Blow to judicial reform: what problems the Venice Commission's opinion on the vetting of judges brings

This week, the Venice Commission (VC) released its opinion on draft laws concerning disciplinary procedures and the vetting of judges – an opinion that has sparked serious concern within the expert community.

Despite an overall critical assessment of the harmful provisions, some of the Commission’s recommendations could, in the long run, significantly complicate or even make impossible the process of cleansing Ukraine’s judiciary and holding low-integrity judges accountable.

At the very least, MPs could use this opinion to promote harmful draft laws that would, in turn, put Ukraine’s commitments to the EU and its European integration process at risk.

Why the Venice Commission’s decisions are not a panacea

The Venice Commission is an advisory body of the Council of Europe that examines the laws of European countries for compliance with standards of democracy, human rights, and the rule of law.

Traditionally, the VC carefully evaluates situations and gathers input from all stakeholders. Yet not everything is always 100% accurate: some recommendations make sense if your location is Strasbourg, not Kyiv.

The reason lies in the Commission’s lack of understanding of Ukraine’s realities, the nuances of reform processes, and the historical context.

Why does this happen? There may be several explanations.

Besides Ukraine, the Commission cooperates with over 60 countries. Its members – judges, professors, MPs, who do not live Ukrainian realities 24/7, are guided by standards developed under different circumstances, at a different time, for different countries and purposes.

For example, judicial irremovability is relevant in countries with systems that already work and need to be preserved. For Ukraine, however, it is disastrous, since our goal is to renew the judiciary.

Judicial self-governance effectively protects against political influence in countries where courts enjoy public trust.

It is obvious that in a country with corrupt courts and judicial self-governance bodies (such as the Council of Judges, which constantly delegates its associates to various commissions), this model is doomed. Researchers have repeatedly written that it does not work in Central and Eastern Europe.

Furthermore, since 2022, members of the Commission have not visited Ukraine within the usual missions. Such visits allowed them to assess the situation directly, communicate with key experts, and adapt their conclusions accordingly. Consultations now take place virtually.

Thus, while the Venice Commission’s recommendations traditionally enjoy high trust in Ukraine and the EU, these particular ones may not work in practice or fit Ukraine’s unique circumstances – and, as in the case of this new opinion, could even harm and set back judicial reform.

When the Commission’s position "wavered"

In autumn 2020, Ukraine’s Constitutional Court (CCU) made a notorious ruling that effectively dismantled the anti-corruption control system.

Under the pretext of "protecting judicial independence," judges in fact destroyed the anti-corruption infrastructure, declaring unconstitutional the provisions on e-declarations, the open registry of officials’ assets, and criminal liability for false declarations.

This triggered threats of losing the visa-free regime and financial support from the EU and IMF.

The Venice Commission sharply criticised the Court’s reasoning and supported the restoration of anti-corruption mechanisms. It later recommended reforming the CCU itself through a transparent competition involving international experts and civil society representatives.

This became the starting point for further changes. In 2021, the Commission confirmed this approach and maintained a simple logic: the quality of CCU selection equals the quality of its decisions.

After Russia’s full-scale invasion began, when Ukraine received EU candidate status in June 2022, CCU reform became part of the package of seven commitments Ukraine had to fulfil.

In response, Draft Law No. 7662 on CCU judge selection appeared in the Verkhovna Rada that August. However, the Commission’s position "wavered."

In a new urgent opinion, it effectively accepted a "watered-down" competition format. Due to factual mistakes and flawed conclusions, the Commission issued recommendations that undermined the very essence of the reform.

In particular, the decisions of the Advisory Group of Experts (AGE), which selects CCU judges, became merely recommendatory rather than binding, and international experts did not receive a decisive vote in a commission where the other half consisted of appointees of the President, Parliament, and the Congress of Judges.

This opened the door to political influence over CCU appointments.

On December 19, 2022, after strong criticism from civil society, the Venice Commission again changed its position – it now directly recommended making AGE decisions binding and adding a seventh member (an international expert).

But it was too late: a week earlier, the Parliament had passed the law on CCU selection procedures with a 3+3 format – three Ukrainian and three international experts.

While international participation increased transparency, the setup still left room for Ukrainian members to block decisions.

In 2023, a new draft law appeared to fix the earlier gaps. The Commission assessed it positively, supporting the decisive vote of international experts and emphasising the need to promptly fill CCU vacancies.

Immediately afterwards, the Verkhovna Rada finally adopted this law, fully improving the CCU selection process.

This story shows that the Venice Commission’s position can "swing" and, instead of providing expected expertise, sometimes play into the hands of the Ukrainian authorities. Yet through systematic dialogue and persistence, civil society managed to achieve the right result.

When "universal standards" contradict Ukrainian realities

Another EU requirement in the same "candidate-status package" concerned updating legislation on national minorities.

According to experts, this demand emerged to appease Hungary and referred to adopting a framework law on minorities.

Although Ukraine did not formally request the Commission’s opinion, in June 2023, the VC issued a sharply critical opinion on the Law on National Minorities adopted in December 2022.

These recommendations sparked widespread public debate since they proposed narrowing the use of the Ukrainian language in the public sphere.

Implementing them would have rolled back Ukraine’s policy of linguistic de-occupation from the Russian language.

Later, the Commission released another opinion stressing the excessive duration of the ban on the public use of the Russian language, even after the war’s end.

Experts noted that "prohibiting the use of (still) the most widespread minority language in the country for several years after the war’s end is unlikely to meet the conditions of lawful restrictions."

This case vividly illustrates where "universal" norms clash with Ukrainian reality.

The prevalence of Russian in Ukraine is not a manifestation of a "national minority" but a legacy of imperial oppression. Therefore, its protection under current conditions cannot be equated with defending minority linguistic rights.

Judicial reform under threat

The new Venice Commission opinion is the latest example where, despite being generally positive for advancing judicial reform, some recommendations risk undermining meaningful progress.

A bit of context: at the request of the High Council of Justice (HCJ), VC experts reviewed and provided opinions on three draft laws – Nos. 13137 and 13137-1 (nearly identical) on disciplinary procedures, and No. 13165-2 on the verification of judges’ integrity and family ties declarations.

The first two draft laws (one co-authored by Denys Maslov, Chair of Parliament’s Legal Policy Committee) would effectively make it impossible to dismiss judges for disciplinary violations.

They would allow judges holding Russian passports, bribe-takers, and collaborators to remain in office.

Or the judges caught drunk driving.

This is precisely why notorious figures such as Pavlo Vovk and several other judges of the District Administrative Court of Kyiv, former Supreme Court Chief Justice Vsevolod Kniazev, and Oleksii Tandyr (who killed a National Guard serviceman while driving drunk) were dismissed.

The draft laws also exempt judges from responsibility for failing to submit or falsifying asset declarations, abolish qualification assessment as a disciplinary sanction, enable blocking complaints against low-integrity judges, and increase chances for dubious candidates to obtain judicial positions.

To its credit, the Venice Commission did seriously criticise these draft laws.

In particular, it opposed lowering the required votes for judicial appointments, suspending judges because a disciplinary case was opened, initiating proceedings by higher courts or the Council of Judges or a temporary parliamentary commission, and exempting judges from explaining the origin of pre-appointment assets.

The Commission concluded that the proposed changes lacked coherence and a comprehensive approach, urging instead the effective use of existing mechanisms.

However, it failed to express a clear position on several key threats:

• abolishing liability for judges’ false or missing asset declarations and eliminating qualification assessment as a disciplinary sanction;
• narrowing the definition of the main ground for dismissal ("behaviour that discredits the title of judge or undermines the authority of justice") – the VC even suggested narrowing it further.

Moreover, some recommendations could reverse existing progress. For example:

"Family immunity." The Commission proposed excluding disciplinary liability for judges whose family members live lavishly beyond declared income.

Obviously, this would only strengthen the practice of transferring property to relatives and make it impossible to hold judges accountable for illicit enrichment.

For example, retired judge Volodymyr Siverin, whose three children received apartments as gifts, including a six-room one of 222 m². Or judge Oleh Khrypun, who, according to Bihus Info, "frequently stayed" in an undeclared house worth about ₴34 million, where his ex-wife resides.

Notably, fake divorces are another common scheme judges use to conceal assets.

Restricting complainants. Currently, anyone can file a complaint against a judge if they know of a violation. The Commission, however, recommends limiting this right to those "directly affected" or having a "legitimate interest."

As a result, many judges would escape punishment since most of their violations have no identifiable victim or the victim does not complain, such as drunk driving, bribery, holding Russian citizenship, or collaboration with Russia.

Civic activists who have exposed low-integrity judges for years would no longer be able to file complaints unless they first proved a "legitimate interest."

For instance, had this rule existed earlier, 87 judges sanctioned due to DEJURE Foundation complaints would have avoided punishment.

Blocking complaints. The draft law contains provisions enabling the blocking of complaints – rules benefiting the judicial "mafia."

If one complaint is rejected within a year, subsequent ones could be deemed "abusive," imposing fees of up to ₴30,000 for each new complaint over the next three years. While the Commission raised some concerns, it failed to assess the real risks of blocking legitimate complaints.

Anonymising decisions. The Commission also called for anonymising disciplinary decisions and limiting public access over time. In Ukraine’s reality, this would make it much harder to assess patterns of judicial misconduct during future high-level selection processes.

Since these draft laws contain genuinely harmful provisions, adopting them even as a first step would be wrong. A new draft law should instead strengthen disciplinary procedures.

Regarding the recommendations for another draft law assessed by the Commission, the one concerning the verification of judges’ integrity and family ties declarations also presents a number of problems.

Draft Law No. 13165-2 still does not provide for a one-time vetting of current Supreme Court judges with meaningful participation of international experts – an issue on which the Venice Commission has not taken a clear position.

Such vetting is critically necessary, as the Supreme Court has for years blocked the cleansing of the judiciary by issuing rulings that roll reforms back and has remained a symbol of impunity in the justice system. Without this vetting, public trust in the Supreme Court will remain critically low, and the reform itself risks becoming merely cosmetic once again.

Both the EU Enlargement Reports and the EU’s Ukraine Facility program explicitly require addressing corruption risks in the Supreme Court by strengthening the integrity-declaration verification system for judges.

Despite the Venice Commission’s opinion, the final assessment of these draft laws will still be made by the European Commission.

It is very likely to be negative, as the proposed provisions clearly do not comply with Ukraine’s obligations before the EU.

Just a few months ago, the relevant Directorate-General of the European Commission already "strongly recommended" involving international experts in the vetting of top judges and criticised the lack of a special mechanism for verifying the integrity declarations of judges of higher specialised courts and the Supreme Court.

* * * * *

The latest opinion of the Venice Commission poses serious challenges to the further advancement of judicial reform and to the vetting of judges’ integrity.

First, MPs may use it to justify harmful legislative changes.

Then, as a result, the disciplinary system may again become a shield for low-integrity judges rather than an instrument of cleansing.

There is a significant risk that Ukraine could lose what it has painstakingly built over many years of difficult struggle to renew its judiciary. Such a development could seriously complicate or even derail the fulfilment of Ukraine’s EU-integration obligations, especially against the backdrop of the NABU and SAPO scandal and the Parliament’s failure to appoint two judges to the Constitutional Court.

We should remember that the Commission provides standards, but the responsibility for how they work lies with us.

That is why the expert community and society must maintain an active role – not blindly agreeing or rejecting, but thoughtfully adapting European standards to our reality.

At the same time, the role of the European Union remains crucial, as it holds all the necessary levers of influence.

The overwhelming majority of Ukrainians aspire to join the EU, and about 73% support pressure from international partners on the Ukrainian authorities to cleanse the justice system. Because the future of our courts and whether they become a model of the rule of law, as Ukrainians so deeply expect, depends on it.

This article was prepared by experts of the DEJURE Foundation and the Anti-Corruption Action Centre.