Who is helping Ukraine implement reforms on the way to the EU? Interview of Oksana Tsymbrivska, Country Manager of the EU Project Pravo-Justice for hromadske

On June 23, 2022, the European Council officially granted Ukraine the status of a candidate for EU membership. In turn, the European Commission provided recommendations and requirements that we need to fulfill. However, the Ukrainian authorities were not left alone in that situation. They have been supported by the experts of the international projects, including, the EU Project Pravo-Justice.

hromadske talked to the Project Country Manager, Oksana Tsymbrivska, about how exactly the Project helped the authorities in wartime; about investigation of war crimes, introduction of mediation for dispute-resolution, and promotion of judicial reform.

The EU Project “Support to Justice Sector Reforms and Digitalization in Ukraine” (EU Project Pravo-Justice) contributes to the development of the rule of law in Ukraine in accordance with European standards. The Project is implemented by Expertise France and funded by the EU.

How old is the Project and what are the biggest achievements over this time?

The Project started its work in 2017, continuing the activities of its predecessor — EU Project “Support to Justice Sector Reform in Ukraine”, which had been operating since 2014. The EU keeps focus, as its key priority, on the support for reforming the judicial system and the justice system in general. So we may see the European Union’s systematic and long-term support in this field.

Speaking of our results, from the very beginning, we helped Ukrainian state authorities to create a vision of the reform system, so that the changes were not chaotic, but had specific goals, tasks, an implementation plan, and deadlines. We participated in the development of the Justice Sector Reform Strategy for 2015-2020 and the clear-cut Action Plan for its implementation. These documents lay down a vision of what the state authorities need to do in the short, medium and long term in order to achieve the goals set; define a clear deadline for their implementation and responsible persons.

After that, we participated in the development of the Strategy for the Development of the Justice System and Constitutional Justice for 2021-2023. This is another comprehensive strategy which defines key areas and tasks for sustainable functioning and development of the justice system in Ukraine.

One of the greatest achievements of our Project is the promotion of the profession of private enforcement officers in Ukraine. That happened five years ago. At that time, we acted as a key donor promoting the idea of their expediency among the Ukrainian public.

From the first months after they started working, it became clear that, on average, one PEO performs 10 times better than a SEO. Such effectiveness of enforcement not only ensures the restoration of the legal rights and interests of the citizen, for which the person appealed to the court, but also contributes to the improvement of the investment climate in Ukraine.

PEOs are still in the focus of our attention. We work with public authorities to expand their powers. The list of categories of cases which may be enforced by PEOs is much shorter than the one for their colleagues from the state sector. As a result, ineffective enforcement of court decisions in Ukraine remains one of the most problematic issues.

An important know-how that we launched in 2018 and continue developing today is the Model Courts Initiative. Here, the point is that the courts are one of the services provided by the State; therefore the judiciary shall be client-oriented. We offer model solutions which streamline the court organization and improve service for citizens who address to the court. Besides, they also guarantee the security and safety of judges, court staff, and court visitors. We started work with a pilot initiative to implement such modern solutions. As of now, there are more than 80 courts participating in these initiatives and implementing best service-based model practices.

How has the Project worked since the beginning of the full-scale invasion? What challenges did you face and how did you manage to work through them? Have the reform priorities changed?

From the first days, we began to discuss with our European colleagues how to reformat the work of the Project to help Ukrainian authorities. First of all, we worked on the purchase of protective equipment. We facilitated two large deliveries of protective headgears, walkie-talkies, and telecommunications equipment to the prosecutors’ offices, the Ministry of Justice, and the State Judicial Administration.

In addition, together with the Ukrainian Academy of Mediation, we helped deliver water and basic alimentation to the prisons of Zaporizhzhia, Sumy, and Poltava regions for the first three months. That was a significantly support for the penitentiary system.

In parallel with the emergency measures, we held a series of consultations with our key partners: the Office of the Prosecutor General, the Ministry of Justice, and judicial authorities. After that, we reviewed our action plan and adapted it to new needs.

Assistance in the investigation of war crimes and support of the national judicial system in the consideration of these cases has become an important area of intervention of the Project. It is important to understand that most of such cases will be considered in national courts. A small percentage of cases involving the prosecution of the highest political leadership of the Russian federation will reach international courts. Therefore, the competent national authorities should be able to consider such cases, in particular, possess knowledge in international humanitarian law.

Besides, we purchased five state-of-the-art 3D scanners for forensics institutes of the Ministry of Justice of Ukraine. With their help, forensic experts can reproduce remotely, in a matter of minutes, with extreme accuracy, a three-dimensional picture of large objects that were damaged or destroyed as a result of Russian attacks. Such equipment provides for high-quality recording and documentation of war crimes.

During the period of Russia’s full-scale invasion of Ukraine, the Office of the Prosecutor General registered more than 96,000 war crimes and crimes of aggression. How has the Project got involved in their investigation and bringing the culprits to justice?

In May 2022, the governments of the US, the EU, and the UK established the Advisory Group for Investigation of War Crimes and Crimes against Humanity. This is a large group consisting of world-class professional international experts that have been advising the public prosecutors’ offices on war crimes investigation.

Our Project has become part of this Advisory Group. One of the key focus areas of the Project’s work with the OPG is CRSV - conflict-related sexual violence, as well as supporting witnesses and victims. In addition to expert support, we also supply the OPG with computers and other technical equipment, including shelter arrangements for uninterrupted and autonomous work of prosecutors under martial law.

In European countries, there is a well-developed institute of mediation for dispute resolution. This helps, in particular, to avoid expensive and lengthy court proceedings. At what stage of development is this institute in Ukraine and which prospects would it open for citizens and businesses?

In December 2021, the Law “On Mediation” was adopted in Ukraine, which defined the legal principles and procedure for conducting mediation as an extrajudicial conflict resolution procedure. Despite the fact that this is a framework act, there were great expectations for the beginning of its implementation. Unfortunately, the war shifted the focus, and the priorities changed. In this regard, the development and promotion of the institute mediation failed to reach the scale that everyone expected.

International experience has shown that in certain categories of cases, it is expedient to introduce mandatory mediation. Thus, the effectiveness of mediation has been proven, for example, in family and labor disputes. That is, before going to court, the parties shall have a meeting with a mediator, at which they can assess whether there is a possibility and will to resolve the dispute out of court. Such a mandatory procedure is applicable in many European countries and has proved being very effective.

Within the framework of the Project, we have been developing a communication strategy for the introduction and promotion of mediation. Systematic and complex communication of mediation is crucial to the formation of demand for this procedure. After all, people will understand what the advantages of this process are; they will know where to find a mediator. Today, there is a very low understanding of these issues in Ukrainian society.

We are currently developing a unified visual identity for mediation, so that people, when they come to court or for a free legal consultation, could see a visual element that signals the possibility of taking advantage of this service.

In your opinion, which European country should be taken as an example of the successful completion of judicial reform?

Surely, this will not be one country only. Despite the success of the judicial reform and proper operation of respective bodies in a given country, it is never possible to take this experience and just incorporate it in another country. If something works perfectly well in certain conditions, no one can guarantee that it will work the same way in Ukraine. Ukraine has its own context, specificity, and mentality. There are factors that may not allow one hundred percent match.

Our approach is to engage top international experts who come from different EU countries and represent the best practices of a certain national system. Meanwhile, actual decisions on reforms are made by the Ukrainian authorities in consultation with and with the support of international partners, especially given Ukraine's status as an EU candidate country.

As to the successful completion of the reform: the key bodies, the resumption of work of which was among the key demands of the European Commission —High Council of Justice and High Qualification Commission of Judges — are fully formed and operational under the new procedures.

At the end of July 2023, the Verkhovna Rada adopted draft law No. 9322, which concerns the competitive selection of justices of the Constitutional Court of Ukraine. Such selection should take place with the help of the Advisory Group of Experts, which will conduct a check of moral qualities and professional competence of the candidates. This document responds to the additional requests received by Ukraine from the Venice Commission. As a result, Ukraine fulfilled one more, namely the first one on the list, recommendation of the European Commission regarding EU membership.

On June 30, the initial verification of Ukrainian legislation regarding its compliance with EU law (self-screening) – in which the EU Project Pravo-Justice participated – was completed. Why does Ukraine need such self-screening and what are the results of this check?

Self-screening is part of the European integration area of intervention, which added to the Project’s activities after Ukraine received the status of a candidate for EU membership.

This February, the Government adopted a resolution on the self-screening procedure. The key goal of this exercise is to hold a comprehensive comparative analysis of Ukrainian legislation against EU law. It is aimed at identifying the inconsistencies and gaps that need to be eliminated in order to prepare Ukraine for negotiations on joining the EU. All ministries, including MoJ, had to conduct an initial assessment of the state of implementation of EU acts by June 30.

We helped the Ministry of Justice to work out the most voluminous EU regulations and directives from the negotiating chapters 23 “Judiciary and Fundamental Rights" and 24 "Justice, Freedom and Security” regarding their compliance with Ukrainian legislation. The Project Team has set up an expert group of eight Ukrainian and one international expert. They processed over 35 of the most priority and voluminous EU acts; prepared compliance tables and analysis of gaps in Ukrainian legislation.

Now, by August 30, each ministry and other actors shall prepare a report based on the results of the assessment. This report will contain information on the current state of implementation and a list of regulations to be adopted, amended, or repealed. At the same time, the report will also contain an analysis of systemic problems that prevent the adaptation of Ukrainian legislation. The experts of the Project will participate in the report drafting in part of the negotiation sections 23–24. Therefore, it is too early to talk about the results of the self-screening. The process is ongoing, and by the end of August we will have the full picture.

The material was first published on hromadske.ua.