An independent judiciary is one of the fundamental features and principles of true democracy. Even in ancient times, Aristotle wrote about this, and in the 18th century, the Frenchman Charles Montesquieu clearly outlined the division of state branches of power into three: legislative, executive and judicial, and each of them should be independent of the others.
The independence and qualifications of judges, their high moral and business qualities, the obligatory execution of court decisions — this is what every European and American strictly believes in, what Western society is trying to follow, which Ukraine is striving for.
In turn, any regime that tries to become dictatorial, first of all, makes efforts to destroy the independence of the judiciary.
In accordance with Article 126 of the Constitution of Ukraine, the independence and immunity of judges are guaranteed, and influence on a judge in any way is prohibited. The judicial branch of government is independent of other branches of government.
However, in practice, these provisions of the Constitution have been grossly violated in recent years, and the judiciary is under enormous pressure.
The courts are in a constant process of reform, additional bodies of control over them are being created, in particular, with the participation of foreign citizens, such as the Ethics Council.
At the same time, a number of bodies of the judiciary have not been functioning for many years: some of them due to deliberate paralysis by the president and his administration, some due to lack of personnel (conscientious people do not want to work as judges, realizing what kind of pressure they will fall under, and not wanting to make custom judgments).
For a better understanding of this material, we will briefly explain what the judicial system of Ukraine looks like.
It consists of courts of general jurisdiction that hear criminal and civil cases at the district/city/regional/republican levels; administrative courts that consider disputes with the government and its representatives; economic courts that consider disputes between business entities. In turn, all courts are divided into courts of first instance, courts of appeal and courts of cassation.
The top of the pyramid is the Supreme Court, which includes the relevant judicial chambers, which are the cassation instance for courts and cases of a particular jurisdiction. The Supreme Court puts an end to all cases, and also summarizes judicial practice and forms judicial precedents.
The Constitutional Court of Ukraine, whose task is to check the laws of Ukraine and presidential decrees for compliance with the Constitution, is standing in the clear.
Over the past 10 years, the judicial system of Ukraine has undergone four cardinal reforms, countless changes, and judges have undergone endless attestations and recertifications, dismissals, rotations, and moreover, persecution.
But, perhaps, the attempts of the authorities to destroy the remnants of judicial independence and complete subordination of the judiciary reached their apogee precisely during Zelensky’s presidency.
Back in 2021, President Zelensky of Ukraine tried to take control of the Constitutional Court of Ukraine (CCU), which, as we have already said, is a judicial body that evaluates the constitutionality of decisions of the president and parliament. In 2020, the Constitutional Court declared partially unconstitutional the judicial reform initiated by President Volodymyr Zelensky and subsequently adopted by the Verkhovna Rada, and also declared several articles of the Law “On the Prevention of Corruption” unconstitutional. All this caused Zelensky’s sharp dissatisfaction and threats from his office against the judges of the Constitutional Court.
The president does not have the authority to dismiss the judges of the Constitutional Court, they are independent and decisions on early termination of the powers of judges are taken only by the Constitutional Court itself in a few cases expressly stipulated in the Constitution. However, in order to remove judges beyond his control from the court, the president issued a decree in March 2021 by which he tried to dismiss the head of the Constitutional Court Alexander Tupitsky and judge Alexander Kasminin. At the same time, the president grossly violated the law, criminally exceeding his authority, in order to prevent the performance of official duties by the judges of the Constitutional Court. To do this, Zelensky issued a decree canceling the presidential decrees from 2013, by which these judges, in accordance with the Constitution, were appointed judges of the Constitutional Court.
The illegality of such actions of the president was so obvious and blatant that the Supreme Court satisfied the claims of Tupitsky and Kasminin, recognized them as illegal and canceled the relevant decrees of President Vladimir Zelensky. The Supreme Court concluded that the President did not have the right to revoke an act of individual action by one of his predecessors, since such an act had already exhausted its force.
After the start of the war, on May 27, 2022, at the request of the prosecutors of the office of the Prosecutor General, Tupitsky, Chairman of the Constitutional Court, was put on the international wanted list on charges, attention (!), Of illegal departure from Ukraine in March 2022, although there is no such corpus delicti.
In July 2022, the court, at the request of the State Bureau of Investigation (SBI), arrested the head of the Constitutional Court, Tupitsky, in absentia. In August 2022, the Goloseevsky District Court of Kyiv, at the request of the State Bureau of Investigation, again put the head of the Constitutional Court on the wanted list on an even more absurd charge — in the case of “incitement to unauthorized interference in the operation of the automated system «Treasury Client — Treasury» and complicity in such interference by the chief KSU accountant.
The very wording of the stupid accusations against the head of the Constitutional Court testifies to the obvious engagement of his cases by the authorities, the illegal persecution of the judge, and the creation of a precedent of fear for any other Ukrainian judge who is trying to independently administer justice.
The work of the Constitutional Court was, in fact, blocked in 2022. And no one, neither the citizens of Ukraine nor the subjects of constitutional appeal, can actually use their right to apply to the Constitutional Court to check the constitutionality of presidential decrees and parliamentary laws.
On December 7, 2022, three judges of the Constitutional Court, appointed according to the quota of the Verkhovna Rada, immediately resigned and resigned. These are Sergey Sas and Igor Slidenko, appointed in March 2014, and Irina Zavgorodnyaya, appointed in September 2018. All of them left the CCU before the end of the nine-year term, and for judges Slidenko and Sas it ended in March 2023, and for Zavgorodnya in general in September 2027. These judges were considered in judicial circles as opposition to the President. All of them submitted their resignations after the special plenary meeting on the election of the chairman of the Constitutional Court was once again disrupted. It is believed that the disruption is beneficial to Sergei Golovaty — acting. head of the CCU, a protege of the office of the president, as the eldest judge, who will now retain his current leadership status.
Today, the president actually controls the CCU. According to the quota of the parliament, Viktor Kichun, proposed by the former representative of the president to the Constitutional Court, people’s deputy from the Servant of the People, Fyodor Venislavsky, and the former representative of the Verkhovna Rada to the Constitutional Court, Olga Sovgirya, were appointed judges of the Constitutional Court. And according to the presidential quota, judges Oleksandr Petryshyn (ex-president of the National Academy of Legal Sciences of Ukraine) and Oksana Grischuk (professor of Ivan Franko Lviv National University) entered the Constitutional Court. If three vacancies also go to the president’s office, together with Golovaty and other pro-presidential judges, they will form a serious power lobby in court. Now there are 13 judges left in the Constitutional Court, while according to the Constitution, it should have 18 judges.
Even more harshly, the authorities approached the solution of the “problem” of the District Administrative Court of Kyiv (OASK), whose judges were not going to become servants of the president’s office. The OASK was the court that considered the legality of acts of the highest officials of the state, including the president. Thus, the District Administrative Court at one time: canceled the decision to increase electricity tariffs; declared it illegal to increase the price of gas for the population; canceled the decision to rename Kyiv Moskovsky Prospect and General Vatutin Avenue in honor of the leaders of Ukrainian nationalists who collaborated with the Nazis — Stepan Bandera Avenue and Roman Shukhevych Avenue, respectively; recognized the symbols of the SS division «Galicia» as Nazi; and made many other decisions objectionable to the authorities.
On December 13, 2022, the Verkhovna Rada of Ukraine voted for bills No. 5369 on the liquidation of the District Administrative Court of Kyiv and No. 5370 on the formation of the Kyiv City District Administrative Court, developed by the office of the President.
This was preceded by attempts by the authorities to put the OASK, which had shown independence, under its control. NABU and the Office of the Prosecutor General began attacking the UAC back in 2020. The bill itself on the liquidation of the Kyiv District Administrative Court was submitted on April 13, 2021 to the Rada as urgent by President Zelensky. And on December 9, 2022, the US State Department imposed sanctions due to «corruption and human rights violations» against citizens of some countries, including Ukraine. The UAC chairman, Pavel Vovk, was included in the sanctions list. Pavlo Vovk called the US sanctions imposed against him a «logical» development of the campaign to establish «certain international structures of control over the judicial system of Ukraine.»
The Kiev City District Administrative Court has not yet begun its work, and therefore citizens are practically denied the opportunity to appeal against decisions of the president and other higher authorities to restrict their rights.
Citizens’ access to justice continues to become more difficult due to the lack of judges themselves. As of January 2022, according to statistics, the shortage of judges in Ukraine was 2,039 people, and the shortage of court employees was 3,559 people; in more than 60 local general courts, justice is administered by only one judge; eight courts stopped working due to the absence of judges with the authority to administer justice. These are Avdeevskiy City Court of Donetsk Region, Ananyevsky District Court of Odessa Region, Vasilkovsky District Court of Dnipropetrovsk Region, Luginsky District Court of Zhytomyr Region, Talnovsky District Court of Cherkasy Region, Tyvrovsky District Court of Vinnytsia Region, Ustinovsky District Court of Kirovohrad Region, Popasnyansky District Court of Luhansk Region. Thus, already before the start of the war, about 137,000 citizens were deprived of their constitutional right to judicial protection of their rights and freedoms.
This is due to institutional problems — two key bodies that make decisions on the appointment of judges do not work. The High Qualifications Commission of Judges (HQJC), which, thanks to the law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and Certain Laws of Ukraine on the Activities of Judicial Administration Bodies,” which came into force on November 7, 2019, is not been working for 26 months.
Also, two days before the start of the war, the constitutional body, the High Council of Justice (HJC), was paralyzed, from which 10 members immediately resigned on February 22, 2022. Thus, about 60 state functions, which they collectively carried out, were stopped.
The VSP was paralyzed due to the voluntary termination of the powers of 10 of its members. The reason was that the High Council of Justice insisted that the powers of the Ethics Council (a body formed under the authority of Zelensky, which is designed to establish the compliance of a candidate for the position of a member of the High Council of Justice with the criteria of professional ethics and integrity, and whose composition is half foreigners), conducting their assessment , «do not have a constitutional basis».
“We note that the principle of institutional continuity of the activities of the highest authorities is one of the foundations of the constitutional system, and it was without taking into account this fundamental basis that Law No. 1635-IX was adopted, the provisions of which allow for the simultaneous termination of the activities of a public authority exercising constitutional powers,” the Supreme Council noted. . The High Council of Justice recalled that on February 8, 2022, the Ethics Council launched procedures for simultaneously evaluating all members of the Supreme Court of Justice (except for the Chairman of the Supreme Court). According to the Supreme Council, the further functioning of this body within the framework of such dependence violates the guarantees of the activities of its members, which is unacceptable.
An even more complex and yet unresolved problem is the need to simplify the rather complex procedures for selecting judges and competitive procedures for appointing judges to appellate and specialized courts. At the same time, “simplification” and “reduction of terms” consist not only and not so much in the procedures of the HQCJ, but in the fact that after the HQCJ the documents of candidates for an inexplicably long time (months and years) may remain without movement in the SCJ and the office of the President.
The reason for this situation is the neglect during the reform of the judiciary of the fact that justice is a special and permanent function of state power. The continuity of citizens’ access to justice means an unhindered opportunity to resolve any dispute in court, which is ensured primarily at the level of the courts of first instance. And after — the appeal and, in some cases, the cassation instances.
The authorities, hiding behind the concept of «military secrets», also began to actively close access to citizens to the register of court decisions. On February 24, 2022, the State Judicial Administration, the body responsible for the operation of the register and the reflection of court decisions in it, completely closed access to the register. It was resumed in June 2022, but human rights activists found that almost all criminal convictions over the past three years have disappeared from public access. So, for example, in the Kharkiv region, only 30 sentences for 2022 remained in the court register, and for the whole of 2021 — only 19. If you believe the court register, then for the whole of 2020, all the courts of the Kharkiv region issued only four sentences, which is clearly impossible.
On December 21, 2022, human rights organizations filed an open appeal with the State Judicial Administration (SCA), in which they demanded to stop the negative practice of restricting access to documents in the Unified State Register of Court Decisions (USRSR), restore access to decisions and ensure the timely entry of procedural documents into the register.
In justification of its actions, the GSA noted that when withdrawing court decisions from public access, it was guided by instructive letters from the Security Service of Ukraine, instructions from the government, appeals from the command of the Armed Forces of Ukraine, courts and individual judges regarding the non-disclosure of information about individual decisions taken in the framework of criminal proceedings. Also in her justifications, she referred to part 3 of article 34 (restriction of freedom of speech in the interests of national security, territorial integrity or public order, etc.) and part 2 of article 64 (certain restrictions on rights and freedoms in a state of war or state of emergency) of the Constitution of Ukraine, Article 6 of the Law of Ukraine «On Access to Public Information» (public information with restricted access) and the Resolution of the Cabinet of Ministers No. 263 of March 12, 2022, which regulates the functioning of public electronic registries under martial law.
At the same time, the Law of Ukraine «On Access to Court Decisions» clearly defines cases of restricting access to decisions in the registry:
— by a court decision on the consideration of the case in a closed court session, subject to protection from disclosure;
— court rulings on conducting covert investigative actions and searches are made public one year after their issuance;
— the decision to grant permission to conduct intelligence activities or to refuse to grant such permission, made in a closed court session, is not made public and is not published.
Also, article 7 of the aforementioned law lists information that cannot be disclosed in the texts of court decisions that are open to the public. However, the judgments themselves should be publicly available.
Accordingly, the GSA did not have the authority to withdraw court decisions on open access, even because they had data on the location of legal entities — public authorities, as well as critical infrastructure. This is a direct violation of the Law of Ukraine «On Access to Court Decisions».
In addition to the illegality of the seizure of decisions, the restriction of access to registers is a manifestation of the closeness of power, a step back from democratic values.
The USRSR is an important source for journalists who investigate corruption offenses and abuses of power, which become doubly dangerous for the country during the war. In addition, access to court decisions is a daily necessity in the activities of lawyers, law enforcement officers, public activists and human rights defenders.
Two draft laws have been registered in the Parliament: No. 7033-d from the head of the Verkhovna Rada Committee on Legal Policy Denis Maslov, and No. 8168 from the Ministry of Justice of Ukraine. Both bills propose to significantly restrict or completely close access to the register of court decisions. Thus, the government is going to legitimize the current practice of depriving society of the most important information about court decisions.
As a result of such a policy of severe pressure by the authorities of the judiciary, such absurd, frankly unlawful decisions of the courts appear, according to which people are sentenced for “unpatriotic and anti-state” conversations on a mobile phone, and all opposition parties in Ukraine are banned on the basis of fabricated, carbon-copied judicial decisions.
The above is only a small part of the information received and processed by the specialists of the International Center for the Protection of Ukrainians about the systematic policy of the authorities aimed at destroying the independence of the judiciary and leading to the deprivation of Ukrainian citizens of the right to a fair trial.
All collected materials on this topic will be mandatory transferred to international human rights organizations, as well as published in the world press.
International Help Center for Ukrainians