Sole judge or panel? Criteria for determining the composition of the court must be specified in the law

When court rules depend not on the law but on human discretion, this creates room for legal uncertainty. The limits of judicial discretion have once again come into focus following the emergence of a legislative initiative that changes the approaches to the activities of judges of the High Anti-Corruption Court.

The UNBA Committee on anti-corruption policy and compliance analyzed draft law No. 14033 of 11.09.2025 «On amendments to the Civil procedure code of Ukraine and the Code of administrative procedure of Ukraine regarding the improvement of the procedure for considering cases by the High Anti-Corruption Court».

Today, in accordance with paragraph 2 of Article 1 of Article 34 of the Civil procedure code, cases concerning the recognition of assets as unfounded and their recovery as state revenue are considered collegially by the High Anti-Corruption Court, composed of three judges. The draft proposes to amend this provision by stipulating that, depending on their complexity, such cases shall be considered by a single judge of the High Anti-Corruption Court or by a panel of three judges.

The UNBA warned that such a structure effectively leaves the decision on the composition of the court to the subjective discretion of a particular judge. This is because the draft does not define any criteria for distinguishing cases according to their complexity. Nor does it provide for procedural mechanisms to determine who, at what stage of the proceedings, and on what grounds should decide whether a case will be heard by a single judge or a panel of judges.

At the same time, the absence of clear legislative guidelines on such issues may reinforce the tendency to expand judicial discretion, which is already observed in the practice of the High Council of Justice and has negative consequences in the form of an imbalance in judicial practice and human rights violations. Examples include the exception that has become the rule of setting bail above the upper limit specified in Article 182 of the CPC, as well as the «discrepancy» in approaches to issuing decisions on the authorization of operational-investigative measures and covert investigative actions.

That is why advocates propose to revise the draft law, providing for the following:

• clear criteria for distinguishing cases according to their complexity;
• a specific distribution of cases depending on their degree of complexity — which of them are subject to a panel of judges and which can be considered by a single judge;
• determination of the stage of court proceedings at which the complexity of the case is decided, and the algorithm of actions to be taken by the judge in case of such circumstances.

These comments and proposals of the UNBA to draft law No. 14033 have been sent to the Verkhovna Rada Committee on legal policy.