Functioning of Ukrainian Courts during the War

The Ukrainian court system has a long history of reforms intended to make justice accessible to citizens within a reasonable time. One indicator of the courts’ efficacy is how fast a court makes a decision. Despite all the efforts in prewar times, procedural length was constantly increasing, and it has continued to increase since Russia’s full-scale invasion of Ukraine. One might have expected that a more durable process would provide a judge with more time for understanding the case. However, that is not the case: courts are overloaded with cases with constantly decreasing personnel. 

This piece examines the functioning of courts under wartime conditions and considers how accessible justice is in embattled Ukraine. 

Courts under Martial Law 

Martial law, which was introduced in Ukraine on February 24, 2022, and has been extended several times since then, does not affect the core norms of the legal framework for the functioning of courts.

Ukrainian legislation provides that the right to access courts cannot be restricted during martial law (Article 64(2) of the constitution). Accordingly, the powers of the courts in Ukraine cannot be terminated even during martial law, and justice continues to be administered by the courts only. Also, the constitution prohibits shortening or expediting any form of judicial procedure and prohibits establishing extraordinary or special courts (the same Article 64(2)). 

After the start of the war, on March 3, 2022, the law “On the Judicial System and Status of Judges” was amended to address wartime challenges. The new provisions introduced included the norm that if a court is unable to administer justice for objective reasons during martial law or emergencies (natural disasters, hostilities, measures undertaken to combat terrorism, and the like), the territorial jurisdiction of the court may be changed. The territorial jurisdiction can be shifted to the nearest alternative court or to a court further in the rear designated by the High Council of Justice (HCJ), at the request of the president of the Supreme Court of Ukraine (SCU). If the HCJ cannot exercise its powers, the SCU president shall make the appropriate decision. 

Decrease in the Number of Working Courts

This amendment addressed the sharp decrease in the number of working courts near the front line, which had led to a drop in the efficiency of Ukrainian courts since the start of the war. 

According to a report by Pravo-Justice, in 2022, the territorial jurisdiction of 135 local and appellate courts was shifted to courts in the territories controlled by Ukraine. By September 2024, the jurisdiction of fifty-eight of those courts had been restored in the liberated lands.

Also, the judicial self-governance bodies changed the territorial jurisdiction of 169 local and appellate courts in 2022. This figure reflects more than 20 percent of all local and appellate courts in Ukraine. The Ukrainian judiciary acted quickly in this regard as it had already experienced changing court jurisdictions. Before the full-scale Russian invasion, between July 2014 and February 2022, the jurisdiction of eighty-four local and appellate courts of the Autonomous Republic of Crimea and some parts of Donetsk and Luhansk regions was changed (Pravo-Justice report, p. 9). 

Following war-related destruction and occupation, 468 judges were seconded and relocated to the rear courts as of March 2023 (Pravo-Justice report, p. 22). In 2024 the situation remained almost the same, although about fifty judges returned to Kherson region’s courts.

Safety of the Courts of Justice 

Because of shelling and electricity outages, the Ukrainian judiciary’s Unified State Register of Court Decisions (which provides lawyers and the public with information about court proceedings and decisions) may become inaccessible to court staff and the public. This was the case, for example, between February 24 and June 20, 2022. Such situations slow down court proceedings and introduce unpredictable continuations. In 2023–2024 the registry data were better protected from electricity outages, but access to the registry remains dependent on the stability of the energy system. 

At least a third of the courts introduced local rules for responding to air raid sirens. The court hearings thus prescribe that during attacks, court employees should switch off their computers and all office equipment, close their offices, and go to the nearest shelters, taking all participants in the hearings with them. Implementation of these rules, however, is problematic. In June 2023, only forty-eight shelters were available directly within the courts’ premises, which covered only 7.12 percent of all courts’ premises in Ukraine currently (Pravo-Justice report, p. 7). My interlocutors at the HCJ say that the situation did not improve much in 2024.

The Ukrainian justices discuss the possibility of introducing remote hearings and adjudication. Even though no legislation related to remote processes has been adopted so far, some courts near the front line have been operating remotely since 2022. These proceedings move the entire process to a “shadow area” judicially as there is no guarantee that all the parties to the process can have equal participation and representation (Pravo-Justice report, p. 7).

Lack of Resources for Ukrainian courts 

Because the war has reduced revenues to Ukraine’s state budget, the government does not fully finance the courts. According to available data, only 63.4 percent of courts’ expenses were covered in 2022 and 51.4 percent in 2023 (Pravo-Justice report, pp. 54–56). In 2024 the costs of justice were covered better, but reliable data will be published only in 2025.

The backlog of unresolved cases has grown considerably. Before the war, in the first-instance and appellate courts, 760,000 cases and applications (out of a total of 4,237,000 registered cases) were pending as of the end of 2021 (Pravo-Justice report, p. 55). According to the data supplied by the Supreme Court of Ukraine, in 2022–2023, pending cases reached over 40 percent of all registered cases.1

In 2020–2021, the disposition time for the first-instance courts to clear a noncriminal case was 138 days. Thus the length of court proceedings has almost tripled (pp. 11–17) since 2012. This trend chiefly owes to the lack of judges and court personnel, a deficit that has plagued the judicial system for the past decade and has only increased since the Russian invasion of Ukraine.

Currently the issue of courts’ understaffing has turned into a deeper crisis. According to available data, courts of the first and second instances lack judges. In April 2023 there were 1,903 judicial vacancies out of 6,490 judicial posts. In May 2023 the HCJ dismissed 168 judges for reason of retirement or voluntary resignation. Understaffing resulted in the impossibility of delivering justice, especially in the first-instance courts located in small towns. 

Altogether, a lack of resources has a negative impact on the quality of judicial decisions. The State Judicial Administration and the HCJ try to mitigate this problem by seconding judges to the most understaffed courts. As of May 19, 2023, secondment was necessary (Pravo-Justice report, p. 22) for the operation of twenty-three courts, but the judges consented to be seconded to only ten courts. In 2024, seven more courts needed seconded justices. 

To sum up, the ongoing war has exacerbated existing problems in the Ukrainian judicial system. Trials are increasingly protracted, while participation in them poses an existential threat to all parties, especially to defendants restricted in their freedom of movement. Because of the increasing overload of cases for the remaining justices, they have less and less opportunity to elaborate properly on the cases being heard. This in turn worsens the chances of a defendant receiving a fair trial in Ukraine. Given the harm already done to Ukraine by this war and its foreseeable protraction, the court system is unlikely to resolve its problems soon. 

Note: 

1. See the Supreme Court of Ukraine data for 2022–2023 at https://supreme.court.gov.ua/supreme/pokazniki-diyalnosti/sud_statistika/. 

The opinions expressed in this article are those solely of the author and do not reflect the views of the Kennan Institute.