The Ministry of Justice as a “Super-Regulator”: How the Draft Law Strengthens the Dependence of Private Experts on the Ministry
On Friday, the Ministry of Justice announced that it had drafted a bill introducing amendments to the Law "On Judicial Examination" aimed at unifying judicial expert activities as part of the progress under the Rule of Law Action Plan. The Ministry states that the implementation of the law will help increase the independence and quality of expert support for justice, unify regulation, and reduce the time required to conduct examinations.
However, a review of the draft law, unfortunately, suggests the opposite.
Concentration of Powers in the Ministry of Justice Instead of Creating a Single Public Policy Authority
The Rule of Law Roadmap, on the implementation of which the Ministry of Justice reports, envisages the designation of a single authority responsible for shaping state policy in the field of judicial examination. However, the draft law does not aim to institutionally separate such an authority. Instead, it seeks to strengthen the powers of the Ministry of Justice, particularly with regard to administrative control over the activities of private judicial experts.
Under the model proposed in the draft law, the Ministry of Justice concentrates the entire cycle of public authority with respect to private judicial experts (as well as, incidentally, experts working in state judicial expertisr institutions subordinate to the Ministry) — from setting the rules to imposing sanctions.
Norm-setting / regulatory role. The Ministry independently determines all conditions governing the functioning of the profession: it establishes the certification procedure; the rules for inspections of private experts; the procedure for disciplinary liability; the list of types of judicial examinations and expert specialisations; and the list of examinations that may be conducted exclusively by state specialised institutions.
Executive / supervisory role. In accordance with the rules it has established itself, the Ministry organizes and conducts certification, makes decisions on granting or revoking expert status, and carries out inspections of the activities of private experts under procedures determined by the Ministry itself. Thus, the same authority sets the requirements, interprets their content, and monitors compliance with them, without any institutional separation between the rule-making and supervisory functions.
Quasi-judicial powers. Following inspections or the consideration of complaints, the Ministry, in accordance with procedures defined by it, initiates and ensures disciplinary proceedings against experts. It determines the procedural framework, provides organizational support for the activities of the disciplinary body, and effectively influences decisions on the imposition of sanctions, including the revocation of an expert's qualification.
Taken together, this framework means that a single authority:
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establishes the rules governing access to and the practice of the profession of judicial experts;
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decides on admission to the profession;
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conducts inspections of professional activities;
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determines whether violations have occurred;
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ensures that disciplinary liability is imposed.
Such a comprehensive concentration of powers creates a situation in which private judicial experts are placed in complete regulatory, administrative, and disciplinary dependence on a single authority, without structural safeguards to prevent conflicts of roles and without institutional separation between the regulator, the supervisory authority, and the body responsible for imposing sanctions. This institutional design does not incorporate any internal mechanisms of checks and balances.
Even where mechanisms exist for judicial review of unlawful decisions of the Ministry of Justice and its disciplinary body, a framework in which the Ministry exercises decisive influence both over the regulatory criteria and over the application of sanctions increases the risk of systemic bias in administrative proceedings. In the European tradition of good governance, such risks are expected to be mitigated through preventive institutional safeguards — particularly the separation of regulatory, supervisory, and disciplinary functions — rather than relying solely on the possibility of subsequent judicial review.
Moreover, even in the absence of proven instances of abuse, the institutional model for regulating the activities of private judicial experts proposed by the Ministry of Justice may itself give rise to reasonable doubts regarding impartiality and may fall short of standards of institutional independence. In European legal practice, such independence is understood as a structural — rather than merely procedural — guarantee of impartiality and objectivity in administrative decision-making.
Legalizing the Ministry's Authority to Define "State-Exclusive" Types of Judicial Examinations
In practice, the existing model therefore remains unchanged. The list of forensic examinations reserved exclusively for state experts is already determined by a subordinate regulation of the Ministry of Justice (Instruction No. 53/5). This list has been consistently expanded by the Ministry in 2012, 2015, and 2019, without any changes to the legislative criteria governing such restrictions. As a consequence, it currently includes a number of examinations which, by their nature, fall not within criminalistics but rather within the fields of chemistry or engineering and technical expertise (for example, examinations of food products, pesticides, special chemical substances, technogenic explosions, etc.).
Further entrenching the Ministry's discretionary authority to define the list of "state-exclusive" judicial expertise effectively preserves this regulatory practice and does not ensure the meaningful implementation of the objectives set out in the Roadmap.
Entrenching the Ministry's Unrestricted Discretion in Supervising Private Judicial Experts
The draft law provides that "oversight of compliance with legislation governing judicial expert activities by judicial experts who are not employees of state specialised institutions shall be carried out by the Ministry of Justice of Ukraine in accordance with a procedure determined by the Ministry."
At the same time, the draft law does not establish:
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an exhaustive list of grounds for inspections of private judicial experts;
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clear criteria for assessing compliance of their activities with legal requirements;
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defined procedural safeguards for the inspected party;
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mechanisms to prevent selective or arbitrary application of supervisory measures.
As a result, the Ministry effectively grants itself broad and largely unrestricted discretion in interpreting whether the conditions of professional activity of private experts are adequate and in determining when and how supervisory intervention may take place.
Such a regulatory model creates a significant risk of disproportionate interference with the professional freedom of private judicial experts, selective pressure, and the use of inspections as an instrument of administrative influence. Since such individual inspections are envisaged only for private experts, the model also raises concerns regarding compliance with the principle of equal conditions for the exercise of professional activities.
Circumventing the Safeguards of Regulatory Policy Legislation in the Sphere of Economic Activity
The draft law proposes to establish that "oversight of compliance with legislation governing judicial expert activities shall not constitute supervision carried out in the sphere of economic activity." In effect, this provision would allow the Ministry of Justice to exempt itself from the requirements of the Law of Ukraine "On the Principles of State Regulatory Policy in the Sphere of Economic Activity" and to bypass the safeguards established by that legislation against the abuse of regulatory powers when adopting regulations governing inspections of private judicial experts and when conducting such inspections.
However, the subject matter of inspections conducted by the Ministry with respect to private experts exhibits all the defining characteristics of supervision of economic activity.
Private judicial experts carry out their professional activities on a paid and systematic basis with the aim of generating income. They operate as individual entrepreneurs, self-employed professionals, or through legal entities (in which case the legal entity is responsible for the material and organisational support of their activities). These characteristics correspond to the defining features of economic activity.
Under the current regulatory framework, inspections of private experts focus, inter alia, on the organisational and material-technical conditions under which professional activities are conducted. This includes the adequacy of the material and technical infrastructure (premises, the expert's workplace, safes, instrumental equipment, specialised tools, methodological literature, etc.) as well as the quality of document management procedures (including the existence of a register of examinations, the retention of duplicate copies of expert opinions and expert reports in supervisory files, and the consistency of their registration in official logs).
These elements correspond to the concept of state supervision within the meaning of the Law of Ukraine "On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity."
Where an inspection is conducted outside the context of a specific judicial proceeding, has a systemic character, and may lead to restrictions on the right to conduct professional activities, it bears the characteristics of state supervision in the sphere of economic activity, regardless of the fact that it may simultaneously relate to the oversight of professional conduct.
Accordingly, when inspecting private judicial experts, the Ministry of Justice remains obliged to comply with the Law "On the Principles of State Regulatory Policy in the Sphere of Economic Activity."
Attempting to avoid the application of procedures established by regulatory legislation by formally defining such inspections as ones that "do not constitute supervision of economic activity" creates a significant risk of systemic violations of the principles of transparency, predictability, and proportionality in the regulation of the activities of private judicial experts.
Expanding Administrative Control over Methods and Methodologies Used in Judicial Examinations
The current version of the Law of Ukraine "On Judidical Expertise" does not contain a direct requirement that every methodology must undergo certification and state registration. Although the Ministry of Justice maintains a register of methodologies in practice, the law itself does not establish an imperative rule requiring mandatory state registration as a precondition for their application.
The draft law introduces provisions stating that:
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"The system of methods applied in the course of a sequence of actions performed by a judicial expert in order to resolve a specific expert task is contained in judicial examination methodologies — recognised results of scientific work in accordance with the requirements of legislation."
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"Methodologies for conducting judicial examinations that constitute the results of scientific work (except for judicial medical and judicial psychiatric methodologies) shall be subject to certification and state registration in accordance with a procedure determined by the Cabinet of Ministers of Ukraine. Information on such methodologies shall be included in the Register of Judicial Examination Methodologies."
In effect, the state significantly expands its authority to determine which methodologies are considered "acceptable." Any method not included in the register may potentially be regarded as improper. As a consequence, the use of new scientific approaches without prior registration would become practically impossible.
This approach differs markedly from the prevailing European model. In EU Member States, there is no state register of Judicial expertise methodologies and no governmental procedure for the formal "recognition" of scientific methods. Introducing a legal requirement that research methods must be formally recognised under legislation, combined with mandatory state registration of methodologies, represents a further shift away from a professional model of regulation toward an administrative licensing framework.
Methodologies are the result of scientific activity. While the state may establish general quality standards, it should not exercise discretionary licensing control over scientific approaches.
Structural Conflict of Interest: The "Regulator–Operator" Problem
Under the draft law (as under the current regulatory framework), the Ministry of Justice simultaneously establishes the rules governing judicial expert activities, exercises administrative authority over state judicial expertise institutions, and supervises private judicial experts. This creates a classic "regulator–operator conflict": the authority that defines the regulatory framework is simultaneously interested in the competitive position of the institutions operating under its control.
In such a configuration, a structural conflict of interest arises, accompanied by the risk of unequal competitive conditions and the absence of sufficient guarantees of impartial oversight of judicial experts' activities.
State judicial expertise institutions are subordinate to the Ministry of Justice and operate within the same segment of professional services as private experts.
From the perspective of economic regulation:
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state institutions are financed from the public budget;
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private experts operate at their own financial risk;
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the rules governing access to the profession for private experts are established by the authority that manages their competitors — the state judicial expertiseinstitutions.
Under these circumstances, the authority responsible for setting the rules governing access to the market and exercising supervision simultaneously manages participants in that same market.
In EU competition policy, the principle of competitive neutrality requires that the state should not create advantages for its own entities through regulatory mechanisms.
Although judicial expertise is not a classical market for goods, it nevertheless constitutes a market for professional services in which parties to proceedings have the right to choose an expert.
In the absence of institutional separation between the function of shaping state policy, the management of state judicial expertise institutions, and the supervision of private experts, neither equal conditions for professional activity nor adequate guarantees of regulatory impartiality can be ensured.
Preserving Departmental Regulation of the Procedures for Conducting Judicial Expert Examinations
The Rule of Law Roadmap calls for the designation of a single authority responsible for shaping state policy in the field of judicial expertise and for the introduction of a unified procedure for conducting judicial expert examinations. The Ministry of Justice reports that these objectives have been achieved.
However, the draft law does not provide for a revision of the current model for the distribution of powers in the governance of judicial expert institutions. Instead, it effectively preserves the existing balance of authority among different governmental bodies.
Ministries and other state authorities would continue to retain their own regulatory and administrative functions with respect to the judicial expert institutions subordinate to them, indicating that there is no intention to establish a single centre responsible for shaping and implementing state policy in this field. As stated in the proposed amendments to Article 8 of the Law:
"Ministries and other state authorities within whose administrative sphere state specialised institutions operate shall, within their competence, ensure departmental regulatory oversight of the conduct of judicial expert examinations in such institutions in accordance with this Law, as well as address other matters provided for by this and other laws."
Maintaining an extensive system of departmental regulation governing the procedures for conducting judicial expert examinations undermines the principle of legal certainty and perpetuates the existence of multiple regulatory regimes. As a result, it becomes impossible to ensure a single, predictable, and consistently applied standard for the conduct of judicial expert activities.
This approach also preserves the dependence of the expert community on the executive branch and creates the risk of divergent standards of requirements and supervision. Such fragmentation may undermine the guarantees of impartiality in judicial expert activities as an element of ensuring the right to a fair trial.
Increasing Risks to the Guarantees of a Fair Trial
Judicial examination constitutes an integral element of the evidentiary process. An expert opinion may directly affect the realization of the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights. Where an executive authority exercises indirect influence over the expert community, questions arise as to compliance with fair trial standards.
If all rules governing expert activities are established by the executive branch, while the same authority supervises the substantive aspects of their professional activities and simultaneously manages competing state judicial expert institutions, a systemic risk emerges of executive influence over the evidentiary process.
Even the potential possibility of such influence may undermine confidence in the independence of the expert community and in the adversarial nature of judicial proceedings.
An expert must be independent not only from the parties to a dispute, but also from the authority that has the power to define the boundaries of the expert's professional activity, initiate inspections, and trigger disciplinary proceedings.
Conclusions
The model proposed by the draft law, which further concentrates regulatory powers within the Ministry of Justice of Ukraine, creates a structural conflict of interest and does not comply with the principles of the rule of law, equality of economic actors, requirements of institutional independence, or the standards safeguarding the right to a fair trial.
In the absence of functional separation of powers and appropriate legislative safeguards, such a framework does not provide sufficient protection against potential abuse and risks undermining public confidence in judicial expertise as an independent component of the justice system.
In light of these concerns, the proposed provisions require substantial revision in order to preserve the independence of judicial experts, ensure alignment with the European model of regulation, and prevent excessive concentration of regulatory powers.