In September 2024 the project “The Dynamics of the Judiciary in Ukraine in the Context of the Rule of Law and the EU Accession Aspirations” commenced. The project is hosted by the British Institute of International and Comparative Law (BIICL) and is funded by the British Academy. This written interview with researchers involved in the project, conducted by Oliver Garner, editor of Review of Democracy, outlines its objectives, scope, and aspirations.
This interview appears simultaneously at Visible Ukraine and at the Review of Democracy.
Oliver Garner
Your project will engage in a critical legal study of Ukraine’s judicial system from 1991 to the present. What have been the main challenges in the Rule of Law areas of judicial reforms, independence of the judiciary, anti-corruption, efficiency, and accountability, and European harmonisation during that period?
Prof. Tetyana Antsupova
To start the conversation about the evolution of Ukraine’s judicial system we should keep in mind that, from 1991 to the present day, an eternity has passed in the Ukrainian temporal dimension. The speed of life in a rapidly developing young democratic state differs from that in established democracies. In terms of forming a national identity and a conscious civilizational choice, Ukraine moved from the criminal 1990s to the Revolution of Dignity in 2014—a tectonic shift. Since 2014 the speed of our journey towards the European Union has doubled.
Along this journey there were both scoundrels and heroes. However, the Ukrainian people generally worked hard in building the nation and learned much about their multilayered self-identity and national identity. I share the idea that, if the Ukrainian elite had not been systematically destroyed during Soviet times, we would have a completely different intellectual weight in modern Ukraine.
The primary challenge for the new democratic state was to avoid being trapped in the past and bound by the value system of our aggressive neighbor, and instead to move forward by breaking away from the Soviet governance model to build independent external and internal policies.
This challenge equally applies to the Ukrainian judicial system. I support the statement that a judge should be open-minded, able to reflect and learn from other perspectives, and adapt quickly to changes. These qualities are completely opposite to what was taught in the Soviet legal schools and in practice.
For instance, the reform of legal education and enhancing the training system for judges remain central topics of discussion in Ukraine. Legal writing courses have never been part of university curricula, yet I believe this skill is crucial for future judges. Most judges in Ukraine have never studied EU or Council of Europe (CoE) law, and their exposure to international law has been very limited. For many of them, national law is regarded as the ultimate authority. A recent BIICL report (with my own humble contribution) recommended introducing a foreign language proficiency program, given that only a small number of Ukrainian judges are fluent in foreign languages. While the variety and accessibility of different training programs and opportunities for self-education can help address this gap, a more systematic approach is still required. In any case, there is no one-size-fits-all answer, and substantial criteria are more important than formal ones if the question is what makes a good judge.
Against such a background, all three branches of state power in Ukraine are still learning what judicial independence is. What does a fair and impartial judiciary mean? We are still refining and polishing our understanding of the principle of the separation and balance of powers. Ukraine stumbled several times, as the European Court of Human Rights (ECtHR) has pointed out in its judgments (and the Venice Commission (VC) in its opinions) that our judicial reforms have been inconsistent and non-systemic. First, the inconsistent approach, including all kinds of experiments, affected the independence of the judiciary. But we learned lessons and kept moving forward.
Unfortunately, several corruption cases within the Ukrainian judiciary can overshadow the positive efforts of thousands of other system representatives.
Nowadays, we have reached a new level of complexity—ensuring democracy, the Rule of Law, and human rights in wartime conditions. Ukraine must demonstrate that all of its state institutions are capable of upholding these values.
On 25 June 2024, the first Intergovernmental Conference between Ukraine and the EU took place in Luxembourg, marking the start of actual negotiations on Ukraine’s membership in the European Union. The first issue that is being “examined” is the judiciary because the very first negotiation chapters with the EU are Chapter 23: “Rule of Law and Fundamental Rights,” and Chapter 24: “Justice, Freedom, and Security,” which belong to the cluster of “Fundamentals.” Chapter 23 covers EU law and policies in the areas of an independent and effective judiciary, prevention of and the fight against corruption as a threat to the stability of democratic institutions and the Rule of Law, and fundamental rights and freedoms guaranteed by the EU treaties and the EU Charter of Fundamental Rights. Thus, the judiciary is assessed first in terms of its capacity and readiness to join the EU legal system. Our project has an ambitious aim to contribute to this capacity building of the Ukrainian judiciary.
Oliver Garner
Your project’s research summary indicates the objective to “contribute to judicial reform efforts in Ukraine and alignment with EU and Council of Europe” standards. With the incredibly challenging background context of an ongoing war, how likely do you believe it will be that these objectives can be achieved in the next decades? And what will be the main obstacles to achieving these goals?
Prof. Tetyana Antsupova
The conclusions of various Council of Europe institutions have greatly shaped our legal consciousness during almost 30 years of membership. Membership of the CoE has become a true “school of democracy” for Ukraine.
Dr. Sergii Koziakov
The work of the Council of Europe and its institutions, such as the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE), and the Group of States against Corruption (GRECO), on developing and strengthening the principle of good governance in the judiciary has been and remains very useful to us. We are closely following the conclusions of the Venice Commission regarding Ukraine and other Member States of the Council of Europe.
The European Commission Rule of Law Report has been exciting in recent years. It is published annually and contains a whole goldmine of information on both positive and negative changes in all EU Member States—and for the first time the four candidate countries of Albania, Montenegro, North Macedonia, and Serbia—in four critical areas of the Rule of Law: the justice system, the anti-corruption system, pluralism and freedom of the media, and other institutional issues.
I think that the ongoing war will be the main obstacle to the continuation of judicial reform. As mentioned by the members of the Ukrainian delegation during the second bilateral EU-Ukraine “screening” in Brussels, 142 premises of courts, bodies, and institutions of the judicial system were destroyed to varying degrees, up to the destruction and theft of property, due to the hostilities. Representatives of the judiciary, namely 54 judges and 389 court employees, have also come to the state’s defense. Since the introduction of martial law in Ukraine, four judges and 15 court employees have been killed as a result of armed aggression, and 165 courts have changed their territorial jurisdiction.
There may also be problems with communication between the executive and judicial branches and psychological burnout of judges, including from some long-running reform measures.
According to official information, a draft Strategy for the Development of the Judiciary and Constitutional Justice for 2024-2029 has been developed by President Zelensky’s office. The Draft envisages further reform of the judicial system, improvement of the functioning of the prosecutor’s office, improvement of the legal profession, reform to legal education, and development of constitutional justice. The Draft has been sent to all the key institutions of the judiciary for discussion and proposals.
Oliver Garner
Your geographical focus includes EU members and candidate states, with specific attention to other Eastern European and Balkan candidate countries. Poland is currently undergoing a “Rule of Law restoration” process. Can the Ukrainian judiciary learn lessons from this process, and vice versa? And could such insights be utilised to address potential backsliding in other candidates and EU Member States, such as Slovakia?
Dr. Sergii Koziakov
We pay special attention to candidate states because we need to observe their movement towards full membership, taking into account real results particularly in judicial reform.
Around 2018, I was surprised to learn that judicial reforms in the Western Balkans did not only have some positive results, but were also adversely affected by the politicization of the judiciary, undue influences, and judicial corruption. Another critical challenge in the Western Balkans was the failure of political elites to commit to implementing the Rule of Law standards.
However, we have also closely monitored the situation in other non-European countries. For example, on the eve of the first open competition to the new Supreme Court, at our request one of the technical assistance projects prepared an analytical report on the selection procedures for high courts in 45 states in Europe and the rest of the world. We did the same on the eve of competitions to the High Court for Intellectual Property and the High Anti-Corruption Court. We were interested not only in success stories but also in the problems that arose during the implementation of these projects.
We have closely monitored justice reforms in other countries, including neighboring Poland, Hungary, Slovakia, Romania, Latvia, Lithuania, Estonia, Georgia, and Moldova. It has been deeply disappointing to witness backsliding away from reforms, especially in areas where we had seen promising progress.
Prof. Tetyana Antsupova
In particular, news from Poland in 2015 about the Constitutional Tribunal crisis was painful in many senses. As far as I am a visiting professor at one of the Polish universities, and I have many friends in Poland, I know how hopeless and helpless intelligent Polish people felt at that time. I had an empathy for them.
It is so easy to degrade and fail democracy and the Rule of Law and yet it is so difficult to restore them, considering that this cannot be done in a revolutionary manner and a new political power cannot fix the system using the same methods as their predecessors.
For instance, the Minister for Justice of Poland Adam Bodnar (in his recent lecture to the CEU Democracy Institute) mentioned a new approach that is supposed to “re-establish the self-governance of the judiciary and limit the power of politicians.” The Minister outlined a “new practice of inviting courts to nominate 2 or 3 candidates for selection as court presidents from whom the Minister then chooses, rather than simply appointing his preferred individual.” While the move is seen as progressive, I still find that it falls short of the standards for judicial independence. This example shows how small the steps can be toward the restoration of the Rule of Law. Next year’s Presidential election in Poland could change the whole picture.
The lesson learned is that we should work on strengthening the institutional capacity that will restrain the influence of politicians. In an ideal world, institutional memory ensures that stability and constitutional continuity should prevail over the political will.
The European Union has been faced with explicit threats to judicial independence in backsliding Member States since 2015 when the Law and Justice Party came to power in Poland. Insidious forms of undermining the Hungarian judiciary had already been occurring since Fidesz and Viktor Orbán came back to power in the country in 2010.
Certain academics have pointed the finger back at the Court of Justice of the European Union (CJEU) itself. They accuse the CJEU of failing to live up to Rule of Law standards. Your project raises the possibility of “accession through war” giving “a new impulse for strengthening and consolidating pan-European values and commitments and therefore security and resilience of democratic institutions.”
Oliver Garner
What role do you believe Ukraine’s government and its judiciary could play as a new Member State, both in relation to the Court of Justice through mechanisms such as the preliminary reference, but also within the network of Member State judiciaries?
Prof. Tetyana Antsupova
Explicit threats to judicial independence show how desirable it is for politicians to establish control over the judiciary. The reason for this is that the judiciary is the last bastion of democracy and the Rule of Law when the others have collapsed.
In my view, the Ukrainian judiciary can be an inspiring example for our European partners. In many ways, it has achieved significant progress. Ukraine has established the most advanced and transparent qualification procedures for judges in Europe, with appointments adhering to the principle of separation of powers by being free from interference by other branches of state power. Civil society is directly involved in the qualification procedures for judges through the Public Integrity Council in order to ensure a high level of transparency. There are no delays in reviewing judgments after the ECtHR identifies violations of the ECHR, as these can be addressed through the reopening of national court procedures.
The Ukrainian judiciary has shown remarkable dedication, ensuring access to justice and improving the digitalization of justice, even during wartime. Likewise, other public officials and civil servants continue to serve with integrity.
Ukraine is an active member of the European Commission for the Efficiency of Justice (CEPEJ) and the Consultative Council of European Judges (CCJE).
Last year, Ukraine received observer status in the European Network of Councils for the Judiciary (ENCJ). Consolidation within the European networks for judiciaries was an incredible achievement in the face of the full-scale invasion of Russia into Ukraine. The Ukrainian tragedy shows that the acquisition of democracy cannot be taken for granted. Hopefully, it will make all Europeans reassured in their values and keep them united.
One of the issues I see is that Ukraine needs lots of qualified human resources to ensure our active role in European integration and cooperation. Considering the significant “brain drain” from Ukraine for the last two and a half years, the involvement of those who are externally displaced would be needed. I believe in diplomacy by both people and experts, unofficially, and by professionals officially. Sometimes the former may be even more effective than the latter.
It is hard to say at present how actively Ukraine will use the preliminary reference procedure as a Member State. Courts from non-EU states may not submit preliminary references to the CJEU, even if they are candidate states and even if they need to apply EU law (Andersson, C-321/97). From my own experience, this needs a certain level of judicial activism (which I will always encourage). The Ukrainian judges should share in the idea of preliminary references as such and be confident in their capability to uphold the judicial dialogue between national courts and the CJEU. I believe that this is mutually helpful at the national and supranational levels and develops the interpretative practice of the CJEU.
Reflecting on the similar procedure of the ECtHR, Ukrainian “high courts” (using the terminology of the Protocol) have never requested the Advisory Opinion of the ECtHR under Protocol 16 to the Convention.
On the topic of the CJEU failing to live up to Rule of Law standards in the context of the Sharpston case, I would only say that the legal nature of the EU is complicated and unique. However, the supranationality of its institutions should be interpreted through the EU’s primary law and the absolute certainty that the CJEU is independent from the other EU institutions, on the one hand, and the Member States, on the other.
The project vision statement outlines that “engaging the public” is one of the pillars of “building a judiciary that inspires public trust, upholds democratic values, and advances Ukraine’s integration into the European community.”
Oliver Garner
What lessons can be learned from the failure of such processes of democratic and legal consolidation in certain 2004 accession Member States to ensure that such backsliding does not happen in Ukraine?
Dr. Sergii Koziakov
Ukraine is among the leading states in terms of public involvement in judicial reform.
As mentioned above, in Ukraine civil society is directly involved in HR procedures through the Public Integrity Council. At the same time, international experts are members of competition commissions during the selection of members of the High Council of Justiciary (HCJ), the High Qualification Commission of Judges of Ukraine (HQCJ), the Service of Disciplinary Inspectors of the HCJ, and the judges of the Constitutional Court of Ukraine.
Almost all information on judges and candidates for judicial positions is open (except for personal data). Such information includes the dossiers of a judge or a candidate for the position of a judge, including information on his/her professional activities, declarations of integrity, and declarations of family ties (which were published on the website of the HQCJ), and materials of the Anti-Corruption Bureau of Ukraine. Also, the website of the National Agency for the Prevention of Corruption publishes declarations of persons authorized to perform state or local self-government functions. All judges also submit these declarations. The average number of pages in a judge’s dossier is 200-250.
All personnel procedures for judges and candidates for the position of judge are broadcast live, and remain available, on YouTube. This also applies to almost all meetings that relate to disciplinary procedures.
Many court hearings are broadcast live on YouTube, including during the war. Thus, the High Anti-Corruption Court’s YouTube channel catalogues more than 2000 sessions of this court.
The Judiciary web portal offers live broadcasts and an archive of videos from other courts’ sessions.
Thus, the public, using this unrestricted amount of information, has the opportunity to influence the course of judicial reform through institutional capabilities.
They can also influence the process by, for example, providing the HQCJ with important information about a judge during the qualification assessment or by filing a disciplinary complaint with the High Council of Judiciary.
In many cases, misunderstandings between NGOs and judicial governance bodies can escalate into conflicts. Thus, due to disagreements regarding the understanding of some of the evaluation results of the judges’ activity, the Public Integrity Council (PIC) announced its “withdrawal from the procedure” of evaluation. However, after some time, the members of the PIC returned to their functions. It is important to note that such conflicts have never been observed in relations with international experts working in personnel procedures.
In the second half of 2024 a momentous event took place. A coalition of NGOs—the Agency for Legislative Initiatives, Transparency International Ukraine, the ZMINA Human Rights Center, Tomorrow’s Lawyer, and the Ukrainian Bar Association—published the final version of the Shadow Report to Chapter 23 on “Justice and Fundamental Rights” of the European Commission’s Report on Ukraine for 2023.
This is the first report on Ukraine’s public sector submitted to the European Commission after the country became a candidate for EU membership. The experts covered the period of June 2023-August 2024. The Report contains a detailed analysis of judicial reform: its current state, problems, and prospects; issues of institutional capacity and competitive selection for the central bodies of the judiciary; the state of the judiciary’s independence; financing of the judiciary; digitalization of justice; the fight against corruption in the judiciary; and enforcement of court decisions.
Speaking about the backsliding and lessons for Ukraine, I would refer to the book The Revolution Betrayed, in which the famous communist revolutionary Leon Trotsky wrote: “…every revolution up to now has caused a reaction or even a counter-revolution, which, however, has never thrown the nation back completely to its starting point…”.
Unfortunately, this reaction often happens with judicial reforms and combating corruption. In Europe, we can observe this in Poland, Hungary, Slovakia, and Romania. We observed it in Ukraine recently, when the functions of the High Qualification Commission of Judges of Ukraine were suspended for almost four years, and the High Council of Judiciary for a year. The disciplinary procedure of the HCJ was also suspended for two years. Thus, the most precious thing was lost—time that could have been used to continue successful reforms and to correct mistakes, if there were any. The reasons are the same as in other states: the politicization of judicial reform, attempts to subordinate the judiciary to the executive branch, the opposition of corrupt officials, and even revenge by those candidates for judicial positions who did not win open competitions. It is also necessary to mention reasons such as interference in official decision-making by some radical representatives of civil society.
The war somewhat neutralized the outbreak of such measures on the part of the executive branch.
It is possible that, after adopting the new strategy, we can cautiously hope for stable progress on the path of judicial reform according to the standards of the Council of Europe and the fulfilment of the conditions for joining the EU.
Prof. Tetyana Antsupova
I would like to conclude by pointing out my firm belief that the Ukrainian judiciary, like any other European judiciary, should have the capacity to initiate, develop, and discuss its own strategy independently, while actively engaging with key stakeholders. In my view, other branches or representatives of state power should not be responsible for formulating this strategy, but they should participate in the Action Plan and discussions to help ensure its successful implementation.