The judicial system of Ukraine is outlined in the 1996 Constitution of Ukraine. Before this, there was no notion of judicial review nor any Supreme Court since 1991's Ukrainian independence. when it started being slowly restructured.
Although judicial independence exist in principle, in practice there is little separation of juridical and political powers. Judges are subjected to pressure by political and business interests. Ukraine's court system is widely regarded as corrupt.
Although there are still problems with the performance of the system, it is considered to have been much improved since the last judicial reform introduced in 2016. The Supreme Court is regarded as being an independent and impartial body, and has on several occasions ruled against the Ukrainian government.
Since 2014, Ukraine has allowed videotaping of court sessions without obtaining the specific permission of the judge, within the limitations established by law. In 2015 the Open Court Project launched with the aim of videotaping court proceedings in civil, commercial, administrative cases. The Open Court Project has videotaped over 7000 court cases in courts at different levels. The videos are stored, indexed and published in the public domain. In 2017 NGO Open Ukraine has launched the VR Court Project aimed at videotaping court sessions with 3D 360 degree portable video cameras to create VR video records of court sessions.
Ukrainian courts enjoy legal, financial and constitutional freedom guaranteed by measures adopted in Ukrainian law in 2010.
The judicial system of Ukraine consists of three levels of courts of general jurisdiction.
Prior to the judicial reform introduced in 2016 the system consisted of four levels. The Cassation Court of Ukraine existed until 2003.Those courts were recognized as unconstitutional by the Constitution Court of Ukraine.
Ukraine has 74 district courts. In 2018 they replaced the 142 local general courts.For example in Kyiv 10 district courts were eliminated and 6 district courts created. The Pechersky District Court is a particularly active one, as it rules over most of the business community of Kyiv.
Courts of Appeal (combining criminal and civil jurisdiction), consisting of:
- regional courts of appeal;
- courts of appeal of the city of Kyiv.
Prior to the judicial reform introduced in 2016, there were parallel Specialized Courts of Appeal (either commercial or administrative jurisdiction) consisting of the commercial courts of appeal and the administrative courts of appeal.
Supreme Court is the highest court within the system of courts of general jurisdiction, conducting the review regarding unequal application of the rules of substantive law by the cassation courts and subject to cases when international judicial institution the jurisdiction of which is recognized by Ukraine has established the violation of international obligations by Ukraine.
The Constitutional Court of Ukraine is a special body with authority to assess whether legislative acts of the Parliament, President, Cabinet or Crimean Parliament are in line with the Constitution of Ukraine. This Court also gives commentaries to certain norms of the Constitution or laws of Ukraine (superior acts of Parliament).
The High Anti-Corruption Court of Ukraine is to be established before the end of 2018. Cases concerning corruption in Ukraine will be bought directly to this court. Appeals will be considered by a completely separate Appeal Chamber of the High Anti-Corruption Court. The law on the High Anti-Corruption Court of Ukraine came into force on 14 June 2018.
In the judicial reform introduced in 2016 the following three courts were abolished and its tasks transferred to special chambers of the Supreme Court:
- The High Specialized Court on Civil and Criminal Cases, covering civil and criminal cases;
- The High Administrative Court of Ukraine, covering administrative cases;
- The High Commercial Court of Ukraine, covering commercial cases.
The rulings of these courts could not be appealed.
Since the juridical reform of 2016 judges are appointed by the President of Ukraine upon their nomination by the Supreme Council of Justice. Prior judges were appointed by presidential decree for a period of five years, after which the Ukrainian parliament confirmed them for life in an attempt to insulate them from politics.This 5 year probation period was also abolished in 2016.Judges are protected from dismissal (save in instances of gross misconduct). Immunity from prosecution was guaranteed to judges until 2016.(This immunity could be lifted by parliament) Currently, a judge is protected from liability resulting from their judicial actions only.
Ukraine has about 8,000 judges.
Ukraine has a jury system; although almost all cases are heard by either a single judge or two judges accompanied by assessors. In fact so few people in Ukraine face a jury trial that in 2018 survey by the Center for Civil Liberties, 64% of respondents claimed that such a phenomenon does not exist in Ukraine or rather does not exist.Ukrainian law allows jurors to hear only those criminal cases where the sentence can reach life imprisonment. But even then they are not mandatory. A jury is only appointed if the accused so wishes. Unlike in the United States, jurors are not formed from random citizens, but only from those who have previously applied for this role. Citizens are prohibited from joining a jury if:
- they do not speak Ukrainian
- elderly people over the age of 65
- persons with chronic mental or other illnesses that interfere with the work of the jury
- persons with an outstanding or outstanding criminal record
- persons people's deputies, members of the Cabinet of Ministers, judges, law enforcement and judicial officials, the military, other officials, lawyers, notaries
- persons who have received an administrative penalty for corruption in the previous year
- persons who are recognized as having limited legal capacity or incapable
A Ukrainian jury is made up of five jurors (three main and two reserve) and two professional judges who are actively involved in decision-making.
Jurors are prohibited from communicating with anyone other than the court about the merits of the case without the permission of the presiding judge.They may not divulge details known to them or gather information about the case outside of the court proceedings. Jurors are financially compensated.
The Congress of Judges is the highest body of judicial self-government.
The Council of Judges is responsible for the enforcement of the decisions of the Congress and their implementation in the period between congresses, and decides on the convocation of the Congress.
The State Judicial Administration provides organizational support of the judiciary and represents the judiciary to the Cabinet of Ministers and the Verkhovna Rada.
The High Judicial Qualifications Commission of Ukraine conducts the selection of judicial candidates, submits to the High Council of Justice recommendations on the appointment of a candidate for the subsequent introduction of the submission of the President of Ukraine, makes recommendations on the election of a permanent post, and conducts disciplinary proceedings including dismissal.
The High Council of Justice "is a collective independent body that is responsible for formation of the high-profile judge corpus capable of qualified, honest and impartial exercise of justice on a professional basis; and for making decisions regarding violations by judges and procurators of the requirements concerning their incompatibility and within the scope of their competence of their disciplinary responsibility". Three members of the council are automatically assigned for holding the following positions: Chairman of the Supreme Court, Minister of Justice, and Prosecutor General. The other 17 members are elected for a period of six years. The council consists of 20 members. It was created on January 15, 1998.
A Ukrainian Ministry of Justice survey of Ukrainians in 2009 revealed that only 10 percent of respondents trusted the national court system. Less than 30 percent believed that it was possible to receive a fair trial in Ukraine.
Ukrainian politicians and analysts have described the system of justice in Ukraine as "rotten to the core" and have complained about political pressure put on judges and corruption.
Ukrainian judges have been arrested while taking bribes. Independent lawyers and human rights activists have complained Ukrainian judges regularly come under pressure to hand down a certain verdict.
In 2013, a Transparency International Global Corruption Barometer report showed that 66% of the Ukrainian public considered the judiciary to be the most corrupt institution in the country. Twenty-one percent of Ukrainians admitted they had paid bribes to judicial officials themselves.
Court judges maintained a 99.5 percent conviction rate from 2005 till 2008, equal to the conviction rate of the Soviet Union. In 2012 this number was 99.83 percent. Suspects are often incarcerated for long periods before trial.
Flaws in the system
Prosecutors in Ukraine have greater powers than in most European countries. According to the European Commission for Democracy through Law "the role and functions of the Prosecutor’s Office is not in accordance with Council of Europe standards".
Ukraine has few relevant corporate and property laws; this hinders corporate governance. Ukrainian companies often use international law to settle conflicts. Ukraine recognizes the verdicts of the European Court of Human Rights.
Council of Europe Commissioner for Human Rights Thomas Hammarberg stated in February 2012 that systemic deficiencies in the functioning of the Ukrainian judicial system seriously threatened human rights.
How Ukraine Became a Market Economy and Democracy
State and Institution Building in Ukraine
Taras Kuzio, Robert Kravchuk, and Paul D'Anieri