This paper is focussed on a reform of the legal order, and in partiucular – reform of the judiciary – as an EU pre-accession condition. I would like to explore to which extent the experience of ‘new’ EU member states, in particular those of the CEE, in reforming their court system, should be used to propose possible solutions for new entrants. Using the example of Ukraine, I would like to identify similarities in attitudes of judges and court staff towards preparation for the accession in Ukraine and in the ‘new’ EU member states. Ukraine, like many other CEE countries, has to address the issue of judges educated and professionally formed under the Communist regime, facing the demands of extensive acquis. Apart from these specific aspects of the EU enlargement conditionality, I would like to touch upon broader issues when asking about the limits to the EU enlargement as well as what are the common standards for effective judiciary in Europe.
After the fall of Iron Curtain in 1989, tremendous changes affected the area what now comprises the eastern borders of the EU. These several waves of successive enlargements made European countries (both EU and non-EU) more geographically coherent, while reforms advocated by (pre)accession programmes, association agreements and various other instruments, assisted former Eastern Bloc countries to become politically and economically closer to the EU.
According to Art. 6(1) and Art.49 of the Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union (ex-Art. O, ex-Art 49 of the TEU), any European country that respects the principles of the EU may apply to join. These principles, which evolved throughout ‘several successive waves of EU enlargement over the past two decades’ (Petrovic (2004)) , form a certain set of established criteria (economic, political, geographic and legislative), i.e the rules that define whether a country is eligible to join the European Union, which were laid down at the June 1993 European Council in Copenhagen.
These Copenhagen criteria, among others, require that ‘candidate country has achieved stability of institutions guaranteeing democracy’ and ‘the rule of law’ .
Most of these elements have been clarified over the last decade by the development of the acquis, t as well as by the case law (although neither ECJ nor ECHR’s case law deals with the accession criteria as such). However, there are sometimes slightly conflicting interpretations in current member states, which will be discussed below in detail.
So, does it mean that by accessing to the EU, the newcomers are automatically cleared from their old habits what concerns the quality of the judiciary?
Lets us consider an ideal world where the acquis plays a tremendous role in European Political Integration, i.e. ‘political integration by jurisprudence’ (as AW Green put it in 1969), and where the EU enlargement is about neither the number of countries which wish to join the EU nor it is about the date of future accession for each country., but rather about the degree of alignment with the acquis as the acquis is the backbone of the EU. An argument widely researched by Lazowski is that to become a member and to have a degree of legal integration are two different things. In this paper he advocates the creation of so-called EU legal space and argues that indeed there are exist quite a few new integration models in relations with some of the EU’s neighbours. He calls it ‘enhanced multiculturalism and bilateralism as models of integration without membership’ and presupposes that these models (like EEA or EU-Switzerland) may serve as ‘either a tool or a blueprint’, at the same time having doubts upon their usefulness in relations with ENP countries as being too risky withregard to the effectiveness of the EU law. Lazowski further argues that such ‘eEuropeanization’ may take various forms and it depends on number of factors, sometimes multidimensional ones. He argues that there are quite a number of international treaties between the EC/EU and neighbouring countries which impose on these countries the obligation to apply selected pieces of acquis. He further argues that this leads to ‘legal integration without membership’, and stipulates that there are currently two models or categories of partial legal integration – static one (Energy Community and EC/EU-Swiss Framework) and dynamic one (EEA). The major argument that Lazowski makes is that these models may serve as a blueprint for designing a future regulatory framework of cooperation with ENP countries.
Recent criticism of rather too quick accession of Romania and Bulgaria which – as it is becoming clear now – were too ‘immature’ for joining the EU, shows that to sacrifice fulfillment of economic and legal criteria for the sake of imaginative political ‘benefits’ was too much of an effort and at the end of the day had actually an adverse effect on the whole of the EU enlargement, both as a process and as an idea. As it will be shown by Bobek in a paper which I will cite later, not only those two countries, however, are haunted by skeletons in their judicial cupboard.
However, we – again – leave aside political and other issues which clouded these countries’ accession, as it is beyond the scope of this paper. I would also warn the reader from re-considering the term ‘european’, as various definitions of Europe exist – Blockman and Lazowski, for example, put eastward borders of the EU as far as the Don river; however as far as the membership in the EU is concerned, whether a country is European is “subject to political assessment” by the Commission and more importantly—the Council.
So, what should be done by an aspiring country in order to join the EU?
Among the four groups of EU membership criteria – political, geographic, economic, legislative – we I will surely concentrate on the legislative criteria as the ones relevant to this scope of work, respectively to the rule of law and legislative alignment.
As stated by several EUMAP monitoring reports on the judiciary in the CEE countries, j Judicial independence and judicial capacity are fundamental aspects of the political criteria, and particularly the requirement that the accessing country ensures institutional stability and guarantees, inter alia, the adherence to the rule of law and protection of human rights. EU considers of an utmost importance the ability of judiciaries to protect citizens’ rights, and capacity and ability to implement EU legislationthe acquis.
The adherence to the rule of law means that any government authority should only be exercised in accordance with a set of laws which are clearly documented and adopted through an established legislative procedure. As Hayek (1960) states, that puts it, the rule of law means means that any that government authority must never coerce restrain an individual except in the enforcement of a known rule it constitutes a limitation on the powers of all governmentcircumstances of enforcing a certain law, including the powers of the legislature.
One of the most famous explanations of the concept of rule of law was expressed by Venn Dicey in 1895, : when he described thripartite meaning of the rule of law: nobody is punishable except for a breach of law before the court; every government official is under the same responsibility as any ordinary citizen; and any government official is personally responsible for a wrongdoing
When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land….
… every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike]… and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.
Although legislative alignment is technically verbatim outside the Copenhagen criteria (whereby membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union) it is widely seen and requested as an additional requirement that all prospective members must enact legislation in order to bring their laws in line with the acquis. In this respect Roos argues that
The crucial question is what the “rule of law” as referred to by the EU in the Copenhagen Criteria and by the Constitutions of the countries of South East Europe actually means. What requirements does a state need to fulfill, both de jure and de facto, in order to be rightfully called a state based on the “rule of law” 
and she further describes the concept of the “rule of law” from a Continental, in particular German, legal point of view, as well as the basic elements and prerequisites of a state based on the “rule of law”. This will be, as Bobek will explain in a later cited work, of some importance to the topic of my paper as most of the fifth and sixth enlargement countries – at least gepgraphically if not philosophically, in the meaning of the philosophy of law – belong to either purely Romano-Germanic (or, to be more specifically, Germanic with Austrian influence), or – in the case of Ukraine – borderline Romano-Germanic, as Wood names them.
As part of this process, Copenhagen criteria imply that a candidate country has to include acquis into its own legal system. In all areas of the acquis, a candidate country must bring its institutions, management capacity and administrative and judicial systems up to EU standards, but in my opinion first and foremost it has to have its law book in order.
Historically during each wave of enlargement, the acquis was divided into several chapters, each dedicated to different policy areas. Thus, for example, the fifth EU enlargement document, especially the one that admitted Bulgaria and Romania in 2007, consisted of 31 chapters, and for the sixth enlargement – of Croatia and Turkey – the acquis is split into 35 chapters, aiming at better balancing between them and dividing the most difficult ones into separate sub-chapters for making negotiations easier, and also uniting some of the easier chapters, moving some policies between chapters, as well as renaming quite a few of them:
In accessing/candidate countries, the following aspects have to be reviewed, namely existing and developing legal standards of each accessing/candidate country, institutional arrangements within the judiciary itself and policies and practices ensuring the independence and impartiality of the judicial process. A very good analysis of training of judges, for example, is to be found in Sabato. The EUMAP also stresses that
…the central objective, however, is to examine the degree to which the quality of judges and supporting institutional infrastructure guarantees competent and efficient adjudication.
Some elements of judicial accountability should be assessed as a necessary tool to enhance judicial capacity at both the institutional and personal level. As Emmert puts it,
…the pre-accession programmes of the European Union and the candidate countries have focused heavily on law reform. Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice… administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment of precedents, resolution of ambiguities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes… the majority of efforts promoting administrative and court reform applied so far have rendered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States.
warns from an abstract debate on judicial independence, instead proposing to focus on three core issues withregard the individual independence of judges: individual independence per se (decision-making independence – e.g. no ‘phone-justice’; administrative independence – e.g. establishment of a self-administrative body of the judiciary; and mental independence – e.g.critical thinking of judges towards legislature); accountability (disciplinary, ethical and the like), and foreclosure (i.e. selection of judges – hierarchical vs coordinate). I will come to this interesting debate later in my discussion about Ukraine.
Going into more detail, Mohr and Continii state that judicial accountability may be achieved by introducing transparent mechanisms for selection of judges and for assessment of their performance, and by ensuring transparency of internal operations in accordance with pre-established rules, by formal answerability for expenditures, and by transparency of judicial process.
So understood, judicial accountability implies transparency and answerability rather than responsibility or liability. The EUMAP also stresses that
…such topics as criminal and civil liability and professional discipline of judges, as well as related issues of corruption, judicial ethics, and conflict of interest, should be also reviewed.
An excellent example of analysis in this area is in Piana, where she argues that …in the post-communist countries’ candidate to the European membership, the EU and the Council of Europe exercised a heavy pressure on domestic elite to promote the adoption of institutional guarantees of judicial independence and judicial capacity. Relying on a wide set of interviews with the key actors of the European and domestic institutions, this article will discuss the logic of action of the judicial reforms adopted in Poland, Czech Republic, and Hungary in two policy subfields: the governance of the judicial branch and the governance of the court. The empirical evidence confirms that the processes of reform have been deeply influenced by the national actors who had been empowered during the democratic transition. They have been able to fully exploit the resources provided by the EU.
One of the central arguments of my research is that the personal characteristics and professional quality of judges are critical to a capable judiciary. Judges should possess integrity, sound judgement, professional erudition, and skill to render judgements in accordance with law, and with their own conscience. The EUMAP also stresses that …to ensure this, judges’ selection should be done in accordance with clear rules and procedures that verify their personal and professional suitability for the profession. They should be publicly accountable for their performance during their career, and they should be given the opportunity and, perhaps, the obligation to continuously refresh and improve their professional knowledge and skills.
Another argument is that more competent and efficient judiciary is not enough. There should be enough resources available to judiciary to carry out their work properly, as well as their organizational chart must be drafted state-of-the-artly. Modern technology should be imposed in courts, and administrative practices should be transparent, as well as the managerial capacity of the judicial branch should be enhanced, and judges and judicial administrators should be held accountable for their performance.
There is quite an extensive number of scholars who have established their view on the subject. Thus, Lazowski in one of his earlier works analyses the Polish experience of adaptation of the Polish legal system to European Union law. He notes that in Poland in particular, judicial reforms have been influenced to a larger extent by developments in Polish foreign policy, as a result of Polish participation in a number of international organizations like Council of Europe (whether this might be a general modus operandi is doubtful, especially for Ukraine, which has been a member of the Council of Europe for quite a time, nevertheless it has little effect on Ukraine’s domestic court system, neither on the number of cases against Ukraine in the ECHR, where it ranks 7th in the number of cases put before the ECHR against it). I assume this is for the first time when Lazovski makes a suggestion that voluntary harmonization may occur when a country which is not (yet) a member of the EU or is not an accession country, opts for adapting its national legal system to acuis. Ramsey makes a general overview of Polish implementation of Agenda 2000. Adamson and Emmert, on the other hand, analyze the organization of the legal system and the respective roles of the Ministry of Justice, the Bar Association, the lawyers, and the courts while making such a reform in Estonia. Mikelenas has an excellent piece of work dedicated to the evolvement of civil procedure as a legal form of judicial lawmaking in Lithuania. Schultz makes quite a general assumption of Administrative Law and Performance Reform of Government Agencies in Communist and Post-Communist States based upon experience of Armenia, where he makes a first step towards an examination of the efficacy of administrative law reform in communist and former communist states; this attempt is continued by Hayrapetyan and to some extent by Bravo.
Having said that, what are the features of the future enlargement policy of the EU and what challenges the EU will face after Lisbon Treaty in place? Will the EU stop its eastward/southward enlargement altogether or it is just a temporary hold-up? And if so, would it be still important/visible for a country without clear perspectives of EU membership, still to adopt – voluntarily, mind you – the corpus of acquis?
There are several proposals currently (as of December 2009) being implemented or suggested for implementation: the Commission’s own European Neighbourhood Policy (ENP), the Northern Dimension, the Barcelona Process or the new Eastern Partnership suggested by Poland and Sweden, to name a few. These proposals represent a new attitude in the EU’s relations with its eastern and southern neighbours. The EU currently has Partnership and Cooperation Agreements (PCAs) in force with Armenia, Azerbaijan, Georgia, Moldova, Russia, and Ukraine (a PCA has been signed but not yet ratified with Belarus), and Association Agreements (AAs) with Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, the Palestinian Authority and Tunisia (an AA has been agreed but not yet signed with Syria). These programmes proclaim – at least theoretically – quite a considerable improvement of the level of political engagement, including prospective association agreements. This is especially important after the Lisbon Treaty has put a new legal basis for the neighbourhood agreements, developing a ‘special relationship with neighbouring countries…founded on the values of the Union’ and thus concluding ‘specific agreements with the countries concerned’ which ‘may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly'.
The EU also advocates an intensive assistance for these countries’ reforms to address such common challenges as the recent internal and international tensions, which have become frozen conflicts, illegal human trafficking, illegal migration, structural geographical constraints and insufficient social and economic infrastructure. The new ENP suggests measures to support the social and economic development of these countries, and several other initiatives that will give an evidence of the EU’s support. Among the main points of the a new cooperation framework there are administrative capacity improvement programmes ; and commitments on regulatory approximation to the acquis.
Complying with common standards for effective judiciary: differences, overlaps and links between the Council of Europe’ and EU acquis
When searching for a common standard for effective judiciary, one may come to a paradox which is that the EU requires from candidates compliance with vaguely defined ‘rule of law’ standards when itself it has no competence (art. 2-6 TFEU) to deal with those matters. That’s why it keeps on borrowing legal standards from the Council of Europe (CoE).
The roles of the ECHR and the ECJ are often confused. The relationship between the ECJ and ECHR as a legal system is also cumbersome. Lebeck (2007) states that, there has been no clear clarification regarding relationship between the ECJ and the ECHR . In actual fact, these two courts are quite different in terms of their case typology and jurisdiction.
On one hand, all EU member-states are also parties (via their membership in the Council of Europe) to the European Convention on Human Rights and are accepting the jurisdiction of the ECHR; and the ECHR case-law is regarded as a part of the common constitutional tradition of member-states and has ‘special significance’ (Starmer (2004)) which, as Lebeck (2007) points out, has finally resulted in adoption of Charter of Fundamental Rights of the EU; most of the CoE conventions are regarded by ECJ as part of the acquis in order to ensure a uniform application of legal standards between the acquis and the relevant CoE standards, in particular, in a view that the acquis should be consistent with such basic documents as the European Convention on Human Rights; Jacobs (2006) confirms that the European Convention on Human Rights is being treated by the ECJ as if it had legal force in the EU, and including applying the ECHR case-law. Fundamental rights in acquis have been usually applied to Commission decisions, Regulations and Directives, as well as subjugated national measures designed to implement the acquis. Outside this field of application, however, fundamental rights in acquis have no binding effect.
On the other hand, the acquis itself is not bound by the ECHR decisions, and the CoE plays no institutional role in shaping the EU acquis. Lebeck (2007) points out that the ECJ always rejected the idea to treat ECHR as a part of acquis or to be bound by any of ECHR’s decisions.
The relation between the ECHR and EC-law has been mentioned in a number of cases from the ECJ which has been explored by a number of scholars. According to Jacobs, the ECJ now cites almost routinely the case-law of the ECHR; and re-considered its own previous case-law in the light of ECHR case-law; and vice-versa. The effect of Bosphorus v. Ireland is very important as fundamental rights which are treated as an integral part of EU law can be used to challenge the validity of the acquis or the actions of the EU institutions (see e.g. Lock and Douglas-Scott).
This cooperation, however, has a lack of reciprocity, e.g. CoE representatives are not allow to either participate in COREPER meetings (even as observers) or to attend the working groups of the EU Council but not vice versa . However, the CoE had been consulted on ad hoc basis by the Commission through the involvement of NGO’s working with the CoE in the field of human rights, e.g. on conflicts of jurisdiction in criminal proceedings, presumption of innocence, and certain procedural rights in criminal proceedings.
This type of legal cooperation has become more proactive after the extension of ECJ competencies to several areas previously reserved solely to Member States of the CoE (such as justice and home affairs). Among the documents which led to this it is worth mentioning the 1987 Arrangement between the CoE and the EC and the 2001 Declaration on Cooperation and Partnership, as well as the MoU between the CoE and the EU signed in 2007. The latter document is basically related to setting of common legal standards and legal cooperation between the ECJ and ECHR in such areas as the rule of law, and fundamental freedoms.
My research questions are targeting Ukraine’s future association agreement within the scope of EU enlargement, in particular within the scope of Ukraine’s courts absorption capacity in relation to the acquis. It will be limited to regular (civil and criminal) courts, commercial courts, administrative courts (if both are separated from the regular courts system), and military courts, if these exist. Constitutional Courts, and any other judicial and quasi-judicial bodies are not subjects of my research.
Why Ukraine matters? Because Ukraine is the second biggest country [wholly] in Europe in terms of the territory, and Ukraine is the country the EU has its longest land border with 327 miles. Ukraine is already dealing with EU acquis due to or through activities related to combating illegal immigration (EUBAM programme); through activities related to Schengen agreement & negotiations of visa-free travel (currently EU citizens travel visa-free into Ukraine); through Environmental policy & climate change solutions; through trade barriers removal (after Ukraine joined WTO in May 2008); through Euro-2012 football championship (Ukraine is a co-host with Poland) and development of trans-European road network. There are several EU instruments already in operation: administrative and civil service reform (Twinning instrument); and Economic/judicial reform (TACIS/EUROPEAID programme).
As a result of the EU-Ukraine summit held on September 9th, 2008 in Paris, Ukraine and the EU have agreed to sign a future “association agreement”. The summit declaration “acknowledges Ukraine’s European aspirations” and states that the new treaty “leaves open the question of further, gradual development of EU-Ukraine relations.”
The legally-binding association agreement itself – which is to govern EU-Ukraine cooperation for the next 10 or more years – will be signed in 2010. It will most certainly require from Ukraine to bring the Ukrainian judiciary in compliance with EU standards and the Council of Europe’s requirements in order to improve the effectiveness and accountability of Ukraine’s judicial system.
The failure to fundamentally transform the rule of law in Ukraine has been the biggest disappointment since the Orange Revolution in 2004. Since the disintegration of the USSR in 1991, Ukraine’s judicial system has been in a state of permanent reform, at times through a chaotic process due in part to the many political upheavals the country has experienced since the independence. Five years after the Orange Revolution, the independence of the courts and judges in Ukraine has still not been achieved. While direct political pressure on the courts has decreased, there still is a long way to go to achieve an independent judiciary, while grossly inadequate financing makes the efficiency of the courts illusory, and corruption of members of the judiciary – acute.
Apart of creating the framework and background parts of my research largely based upon what has been described above, I intend to split my specific research questions into three broad groups:
To the first group belong the following questions:
To the second group belong the following questions:
To the third group belong the following questions:
Specifically, what is the organization of legal order in EU countries? On every country (in all 27):
– national legislations
– supranational legislation:
– international agreements
– acquis communautaire
Legal institutes and legal procedures
Order of coming into effect of legislative acts
– single-judge courts
– panel (college) of judges
Other separate courts and tribunals: juvenile justice; military, labour, land, family, public welfare et al.
Role of the office of public prosecutor in each of the above jurisdictions
Specifically, what are the EU procedures for:
– Rules to regulate case assignment
– Case tracking and case flow management functions
– Case load management strategies
Current status of court managers in EU countries (civil servants, court employees, ministry of justice employees, separate court management agency employees etc.)
Qualifying requirements to the candidates (education, experience etc), order of assigning for positions and dismissal, career advancement, training and other aspects
Role of the Ministry of Justice vs. role of specialized bodies (Councils of justice/Councils of judges/Court administrations)
– Merit based personnel selection and appointment;
– Equal employment opportunity;
– Performance appraisals;
– Personnel records;
– Disciplinary procedures and terminations;
– Payroll and related procedures;
– Personnel position description/job classification;
Brief review of the judicial system of EU: making of laws
Brief review of the judicial system of EU: structure of courts
Brief review of the judicial system of EU: organization of court proceedings
Regulating professions of judge, advocate and public prosecutor in EU countries
Legal aid system in EU countries
Jurisdiction of courts in EU countries
Case Load on judges in EU countries
Application of law in EU countries
Serving court notices and summons in EU countries
Witness statements and testimonies in courts of EU countries
Precautionary measures in EU
Enforcement actions in EU countries; regulating bailiff’s profession
Simplified procedures of legal proceeding in EU countries
One reservation has been made regarding the court administration in Ukraine: it refers only to the courts of general jurisdiction (i.e. courts of first instance) and courts of appeal, just leaving aside, for the sake of brevity, the Constitutional Court of Ukraine, the Supreme Court of Ukraine, and the two specialized courts – Higher Commercial Court and Higher Administrative Court, as they all have their own separate management system and are not subject to Ukrainian State Court Administration management..
Also, as the author discovered during his interviews with representatives of the above courts, the introduction of Quality Management therein is at very early stage. To date, for example, only a handful of seminars on introduction of Quality Management in Higher Administrative Court of Ukraine has been organized by the EU’s Twinning Project.
The structure of Ukrainian court system is not based on known uniform principles for either jurisdiction – civil, criminal, commercial or administrative. Rather, each of these jurisdictions in Ukraine uses its own traditions and principles for building its hierarchy. Although proclaimed in Ukrainian constitution, none of these principles corresponds with either territorial hierarchy or logical structure, mostly for historical reasons, and is deeply rooted in the Soviet legacy of “People’s courts” and ‘communist’ doctrine of justice, where the courts were seen as protectors of the State’s interest.
This problem is directly conjugated with the existing chart of Soviet-style administrative-territorial division of Ukraine which itself has four-level hierarchical structure (country, oblast, rayon (county), and village), with significant inaccuracies and contradictions.
The hierarchy of local (1st instance) courts follows the line of Soviet tradition of ‘rayons’ which theoretically should be the third (lowest) level in administrative structure. ‘Rayons’ where the smallest administrative units on the territory of USSR. They were created by the Plenum of the Central Committee of the Communist party of Soviet Union in November 1964, based upon the number of Communist Party organizations in each rayon.
The so-called ‘people’s rayon courts’ were acting as courts of first instance for civil and criminal matters (there were no commercial or administrative courts in USSR, as theoretically there should had been no disputes between socialist enterprises; if there were any inaccuracies in Gosplan-directed supply of goods produced under planned economy, these were settled by so-called State Arbitrages set up and controlled by the Government of USSR), and thus Ukraine when becoming independent in December 1991, simply inherited this system.
Therefore, although such division nowadays has nothing to do with either demographic, political-administrative or geographic logic, the number of such courts theoretically should correspond to the number of rayons in Ukraine, which are 490 in number. However, there are a number of cities in Ukraine which administrative status is equal to rayons, 176 in number, making the total of courts theoretically 666 in number.
The disagreement of what should be the lowest base level of administrative-territorial division of Ukraine, and variety of administrative-territorial units of the third and fourth levels (e.g. the cities with district (‘rayon’) status and/or village councils) does complicate an administrative-territorial charting on a horizontal level. Thus, the same administrative-territorial units – the cities with a district status, and the village councils, can belong both to the third and fourth level of administrative hierarchy. Another example is that in Ukraine there are 64 cities of ‘rayon’ status (apart of capital cities of ‘rayons’ themselves) on a territory of which there function yet 202 other administrative-territorial units, and where the organs of local self-government operate.
This has a direct effect on a court system: the third level of an administrative unit (i.e. rayons) have its own court, the fourth -not, although in reality some rayons in such Ukrainian cities as Kiev (over 5 mln inhabitants) or Donetsk (over 3 mln inhabitants) have up to half a million inhabitants (and should be further subdivided into smaller administrative units with these ‘unit’ courts), and some rayons in Transcarpathian mountains have only several thousand inhabitants.
State Court Administration of Ukraine (hereinafter referred to as the SCA) is vested with functions of the organizational support of courts of the general jurisdiction and appellate courts. This institution has been created according to the following legislative acts:
-arts.125-128 of the Law of Ukraine “On court system”
-Decree of the President of Ukraine “On State Court Administration of Ukraine”
-Decree of the President of Ukraine “On Charter of State Court Administration of Ukraine”
According to these legislative acts, SCA is part of the executive power, not the judicial power, with special status, and its activity is coordinated – akin to a Ministry – by the Cabinet of Ministers of Ukraine.
The functional responsibilities of the Chairman of SCA and his/her deputies are being set up by several legal acts. The organigramm of the SCA is as follows
Main tasks of Ukrainian State Court Administration
Provision of technical support to the Judges’ Appointment Commission on appointment/dismissal of judges (preparation of personal files, background checks, security clearance etc.);
The functions of SCA’s headquarters are being set up by its own Charter approved by the Chairman of SCA. 
From its inception in 2002, the SCA to date had two Chairmen. The first, Hon.Volodymyr Karaban, was a professional judge who spent 15 years as a judge of local court in Kyiv, then was a Deputy Minister of Justice and a judge of Higher Commercial Court of Ukraine. The second (and current one) is Police Commisioner. Ivan Balaklitsky. Prior to joining SCA he spent 18 years as a senior police officer in Kyiv responsible for undercover spying on foreigners on behalf of the KGB .
The Chairman of SCA has an equivalent of a ministerial rank and is appointed and dismissed by the President of Ukraine in the same way as other ministers are appointed (i.e. upon submission by the Prime-Minister of Ukraine approved by the Council of Judges of Ukraine). He/she can be dismissed upon recommendation of the Conference of Judges of Ukraine.
The Chairman of SCA of Ukraine has first deputy and three deputies who are appointed and dismissed by the President of Ukraine upon submission of the Prime-Minister of Ukraine, upon approval by the Council of Judges of Ukraine. Their functions are determined by the Chairman of SCA of Ukraine.
Because SCA is part of Ukraine’s executive, its Quality Management System (hereinafter referred to as QMS) is being developed along the general guidelines set up by Ukraine’s government for all Ukrainian Executive bodies.
The introduction of QMS in Ukrainian Executive bodies was ratified by the decision of Cabinet of Ministers of Ukraine N 614 dated May 11, 2006. It is an ambitious plan which should last until 2010.
By introducing this programme, the Government of Ukraine was aware of the fact that for moving Ukraine closer to the EU, especially during approximation of Ukraine’s legislation to the EU acquis, it is necessary to reform Ukraine’s public administration system, and an effective mean for this purpose is introduction of the QMS into the Ukrainian Executive bodies in accordance with the requirements of ISO 9001-2001, increasing quality of products, processes, works and services provided by Ukrainian Executive bodies.
The necessity of this Program has been urged by:
Introduction of the QMS in the Ukrainian Executive bodies in accordance with ISO 9001-2001 promotes optimizations of planning processes, resource allocation, and determination of additional approaches to the objective evaluation results of their activity.
From the outset of introduction of the QMS in Ukrainian Executive bodies, it was assumed by Government of Ukraine that the basic landmarks of public administration efficiency in the area of services provision should be:
Ukrainian Government was aware of the fact that efficiency of Ukrainian executive bodies is to be determined by the quality of public administration.
Ukrainian Government took as a basis of organization of public administration in the field of providing services the principles of:
The first Ukrainian Executive body that successfully implemented QMS in accordance with the requirements of ISO 9001-2001, was Main Department (‘Ministry’) of Civil Service.
The Programme’s purpose is to increase effectiveness and efficiency of activity of Ukrainian Executive bodies.
The Programme’s task is to introduce QMS in Ukrainian Executive bodies in accordance with the requirements of ISO 9001-2001.
The following directions are foreseen:
Program Implementation is to be carried out in two stages.
The first stage (2010 incl) foresees the introduction of QMS in headquarters of Ukrainian Executive bodies.
to provide for:
The second stage (as of 2009) foresees introduction and full functioning of QMS in the territorial (local) departments of Ukrainian Executive bodies.
Financing of the Program is to be carried out within the limits of facilities foreseen for central and local organs of Ukrainian Executive bodies in the Ukrainian state budget, as well as by other sources in accordance with current Ukrainian legislation (e.g. foreign Technical Assistance such as USAID, EuropAid and the like).
Implementation of Program will enable:
As of December 2008, the introduction of QMS in Ukrainian Justice system has experienced some difficulties. Thus, although a training group has been set up as per p.3 of the above action plan, it consist of only two people – junior civil servants with many other tasks to accomplish. Both of them work for analytical department, whereas in my opinion it would be more beneficial for Ukrainian SCA to select civil servants from an HR department who definitely should possess more cross-departmental experience.
Main problems of implementation of QMS in Ukrainian justice system are, in my opinion, as follows:
After conducting this analysis of the QMS in Ukrainian justice system, I came to a conclusion, that it can not effectively function in isolation from QMS introduction and implementation in all Ukrainian government bodies in general.
It is necessary to point out a substantial lag-behing of Ukraine in the area of QMS introduction and implementation in all Ukrainian government bodies in general.
Ukraine needs that judicial services are not simply provided, but provided with a constant quality, that users are in a position to obtain high-quality services; and also effective Justice management necessary for ensuring effective functioning of Ukrainian judicial system.
The ISO norm are of special importance in the context of future agreement about the association of Ukraine and European Union. Obviously, that absence of certificate of requirements of standard of ISO 9001:2000 in the near future can put the judicial system of Ukraine in difficult position, for example, in obtaining financing from the structural funds of European Commission.
Consequently, introduction of QMS of ISO System 9001:2000 in the judicial system of Ukraine should be of the highest priority and should be performed as quick as possible. It results directly from the requirements established by ISO 9001, forming the whole philosophy of quality of providing services in the judicial system in the EU.
It is obvious that introduction of such system must not take place mechanically. For the judicial system of Ukraine we would recommend to use already existent positive practical experience of other EU accession countries as well as recent EU entrants, to conduct realistic analysis of already performed QMS projects, to limit the volume of procedural requirements of the QM system.
As a result of that, a totally new QM system of quality should be created, which should draw on previous experience of SCA headquarters and create possibilities for development and adaptation.
The primary objective of the QMS system in SCA should be to answer the expectation of clients which are the relevant courts – general jurisdiction and appellate.
QM certification of the judicial system of Ukraine is a not purpose, it only beginning of way to development and subsequent perfection of the judicial system of Ukraine as a whole.
Such development depends on the Chairman and management of the SCA, as well as on all employees of territorial departments of the SCA. Employees will perceive the aims of the work more adequately and will more associate themselves with high-quality results of SCA activity. The mechanisms of the system can help them but it will not replace professional ethics, professionalism and aspiration to improve. It will be allowed more expressly to settle competences and responsibilities of Employees and management of SCA, and would speed up the introduction of the QM system in the management of justice in Ukraine.
As mentioned above, the EU-Ukraine association agreement will require from Ukraine to bring the Ukraine in compliance with EU acquis standards.
Traditionally, legislative reform requires a considerable amount of time before it is enacted into law. Often, this process may take as long as several years and i believe this would apply for Ukraine. While draft legislation may be developed and submitted, consideration should also be given to forms of implementation and testing of the proposed reforms, before the laws are enacted. This may be accomplished through specific directives, regulations, local rules, and/or special conditions approved for implementation.
Which of the above could be used as common EU benchmarks for Ukraine? What are, as Bobek puts it, the indications and recommendations as minimal standards?
Most recently, these agreements were signed as part of the following EU policies: Stabilisation and Association Process (SAp) and European Neighbourhood Policy (ENP). The countries of the western Balkans are covered by SAp and the EU signs with them “Stabilisation and Association Agreements” (SAA) which should explicitly include promise for future EU membership. SAAs in principle are similar to the Europe Agreements which were signed with the Central and Eastern European countries in the 1990s and to the Association Agreement with Turkey. Both the SAA and ENP AP are based mostly on the EU’s acquis and all agreements with current candidate and potential candidate countries contain approximation of laws clauses. However the alignment of legislation with that of the Community, is less than for full EU members and some policy areas may not be covered by a certain SAA (depending on the particular state).
Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union (OJC115, 9.5.2008)
Canor, “Two Can Walk Together Except They Be Agreed?” The Relationship Between International Law and European Law: The Incorporation of United Nations Sanctions Against Yugoslavia Into European Community Law Through the Perspective of the European Court of Justice, 35 CML Rev. (1998) 137ff, id., Primus inter pares. Whois the ultimate guardian of fundamental rights in Europe? 25 Euro.L.Rev. (2000) 3ff. Douglas-Scott, A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis 43 CML Rev. (2006) 629-665; Ress, The legal relationship between the European Court of Human Rights and the Court of Justice of the European Communities according to the European Convention on Human Rights, in Blanke/Mangiameli (eds), Governing Europe under a Constitution (2005) 279-295; Weiler, Methods of Protection: Towards a Second and Third Generation of Protection, in Cassese/ Clapham/Weiler (eds), Protection of Human Rights in the European Community II (1990) 555-642.
Royal Ulster Constabulary, ECR (1986) 1651, C-257/85 Dufay v. Parliament, ECR (1987) 1561, C-12/86 Demirel v. Stadt Schwaebisch Gmuend, ECR (1987) 3719, C-222/86 Unectef v. Heylens, ECR (1987) 4097, C-46/87 Hoechst v. Commission, ECR (1989) 2859, C-85/87 Dow Benelux v. Commission, ECR (1989) 3137 C-97/87, C-98/87 C- 99/87 Dow Chemical Ib?rica
and others v. Commission, ECR (1989) 3165, C-374/87 Orkem v. Commission, ECR (1989) 3283 C-27/88 Solvay v. Commission, ECR (1989) 3355, C-159/90 Society for the Protection of Unborn Children Ireland v. Grogan and others, ECR (1991) I-4685, C-260/89 ERT, ECR (1991) 2925, C-132/91 Konstantinidis, ECR (1992) I-6577, T-107/94 Kik v. Council and
Commission, ECR (1995) II-1717, T-273/94 N v. Commission, ECR (1997) II-289, T-348/94 Enso Espa?ola v. Commission, ECR (1998) II-1875, T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v. Commission, ECR (2003) II-2597, T-306/01 Kadi & Al-Yusuf v. Council (not yet reported); Ellinki Radiophonia Tileorassi (ERT)  I-2925.
Law of Ukraine “On court system”, art.112, https://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=3018-14&p=1222851943035534
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