Reforms in the judiciary of Ukraine: domestic practices and the EU's policy instruments

Abstract

The decline of judicial independence in Ukraine has continued at a higher pace during the Presidency of Viktor Yanukovych in spite of the reforms introduced in 2010 and the sustained involvement of international actors. Taking the EU's involvement as a case in point, this article argues that support for judicial reforms aimed at enhancing the independence of the judiciary did not comprehensively address the sociological roots of clientelism that have traditionally characterised the judiciary field in Ukraine and paradoxically reinforced the executive branch. This article analyses this phenomenon from the perspective of Bourdieu's theory of practices and through the prism of policy tools promoted by the EU within the framework of the European Neighbourhood Policy.

Keywords:

• Ukraine
• European Union
• judiciary reform
• policy tools
• international practices
• European Neighbourhood Policy

Notes

In addition to the EU, the Council of Europe (CoE), especially through the European Commission for Democracy through Law (Venice Commission); the Organisation for Security and Cooperation in Europe (OSCE); and various Western governments (the USA, Canada and Switzerland) have provided prolonged and considerable support for the Ukrainian judiciary.

The Extraordinary Congress of Judges in June 2007 was convened on the initiative of the Council of Judges of Ukraine when President Yuschenko interfered with the Constitutional Court assessing the lawfulness of his decision to dissolve the Parliament in April 2007.

Formally, Action Plans are documents enacted bilaterally by the EU and Ukraine in the framework of bilateral institutions; however, usually the EU has the decisive influence on their content. Their implementation has been scrutinised mostly through declaratory instruments such as Country and Progress Reports presented by the European Commission.

These opinions of Venice Commission on Ukraine are available at: http://www.venice.coe.int/site/dynamics/N_Country_ef.asp?C=47&L=E [Accessed May 12, 2012].

The Razumkov Centre's poll results are available at: http://www.razumkov.org.ua/eng/poll.php?poll_id=169 [Accessed May 12, 2012].

Detailed priorities included implementing reforms of the civil, criminal and administrative codes; reforming the prosecution system and law enforcement organs; reforming the court system; implementing European Court of Human Rights (ECtHR) judgments; and training members of judicial and law enforcement bodies, especially concerning human rights issues (Cooperation Council 2005, 6–7).

For example, there was only one measure that prescribed training for officials of the state administration (particularly judicial professionals).

The following projects were analysed in detail: Ukraine – Improving Independence of the Judiciary (Ukraine-JU, 2006–2007); International Co-operation in Criminal Matters in Ukraine (UPIC, 2005–2008); Transparency, Independence and Efficiency of the Judicial System and Increased Access to Justice for All Citizens in Ukraine (UKR-TEJSU, 2008–2011); and Accountability and Effectiveness of Ukrainian Judiciary Functioning (civil service component) (2009–2010).

See the project plan on the website of the Council of Europe: http://www.jp.coe.int/CEAD/JP/Default.asp?TransID=146 [Accessed May 12, 2012].

See the description of UKR-TEJSU on the website of the Council of Europe: http://www.coe.int/t/dghl/cooperation/capacitybuilding/projects/tejsu_en.asp [Accessed May 12, 2012].

See the description of Ukraine-JU on the website of the Council of Europe: http://www.jp.coe.int/CEAD/JP/Default.asp?WorkPlanID=90 [Accessed May 12, 2012].