ALI Feature for Dzerkalo Tyzhnia
On 17–19 September, a bilateral EU-Ukraine session will be held in Brussels as part of the screening of Ukrainian legislation for compliance with EU legal norms, which will focus on the negotiated Chapter 23 “Rule of Law and Fundamental Rights and Freedoms.”
Approximately 300 representatives of state institutions from the Ukrainian side will attend the meeting, but more than 85% will participate online.
The Ukrainian team is already in Brussels. The team includes Olha Stefanishyna, Deputy Prime Minister for European and Euro-Atlantic Integration of Ukraine – Minister of Justice of Ukraine, representatives of the Supreme and Constitutional courts, members of the High Council of Justice and the High Qualifications Commission of Judges of Ukraine, officers of the Ministry of Justice and other state institutions. “It is important that members of the Ukrainian delegation do not just represent their respective bodies, the Ukrainian delegation acts as a single team representing Ukraine’s position,” says HQCJ member Vitalii Hatseliuk, commenting on the situation from Brussels.
What is Chapter 23?
The official screening procedure is based on 33 negotiating titles (chapters), which are grouped into six clusters (thematic units). The procedure includes two stages, namely explanatory sessions and bilateral meetings. The Ministry of Justice is the main coordinator for negotiating Chapter 23, “Rule of Law and Fundamental Rights and Freedoms,” and 24, “Justice, Freedom and Security,” of the Fundamentals cluster.
Chapter 23 encompasses EU law and policies in the areas of independent and effective judiciary; preventing and combating corruption as a threat to the stability of democratic institutions and the rule of law; fundamental rights and freedoms guaranteed by EU treaties, the Charter of Fundamental Rights of the European Union: children’s rights, protection of persons reporting violations of EU law, personal data protection, procedural rights and guarantees, rights of victims of crime, combating racism and xenophobia, freedom of expression, non-discrimination, protection of Roma rights, gender equality, rights of persons with disabilities and rights of citizens of EU member states.
In essence, Chapter 23 deals with complex topics such as courts, prosecution authorities, the bar, legal education, the fight against corruption, and fundamental human rights and freedoms.
According to the 2020 revised EU enlargement methodology, Chapter 23, “Rule of Law and Fundamental Rights and Freedoms,” and 24, “Justice, Freedom and Security,” are the most important throughout the negotiation process. No EU negotiation chapter will be closed until the benchmarks within these two chapters are met.
“The European Commission pays special attention to preparations for the negotiations under Chapter 23. The Commission has already received from us and analysed the necessary information that our team has carefully developed,” said Olha Stefanishyna, Deputy Prime Minister for European and Euro-Atlantic Integration, following the final meeting of the Ukrainian delegation.
The preparatory process lasted several months and consisted of preparing written responses to the European Commission’s questions (according to our information, more than 700 pages of text were prepared in response to the European Commission’s questions) and oral presentations, which will be presented in Brussels on Tuesday.
What is Brussels concerned about in the context of the judiciary?
During the negotiations, representatives of the judiciary presented the Ukrainian side’s vision of the real state of affairs in Ukraine’s judicial system. We spoke to representatives of the HCJ and HQCJ about their presentations.
Deputy Head of the High Council of Justice Dmytro Lukianov will discuss the work of the HCJ and HQCJ after their functions’ resumption, the state of the judiciary’s independence, the more than 30% staff shortage in the courts, the appointment of new judges and disciplinary action against judges, the formation of the HCJ Disciplinary Inspectors Service, and other issues.
Ensuring the institutional continuity of the High Council of Justice is also important. As of today, no representatives of the President (two members) have been appointed to the HCJ, and no representatives of the Bar Congress (two members) have been elected. While competitions under the presidential quota at least take place, the Bar Congress, which will be the starting point for the competition, has not been announced since 2022.
“The complexity of the system of electing HCJ members is aimed at ensuring its independence but creates risks for its formation and capacity,” says HCJ Deputy Chair Dmytro Lukianov. “In March 2025, the tenure of two HCJ members who are judges will expire, leaving the HCJ with a minimum quorum of 15 members. This poses a threat of a repeat of the situation of 2022 when the HCJ lost its powers and did not perform constitutional functions for a year. Such a situation can occur both due to a combination of circumstances, especially in times of war, and be the result of a deliberate policy of certain actors.”
The HCJ believes that the problem can be solved based on recommendations of the Consultative Council of European Judges (CCJE) and the Venice Commission. The CCJE recommended introducing the following rule into the legislation: “powers of a member of the Council shall be terminated solely as a result of the lawful election of a new member, which will ensure the continuity of the Council’s activities, even if the parliament (or other entity) fails to vote for new members” (paragraph 36 of CCJE Opinion No. 24 (2021). This is how this problem is solved in many European countries, such as Belgium, Spain, Italy and Portugal.
A separate unit in the negotiations is the work of the judiciary during the war. Today, there are 596 courts in Ukraine, including 561 general local/specialised courts and 35 courts of appeal. Since the beginning of the war, 142 premises of 120 judicial institutions have been destroyed or damaged. Fifty-four judges and 389 court staff members joined the Ukrainian armed forces. Four judges and 14 court staff members were killed.
HQCJ member Vitalii Hatseliuk will discuss issues such as regular appraisal of judges, including plans to adopt relevant documents; the functioning of the Public Integrity Council, issues of financing the justice system and issues related to judicial education – the state of affairs of the National School of Judges of Ukraine, its international cooperation, plans for 2025, specific measures to be developed and implemented to meet the challenges facing Ukraine in the framework of European integration. This includes adapting judicial training to the requirements of European integration, i.e., introducing such blocks as the fundamentals of European law and the status of the EU Court of Justice, paying due attention to issues such as the protection of vulnerable populations, and considering cases related to the consequences of armed aggression against Ukraine, among others.
Vitali Hatseliuk emphasises that the European Commission has a good understanding of the situation; it asks questions, the answers to which are very useful for the further development of Ukrainian statehood. “The process itself is also very important. It helps coordinate the direction of further legal reform. I did not see any irrelevant questions from those the European Commission wants to hear answers to. Overall, this is a very useful tool for Ukraine. It is an opportunity to look at ourselves from the outside and plan further actions. Specific deadlines, indicators and measurement tools are required from Ukraine. All this is often used in project management or policy-making, where it is very clear what result we are going to achieve in a particular aspect and when this result is planned.”
Civil society shadow report on Chapter 23
A week before the start of the negotiations, a coalition of civil society organisations, namely the Agency for Legislative Initiatives, Transparency International Ukraine, Human Rights Centre ZMINA, Tomorrow’s Lawyer and the Ukrainian Bar Association presented their report on the state of play under Chapter 23.
This is the first report that Ukraine’s civil society sector has prepared for the European Commission since Ukraine became an EU candidate. Similar shadow (in fact, alternative) reports are prepared annually in all countries on their path to the EU.
“This Shadow Report offers a more holistic and transparent view of the reform process in Ukraine. It is an important tool for preparing for the EU accession negotiations, both for the Ukrainian side and for the EU,” says Oksana Tsymbrivska, Head of the EU Project Pravo-Justice.
The report covers all areas of Chapter 23, and, in addition to information on the state of play, it also contains a description of key progress and challenges in each area, as well as about 350 recommendations. The Shadow Report was monitored, analysed and prepared in February – August 2024.
Representatives of the European Commission highly appreciated the level of preparation of the Shadow Report, noting that its findings would be used.
“I have never seen such a serious report prepared by civil society in any country I have worked in before. We will use this report to formulate our recommendations for the screening report and consider the draft roadmap of the rule of law reforms that Ukraine will need to prepare to move forward on its EU accession path. And, of course, these materials will be used to set benchmarks for the accession negotiations. Therefore, the report is very timely in terms of our work with Ukraine,” said Manfredas Limantas, Sector Manager for Rule of Law and Anti-Corruption with the EU Delegation to Ukraine, during the presentation of the report.
Instead of conclusions
Tomorrow, Ukraine will open a new page in Brussels on our path to the EU and on the path to reforming (or rather, properly streamlining) key areas of the Fundamentals cluster. While there have already been significant achievements in such areas as courts, prosecution and the fight against corruption, as the key requirements for them are mostly known, although, of course, there is still a long and difficult way ahead, the list of requirements for the bar and legal education, which first appeared in the EC’s 2023 report, will be drawn up as a result of negotiations and, probably, the civil society Shadow Report.
After the European Commission publishes its screening report for 2024, Ukraine will prepare a roadmap with a list of key tasks and indicators, which it will follow in the coming years to join the EU.
It is also time for all representatives of the Fundamentals cluster to assess their professional relevance to the tasks facing Ukraine and consider whether they are ready for fundamental reforms and clear implementation of the roadmap. Failure to comply with the requirements will be immediately recorded by the public sector and will become a stumbling block during further monitoring by the European Commission.
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