Analysis of the draft law No. 10301

01.13.25
January 13, 2025

As of the beginning of 2025, Ukrainian law enforcement agencies have registered about 150,000 criminal proceedings on the grave international crimes committed after 24 February 2022. In recent years, the International Criminal Court has become a regular target of attacks and threats of sanctions that could block its functioning altogether.

The justice architecture for Ukraine must be able to cope with such a serious scale of the grave international crimes, as well as be resilient to turbulence, including geopolitical ones.

That is why ULAG has consistently advocated for the introduction of court specialisation at the national level, as well as the creation of a special mixed (hybrid) court, as complementary tools that can strengthen the capacity of the domestic system to deal with this category of cases. These are some of the main recommendations in the “Needs Assessment of Ukraine's Justice System” report.

On 9 January 2025, the Verkhovna Rada of Ukraine adopted the draft Law of Ukraine ‘On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the introduction of specialisation of judges in the consideration of military criminal offences, criminal offences against peace, human security and international law and order’ (Reg. No. 10301, 29.11.2023) as a basis in the first reading. The text was registered in parliament more than a year ago, but there has been no thorough public discussion of its provisions. Despite this, the draft law was included in the agenda and put to a vote.

The draft law proposes to amend Article 18 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’, which defines the specialisation of judges, and addresses the following:

  • introduction of specialisation of judges in two additional categories of crimes: military criminal offences; criminal offences against peace, security of humanity and international law and order;
  • this is a unified specialisation, the selected judge should consider both categories of criminal offences;
  • specialisation can be introduced at the level of courts of first instance and courts of appeal, and the decision on this is made at a judges' meeting of a particular court;
  • the number of specialised judges is determined individually for each court at the meeting;
  • the introduction of specialisation is an additional workload on the selected judge/judges to the existing perform duties of a judge of the respective instance;
  • the only requirement for the selection of a specialised judge is the experience of conducting criminal proceedings in court.

The draft law  is being proposed to address  the need to optimise the resources of judges who receive special training in international law without any guarantees that they will be considering proceedings on grave international crimes in the future. 

Indeed, the courts are currently the only body in the Ukrainian justice system that does not have the appropriate specialisation to deal with grave international crimes (such specialisation has been introduced on the prosecutorial level, the National Police of Ukraine, the Main Investigation Department of the Security Service of Ukraine, and the State Bureau of Investigation). However, draft law No. 10301 does not offer an effective solution to this problem.

Combining military and grave crimes in one specialisation

The only argument the draft law proposes in favour of combining military crimes and grave international crimes into one specialisation is that, in the authors' understanding, they are committed by military personnel, and for the effective consideration of such proceedings, judges must have an appropriate level of trust among them.

During the more than 10 years of the ongoing armed conflict in Ukraine, the assessment of its consequences has often been mixed with the consideration of offences in the military sphere. There are occasional discussions about the restoration of the military justice system, which should ensure an objective consideration of this category of cases. Instead, both categories of crimes are different in nature, actus reus, mens rea, and require specialised knowledge in the military sphere or international law, respectively. Such a merger is inappropriate and will result in an unjustified requirement for judges to master both categories of cases in accordance with the combined specialisation. 

The draft law does not set any special criteria for the experience of a judge who may be selected for the respective specialisation, unlike the consideration of proceedings concerning minors, which is already provided for in Article 18 of the Law of Ukraine ‘On the Judicial System and Status of Judges’. At the same time, proper consideration of grave international crimes requires specific knowledge of international humanitarian law and international criminal law – an issue evidenced by the existing court practice, differences in judges' positions and approaches to the assessment of violations. Therefore, specialisation among judges should be supported by special requirements for such judges. 

In addition, to be effective in considering such proceedings, judges should have free access to training programmes on war crimes and the grave international crimes to gain the necessary specialist knowledge. The vast majority of such programmes are currently being implemented as part of support projects by various experts and organisations, which cannot fully meet the current needs of judges and cannot ensure the sustainability of such training. 

Judges' overload level

According to the draft law, the introduction of specialisation in a particular court and the appointment of a judge/judges to deal with military offences and grave international crimes does not relieve them of the burden of dealing with other cases within the court's jurisdiction. In practice, this will lead to an even greater overload of those judges who are assigned for the specialisation. 

Some local courts are already overloaded with proceedings on grave international crimes. This situation is observed in Kyiv, Chernihiv, Sumy, Kharkiv, Donetsk, Luhansk, and Kherson regions. For example, as of 23 July 2024, the Irpin City Court of Kyiv Region had 36 proceedings pending under Article 438 of the Criminal Code of Ukraine regarding crimes committed in the cities of Bucha and Irpin, and the villages of Hostomel, Vorzel and Kotsiubynske. Therefore, all judges of this court were involved in the consideration of these proceedings. In such cases, the introduction of specialisation will increase the workload of individual judges, delay the consideration of cases and make it impossible to ensure due process.

Shortage of judges

One of the biggest challenges affecting the efficiency of judges and their workload is the catastrophic shortage of judges. It was only at the end of 2024 that a major competition to fill vacant judicial positions was announced. As of 1 January 2025, 1,212 judicial positions remained vacant in local courts, which is approximately one fourth of the total number of judicial positions (4,956 registered). Some courts that have territorial jurisdiction to hear proceedings on the most serious international crimes would be unable to introduce specialisation in this category of crimes because they lack the judges to perform the functions of the court.

Given how long it takes to fill vacant positions in the courts, even after the competition and appointment process is unblocked, the problem of the lack of judges on the ground will not be resolved in the near future. And given the specialisation requirements of the draft law, newly appointed judges will not be able to be selected to try military crimes or grave international crimes, even if they have previous experience as prosecutors or lawyers in this category of cases. 

At the same time, the draft law leaves it to the discretion of the court to determine the number of judges who will specialise in this category of cases. Given that certain grave international crimes are classified as particularly serious crimes (as per the Criminal Code of Ukraine) and required to be considered by a panel of three judges, there should be enough judges selected for a specialisation in a court to form such a panel. Otherwise, the inability to form a panel of judges to hear the proceedings may constitute grounds for transferring such proceedings to another court.

Conclusions and recommendations

For more than a decade of the ongoing armed conflict, the Ukrainian justice system has been forced to respond to the large-scale challenges posed by the consideration of proceedings on grave international crimes. Despite the fact that the issue of specialisation of judges to deal with this category of crimes is regularly raised as a recommendation for Ukraine by various organisations and experts, its introduction in the format proposed by draft law No. 10301 will not increase the efficiency of the system. The lack of judges in the courts, the level of workload of judges, the need for specialised training of judges, the number of proceedings on grave international crimes that are brought to court, the different workloads of individual local courts for grave international crimes - all these aspects will influence the extent to which a court will be justified in and capable of making a decision to specialise judges.

We call for the draft law No.10301 not to be adopted and for a comprehensive discussion of the optimal way to introduce specialisation of courts/judges to be intensified. 

In this process, we believe it is necessary to: 

  • To consider not only grave international crimes, but also offences against the foundations of national security(Section I of the Special Part of the Criminal Code), which are closely related in Ukrainian practice.
  • Consider other options for specialisation, such as the creation of a separate specialised court with the appropriate infrastructure to deal with this category of cases or the introduction of specialisation at the appellate level as a court of first instance, as this category of crimes requires the appropriate experience of judges to deal with them.
  • Not to combine military offences and grave international crimes into one specialisation, in order not to cause an excessive and unjustified workload for judges.
  • To set out special requirements for the experience of a judge who may be selected for the relevant specialisation.
  • Take into account the resource constraints of the courts, including human and technical ones.
  • Develop full-fledged and regular in-service training programmes to provide the necessary specialist knowledge in this area. 
  • The process of specialisation should be aimed at creating a professional community of judges that will work systematically, constantly improving their competences and contributing to the development of the entire judicial system.