Ukraine is currently at a crucial stage of its development when reforms are mandatory for improving the existing social and political order. These processes have acquired particular significance in the conditions of the Revolution of Dignity when Ukrainians opted for a pro-European vector of their state’s development. A new impetus to implement large-scale changes emerged after the russian federation’s invasion of Ukraine in 2022 when Ukraine received a real chance to bring its long-standing plans concerning European integration to life and become a member of the European Union.

After signing the Agreement on Association with the European Union, Ukraine committed to aligning its legislation and the functioning of state institutions with European standards. This, in turn, indicates the need to modernise a significant portion of public life domains significantly. In addition, the urgent need for reforms has emerged in the conditions of destruction brought about by the war in Ukraine. Therefore, the primary goal today is not just to preserve but also to rebuild the state, which is what Ukraine’s Recovery Plan is aimed at. Because of this, our country faces a vital objective – to think carefully about how these reforms will be developed and implemented. It takes a balanced approach to enable the possibility of speeding up Ukraine’s European future.

The previous experience of reforms, when the processes of upgrading and considerably improving governmental institutions were launched after a crisis, may become the benchmark for building a strategy for implementing changes. At the same time, this experience shows not just positive developments achieved but also highlights problems to avoid. Quite often, courts considering cases on reforms in appeal proceedings join the process of identifying deficiencies. In this regard, within the framework of the “Civil Society for Ukraine’s Post-Ware Reconstruction and EU-Readiness” Project, which is funded by the EU, the Agency for Legislative Initiatives conducts a study on judicial intervention in the course of reform implementation.

The experience of implementing reforms in the public law domain confirms that not all changes are successful. This is predominantly related to how responsibly and professionally representatives of the authorities approach the matter of their design and implementation. Consequently, we end up in a situation where the success of reforms depends on the quality of governmental institutions at two levels:

1. legislative, which concerns designing the essence and goal of the reform, conducting preparatory works (including developing draft laws and regulatory acts) and adopting regulatory acts that govern the reform process;
2. law enforcement, where reforms are implemented in practice through the activities of authorised government authorities (and sometimes public sector representatives).

The practice of holding a series of reforms and procedures for state power lustration that took place in 2014–2023 indicates that, unfortunately, quite often, each of these stages is accompanied by a considerable number of errors. Consequently, the results of some reforms and procedures were massively appealed in courts. The cases of lustration in 2014, re-attestation of the staff of the National Police of Ukraine in 2015–2016, the cleansing of courts from “Maidan judges,” and the attestation of prosecutors of the Prosecutor General’s Office in 2019 were all evidence of this.

The case law for these cases was initially heterogeneous, which was also reflected in court cases on recognizing lustration reforms or procedures as “legal” or, on the contrary, “illegal.” However, later, Ukrainian courts started following the single line in assessing the quality of these proceedings. In this case, the stance of international judicial institutions also had a significant influence. This is associated with the fact that, in some cases, disputes go beyond the national jurisdiction and become the subject of consideration for the European Court of Human Rights (for instance, this was the case in the situation with lustration). This fact indicates the scale of the problems accompanying the course of reforms in our state. This does not add a positive assessment in the eyes of international partners.

Overall, the case law analysis shows that many reforms are characterized by typical shortcomings, which traditionally go together with implementing social and political changes. Hence, the following are quite often valid reasons to appeal to introduced innovations:

1. Low quality of preparation of regulatory acts accompanying the reform process in Ukraine.
2. Disregard of international standards.
3. Authorities involved in implementing reforms often act contrary to specific legislative requirements.
4. Decisions made during reform implementation are not adequately substantiated.

The Constitutional Court of Ukraine often joins in the process of recognising reforms as not effective enough or elaborated incorrectly. The CCU that has the authority to determine whether a particular rule of law is unconstitutional and, consequently, to inquire about the legality of the reform. Such developments in reform implementation are the most telling since they directly indicate negative trends in the law-making process.

Furthermore, the cost of errors made during failed reform design and practical implementation is often relatively high. Courts award significant compensation amounts if the reform has been recognised as a failure and results in harm to the interests of other individuals. It is revealing that such consequences were observed in cases of lustration, attestation of the personnel of the National Police and prosecutors of the Prosecutor General’s Office. Undoubtedly, these compensations are a considerable blow to the state budget of Ukraine.

In conclusion, court judgements indicate that the current practice of reforms in Ukraine must be changed. One of the key moments on the way to achieving this is considering negative experiences to subsequently improve the strategy for reforming social relations.

Noteworthy, the practice of implementing changes in the public-law domain in Ukraine is not always so sad. Judicial interventions do not necessarily presuppose unanimous revocation of the results of innovations. The procedure for banning pro-Russian parties in 2022–2023 is a tangible manifestation of this. This case demonstrated that when the enacted changes are free of legislative flaws and fully satisfy the needs of society, they can withstand re-consideration by the court appeal process.

Accordingly, such positive experiences should be considered by the authorities and form the basis for the future design of reforms and their implementation. This is associated with the fact that the success of results has already been tried and tested, so the only thing left to do is spread this practice further.

Indeed, there is no clear and step-by-step plan of reforms. This is primarily because each reform has distinct characteristics of its arrangement and implementation. Nonetheless, this does not mean a complete lack of guidelines, following which would be a guarantee for effective reformation of social relations. Here are the key ones.

The legislative stage should be given special attention. This implies that it is imperative to establish clear and comprehensive regulations for national legislation, ensure the development of regulatory acts based on international standards, and involve experts in the elaboration process.

Second, when developing new reforms, it is essential to consider previous experiences, both positive and negative. A significant number of typical shortcomings may be prevented in advance with this approach.

Finally, the authorities in charge of implementing reforms in practice should strictly adhere to the statutory boundaries that define their competence. Therefore, any duplication of powers, unjustified decisions, or violations of the reform implementation procedure must be excluded.

Therefore, the Ukrainian authorities still have a lot to work on because enhancing the reform process is our strategic objective in war and post-war reconstruction conditions. Implementing well-thought-out reforms will bring victory close and pave the way for Ukraine to the European future.

On 14 September 2023, ALI will hold a discussion of the existing ALI study “Impact of Judicial Intervention: Role of Judges of General Jurisdiction in Reforms in Ukraine” for an expert environment. The study was prepared as part of the project “Civil Society for Ukraine’s Post-War Recovery and EU-Readiness”, funded by the European Union.

The event will take place at 16:00 in the office of the Agency for Legislative Initiatives (Kyiv, 45 Vozdvyzhenska Street, office 404).

Context. Today, it is obvious that even such long-awaited and promising reforms as those that commenced following the Revolution of Dignity do not always work out as successful cases. There are many reasons for this. Judicial intervention is one of them. To achieve Ukraine’s aspirations of Eurointegration, however, Ukraine must fulfil its obligations regarding reforms and harmonising Ukrainian legislation with EU laws. And here, the sustainability of law adoption and reform commencement, rather than the mere fact of them, will be an important criterion. Therefore, quality reforms must be developed without legislative gaps and deficiencies.

The goal of the presentation is to discuss the study results and recommendations for legislators, including the phenomenon of judicial intervention, its impact on the reform progress and possible steps to improve future reforms and cooperate with different branches of power.

We invite representatives of expert circles to participate in the event.

Event language: Ukrainian. Contact person: Mariia Hereles, Communications Director at the Agency for Legislative Initiatives, mg@parliament.org.ua.

“Assistance in establishing justice and transparency” is a new project of the Agency for Legislative Initiatives, which will be implemented with the support of the European Endowment for Democracy (EED).

As part of the Watchers.Media project, the media division of the Agency, will work to ensure transparency and accountability in the legal system, as well as to promote social justice and equality.

As a reminder, the Agency launched Watchers.Media in 2020. This is a specialized publication that publishes materials on significant topics and issues related to military aggression, law enforcement agencies, and investigations of high-profile events and crimes. The publication responds to current topics but also keeps in view those that have lost resonance, forcing them to return to the information space when there is a public interest in this.

Such projects are significant now because the investigation of crimes against humanity and the search for the truth in socially significant cases are, at the exact time key prerequisites for democratic development and post-war reconstruction of Ukraine.

The European Endowment for Democracy (EED) is a committed partner of Ukrainian civil society, supporting initiatives to strengthen democratic processes. We are grateful for the opportunity to jointly implement initiatives that will help Ukraine on its democratic path!

Additional information:

The European Endowment for Democracy (EED) is an independent, grant-making organisation, established in 2013 by the European Union (EU) and EU member states as an autonomous International Trust Fund to foster democracy in the European Neighbourhood (Eastern Partnership – EaP – and Middle East and North Africa – MENA), the Western Balkans, Turkey and beyond. EED supports civil society organisations, pro-democracy movements, civic and political activists, and independent media platforms and journalists working towards a pluralistic, democratic political system.

The Agency for Legislative Initiatives is a leading Ukrainian think tank focused on the study of Ukrainian parliamentarism, support for Ukraine’s European integration path, work with decentralization reform, and political education.

The question of the ultimate truth in law is quite controversial. In the modern Ukrainian legal system, the Constitutional Court of Ukraine has the right to establish the ultimate truth.

However, the fact that the CCU made a decision does not make this decision entirely correct. In the case of the constitutionality of certain provisions of the Law on Prevention of Corruption, the Criminal Code of Ukraine, the CCU could have made a different decision while having a sufficiently strong legal basis. Such a justification is available in the Dissenting Opinion of CCU Judge Serhiy Holovaty and the Dissenting Opinion of CCU Judge Vasyl Lemak. The argumentation of the decision of the CCU itself is criticized by many experts. In particular, the President’s Representative in the Constitutional Court, Fedir Venislavsky, considers the Constitutional Court’s decision to be legally weakly motivated. Additional grounds for doubting the fairness of the decision are given by a possible conflict of interest of some judges of the Constitutional Court regarding whom the National Agency on Corruption Prevention has drawn up administrative reports or carried out inspections. The story about the undeclared house in the Crimea of ​​the Chairman of the CCU caused a special resonance. In the text of the CCU decision, they found plagiarism from the collection of articles and essay “Federalist” by O. Hamilton.

The Constitutional Court should be the last bastion of the Constitution’s protection, but quite the opposite cases are common. The Constitutional Court acts as an instrument for the destruction of the constitutional order of the state. The Constitutional Court has often allowed the President of a country to be elected for a third, fourth, or fifth term, thus destroying the constitutional foundations of a democratic regime in the state. Thus, the Constitutional Courts allowed the presidents of Kyrgyzstan, Senegal, and Burundi to be elected for a third term, the President of Bolivia for a fourth term, and the President of Russia for a fifth term. In fact, the Constitutional Court of Ukraine also distinguished itself in this list, allowing Leonid Kuchma to be re-elected for a third term. Another example of a destructive decision is the decision in 2010 to repeal the 2004 amendments to the Constitution. All these decisions led to the destruction of the constitutional order and negative consequences for the state, and the constitutional courts played a major role in them.

Analyzing the decision of the Constitutional Court in the case of anti-corruption bodies, as well as in attempts to comprehend and somehow articulate the situation, the authors of this comment agreed on a conclusion no less absurd than the situation itself: a democratic institution makes an undemocratic decision in a democratic way. The paradox of this situation is that it is possible (because it has already happened) and impossible (due to the catastrophic consequences for state institutions) at the same time. The first intuitive way to take a critical stance on this catastrophe would, of course, be to find the culprits. After all, if the procedure was violated or there was a criminal conspiracy, it is not the system that is to blame, but specific people, specific judges. This way of criticism refers us to the modern version of obscurantism: instead of admitting that something is wrong with structure, we can look for particular culprits (this is how modern Ukrainian information space and political discourse mostly work). But for now, let’s assume that the Constitutional Court judges are sincerely convinced of the legality and legitimacy of their decision.

The Constitutional Court could have made another decision in this case. In addition to common sense, this is evidenced by the presence of two separate opinions and the unanimity of opinions of independent experts and representatives of very different political camps. That is, the Constitutional Court considered the relevant submission and understood that there were other ways to resolve the case. How did it happen that in a young and undoubtedly democratic state, where the fight against corruption is declared at all levels, the Constitutional Court makes such a contradictory decision?

Surprises and indignations have become a part of our daily lives lately. Unclear personnel policy, curtailment (or even outright repeal) of many reforms, confusing public statements with radically opposite actions and consequences – this is the political reality in which the judges of the Constitutional Court and we live. At the same time, the most horrifying thing is not even the decision itself, as a fait accompli. The most frightening thing about this decision is the level of (un)justification, as well as the fact that respected judges of the Constitutional Court generally consider it possible and acceptable to decide with such a level of justification. But in a country where the level of justification for any change is weak, and the most popular reason for the change (and very radical) is the results of the unknown in nature, level of legitimacy and possible political and legal consequences of answering the “President’s question”, can we expect judges that they will offer high standards of justification?

Another problem directly related to the level of justification is the (un)predictability of court decisions, especially of the Constitutional Court. It is the exhaustiveness of the justification that allows court decisions to be predictable. The unpredictability of the Constitutional Court decisions is a verdict on the reforms, as they are somehow aimed at changing the status quo. Here we can, of course, talk about cases of political involvement of judges, when under different conditions the Constitutional Court made completely opposite decisions/interpretations on the same issue (for example, decisions № 16-rp / 2008 and № 11-rp / 2010 on the principle of forming a parliamentary coalition), or when the decision not only contradicted the already established legal relations but also resulted in the destruction of the constitutional order and usurpation of power (decision № 20-rp / 2010 on the abolition of the Constitutional reform of 2004). With such a role of the Constitutional Court and with such an approach of judges to their decisions, there is no guarantee that in time some reforms, any new policies will not be canceled, no matter how much money international partners have spent on them or how many tens and hundreds of lives were lost in the requirements of their implementation.

On the other hand, we can talk about the abuse of MPs’ right to constitutional petitions. After all, these appeals should also be aimed primarily at protecting the Constitution rather than achieving political goals. The workload of the Constitutional Court with such decisions gives judges a certain idea of ​​the political reality of today. Given the unpredictability of the Constitutional Court’s actions, such submissions pose a real threat to Ukraine’s democratic institutions, the rule of law, and national security.

You can disagree with the court decision, but the decision’s logic must be clear and unquestionable. The validity of the CCU’s decisions is one of the most important principles of its activity. However, it is difficult to understand how the judges came to the conclusions in this particular case.

Thus, according to the CCU, the judiciary’s independence entails recognizing unconstitutional norms that apply not only to judges but also to all subjects of declaration in general. The Constitutional Court also had alternatives to declare the norm unconstitutional, requiring the Verkhovna Rada to make appropriate changes, as, for example, the Court did in the case of the constitutionality of the provisions of part two of Article 392 of the Criminal Procedure Code of Ukraine. In this case, the Court declared the provision unconstitutional and ordered the Verkhovna Rada to bring the regulations in line with the Constitution and this decision. In particular, this method helps to avoid a situation of “legislative pause”, as Judge Lemak put it, in his dissenting opinion. Why hasn’t the Court done the same now? Annoying mistake? Deliberate sabotage of reform? Demonstration of the “strength” in a situation of real threat to the usual way of life and judges’ status?

On the issue of criminal liability, the Court considered that the establishment of criminal liability for declaring knowingly inaccurate information was excessive and that the negative consequences suffered by a person were disproportionate to the damage. However, the problem is that the Court did not put forward any additional considerations that allowed it to reach such a conclusion. Although even in its decision, the Court cites the Opinion of the Advisory Council of European Judges of November 9, 2018, which states that corruption among judges is one of the main threats to society and a democratic state’s functioning. According to Mr. Holovaty’s Dissenting Opinion, citing international treaties signed by Ukraine, corruption is one of the most dangerous threats to law and order, democracy, and human rights, destroying good governance, honesty, and social justice. Another problem lies in the theoretical space: can the Constitutional Court determine the expediency of punishment at all instead of analyzing the presence or absence of reasonable grounds for restriction of liberties, as is usually the case in constitutional proceedings.

Summarizing this part, the Constitutional Court could have made a less destructive decision for the anti-corruption system: both in terms of scope and providing adequate mechanisms for implementing this decision. However, the Court did not do that.

The CCU decision can have very serious consequences, so significant that the national security of Ukraine may be threatened. The NAPC has already stated that it has lost access to the registers. Accordingly, the NAPC cannot conduct special inspections of candidates for positions without which the heads of public authorities cannot be appointed, as “Decisions on appointment (election) or refusal to appoint (election) to a position related to the performance of state or local functions self-government, is accepted after a special inspection”

This calls into question the results of local elections and the state apparatus’s functioning as a whole. The EU considers that the CCU’s decision is a sufficient basis for the temporary suspension of the visa-free regime.

Anti-corruption reform is one of the main components of Ukraine’s agreements with Western partners: the IMF, the World Bank, and the European Union. The ambassadors of the G7 countries also expressed their dissatisfaction with the undermining of anti-corruption reform. Financial support in the form of loans or direct financial assistance is now also in question. And there is no better time to refuse financial support – the pandemic and economic crisis coincided very well with the CCU’s anti-corruption decision. We should not forget directly about the fight against corruption. The CCU’s decision will further weaken the rather weak fight against corruption: the public loses control over the lifestyle of officials, one of the main anti-corruption articles of the Criminal Code is removed, and the main anti-corruption body loses most of its powers. The CCU’s decision thus removes integral parts of the anti-corruption system. Even if a new law is passed, existing criminal cases under (already) unconstitutional articles will be terminated. For that spring, when the landings for corruption will begin, we will have to wait a very long time. Probably even longer than the release of J. Martin’s new book “A Dream of Spring”.

The Constitutional Court has created a stalemate for all anti-corruption reform, as well as for many state institutions. The Constitutional Court may try to use the provision of Part 2 of Article 95 of the Law on the Constitutional Court and, at the request of a participant in the constitutional proceedings involved in the case, explain the procedure of execution of the decision, explaining that the decision applies only to judicial staff. This wouldn’t be a very good explanation. On the other hand, the Verkhovna Rada is likely to have to try to adopt new provisions concerning the activities of the NAPC and in line with the decision of the Constitutional Court. As the rationale is very vague, in theory, any new laws on the NAPC can also be declared unconstitutional.

However, Volodymyr Zelensky decided to follow an even more illegal path than conducting a nationwide poll. The bill “On Restoration of Public Confidence in the Constitutional Judiciary” contradicts both the Constitution and the very essence of laws (which are not acts of individual action). A rhetorical question arises: what is worse – the decision of the CCU or this bill?

The Constitutional Court is one of the most independent bodies in the Ukrainian legal system. Such independence is guaranteed to him by the Constitution. Thus, the Constitutional Court’s validity of decisions and the issue of the presence of judges of the Constitutional Court in the office cannot be subject to regulation by law. According to legal doctrine, a legislative act that annuls a Constitutional Court decision or dismisses judges of the Constitutional Court cannot have any legal consequences. Even such a proposal causes natural indignation and is immeasurable for anyone with an education in law. However, we will try to model the situation that the bill was adopted and somehow legitimized.

Here is a rather unexpected scenario. Laws are, in fact, constitutional until the Constitutional Court rules that they are unconstitutional. If the law on the termination of the CCU powers is not declared unconstitutional, it will also be constitutional. However, as the CCU powers are terminated, the decision on unconstitutionality cannot be made by this composition of the CCU. There is a collision. After the termination of the powers of this composition of the CCU, a new composition of the CCU will be formed. Then a decision may be made on the unconstitutionality of this law. Here again, there is a conflict – will the recognition of the law on the termination of the powers of the CCU unconstitutional mean that the powers of the previous CCU will be renewed? However, CCU’s new composition is supposed to be formed according to the legal and constitutional procedures. The issue of the constitutionality of the Law “On Prevention of Corruption”, the Criminal Code of Ukraine, remains open because, in case of recognition of the President’s law (which is currently at the stage of the bill), these renewed laws will also be unconstitutional. The new composition of the CCU in its decision can resolve these conflicts by explaining the procedure for implementing its decision, but it is obvious that there are too many conflicts and the unknown. Even if the process of recognizing the unconstitutionality of the Law on Restoration of Public Confidence in Constitutional Proceedings (if it becomes law) is not launched immediately, the foundation of legality in the Law on Prevention of Corruption, certain provisions of the Criminal Code of Ukraine will be very shaky.

A much more legitimate way out of the situation would be to adopt a new version of the law, taking into account the CCU’s comments, as far as possible, given the rather abstract and vague nature of the justification of the decision.

We could outline some no less absurd options (for example, deprivation of judges of citizenship, recognition of their absence – and why not? After that, these judges do not “exist” for society), but no option will solve this situation. Moreover, such absurd choices undermine the constitutional order in our country even more. This situation must be accepted and the problem recognized in the system itself. This does not mean that nothing needs to be done. Protests, the adoption of a new law on the NAPC, media coverage of every step of the Constitutional Court, (possibly) reforming the Constitutional Court’s staff, and even law enforcement inspections to rule out “malicious intent” in judges’ actions (especially given the conflict of interest of some judges) – it is calm, democratic and confident.

In general, this whole situation has happened because of the destructive processes of politicization of the judiciary that characterize young democracies and authoritarian regimes. Is it possible to recognize the actions of the CCU judges as treason and send them to Rostov, as activists suggest, or “just take and restore confidence in the CCU” by restarting it?

As part of a broader process, judges point us to the political problems that prevail in our state. The legitimacy of this decision is in doubt. Still, at the same time, the activity of the entire Constitutional Court is also in doubt, the decision or position of which in various cases provokes positive responses of some and resentment of others.

Modern politicians must be aware of the Constitution’s sacredness, as a document, as a social contract. Consequently, the appointment of CCU judges cannot be a contest for political influence or the result of political bargaining. Here, of course, we can mention appointing judges to the US Supreme Court, which is an important part of the political game. Moreover, in the United States, the appointment process is an important event in the information space, and each appointment is publicly debated. Ideally, the appointment of judges of the Constitutional Court should compete for which of them will appoint the most worthy and trustworthy person. After all, the Constitutional Court is the institution that has the power to dynamically interpret the Constitution, breathing life into it following modern reality.

Unfortunately, neither the political culture in modern Ukraine, nor the judicial reform that has been going on for more than a year, nor the system of training lawyers (and, accordingly, judges) still allow us to approach such a high constitutional ideal. And what is worse, the reaction of other branches of government, particularly the President with his new political force – is not something that can somehow change the situation. On the contrary, it drags us into a whirlpool of constitutional chaos and launching a snowball of unconstitutional coma, where each subsequent action seems even more unconstitutional and, as a result, undermining the legitimacy of state institutions.

hadow report is devoted to assessing the implementation of the Law of Ukraine «On the Bar and Practice of Law» adopted on July 5, 2012, which entered into force on August 15, 2012. The report examines the role of the bar in a democratic society, Ukraine’s international commitments to protect the status of the legal profession and the establishment of a professional bar association, the goals and objectives of the public policy on regulating the bar and practice of law, and the challenges of the law enforcement in this area over the period from November 2012 until August 2018.

The report also analyzes the Draft Law of Ukraine «On the Bar and Practice of Law» approved by the Judicial Reform Council in June 2018 from the standpoint of effectively addressing the gaps and weaknesses of regulating the organization of the bar and practice of law in Ukraine.

The shadow report entitled «The Bar of Ukraine: the Lessons Learned from the Early Years of Self-Governance» was compiled by the Agency for Legislative Initiatives in cooperation with the Tomorrow’s Lawyer non-governmental organization at the request of the Verkhovna Rada of Ukraine Committee for Legal Policy and Justice in order to support the latter in administering its oversight function.

The preparation and presentation of analytical reports in the Shadow Report format is part of the project embodied by the Agency for Legislative Initiatives, supported by the USAID Rada Program: Responsible Accountable Democratic Assembly, implemented by the East Europe Foundation.

On March 27, 2018, the round table “Implementation of the European Court of Human Rights decision in cases “Yuriy Mykolayovych Ivanov v. Ukraine” and “Burmych and others v. Ukraine”: Requirements for General Measures” was held by the Subcommittee on Implementation the Decisions of the European Court of Human Rights of the VRU Committee on Legal Policy and Justice, the Ministry of Justice of Ukraine and the Council of Europe Project “Supporting Ukraine in the execution of judgments of the European Court of Human Rights”.

During the round table Svitlana Matviienko, Chairwoman of the Board of the Agency for Legislative Initiatives, presented the Shadow Report “Implementation of the European Court of Human Rights decision in cases “Yuriy Mykolayovych Ivanov v. Ukraine” and “Burmych and others v. Ukraine”, prepared by an expert of the Agency for Legislative Initiatives.

The problem of non-enforcement of national courts’ decisions was first recognized by the European Court in 2004 in the cases of “Zhovner v. Ukraine” and “Voytenko v. Ukraine”. Unfortunately, over the past five years, the Government of Ukraine has not taken effective measures to address this problem, which has led to a significant increase in the number of complaints to the European Court. As a result, the Court decided to apply the pilot decision in the case of “Yuriy Mykolayovych Ivanov v. Ukraine. In this case the Court points out to the existence of structural problems that are of a widespread and complex nature and require the implementation of comprehensive and complex legislative and administrative measures, involving various national authorities.
The European Court determined that the violation was a consequence of the practice incompatible with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (ratified by Law № 475/97-VR dd. 17.07.1997), which is the systematic non-compliance of the respondent government with the national courts decisions for which the respondent government is liable and in connection with which the parties whose rights are violated do not have effective remedies.

On October 12, 2017, by the decision of the Grand Chamber of the European Court of Human Rights in the case of Burmych and Others v. Ukraine, the European Court handed 12.148 cases under the control of the Committee of Ministers of the Council of Europe. It also decided to transfer all such cases under consideration, as well as such future cases, to the Committee of Ministers for consideration in the framework of general measures to implement the pilot decision in the Ivanov case, including provisions for compensation for failure to comply or late execution of national court decisions and payment of a debt awarded by a court decision.Thus, public authorities should be called upon to introduce at national level a targeted mechanism to ensure that all actual and potential applicants with valid complaints under the Convention are compensated. In response to the Burmych case decision, a high-level meeting was held in Strasbourg on 17 November 2017 with the participation of the Ministry of Justice, the Presidential Administration and Parliament, which discussed the creation of an ad hoc compensation mechanism for all those mentioned in the applicants’ decision, which should take place in parallel with the efforts, aimed at reaching a long-term solution to the root causes of these problems.

Svitlana Matviienko, Chairwoman of the Board of the Agency for Legislative Initiatives, presenting the Shadow Report prepared by the expert of the Agency for Legislative Initiatives, noted that the source of the information for the Report was the annual report on the activity results of the Government Commissioner for European Court of Human Rights in 2017, responses to the Mr. Lishchyna’s query to Member of the Parliament Ruslan Sydorovych, information provided by the Ministry of Justice to the Ombudsman for Human Rights, the Ombudsman on Human Rights annual report on the state of observance and protection of human rights and freedoms in Ukraine in 2017 and information received from the applicants in the case of Burmych.

The first step is taking measures to enforce decisions of national courts passed in favor of the applicants in the case of Burmych and payments of compensations. The second step is taking measures to introduce an effective system of enforcement of decisions of national courts.

If we are talking about taking measures to implement the national courts decisions, it is worth emphasizing the mechanism revealed by our experts, which consists in working with the Resolution of the Cabinet of Ministers of Ukraine “On approval of the procedure for using the funds foreseen in the state budget for payments related to using decisions of foreign jurisdictional bodies adopted on the results of consideration of cases against Ukraine” №408 dd. 07.03.2017.

The CMU Resolution №408 can be improved as follows: first of all, a large-scale collection of information on the decisions to be executed and the state of their enforcement should be carried out. Amendments to the Resolution of the Cabinet of Ministers of Ukraine No. 408 will allow to undertake expenditures for taking general measures. After that,  it will be possible to calculate the amount of indexation and compensation for long non-enforcement of court decisions. Then, the most important step is to provide adequate funding for these payments. It is at this stage that the coordinated work of the Verkhovna Rada of Ukraine is needed and the bringing up this issue not only within the professional lawyers circle, but also a massive informing of the public.

The second important point emphasized by the Shadow Report is to take measures to implement an effective system of enforcement of domestic courts.

In our opinion, the main disadvantages of the mechanism proposed by the Government are:

• repayment of debts with promissory notes is carried out with the consent of the payer, while there are no alternative mechanisms of debt repayment;
• absence of indexation for the period from the moment of the rendering of decision and until the issuance of promissory notes, as well as redress for the non-pecuniary damage;
• the repayment period is too long (it was noted by the Ukrainian Helsinki Human Rights Union, p. 125 Burmych), in addition, it may be extended at any time by the Government decision, as well as the interest rate changed;
• the moment of the court decision enforcement is considered to be not the time of full payment of the bill, but the moment when the bill is issued to the recoverer.

The problem of non-enforcement of the national court decisions was first stated by the European Court in the cases of Zhovner v. Ukraine (Application No. 56848/00, Judgement of 29.06.2004) Voytenko v. Ukraine (Application No. 18966/02, Judgement of 29.06.2004). Unfortunately, the Government of Ukraine took no efficient measures in the subsequent 5 years to solve this problem, which generated a much bigger number of complaints submitted to the European Court, so, as a result, the Court decided to apply a pilot-judgement procedure in the case of Yuriy Mykolayovych Ivanov v. Ukraine (Judgement No. 40450/04 of 15.10.2009).

The Shadow Report on Implementation by the Ukrainian Government of the European Court of Human Rights Judgement in the Case of Burmych and Others v. Ukraine contains a brief overview of the problem, and the analysis of the measures proposed by the Government of Ukraine. It investigates the implementation of measures to enforce national courts’ decisions in favor of the applicants in the case of Burmich and payment of compensation. It also explores the implementation of measures to introduce an effective system of enforcement of decisions of national courts, and offers an effective mechanism for implementing new solutions and repayment of current debts.

Speaker: Serhiy Holovatyi, founder and President of the Ukrainian Legal Foundation, Minister of Justice of Ukraine (1995-1997, 2005-2006), Honorary Partner of the PACE. His scholarly interests include international public law, theory of law, constitutional law, and human rights. He has published over 200 scholarly works, the main of them being the monograph (in three books) The Rule of Law (2006).

The event was attended by over 30 people: students and postgraduate students from Kyiv universities (the National University of Kyiv-Mohyla Academy, the Taras Shevchenko National University of Kyiv), instructors of the National Academy of Internal Affairs, graduates of the Internship Program in the Verkhovna Rada, MPs’ aids, and representatives of NGOs.

The rule of law serves as a litmus paper that demonstrates whether a society has the standard without which genuine democracy and human rights are unattainable. Assessing the actions of the state (its bodies and officials) in relation to a person based on such formulas as “in a society which has undertaken an obligation to adhere to the rule of law”, “in a state that recognizes the rule of law”, “in a state governed by the rule of law”, etc., courts clearly indicate that this or that action of the state is incompatible with the rule of law principle.

Due to the fact that the principles of true democracy, human rights and the rule of law as “fundamental European ideals” belong to the values that make up the common heritage of European peoples, the actualization of the issues of the rule of law is important in the light of Ukraine’s Eurointegration aspirations.

What is the “rule of law” and what are the values behind this principle? Why the translation of the “rule of law” principle as “верховенство права” is wrong? Why should we prefer the term “правовладдя” and what senses and connotations does it involve? What are the milestones of the idea of the rule of law? What is a measure of the rule of law? What is the difference between soft law and hard law? What is justice? What are the natural rights and how are they secured? Why does everyone need to study philosophy? What are the strengths and weaknesses of the Constitution of Ukraine? These and other questions were discussed during the lecture.

The event was organized by the Agency for Legislative Initiatives together with the Internews Ukraine and the Interns’ League, supported by the USAID Rada Program: Responsible Accountable Democratic Assembly, implemented by the East Europe Foundation.