify information from the dossiers of judges and judicial candidates who are serving in the military. However, only a specific list of particularly sensitive information about military personnel should be subject to classification.

Lack of criteria for determining the average permissible test score

The draft law proposes abolishing the 75% threshold score for the Ukrainian statehood history test, as the HQCJ has no prior experience conducting such assessments, and enshrining such a high threshold in legislation could lead to the unjustified elimination of capable candidates.

Lawmakers propose applying to the history test the same model used for IQ testing to determine the threshold score—where the HQCJ independently sets the “average permissible score.”

Overall, we support this idea, as the history test is not directly relevant to judicial functions, and its influence on the outcome of the qualification assessment should not be equivalent to that of, for example, a practical task or a legal knowledge test.

However, TI Ukraine maintains the same caveat it raised when the approach to determining the IQ test threshold was changed: clear requirements must be established to ensure transparency and competence in how the HQCJ sets the average permissible score for the Ukrainian statehood history test.

What the draft law has yet to address

Currently, the legislation stipulates that a HACC judge must have at least seven years of experience as a lawyer or academic, or five years of experience as a judge. In the context of the full institutional formation of the HACC, these requirements need to be revised.

For example, in nearly six years of operation, the High Anti-Corruption Court has upheld the values it was established to protect and has developed a largely positive and trusted law enforcement practice. This creates a window of opportunity to broaden access for a wider range of lawyers to participate in the competition for HACC judge positions, similar to the approach taken in the selection of local court judges.

Therefore, the Parliament should consider abolishing the requirement for specific previous work experience (as a judge, scholar, or lawyer) for HACC judge candidates.

In addition, our analysis of the second HACC competition revealed that certain incorrect questions in the law test database forced participants to memorise inaccurate answers. Therefore, it is essential to establish, at the legislative level, a mechanism for the administrative appeal (review) of test results.

Conclusions

Transparency International Ukraine supports the immediate adoption of Draft Law No. 13114 as a basis in the first reading and its revision for the second reading in accordance with Article 116 of the Rules of Procedure of the Verkhovna Rada of Ukraine.

In our opinion, the following recommendations should be taken into account during the second reading in Parliament:

• It is necessary to reduce the restriction period for participation in the HACC competition from ten to five years, also for former employees of NABU and SAPO.
• Reject the proposal to fully classify information from the dossiers of judges and judicial candidates who are in military service; instead, allow classification only of particularly sensitive information about military personnel.
• Establish clear, transparent, and competency-based criteria for the HQCJ to set the average permissible score for the Ukrainian statehood history test.
• Consider abolishing the requirement for specific previous work experience (as a judge, scholar, or lawyer) for candidates applying to become HACC judges.
• Allow for administrative appeals (reviews) of test results.