Fast track to the EU or superficial changes: what's happening with justice reform?

On March 4, the United States announced the suspension of military aid to Ukraine. This demands speed and decisiveness from the European Union and its members to fill critical gaps, prevent Ukraine from falling, and help achieve a just peace. However, military aid is not the only area of cooperation where such swift replacement is necessary.

For years, the U.S. has been the key player that pushed through essential reforms, including in areas where the European Union and other international partners of Ukraine took a softer stance. It now appears that this era is coming to an end.

If the EU and its member states do not take a firmer position on the reforms needed to build a strong and capable democracy, meaningful changes in Ukraine are unlikely to materialise.

On February 24, European Commissioner for Enlargement Marta Kos stated that the European Commission is committed to completing Ukraine’s accession process within 4-5 years. Such an ambitious plan requires significant efforts from both Ukraine and the EU, particularly in the area of the rule of law.

Without genuine, rather than superficial, judicial reform and fundamental changes in the justice system, Ukraine risks either remaining a "perpetual candidate" or entering the Union unprepared – an outcome that would have negative consequences for both sides.

The European Commission is soon expected to release a report assessing the state of the justice system and other key sectors in Ukraine. At the same time, the Ukrainian government has prepared a Reform Roadmap under the "Rule of Law" category, which is intended to serve as a guide for the country’s European integration process.

These documents should ideally help achieve the expected outcome: by the end of the journey, Ukraine must fully meet the requirements of the European Union.

However, the current version of the Roadmap raises concerns that, instead of deep transformations in the justice system, Ukraine may end up with mostly cosmetic changes – ones that fail to address the root problems that have hindered judicial development for decades.

Did little – gained a lot

Ukraine applied for EU membership on February 28, 2022, just four days after the full-scale invasion began. Given these extraordinary circumstances, our European partners granted a significant "discount" during the initial stages – setting out seven requirements whose fulfilment would demonstrate Ukraine’s seriousness and commitment to European integration.

Five of these requirements were directly or indirectly related to the justice system, with the first two concerning the judiciary itself – namely, the reform of the Constitutional Court of Ukraine (CCU) and the reboot of judicial governance bodies, specifically the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ).

A closer look at these steps reveals that most of these reforms had already been planned.

For instance, the HCJ and the HQCJ reboot was part of Ukraine’s commitments to the International Monetary Fund (IMF). The relevant legislation had already been adopted in 2021, meaning the issue at hand was merely the implementation of what Ukraine was already obligated to do.

The third requirement concerned the anti-corruption infrastructure, and its background is equally telling. The competition for the position of the Head of the Specialized Anti-Corruption Prosecutor’s Office (SAPO) began in January 2021, lasted more than a year and a half, and was marred by numerous delays and scandals. Ultimately, in July 2022, Oleksandr Klymenko was appointed as the head of SAPO, but the process remains uncertain and needs further reform.

The remaining requirements were either highly abstract, such as the development of a Strategic Plan for Law Enforcement Reform, which turned out to be essentially hollow and declarative, or specific demands from certain EU member states, like the adoption of a law on national minorities.

As a result, fulfilling these requirements was not particularly difficult for Ukraine, allowing us to advance through the European integration process at an unprecedented speed.

Our membership application was approved on June 23, 2022 – less than four months after submission. This was unheard of in EU history. For comparison, Poland and Hungary received candidate status three years after applying.

This "discount" also manifested in another way: the conditions set for obtaining candidate status became the precondition for the next crucial step – opening accession negotiations. This unprecedented move was not applied to other countries, allowing Ukraine to virtually bypass two major steps that usually take years.

However, despite this rapid progress, it did not lead to dramatic changes in the justice system.

Should the EU have acted differently and withheld these statuses? No. Given the war and the overall situation Ukraine found itself in, granting candidate status was an important symbol of support and a signal of the country’s irreversible path toward the European Union.

Yet, considering the significant trust and political credit given to Ukraine, the EU should have recognised the need to increase the intensity of reforms moving forward. At the very least, it could have adopted a more rigorous approach, demanding more tangible steps in judicial reform.

However, this did not happen, and as a result, Ukraine is not doing enough to truly transform its justice system.

This trend becomes evident when analysing the two enlargement reports on Ukraine, published in late 2023 and 2024. While some areas have seen incremental progress, it is clear that Ukraine is falling behind other candidate countries – progress across all key areas remains critically low.

The latest report repeats many of the same recommendations from the previous one, with phrases like: "As stated in the previous report, we recommend…" appearing frequently. This applies to critical areas such as the Supreme Court, the bar, law enforcement agencies, and other key institutions that must function properly in any EU member state or aspiring candidate country.

The risks of inaction

While the Ukrainian government’s approach is understandable – after all, "doing little and gaining a lot" is any politician’s dream – it remains unclear why the EU would enable this dynamic.

If the slow pace of reforms continues or even regresses in some areas (such as the Supreme Court’s ruling on Judge Usatyi, which was explicitly noted by the European Commission), while Ukraine simultaneously speeds through key stages of the EU accession process, the consequences will be inevitably negative.

It is crucial to remember that it is the country and its people who join the EU, not its government. By allowing Ukraine’s leadership to merely score political points without ensuring real reform, the EU risks doing a disservice – harming both Ukrainian society and the shared interests of Ukraine and the EU.

In this situation, there are only two possible outcomes: either the EU accepts Ukraine purely for political reasons, turning a blind eye to all the problems in the judicial system, or at some point, Ukraine faces the significant risk of being stuck in this process for decades, much like many Western Balkan countries.

Both scenarios are unacceptable.

In the first case, as seen in other Central and Eastern European countries, all reforms would effectively come to a halt the moment Ukraine joins the EU, as the government would no longer have any incentive to implement them.

Clearly, such an outcome is not in the interest of either Ukraine or the EU. In the second case, if Ukraine fails to succeed on its path toward Euro-Atlantic integration, it will create enormous security risks for everyone.

And for those who believe that Ukraine’s chosen course is irreversible due to Russian aggression, there is a stark and unfortunate example before them – today’s Georgia.

Inaction or backsliding?

The issue is not just the slow pace of progress – Ukraine’s problems go beyond that. While the European Commission’s enlargement reports do not yet explicitly highlight this, in some cases, the Ukrainian government has actively rolled back reforms rather than advancing them.

One alarming example is a blatantly anti-democratic law approved by the Parliament’s Law Enforcement Committee under the guise of European integration.

This law introduces criminal liability of up to eight years in prison for the "unauthorised disclosure" of information from state registers. Despite the clear threat this poses to transparency and public oversight, the EU has not issued a strong response.

And this is not the only case of backsliding.

The latest version of the Judicial Reform Roadmap includes provisions for a law that would "improve" the requirements for members of the Public Integrity Council (PIC) and introduce "control mechanisms to prevent conflicts of interest."

However, the real intent appears to be quite different – to make the PIC dependent on political authorities and vested interests. Similar attempts to undermine the PIC’s independence have been made in the past, and now the government seems to be trying again.

If implemented, this would turn the PIC from a body ensuring public oversight over judicial selection and qualification assessments into one easily controlled by political actors. Unfortunately, this trend persists despite Ukraine’s ongoing EU integration efforts and declared commitment to building a system based on the rule of law.

A separate and critical issue is the crisis within the Supreme Court. In spring 2023, anti-corruption agencies exposed Supreme Court Chief Justice Vsevolod Knyazev accepting a bribe of nearly $3 million. According to the prosecution, Knyazev requested the bribe be sorted into 13 black bags containing different sums.

The European Commission has repeatedly emphasised the urgent need to clean up the Supreme Court in its reports. In its latest enlargement report covering all candidate countries, the Commission specifically mentioned a controversial ruling by the Grand Chamber of the Supreme Court regarding Judge Vitalii Usatyi.

In this decision, the court deviated from its previous practice, undermining the process of judicial qualification assessment with the participation of the Public Integrity Council.

This ruling has had serious consequences,

allowing 180 low-integrity judges to avoid the qualification assessment and potential dismissal. 

Furthermore, Iryna Mudra, Deputy Head of the Office of the President, has stated that international experts should not play a meaningful role in selecting judges for the High Administrative Court. Meanwhile, Olha Stefanishyna, Deputy Prime Minister for European Integration and Minister of Justice announced that Ukraine plans to phase out independent foreign experts from judicial selection commissions.

However, during a conference hosted by DEJURE Foundation, Stefanishyna later backtracked, stating that "no one is currently planning to stop the work of commissions composed of international experts, where they hold a prevailing vote."

Despite this reassurance, the new law establishing two administrative courts to replace the infamous District Administrative Court of Kyiv significantly dilutes the role of international experts. It does so by requiring joint meetings of the Expert Council and the High Qualification Commission of Judges, effectively undermining the independent decision-making power of international experts.

Moreover, the Judicial Reform Roadmap (at least the version recently shared with civil society organisations) fails to mention international experts in key processes. In some cases, it even reduces their role to merely an advisory vote rather than granting them the authority to influence judicial appointments in a meaningful way.

The Reform Roadmap should also provide for a review of the procedure for appointing the Prosecutor General, ensuring its compliance with the principles of independence, impartiality, transparency, and professionalism. This requires the implementation of an independent selection process from among candidates determined through competitive procedures, with clear criteria for competence and integrity.

Equally important is the clear regulation of dismissal procedures to prevent arbitrary and politically motivated removals from office. However, at present, this key institution continues to function under excessive political influence, which contradicts European standards of prosecutorial independence.

Why is the participation of international experts critically necessary?

The involvement of international experts in the judicial selection process has become the "gold standard" for evaluating candidates. This approach proved its effectiveness during the establishment of the High Anti-Corruption Court when the Public Council of International Experts (PCIE) prevented any blatantly untrustworthy candidates from advancing in the competition. However, recent efforts by the authorities to undermine this mechanism have become increasingly evident.

Negative results come from mixed-format commissions, where, in addition to international experts, members also include Ukrainians delegated by the odious Council of Judges. This body has repeatedly appointed individuals with highly questionable reputations to selection commissions.

Among them are judges of low integrity, such as Yurii Triasun and Volodymyr Kuzmenko, the latter being implicated in the infamous "Vovk’s tapes" scandal. Other appointees include former Supreme Court Chief Justice under Yanukovych, Yaroslav Romaniuk, who supported the  "January 16 laws", as well as judges who violated anti-corruption laws and pressured subordinates, such as Volodymyr Siverin.

Clearly, with such a composition, the judicial system will only continue to reproduce itself.

Suppose these efforts succeed and international experts are completely removed from the selection process. In that case, Ukraine’s judicial system will immediately revert to the standards of the Viktor Yanukovych era. This scenario is entirely incompatible with both European integration and the development of a capable state.

Therefore, instead of eliminating international experts, their role must be preserved and expanded–at least until Brussels confirms that Ukraine’s judicial system meets European standards. This, and not their removal, should be the government’s top priority.

* * * * *

Can Ukraine buy its way into the European Union with blood? Will we remain stuck in negotiations for decades? Could Ukraine turn back toward Russia, as Georgia has? Much depends on how seriously the EU treats the formation of key documents that will outline the essential reforms.

It may sound counterintuitive, but if the EU and its member states truly want to help Ukraine in this critical moment,

they must be more demanding when it comes to reforms.

One possible tool is the Judicial Reform Roadmap, which, as mentioned earlier, should list all the key reforms that Ukraine must implement to receive a green light for accession. A crucial detail is that this Roadmap is not only approved by the European Commission but also by the member states – who, if they truly care about the integrity of the EU, should make their voices heard.

It is not too late to change course, but doing so requires a serious and responsible approach. It is not enough to simply check the boxes–real results must be achieved so that Ukraine can become a full-fledged and reliable member of the EU. Otherwise, we risk turning into a "problematic teenager" rather than a state that makes a significant contribution to Europe’s security and economy.

Authors:

Mykhailo Zhernakov, Executive Director of DEJURE Foundation

Tetiana Shevchuk, Lawyer at Anti-Corruption Action Centre

Kateryna Shevchuk, Communications Manager at DEJURE Foundation