Mykhailo Zhernakov is a lawyer and co-founder of the DEJURE Foundation where he is chair of the board. Stepan Berko is a lawyer and the advocacy director for the DEJURE Foundation. Halyna Chyzhyk is an advocacy officer and judiciary reform expert at the Anticorruption Action Center.
Ukraine has struggled with rule of law for a very long time.
Courts are among the least trusted public institutions in the country, and out of several attempts at judicial reform, most have been unsuccessful. Nevertheless, one particular piece of the reform remains a distinct exception — the High Anti-Corruption Court (HACC).
In 2022, judicial reform in Ukraine received new momentum when the European Union granted the country membership candidate status, conditioned on a number of institutional reforms — first and foremost, judicial. And the reformed process of the HACC’s formation, composition and first practice have been a great success, all due to the fact that the integrity check of its judges was made by an independent body consisting of highly respected international experts.
However, as the reform of the HACC has now come to define the basis of current judicial reform in Ukraine, in some areas, the approach is already proving problematic to replicate. And it’s looking like while Europe is helping Ukraine win the war on the battlefield, it might also be helping it lose the internal battle to successfully transform into a truly democratic nation.
Currently, the reboot of Ukraine’s two main judicial governance bodies — the High Council of Justice and the High Qualification Commission of Judges — is ongoing, with the participation of international experts, and there have been some promising results. However, replicating this approach has so far been difficult in the reform of the Constitutional Court of Ukraine (CCU).
The CCU plays a key role in preserving Ukraine’s democratic system of governance. It is the ultimate watchdog whose only function is to check whether the decisions of the legislature, or the executive, comply with the Constitution. And Ukraine’s democratic development will greatly depend on this institution, as soon, it will decide the fate of key institutional reforms, including those related to Ukraine’s accession to NATO and the EU.
Crucially, the CCU will also soon decide when exactly parliamentary and presidential elections should take place after martial law is lifted. Top officials in President Volodymyr Zelenskyy’s office openly state that they would like both elections to take place simultaneously — despite the constitution specifying otherwise. And as the court already helped the then newly elected Zelenskyy push for early parliamentary elections in 2019 — which his party won by a landslide — whether we see a similar outcome after the war will depend on the court’s composition and how its judges are selected.
Thus, it isn’t surprising that the reform of this selection process is the top priority out of all those connected to Ukraine’s EU membership perspectives.
The government introduced the respective legislation regarding this process in late 2022, which, in turn, provided for the establishment of the Advisory Group of Experts (the AGE) — a body entrusted with vetting all candidates for the CCU. According to the legislation, the AGE would be composed of three international experts and three Ukrainian political appointees, leaving the possibility open for political stakeholders to capture the selection process by potentially uniting to neutralize the three international experts.
This loophole was also mentioned by the Venice Commission — the Council of Europe’s advisory body on constitutional law — which was asked to assess the legislation. In its assessment, the Venice Commission clearly stated that the 3+3 model would lead to the further politicization of the CCU’s selection process, while it also expressed favor toward more robust international oversight and recommended the inclusion of an additional international member in the AGE’s composition, thus giving its international members the majority needed to keep the body truly independent of political influence. The European Commission subsequently issued a number of public statements as well, confirming it expected the law to be amended as proposed by the Venice Commission.
However, in the bill that was then introduced in the Ukrainian parliament on April 19, there was no inclusion of an additional independent member, and it now required any candidate judge to be backed by two Ukrainian members of the AGE in order to be recommended for the appointment. This makes it virtually impossible for independent professionals to become the CCU judges, as the political appointees likely wouldn’t support them.
Of course, we have absolutely no doubt in President Zelenskyy’s good will toward judicial reform — it has shone through clearly in other cases. However, the same cannot be said of some of the members of his team, who still demonstrate strong tendencies toward controlling judicial institutions.
Unfortunately, all this is somehow passing EU decision-makers by. In negotiations with Ukrainian authorities, the bloc has already backed down from some of its previous public positions, and it might be ready to compromise even further. And while the reason behind such a compromise might be noble — to not make it even harder on Ukraine considering “the special situation” — in truth, there’s nothing noble in watering down reforms and weakening democratic development, particularly if it comes at the price of undermining key rule of law institutions.
Thus, we urge the EU to stand firm on key demands and to not back down under pressure from Ukrainian political authorities. The EU’s lenient attitude toward reforms, as well as its own previously announced position, doesn’t only pose risks to judicial independence — it will also make it evident to the Ukrainian government that the bloc can be manipulated, and the EU will consequently lose any leverage over other reforms related to the country’s European integration.
Ukrainian society is of a similar opinion too. According to a recent sociological survey by the New Europe Center, 73 percent of Ukrainians support these reforms, without which accession negotiations cannot begin. Meanwhile, about 60 percent also support the EU pressuring Ukraine to combat corruption — and to this, the EU should listen.
If Europe truly wants to assist Ukraine in these difficult times, it’s crucially important that the bloc doesn’t back down from the principles it is built on — and that it strengthens them.
