Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 10/10/2021 Aceptado el 27/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Vol. 40, Nº 72 (2022), 474-497
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Justice as a condition for implementing
Ukraine’s European integration course
DOI: https://doi.org/10.46398/cuestpol.4072.27
Tetiana Kulyk *
Serhii Khaliuk **
Sokh Kateryna ***
Albina Tsiatkovska ****
Abstract
Using the dialectical and documentary method, the article
analyzes the state of implementation of the strategic priority of
reforming Ukraine’s judicial system. It demonstrated that, under
the current conditions for Ukraine, European integration is
a key priority of the state’s foreign policy. Issues hindering the
successful implementation of Ukraine’s strategic course towards
European integration were identied, such as: Ukraine requires a
comprehensive renewal of three bodies: the bar association, the
law enforcement system, and the courts themselves. The conditions for the
eective administration of justice have also been determined: updating of
the High Council of Justice and the High Qualication Commission with
the participation of international experts; creation of a new court to replace
the Kiev District Court of Appeal, which will consider key decisions of state
bodies; ensure the fair composition of the Constitutional Court; Building
public condence in the judicial and police system. It is concluded that it
is important in the process of reform of the Superior Council of Justice to
nd a compromise between non-interference in the activities of this body,
its components, and to guarantee the transparency and eectiveness of its
decisions.
Keywords: justice; judicial reform; European integration; independence
of judges; Superior Council of Justice.
* Candidate of legal sciences, Associate Professor, Associate Professor of Constitutional Law and Human
Rights of the National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0001-7338-8366
** Candidate of legal sciences, Associate Professor, Associate Professor of Constitutional Law and Human
Rights of the National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0003-1338-5117
*** Candidate of legal sciences, Associate Professor, Associate Professor of Constitutional Law and Human
Rights of the National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0002-3283-1154
**** PhD, Assistant Professor at the Department of European and International law of the State University
«Kyiv National Economic University named after Vadym Hetman», Kyiv, Ukraine. ORСID ID: https://
orcid.org/0000-0003-4621-1594
475
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 474-497
La justicia como condición para implementar el curso
de integración europea de Ucrania
Resumen
Mediante el método dialectico y documental el artículo analiza el
estado de implementación de la prioridad estratégica de reformar el
sistema judicial de Ucrania. Demostró que, en las condiciones actuales
para Ucrania, la integración europea es una prioridad clave de la política
exterior del estado. Se identicaron las problemáticas que obstaculizan
la implementación exitosa del curso estratégico de Ucrania hacia la
integración europea, tales como: Ucrania requiere una renovación integral
de tres órganos: el colegio de abogados, el sistema de aplicación de la ley y
los propios tribunales. También se han determinado las condiciones para
la administración efectiva de justicia: actualización del Consejo Superior
de Justicia y la Comisión de Alta Cualicación con la participación de
expertos internacionales; creación de un nuevo tribunal para reemplazar
al Tribunal de Apelación de Distrito de Kiev, que considerará las decisiones
clave de los órganos estatales; asegurar la composición justa del Tribunal
Constitucional; Fomento de la conanza pública en el sistema judicial y
policial. Se concluye que es importante en el proceso de reforma del Consejo
Superior de Justicia encontrar un compromiso entre la no injerencia en las
actividades de este órgano, sus componentes, y garantizar la transparencia
y ecacia de sus decisiones.
Palabras clave: justicia; reforma judicial; integración europea;
independencia de los jueces; Consejo Superior de
Justicia.
Introduction
The democratic development of Ukraine and its political system
presupposes the formation of an established and coordinated system of
political and legal mechanisms and procedures for the realization of human
and civil rights and freedoms. The development of a democratic state
governed by the rule of law requires, rstly, the implementation of the rule
of law, when the main activity of the state is aimed at ensuring conditions
for eective implementation of human, civil rights, and freedoms, including
guaranteed access to justice. Slobodyanik, 2015). The proclamation by
the Constitution of Ukraine of the principle of separation of state power
into legislative, executive, and judicial should promote, inter alia, the
strengthening of guarantees of the independence of judges.
476
Tetiana Kulyk, Serhii Khaliuk, Sokh Kateryna y Albina Tsiatkovska
Justice as a condition for implementing Ukraine’s European integration course
Seven years ago, Ukraine and the European Union signed an Association
Agreement, which established Ukraine’s course of integration with the
European Union. Since then, Ukraine has been trying to introduce European
standards in almost all spheres of life. Currently, Ukraine is undergoing the
most dicult test for unity and territorial integrity, for the implementation
of several reforms that will meet European standards (Sereda, 2017). A
separate area of improving the constitutional and legal reform in Ukraine
based on the experience of the European Union is the improvement of the
constitutional principles of justice, or judicial and legal reform.
There is no doubt that judicial reform must have a legal settlement and
a scientic basis that would further ensure the rights of the individual to a
fair, independent and impartial tribunal. Work has long continued to reform
the judiciary, law enforcement and the improvement of criminal justice,
working with experts from the Council of Europe, the Venice Commission,
the Organization for Security and Cooperation and the European Union.
A number of legislative acts aimed at improving the judicial system and
administration of justice were adopted, in particular, the Laws of Ukraine:
“On Amendments to Certain Laws of Ukraine (Regarding Certain Issues
of the Judiciary and the Status of Judges)” of 2 February 2014 № 769
parliamentary control over the appointment, election, dismissal of judges,
bringing them to justice; “On Amendments to the Code of Administrative
Procedure of Ukraine regarding the jurisdiction of the Supreme Court
of Ukraine” of March 14, 2014. № 887, which determines the legal and
organizational basis for review by the Supreme Court of decisions of the
Supreme Administrative Court; “On Restoration of Condence in the
Judicial System of Ukraine” of April 8, 2014 №1188, which determines the
legal and organizational principles of attestation and lustration inspection
of judges of courts of general jurisdiction; “On Amendments to the
Constitution of Ukraine (Regarding Justice)” of June 2, 2016 №1401-VIII
and “On the Judiciary and the Status of Judges” of June 2, 2016 №1402-
VIII.
At the same time, noted that since 2014, the situation, despite certain
steps to reform the judiciary, has not changed dramatically. Evidence of
this is the results of opinion polls. Thus, the Razumkov Center published
“Citizens’ assessment of the situation in the country, the level of trust in
social institutions and politicians, electoral orientations of citizens” proves
that 42.5% do not trust the courts (the judiciary as a whole), but rather do
not trust 32.9% of respondents, instead, 12.1% rather trust, and only 2.2%
fully trust. The balance of trust / distrust is – 61.1% (Citizens’ assessment
of the situation in the country, the level of trust in social institutions and
politicians, electoral orientations of citizens).
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1. Methodology of the study
To obtain the most reliable scientic results, the article uses a number
of philosophical, general scientic, special scientic approaches, methods
and principles of scientic knowledge, which allowed to cover the chosen
subject systematically, to reveal and analyze the main components of the
problem. Crucial to the methodology of studying judicial reform as a basis
for integration into the European Union is a common dialectical approach,
which allowed to comprehensively and comprehensively outline the
features of justice in Ukraine, to form a doctrine of judicial reform.
To understand the modern justice system of Ukraine, a historical
approach was used, which is a general method of research that proceeds
from the historical paradigm and factors (political, economic, social,
cultural, etc.) inuencing social development, and helps to track such
inuences in time. and analyze its evolution. This approach is also crucial in
studying the genesis of judicial reform. The application of the comparative
method contributed to the study of foreign experience in the functioning of
analogues of the High Council of Justice of Ukraine.
The prognostic method was used to identify areas for improvement of
judicial reform in Ukraine. The method of objectivity allowed to establish
the reliability and completeness of the information used in the study. The
use of the hermeneutic method contributed to the study of the content
of doctrinal sources, which formed the most important theoretical and
methodological achievements of scientists on the subject of research.
Methods such as induction and deduction made it possible to form an
introduction, intermediate and general conclusions.
2. Analysis of recent research
The analysis of scientic research on the constitutional and legal reform
and integration of Ukraine into the European Union is carried out in
various elds of science, the problem of European integration of Ukraine
is and remains the subject of constant research. The problem of legal
transformations in the European integration process, as well as international
legal aspects of constitutional legislation is reected in the scientic works
of such lawyers as I. Bezzub (Bezzub, 2021), O. Holovatsky (Holovatsky,
2021), I. Mishchak (Mishchak, 2021), V. Pogorilko, V. Fedorenko,
(Pogorilko, Fedorenko, 2006), T. Sereda (Sereda, 2017), N. Slobodyanyk
(Slobodyanyk, 2015), S. Shelest (Shelest, 2021), A. Yakovlev (Yakovlev,
2009) and others.
Despite signicant scientic achievements, the key issues of judicial
reform in the implementation of Ukraine’s European integration course
478
Tetiana Kulyk, Serhii Khaliuk, Sokh Kateryna y Albina Tsiatkovska
Justice as a condition for implementing Ukraine’s European integration course
are not suciently developed in the constitutional and legal thought and
are presented in fragmentary studies or aimed at certain aspects of judicial
reform. In addition, this problem has been analyzed by scientists mainly
through the prism of political, social and humanitarian factors. At the same
time, issues often remain outside the scope of research, which are related
to the complex, primarily legal, justication of judicial reform as a basis for
Ukraine’s integration into the European Union. The outlined circumstances
determine the relevance of the study, determined the choice of its object
and subject.
3. Results and discussion
3.1. General characteristics of the peculiarities of the
administration of justice in Ukraine in the implementation of
the European integration course
The solution of any scientic problem is impossible without the
impossible without the analysis of the corresponding terminology, the
substantiated scientic theories, doctrines, concepts. Judicial reform is
no exception in this aspect, which is due to the need to develop modern
approaches to the development of law and legislation, in particular the
formation of a democratic, legal and social state.
Considering the peculiarities of the administration of justice in Ukraine,
it is advisable to pay attention to the essence of the term «reform» in
general. In the «Modern Legal Encyclopedia» the term «reform» means:
1) transformation, change, restructuring of any aspect of public life (orders,
institutions, institutions); 2) formal innovation of any content, but reforms
are usually called more or less progressive transformation; 3) changes
in the structure of something that are made to improve, transform; 4)
transformation, change, restructuring of any sphere of public or state life
carried out by the state (Zaychuk, 2009). The reform is characterized by
gradual changes, in its program the emphasis is on bringing to the end of
the planned transformations, the complexity of the planned changes (Order
of the cabinet ministers of ukraine № 847).
We will pay special attention to the denition of «integration – (Latin
integratio –restoration, lling, from integer – whole), the concept of systems
theory, which means the state of connectivity of individual dierentiated
parts as a whole, as well as the process leading to such a state» (Order
of the Cabinet Ministers of Ukraine № 847). Integration is considered
to be the highest stage of regionalization (a process that unites national
social formations into a regional system), which is based on the territorial
adjacency of states between which various social ties are actively emerging
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CUESTIONES POLÍTICAS
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and developing. The term «integration» is interpreted as a process of
mutual adaptation, expansion (Bezzub, 2015) or unication of something
into a single whole (Pogorilko, Fedorenko, 2006). It was in 2014 that the
process of constitutionalization of Ukraine’s European integration began,
which initiated a new stage of foreign relations – European integration.
The very concept of «integration» implies the emergence of a new quality
of formation of the European social system, going beyond cooperation in
order to form a single structure that has supranational (supranational)
characteristics. Analysis of the basic principles (principles) of the theory of
integration gives grounds to assert that the process of European integration,
in particular, is complex, has a complex nature, involves several stages and
manifests itself in various forms. The experience of building the European
Union convincingly proves the validity of this point of view (Tatsiy,
Pogorilko, Todyka, 1999).
It should be noted that the vast majority of concepts of integration
were based on the fact that European integration is a qualitatively new
phenomenon compared to all previous types of cooperation between nation
states – intergovernmental cooperation, confederation and federation (Eu-
ukrainian association agreement, the atomic energy community and their
member states, on the other side).
Ukraine’s European integration will be carried out to the extent that
Ukraine shares these values, so Ukraine’s European integration documents
and international agreements, as well as current legislation, should be
guided by them (Tikhomirova, 1997). To achieve the appropriate level of
perception of the Western tradition of law requires extensive and systematic
use of European standards for the formation and functioning of legal and
state institutions, civil society institutions and their relations with the state,
implementation of the rule of law in all spheres of life (Tatsiy et al., 1999).
In our opinion, integration should be gradual and mutually benecial,
integration involves the integration of legal, economic, political and other
subsystems, in particular, the goals of the integrated association should
meet the interests and capabilities of the participants. It is worth noting that
the European Union adhered to these principles during the formation, the
European Community is the most perfect integration association, thanks to
the idea of integration is eectively implemented in social practice.
Ukraine’s integration into the European Union is legally dened as a
priority area of foreign policy; in turn, it is necessary to be aware of the
consequences of entering the legal space with the European community and
the need to prepare a constitutional and legal mechanism that will allow to
take measures for legal integration into the community. The current period
of judicial reform in Ukraine is characterized by the search for ways to
achieve the goal - the formation of the state as legal and democratic with
480
Tetiana Kulyk, Serhii Khaliuk, Sokh Kateryna y Albina Tsiatkovska
Justice as a condition for implementing Ukraine’s European integration course
high economic and scientic potential, which in the future will become a
member of the European community.
Thus, integration into the European political, economic and
humanitarian space is determined by the strategic direction and system-
forming factor of state and legal development; In the political and legal
dimension, cooperation with the European Union means, above all,
strengthening the democracy of the political system and its institutions,
improving the legal framework and ensuring the transparency of national
legislation, deepening the culture of democracy and respect for human
rights.
3.2. Activities of the High Council of Justice as a basis for
updating the judicial system in Ukraine
One of the basic values of a democratic society is the principle of
independence of judges, which is a prerequisite for the rule of law. The
establishment of the High Council of Justice is one of the elements of
judicial reform in Ukraine. With the introduction of judicial reform, the
High Council of Justice has acquired exclusive powers in the eld of judicial
governance and has become a leading body in matters of judicial career,
disciplinary responsibility of judges, ensuring the authority of justice and
independence of judges (Shelest, 2021).
The High Council of Justice can be called a unique institution for Europe,
as it was established on the basis of the recommendations of the Council
of Europe. Nor can the signicance of the decision of the European Court
of Human Rights in the case «Alexander Volkov v. Ukraine» (Judgment
of the european court of human rights in the case «Alexander Volkov v.
Ukraine») for the institutional development of domestic legislation), thanks
to which the procedures concerning the judge’s career and the disciplinary
responsibility of a judge were signicantly reformed. In particular, the
principle of legal certainty in the context of disciplinary proceedings has
been introduced, political inuence on the issue of a judge’s career has been
eliminated, mechanisms for the protection of judicial independence have
been introduced, and so on (Kuybida, 2018).
According to the Law of Ukraine Art. 1 «On the High Council of Justice»
of December 21, 2016 The High Council of Justice is a collegial, independent
constitutional body of state power and judicial governance, which operates
in Ukraine on a permanent basis to ensure the independence of the judiciary,
its functioning on accountability, accountability, virtuous and highly
professional corps of judges, observance of the norms of the Constitution
and laws of Ukraine, as well as professional ethics in the activities of judges
and prosecutors.
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The High Council of Justice consists of twenty-one members, ten of
whom are elected by the Congress of Judges of Ukraine from among judges
or retired judges, two are appointed by the President of Ukraine, two are
elected by the Verkhovna Rada of Ukraine, two are elected by the Congress
of Advocates of Ukraine, two – elected by the All-Ukrainian Conference
of Prosecutors, two –elected by the Congress of Representatives of Legal
Higher Educational Institutions and Scientic Institutions. In addition, the
President of the Supreme Court is a member of the High Council of Justice
ex ocio. Its members are elected (appointed) for a term of four years, and
one and the same person may not hold the position of a member of the High
Council of Justice for two consecutive terms (Law of ukraine «on the high
council of justice»).
Compared to its predecessor, the High Council of Justice, the High
Council of Justice has been given much broader powers. Thus, the main
powers of the High Council of Justice include, but are not limited to: ling
a motion to appoint a judge; making a decision regarding the violation of
incompatibility requirements by a judge or prosecutor; ensuring that the
disciplinary body conducts disciplinary proceedings against the judge;
consideration of a complaint against the decision of the relevant bodies to
bring a judge or prosecutor to disciplinary responsibility; making a decision
on the temporary removal of a judge from the administration of justice and
dismissal of a judge; consent to the detention of a judge or his detention
or arrest; approval of the number of judges in court; appointment and
dismissal of members of the High Qualication Commission of Judges of
Ukraine, etc.
Therefore, these powers should make the High Council of Justice an
eective mechanism for ensuring judicial reform in Ukraine. The council
should become an arbiter in certain disputes that arise between society
on the one hand, the government on the other and the judiciary as an
independent branch of this government on the third (Ovsienko, 2019).
The High Council of Justice is the main body in the country’s judiciary.
In his hands is concentrated virtually full control over the appointment
and dismissal of judges and bringing them to justice for violations. How
professional and honest judges will work in Ukrainian courts and how
successful judicial reform will be depends on who is a member of this body.
That is why the reform and reformatting of the High Council of Justice
is one of the conditions for resuming cooperation with the International
Monetary Fund and receiving macro-nancial assistance from the EU.
Lawyers note that most of the problems of the previous body were
transferred to the newly created one: low level of trust of the population
and the legal community, accusations of politically motivated decisions,
reproaches in non-transparent selection of members, conicts and power
struggles with other bodies in the system. information (Holovatsky, 2020).
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Tetiana Kulyk, Serhii Khaliuk, Sokh Kateryna y Albina Tsiatkovska
Justice as a condition for implementing Ukraine’s European integration course
Another unresolved issue, which indirectly concerns the activities
of the High Council of Justice, is ensuring the activities of the High
Qualications Commission of Judges of Ukraine. According to the rst part
of Article 3 of the Law of Ukraine “On the High Council of Justice”, the
powers of the High Council of Justice include, inter alia, the appointment
and dismissal of members of the High Qualications Commission of Judges
of Ukraine.
The bills currently under discussion propose that the High Council
of Justice approve all procedures and methods for the evaluation of judges
by the High Qualications Commission of Judges of Ukraine, which will
certainly increase the inuence of the High Council of Justice. On the other
hand, transparent and open selection of its members is not proposed. In
addition, the Council is reluctant to involve international experts in the
election of members of the High Qualications Commission of Judges of
Ukraine and its cleansing. The members of the council are convinced that
they themselves can solve these issues (Holovatsky, 2020).
In particular, the Chairman of the High Council of Justice Andriy
Ovsienko expressed his conviction that after the adoption of the relevant
law and its entry into force, the High Council of Justice, having worked
out an algorithm of actions, is able to quickly form to the Competition
Commission on Integrity (Ovsienko, 2021).
The G7 ambassadors stressed that “the most important part of a
comprehensive reform, which includes the reform of the High Council
of Justice, is to ensure the integrity, ethics and qualications of the sta
appointed to the judiciary. To this end, the ambassadors called on the
Congress of Judges to postpone appointments to the High Council of Justice
and the Constitutional Court, until transparent and credible selection
processes are established” (The G7 ambassadors called on Ukraine to
postpone its appointment to the high council of justice and the CCU).
In addition, the views of government ocials and the public on
the further functions of the High Council of Justice after the completion
of judicial reform dier signicantly. Therefore, it is important in the
process of reforming this body to work out a compromise between non-
interference in the activities of the Council and ensuring the transparency
and eectiveness of its decisions.
The High Council of Justice also has an Ethics Council, which is
responsible for establishing the compliance of a candidate for the position
of a member of the High Council of Justice with the criteria of professional
ethics and integrity. The creation of the Ethics Council is designed to
meticulously select members of the High Council of Justice in order to
prevent the manual operation of the body and restart it. The rst composition
of the Ethics Council is formed of three people from the Council of Judges
and three people nominated by international and foreign organizations.
The following are by analogy with the Competition Commission at the High
Qualication Commission of Judges.
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At the same time, on September 13, 2021, the Council of Judges
of Ukraine was unable to select candidates for the Ethics Council, which
was to clean up the composition of the High Council of Justice. Then the
President’s Oce held a meeting with the ambassadors of the G7 and the
EU and stressed that the Ethics Council should be formed no later than
early October (Judicial reform in Ukraine: who and how should clean the
higher qualication commission of judges and the high council of justice).
The Verkhovna Rada adopted in the second reading the draft law
№ 5068 on the reform of the High Council of Justice, which takes into
account the conclusion of the Venice Commission, giving international
experts a predominant vote in the Ethics Council: to make a decision, 2
out of 4 votes are distributed equally – preference is given to those votes
where at least 2 international experts are represented. In our opinion, the
main advantage of the bill № 5068 is that it provides a «reset» of the High
Council of Justice with the participation of international experts, who will
have a decisive voice. This is what international partners and the Venice
Commission have previously called for. At the same time, it is important in
the process of reforming the High Council of Justice to nd a compromise
between non-interference in the activities of the Council, its components,
and ensuring the transparency and eectiveness of its decisions.
The bill also provides for a review of the integrity of members of the
High Council of Justice, as well as changes the procedure for bringing judges
to disciplinary responsibility. Assessing the draft law № 5068, the Venice
Commission made a valuable recommendation to provide candidates for
the High Council of Justice and its current members with the right to
appeal the decision of the Ethics Council to the Supreme Court. It is equally
important whether the recommendations of the Venice Commission were
taken into account regarding the formation of the High Qualication. In
our opinion, the international experts who will be involved in the selection
of members of the High Qualications Commission of Judges should have a
decisive voice in the process in order to prevent the judges of the competition
commission from blocking worthy candidates and assisting others.
Taking into account the recommendations of the Venice Commission,
the position of the expert community and key international partners, as well
as individual proposals expressed and substantiated by us in the article will
contribute to quality judicial reform and the administration of fair justice in
Ukraine. It is quite obvious that the further support of Ukraine by the world
community depends on the quality of the implemented reforms. The role
of independent international experts has once been the key to a history of
great success in the case of election to the High Anti-Corruption Court. An
ambitious «NATO compatibility plan» could be an eective motivator for
signicant changes in Ukraine.
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Tetiana Kulyk, Serhii Khaliuk, Sokh Kateryna y Albina Tsiatkovska
Justice as a condition for implementing Ukraine’s European integration course
3.3. Analysis of the Strategy for the Development of Justice and
Constitutional Judiciary for 2021-2023
The President of Ukraine V. Zelensky signed a decree approving the
Strategy for the Development of the Justice System and Constitutional
Judiciary for 2021-2023 (hereinafter – the Strategy), which denes the
basic principles and directions of the justice system development taking
into account the best international practices. The document outlines the
priorities for improving the legislation on the judiciary, the status of judges,
the judiciary and other institutions of justice, as well as the implementation
of urgent measures to improve the functioning of legal institutions.
Before examining the content of the Strategy, let’s make a brief analysis
of the state of reform of the justice system of Ukraine, which was launched
in 2014. First of all, it should be noted that some progress in the eld of
justice has been achieved due to the direct participation of the public in
the cleansing of the judiciary through the Public Integrity Council. One has
not yet introduced a full-edged jury trial, has not reformed the bar, has
not realized the potential of alternative (out-of-court) dispute resolution,
and has not been friendly to vulnerable groups - children and people with
disabilities. The result has been the maintenance of political control over
the courts and the preservation of problems in the judiciary.
The inability of the courts to ensure justice not only hinders the
protection of human rights, has a negative impact on trust in the state, but
also jeopardizes progress in other reforms. The lack of proper functioning
of the justice system scares away investors and hinders Ukraine’s economic
development.
Should the reform be stopped? By no means. What has been started
should be brought to a logical conclusion. The system approach is important.
If we are talking about the reform of the judiciary, it is impossible to change
the court without changing the prosecutor’s oce and without establishing
interaction between the court, the prosecutor’s oce and the bar.
It is worth recalling that in early 2021, the ambassadors of the G7
countries announced a common vision of the successive steps that need
to be taken to restore the condence of Ukrainian society in the judiciary.
Among the key tips are to «temporarily and minimally» increase the
quorum for decisions of the Constitutional Court of Ukraine, postpone
ongoing selection procedures for judges – until the introduction of
new selection rules, ensure a signicant role of international partners
in screening all candidates for Constitutional Court of Ukraine judges,
strengthen disciplinary responsibility and ethical requirements for judges
and oblige them to remain impartial during the consideration of cases, etc.
(Ambassadors of g7 countries presented road map of judicial and anti-
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corruption reforms in Ukraine). In addition, it was once again necessary
to resume the activities of the High Qualications Commission of Judges
and reform the High Council of Justice, which we have already mentioned
(Ambassadors of G7 countries presented road map of judicial and anti-
corruption reforms in Ukraine).
In order to improve access to justice, the Strategy envisages the
development of a network and specialization of judges; development
of alternative dispute resolution; interaction of law enforcement and
judicial bodies with society; improvement of the institute of advocacy and
prosecutor’s oces; reorganization of local courts; change in the structure
of the Supreme Court; determination of the procedural mechanism for
ensuring the unity of judicial practice by the Supreme Court in cases that
are not subject to cassation review; ensuring a sucient level of resources
for the eective organization of the work of the Supreme Anti-Corruption
Court; higher level of working conditions and safety of judges and court
employees; more balanced and fair load distribution; reduction of
corruption risks in the administration of justice; adequate funding of the
judiciary; development of e-justice; ensuring the system of execution of
court decisions within a reasonable time, etc. (Mamchenko, 2021); changing
the procedure for competitive selection of candidates for the position of a
judge of the Constitutional Court of Ukraine, their verication of integrity
and compliance with the level of professional competence with the possible
involvement of international experts.
It is envisaged to introduce a mechanism to protect judges of the
Constitutional Court from political and other pressure during the adoption
of decisions and conclusions. According to the presidential decree, the
Legal Reform Commission, together with representatives of central and
local authorities, the public and experts, should develop an Action Plan for
the implementation of this document, as well as inform the President about
the implementation of the strategy.
If we turn to the analysis of the content of the Strategy itself, it mainly
has general formulations that can be interpreted quite broadly (both in
the direction of reforms and in the direction of preserving the status quo);
does not contain any clear criteria for achieving the goals of the strategy,
which could indicate its successful or unsuccessful implementation,
but is abundantly dotted with the classical Ukrainian chancellery such
as «improvement», «improvement», «expansion», «compliance»,
«optimization», etc.
The provisions of the strategy for the formation of the High Qualications
Commission of Judges are too general and will not provide a new quality of
the body, even if they are formally implemented. The strategy stipulates that
«in the future» the High Qualications Commission of Judges should be
subordinated to the High Council of Justice. This contradicts the provision
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Justice as a condition for implementing Ukraine’s European integration course
on the independence of the High Qualications Commission of Judges. It
is also not specied under what conditions such subordination should take
place (Barkar, 2021).
The document proposes to improve the procedure for lling vacancies
in local courts with «separate» competitive procedures, taking into account
the criteria of integrity and professionalism. The introduction of such
«separate rules» can be used to increase the inuence of a dishonest High
Council of Justice on this process. In our opinion, improving the procedure
for selecting members of the High Council of Justice with the involvement
of international experts and verifying the integrity of current members
of this body - formally meet the obligations of the Memorandum of the
International Monetary Fund and the European Union, but are too general
and need specication.
The power of the High Council of Justice to appoint court chairmen if
the judges themselves do not elect them for a long time is a return to the
infamous practice that existed before 2014. At that time, the judiciary was
governed by the High Council of Justice, through which the «vertical of the
judiciary» was formed. The presidents of the courts must have exclusively
representative functions, or this position must be abolished altogether.
The provision on the establishment of an «autonomous personnel and
disciplinary body» at the High Council of Justice is obviously in line with
the provision on the subordination of the High Qualications Commission
of Judges to the High Council of Justice. In our opinion, such changes
cannot be introduced before the formation of an independent and honest
composition of the High Council of Justice.
Powers of the High Council of Justice to recall judges from resignation
(who have passed the qualication assessment and are in accordance with
integrity) – previously they wanted to return to oce all dishonest judges
who resigned because they did not want to pass the qualication assessment.
We believe that the authority of this body to coordinate budget requests for
court funding is another opportunity to control the courts through their
subordination to the High Council of Justice, which will be able to reward
loyal courts with a generous budget and punish the independent. The
budget planning system must preserve the independence of each court.
At the same time, the analysis showed that the Strategy proposes some
really necessary steps for changes in the judicial system of Ukraine. In
particular, the positive provisions of the strategy are the clauses on the
return of criminal liability for an unjust decision; termination of resignation
of judges in case of disciplinary misconduct; removal of a judge from an
administrative position at the same time as removal from the administration
of justice.
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We also consider positive the introduction of a mechanism for checking
the integrity of current judges of the Constitutional Court, as well as the
introduction of a transparent procedure for competitive selection of judges
of the Constitutional Court with checking for integrity with the possible
involvement of international experts. This approach is fully in line with
the concept developed by public experts and the recommendations of the
Venice Commission.
The strategy envisages the transfer of part of the exclusive jurisdiction
of the Kyiv District Court of Appeal to the Supreme Court, and further
the creation of a separate higher court to hear cases against national
authorities and the involvement of international experts in the selection of
judges. In addition, it is proposed to introduce a mechanism for checking
the integrity of current judges of the Constitutional Court, as well as to
introduce a transparent procedure for competitive selection of judges of
the Constitutional Court of Ukraine with integrity checking with possible
involvement of international experts. This approach is fully in line with
the concept developed by public experts and the recommendations of the
Venice Commission (European commission for democracy through law).
Meanwhile, the conclusions on the legislative initiatives of the President
of Ukraine concerning the activities of the Constitutional Court of Ukraine
were published by the Venice Commission. The conclusions state that in
general, there are many improvements, but also shortcomings that need to
be corrected.
It should be noted that the draft law № 4533 on the constitutional
procedure takes into account many of the recommendations of the
Venice Commission provided in the urgent opinion on the reform of the
Constitutional Court. At the same time, the Venice Commission calls the
lack of provisions on a new system of competitive selection of judges with
the participation of the international component a key shortcoming of this
bill, as recommended in the urgent opinion.
One of the main recommendations of the Venice Commission concerns
procedural economy: the consideration of constitutional complaints, during
which the senate nds an unconstitutional provision of the law, should be
referred to the Grand Chamber only if the president or parliament requests
such a transfer. With regard to disciplinary proceedings, according to the
commission, instead of the executive, the initiative to initiate disciplinary
proceedings should be transferred to the National Anti-Corruption Agency
within its competence. In order to eectively reform the judicial system
of Ukraine, it is necessary to «reset» the Qualication Commission of the
High Council of Justice with a decisive vote of international independent
experts, liquidate the Kyiv District Administrative Court and create a High
Administrative Court by analogy with the High Anti-Corruption Court.
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Justice as a condition for implementing Ukraine’s European integration course
Acquaintance with the provisions of the Strategy causes a lot of remarks
– from the specied terms of its completion and up to the vision of the
developers of the document of the powers and status of individual bodies.
Among the main remarks is the potential expansion of the powers of the High
Council of Justice, as well as the generality of many provisions, which in the
future may lead to their arbitrary interpretation and increase the President’s
inuence on the judiciary. On the other hand, the implementation of the
Strategy, taking into account the key comments, will show the transparency
of government actions, communication between the President’s Oce and
the expert community and the public sector, and ultimately increase public
condence not only in the judiciary but also in government.
In general, while positively assessing Ukraine’s desire to develop eective
mechanisms for ensuring justice as a condition for implementing Ukraine’s
European integration course, it is necessary to signicantly reconsider
the processes that make up judicial reform in Ukraine, rst of all change
approaches to roles of independent public experts. It is also necessary to
focus on raising the standards of training of lawyers and privatization of
dispute resolution. Other arguments and suggestions aimed at improving
the situation in this area will be presented in the next section of the article.
3.4. International standards for the functioning of analogues of
the High Council of Justice Abroad
It is obvious that public relations, which determine the peculiarities
of the formation and functioning of the judiciary, increasingly require
constitutional consolidation, which should become a determining factor in
ensuring its independence. Therefore, the creation of a new mechanism for
the functioning of the judiciary in Ukraine was initiated in connection with
the implementation of judicial reform in 2016 (Constitution of Ukraine).
In the system of the judiciary, the Constitution of Ukraine enshrined
the provisions on such a constitutional body as the High Council of Justice.
According to the Law of Ukraine “On the High Council of Justice” of
December 21, 2016, it is a collegial, independent constitutional body of state
power and judicial governance, which operates in Ukraine on a permanent
basis to ensure the independence of the judiciary, its accountability and
accountability, formation of a virtuous and highly professional corps of
judges, observance of the norms of the Constitution and laws of Ukraine,
as well as professional ethics in the activity of judges and prosecutors. So,
in fact, the High Council of Justice should become one of the guarantees
of the independence of judges as a collegial, independent constitutional
body of state power and judicial governance, which operates in Ukraine on
a permanent basis to ensure the independence of the judiciary.
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The basic elements of the independence of bodies that are designed
to ensure the formation and functioning of the judiciary through direct
participation in the selection of candidates for judges, their appointment
and dismissal are laid down in a number of international acts. Such acts
include universal standards for the functioning of the judiciary, including
the systems for the selection, appointment and promotion of judges
contained in the UN Basic Principles on the Independence of the Judiciary
Approved by the UN General Assembly. In particular, the Basic Principles
on the Independence of the Judiciary, approved by General Assembly
Resolutions 40/32 and 40/146 of 29 November and 13 December 1985,
state, inter alia, that the independence of the judiciary is guaranteed by the
state and enshrined in the country’s constitution or laws.
All state and other institutions are obliged to respect and adhere to
the independence of the judiciary (paragraph 1) (Basic principles on the
independence of the judiciary). The “Draft Universal Declaration of the
Independence of Justice” (the “Singwie Declaration”) states that in cases
where the law provides for the discretionary appointment of a judge to his
or her appointment or election, such appointment should be made by a
judicial body or a higher judicial council, if such exists (13) (Draft universal
declaration of independence of justice).
At the same time, there are a large number of regional European standards
that dene general principles and guarantees, which are also subject to
implementation under certain conditions. For example, in the framework
of the Council of Europe, one of the most fundamental international
instruments in the eld of justice is Recommendation CM / Rec (2010) 12
of the Committee of Ministers to member states on judges: independence,
eciency and responsibilities, adopted by the Committee of Ministers on
17 November. 2010. It contains the basic principles of the independence
of the judiciary and aims to establish and strengthen the independence
of judges as holders of the judiciary. It is noted that councils of judges
should demonstrate the highest level of transparency regarding judges and
society by improving pre-established procedures and making informed
decisions. In the performance of their duties, Councils of Judges should not
interfere with the independence of individual judges (CM / rec (2010) 12
recommendation of the committee of ministers of the council of europe to
member states on judges).
It is also worth mentioning the European Charter on the Status of Judges
of 10 July 1998, which stipulates that the recruitment, appointment, service
and termination of judges must be decided by an independent body, half of
which is represented by judges. In addition, this body should be formed on a
parity basis with a wide range of representatives. A necessary condition for
an independent procedure for the formation of the judiciary is its legislative
consolidation. This body must become the guarantor of the independence
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Justice as a condition for implementing Ukraine’s European integration course
of justice in the state as a whole and the guarantor of the independence of
each individual judge in the administration of justice in particular. The said
body must also be directly involved, ie in accordance with its submission, by
its decision, or on its recommendation or with its consent, in the promotion
of judges, as well as in disciplinary proceedings against prosecuted judges.
One of the mandatory guarantees of judges’ independence is the mandatory
review of all decisions on the resignation of judges, with the exception of
two grounds: reaching the age limit for holding oce and expiring the term
of oce of a judge (European charter of judicial status).
Therefore, it is quite clear that the problem of ensuring the independence
of the High Council of Justice of Ukraine is relevant for many countries where
there are relevant bodies, which led to the emergence of these international
acts, which determine the general principles of these bodies. The specicity
of international law leaves its mark on the relevant international standards,
which are traditionally divided into mandatory and advisory. At the same
time, ensuring the independence of the High Council of Justice and relevant
bodies of foreign countries by forming a system of legal guarantees will
contribute to the implementation of justice as a necessary precondition for
proper performance of its constitutional functions by the court. is the main
duty of the state.
It is international acts and national legislation of individual European
countries that allow us to fully identify the general and specic features
of the constitutional regulations and the status of relevant bodies and
suggest ways to improve the work of both the High Council of Justice and
the judicial system of Ukraine as a whole. Thus, the systematic analysis of
the constitutions and relevant legislation of individual European countries
provides an opportunity to identify such trends. First, the purpose of
establishing these bodies is to maintain the necessary balance between
the independence of the judiciary, on the one hand, and the possibility of
exercising public control over its activities, on the other.
As a result, the main task of the formation and functioning of judicial
councils was the need to adhere to the principle of independence of the
judiciary. This principle is a key element of the rule of law of all democracies,
which determines the place of the court in the system of state power and is
based on the principle of separation of powers. It is under such conditions
that the High Council of Justice and relevant bodies in foreign countries
are called upon to become the necessary tools to ensure the independence
of the judiciary as a whole.
And secondly, the actual consequence of consolidating the principles of
separation of powers and independence of the judiciary was the formation
of special judicial bodies (judicial councils), which, representing the
judiciary, do not participate in the administration of justice. It is noteworthy
that most of the new constitutions of democracies in Central and Eastern
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Europe contain rules governing the legal status of these bodies. Therefore,
the process of «constitutionality» of the legal status of these bodies tends to
spread, and this trend is gradually becoming global.
Another aspect that should be noted in the continuation of the previous
generalizations. Analysis of the constitutions of foreign countries makes
it possible to identify two main ways to regulate the legal status of the
Councils we are considering. The rst group includes countries that are
an extended constitutional regulation of the legal status of the respective
judicial councils. These include the constitutions of countries such as
Belgium (art. 151), Greece (art. 88), the Slovak Republic (art. 141a), Turkey
(art. 159), France (art. 65), and Moldova (art. 122-123), Macedonia (art.
104-105), Cyprus (Articles 157), Italy (art. 104-105). The constitutions of
these countries dene quite thoroughly the status of the relevant bodies,
which may include the place and role in the judiciary, the set of powers,
composition, terms of oce, responsibilities of members of judicial councils
and other components of their status.
Another group includes the constitutions of countries where the legal
status of the judicial councils in question is very succinctly dened. These
are the constitutions of countries such as Romania (art. 132), Slovenia (art.
131), Croatia (art. 121), Portugal (art. 218), Poland (art. 186-187), Spain (art.
122.1) and some others.
Ukraine set out to establish the High Council of Justice as a body with
constitutional status only in the post-Soviet period. During this period
there is a legal registration of institutional bases of judicial power and
the legal status of its holders, xing of guarantees of their independence
and autonomy of judges. The basic principles of the independence of the
judiciary in terms of its formation and functioning, which are directly related
to the selection of candidates for judges, their appointment and dismissal
are laid down taking into account a number of international instruments
and relevant foreign experience.
Thus, the European Community proposes to introduce into the legal
space a model of organization of the judiciary through the establishment of
appropriate bodies that are endowed with organizational and operational
independence from other branches of government. In addition, the
determining tool for ensuring the independence of the High Council
of Justice and the relevant judicial councils in foreign countries is the
consolidation at the legislative level of their legal status: either in the
constitution or in the relevant law (Decision high council of justice. On the
provision of the Advisory Opinion on the Draft Law).
The key role of judicial councils is to be independent guarantors of the
independence of the judiciary. However, this does not mean that such
councils are bodies of judicial «self-government». To avoid corporatism
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and politicization, the judiciary should be monitored through non-judicial
members of the judiciary. Only a balanced method of appointing members of
these bodies can guarantee the independence of the judiciary. Corporatism
must be balanced by the membership of other legal professions, «users»
of the judiciary, that is, lawyers, prosecutors, notaries, scholars, and civil
society. Involvement of other branches of government should not pose a
threat of undue pressure on members of the High Council of Justice and
the judiciary.
According to some lawyers, unfortunately, in the course of judicial
reform in Ukraine, certain risks were realized: members of the High Council
of Justice, appointed by a quota of judges, cover their inuential colleagues;
representatives of the parliament and the President lobby the interests of
political circles; some members of the High Council of Justice are generally
appointed illegally; there is no question of renewing and cleansing the
judiciary from dishonest people at all (What are the «european standards»
of judiciary and how should they be applied?).
Thus, there is no standard of «judges elected by judges» that would be
mandatory or even desirable for Ukraine. On the contrary, it is appropriate
to talk about the recent formation of another standard for countries in
transition democracies, in which non-judicial representatives play a
signicant or even decisive role in the judiciary: the public, representatives
of other legal professions or international experts.
In general, it should be recognized that the integration of international
human rights law into Ukrainian law is a complex procedure that requires
special doctrinal understanding (Yakovlev, 2009). The adoption of the Law
of Ukraine «On Enforcement of Decisions and Application of the Case Law
of the European Court of Human Rights» of 23 February 2006 №3477-
IV helped to determine the grounds and procedure for the application of
its decisions and practice by the courts of Ukraine. However, the Law did
not eliminate the most dicult issues related to determining the place of
international treaties of Ukraine in the legal system of Ukraine, with the
relationship of the European Court of Human Rights with the rules of
universal human rights treaties, which «remain» part of Ukrainian law.
The law does not provide a clear answer to a number of legal issues,
obviously applying a general approach – the law cannot regulate the
specics of the application of judicial practice by courts, it can only legalize
the very possibility of application. It is the Ukrainian courts that must
develop approaches to the application of the decisions of the European
Court of Human Rights.
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Conclusions
The study of the peculiarities of the administration of justice in Ukraine
as a condition for the implementation of the European integration course
made it possible to draw the appropriate conclusions, which are presented
below in the form of abstracts.
Reforming Ukraine’s judicial system requires a comprehensive overhaul
of the three bodies - the bar, the law enforcement system and the courts
themselves, as they work together. The judiciary should gain independence
and act self-governingly with the involvement of international experts and
members of the public in certain procedures.
The strategy for the development of the judiciary and the constitutional
judiciary is designed for 2021-2023, but it will not be possible to implement
it in such a short time, not to mention that the implementation of some of
its provisions requires a clear understanding of the sequence missing in the
document.
The conditions for the eective administration of justice in Ukraine
are: renewal of the High Council of Justice and the High Qualications
Commission with the participation of international experts; cleaning and
renewal of ships; creation of a new court to replace the District Court of
Appeal of Kyiv, which will consider key decisions of state bodies; ensuring
the fair composition of the Constitutional Court. These changes should take
place against the background of public condence in the judiciary and law
enforcement system.
The basic principles of the independence of the judiciary in terms of
its formation and functioning, which are directly related to the selection
of candidates for judges, their appointment and dismissal are laid down
taking into account a number of international instruments and relevant
foreign experience. The determining tool for ensuring the independence
of the High Council of Justice and the relevant judicial councils in foreign
countries is the consolidation at the legislative level of their legal status:
either in the constitution or in the relevant law. It is important in the
process of reforming the High Council of Justice to nd a compromise
between non-interference in the activities of the Council, its components,
and ensuring the transparency and eectiveness of its decisions.
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Esta revista fue editada en formato digital y publicada
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