Chronicles of the selection of judges

Volodymyr Bogatyr, a lawyer and Honored Lawyer of Ukraine, spoke to UNN about how the number of judges in Ukraine has changed over the years and how many vacancies remain today. 

Judicial reforms in Ukraine, among other relative achievements, have one absolute indicator of effectiveness: the number of judges is steadily decreasing over the years. Although reformers are gradually reducing the maximum number of positions, judges still do not have time to fill them! 

Accounting features

Such conclusions can be drawn based on the analysis of statistical data provided by the High Qualification Commission of Judges upon request. 

As a reminder, according to Article 93(1)(1) of the Law "On the Judicial System and Status of Judges", it is the HQCJ that keeps records of the number of judges' positions in courts, including vacancies. Since the Commission, as a permanent body in the Ukrainian justice system, started its work after the old Law No. 2453-VI came into force, we asked for data starting from 2010. But it turned out that the HQCJ had data only from 2012. For some reason, the data for 2010 and 2011 were "not reflected and documented".

The information covers such indicators as the maximum number of judgeships, the number of persons appointed (elected) to judgeships, and the number of vacant judgeships.

For their correct perception, it should be understood that the data were provided at the permanent place of work of judges without taking into account information on temporary transfers of some of them. And the information on the maximum number of judges and the number of vacant positions takes into account the defined maximum number of judges, but ignores the established courts that have not started working or courts whose work has been terminated (i.e., whose jurisdiction has been assigned to another court). These peculiarities can explain why the available vacancies and filled positions in total do not always result in the specified maximum number of judges in Ukraine. The figures are given as of the end of each year (except for the current year, where the data are given as of October 1). So let's look at them.

Before and after the reform

The maximum number of positions under the old 2010 law remained at just over 9,000 judges until the end of 2016, when it became the highest (9,148). It is relevant to recall that it was in 2016 that the next judicial reform came into effect and the amendments to the Constitution and the new Law "On the Judiciary and the Status of Judges" came into force.

After that, the indicator gradually decreased until the introduction of the legal regime of martial law. At the end of 2022, it was 6,483 positions. The following year, it was slightly increased. 

How is the need for judges determined? According to part 6 of Article 19 of the Law "On the Judicial System and Status of Judges", the number of judges in a court (except for the Supreme Court) is determined by the High Council of Justice, taking into account the advisory opinion of the State Judicial Administration of Ukraine (hereinafter referred to as the SJA of Ukraine), the court workload and within the limits of expenditures set out in the State Budget of Ukraine for the maintenance of courts and remuneration of judges.

For example, the text of the HCJ decision of 24.08. 2023 No. 852/0/15-23 "On Determining the Number of Judges in Local and Appellate Courts" indicates the practice of holding meetings with the participation of members of the HCJ, HQCJ, representatives of the Council of Judges of Ukraine, the Supreme Court, the SJA, and the National School of Judges of Ukraine, where they discuss the staffing shortage and staffing standards, the number of vacancies, problems of selection and competitions, statistics, workload, and expenditures set out in the State Budget of Ukraine for the maintenance of courts and remuneration of judges.

If we follow the logic of officials, it turns out that the need for judges in Ukraine decreased by as much as 29.1% from 2016 to 2022! 

Why is that?

Indicators of hunger

Here it would be appropriate to track the curve of the actual number of judges, or rather, persons appointed (elected) to the positions of judges. And it looks somewhat different.

The figures provided by the HQCJ show that the actual number was at a fairly high level (over 8,000) until the change of power in Ukraine in 2014. In fact, in 2013, the number of appointed (elected) judges increased (from 8223 to 8371), but at the end of 2014, the number of judges decreased to 8062. And then there is a further decline. The lowest number of them was in 2023 - 4920 servants of Themis (as of October 1 of this year, their number has slightly increased). In general, from 2013 to 2023, the number of working judges decreased by 41.2%! In other words, people resigned from their positions (which were not filled in time) faster than the need decreased (see the percentage of the maximum number).

If you look at the numbers of vacancies, you will notice that the highest number of vacancies was in the reform year of 2016 (2774). The lowest number was in the period before the change of power in 2014 (only 700 vacancies in 2013). But it will be most interesting to look not at the absolute number of vacancies, but at their percentage over the years. And here we can see that in the year of the judicial reform, it rose sharply to 30.3% and then they tried to keep it at this level.

What influenced people's ability or willingness (or rather, unwillingness) to work in the judiciary? The change of government in 2014 led to politically motivated lustration, various kinds of persecution, numerous assessments and integrity checks of judges, which is appropriate when appointing judges to office, not with every change of government. During the same period, the "new" government created additional problems when it failed to ensure the work of the HQCJ. In November 2019, the composition of the commission responsible for the selection of judges ceased to have powers due to the adoption of the Law of 16.10.2019 by the Verkhovna Rada. The qualification assessment was resumed only in November 2023.

As of October 1 this year, there were 4988 judges working in Ukraine (the full list can be found on the HQCJ website ). However, these figures are quite volatile. For example, it became known that two days later the High Council of Justice considered and granted five more resignations. Thus, the number of vacancies has increased again, and as of today, the staff shortage is 29.6%.

Volodymyr Bogatyr