A Reform of the Legal Order

Abstract

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.

Introduction

After the fall of Iron Curtain in 1989, tremendous changes affected the area what now comprises the eastern borders of the EU[2]. These several waves of successive enlargements[3] 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[4].

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)[5], 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)) [6], 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' [7].

Most of these elements have been clarified over the last decade by the development of the acquis[8], 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[9]. An argument widely researched by Lazowski is that to become a member and to have a degree of legal integration are two different things[10]. 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[11]. 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[12]; however as far as the membership in the EU is concerned, whether a country is European is “subject to political assessment”[13] 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[14]. EU considers of an utmost importance the ability of judiciaries to protect citizens' rights, and capacity and ability to implement EU legislationthe acquis[15].

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)[16] 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[17].

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[18].

and Ott[19].

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” [20]

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[21] 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[22].

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[24]. 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[25].

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[26].

Bobek[27]

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 Contini[28]i 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[29].

So understood, judicial accountability implies transparency and answerability rather than responsibility or liability. The EUMAP also stresses that[30]

...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[31].

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[32].

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[33]. 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[34]). 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[35]. 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[36]. Mikelenas has an excellent piece of work dedicated to the evolvement of civil procedure as a legal form of judicial lawmaking in Lithuania[37]. 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[38], 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[39] and to some extent by Bravo[40].

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[41] (a PCA has been signed but not yet ratified with Belarus[42]), 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)[43]. 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'[44].

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.

EU and common standards for the judiciary

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)[45].

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 [46]. 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))[47] 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[48]. 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[49].

On the other hand, the acquis itself is not bound by the ECHR decisions[50], and the CoE plays no institutional role in shaping the EU acquis[51]. 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[52].

The relation between the ECHR and EC-law has been mentioned in a number of cases from the ECJ[53] which has been explored by a number of scholars[54]. According to Jacobs[55], 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[56] and Douglas-Scott[57]).

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 [58]. 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[59].

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.

Accordingly, my research will examine:

1. the ability of individual judges to perform competently and efficiently; and
2. the organisational efficiency of judicial branches and courts.

Why Ukraine matters

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).

Background

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.

Research questions

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:

1. those related to integration and enlargement;
2. those related to Ukraine's courts needs assessment and capacity building; and
3. those related to EU courts' best practices with regard to European standards and Council of Europe requirements.

To the first group belong the following questions:

1. Further EU enlargement: whereto after Lisbon?
2. Should the criteria set up in Copenhagen be preserved?
3. Should there be different strategies for different accession countries?
4. What are the other potential and feasible options: association agreements, ENP, Mediterranean Partnership etc.? Will these alternative options eventually be converted into something akin ‘accession' strategy? Or will it be just a tool to keep other aspirants out of the EU?
5. What criticism has been made by the Commission on recent entrants (e.g. Bulgaria, Romania)?
6. What legal challenges other ‘new' potential entrants are facing (e.g. Croatia, Serbia, Albania, Turkey?)

To the second group belong the following questions:

1. What should be done long before the ‘association' of Ukraine - a form of soft integration? Sub-integration? What should be these strategies from theoretical prospective?
2. What should be in general the ‘homework' which Ukraine should perform in order to achieve the goals set up by various EU-related agendas?
3. What is more important: the date of Ukraine's accession, or Ukraine's integration into acquis communautaire as such? What is more important: legal strategy or the political strategy of integration into the acquis? Or combination of both?
4. What shape should take Ukraine's further relationship with EU? Is there a strategy for legal/judicial integration & operation of future ‘association' agreement? Is Ukraine domestically shifting in the direction of EU acquis?
5. What are the key features of Ukraine's courts absorption of EU judicial capacity?
6. Do Ukrainian national courts have to have a dialog with ECJ prior to Ukraine's association agreement? How Ukrainian cases will eventually get to the ECJ? How it does change Ukraine's current court administrative capacity?
7. Is Ukraine a country of three different nationalities (pro-Western, pro-Russian(Soviet) and neutral) with three different mindsets and how this may effect pro-EU policy?

To the third group belong the following questions:

1. What are the paradoxes and tensions of European legal integration: linguistic, epistemological, methodological?
2. What are standard operating procedures, court efficiency and case flows in EU countries?

Specifically, what is the organization of legal order in EU countries? On every country (in all 27):

• Hierarchy of sources of law and legal instruments in:

- national legislations

- supranational legislation:

- international agreements

- acquis communautaire

Legal institutes and legal procedures

Order of coming into effect of legislative acts

• What is the organization of legal order and performing of justice in the countries of EU? On every country (in all 27) in particular: what are the principles of organization of courts and tribunals: civil, criminal, commercial and administrative jurisdiction; organigrams: 1st, 2nd (appellate) and 3rd (cassation) instances for:

Civil courts:

- single-judge courts

- panel (college) of judges

Criminal courts

Commercial courts/tribunals

Administrative courts/tribunals

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

• What is the organization of court management in the judicial systems of EU countries:

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)

• How are quality management, performance management and judicial accountability issues of court managers in EU countries performed/observed? Specifically, what are the EU procedures for:

- Recruitment;

- Merit based personnel selection and appointment;

- Equal employment opportunity;

- Performance appraisals;

- Personnel records;

- Disciplinary procedures and terminations;

- Grievances;

- Payroll and related procedures;

- Personnel position description/job classification;

- Training

• Application of best practices of management of the judicial system in the EU. Summary:

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

Key Features of Ukraine's Courts Absorbtion Capacity

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.

Structure of Ukrainian court system

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[60].

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[61]. However, there are a number of cities in Ukraine which administrative status is equal to rayons, 176 in number[62], 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.

Structure of the court administration in Ukraine

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”[63]

-Decree of the President of Ukraine “On Charter of State Court Administration of Ukraine”[64]

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[65].

The functional responsibilities of the Chairman of SCA and his/her deputies are being set up by several legal acts[66]. The organigramm of the SCA is as follows

DRAFT

Main tasks of Ukrainian State Court Administration

Main tasks of the SCA are:

• To provide court management in:
• courts of general jurisdiction,
• Other courts, e.g. appeal courts, military tribunals (courts martial), regional courts (except for Constitutional court, Supreme Court and two higher specialized courts - Administrative and Commercial) and for other institutions of the court system in general.
• Acting as a watchdog for performance control of legislative acts related to the court system.
• Technical support for activities of
• courts of general jurisdiction (as above),
• military tribunals (courts martial) (in co-operation with the Ministry of Defense of Ukraine)
• Academy of Judges of Ukraine,
• Self-governing bodies of judges in Ukraine: tri-annual Conference of Judges of Ukraine and Council of Judges of Ukraine (which acts as a sole self-governing body for Ukrainian judges in-between the conferences)[67],
• other conferences of judges and councils of judges (e.g. local, city etc.); participation in the formation of courts of the general jurisdiction within its scope of activity and authority vested by current Ukrainian legislation;
• Developing proposals on improvement of activity for courts of general jurisdiction.
• analysis of best practices and legislation related to court management;
• legislative drafting and submission of legislative drafts related to court management within the scope of activity of the SCA for consideration by the President of Ukraine and the Cabinet of Ministers of Ukraine
• statistical and personnel analysis of HR policy for court system in Ukraine
• forecasting necessary need of judges and other professionals for court system in Ukraine;
• recruitment of the appropriate court personnel through Ministry of Justice of Ukraine and other institutions;
Provision of technical support to the Judges' Appointment Commission on appointment/dismissal of judges (preparation of personal files, background checks, security clearance etc.);
• development, maintenance and record-keeping of cadres' reserve for judges
• development, maintenance and record-keeping of cadres' reserve for Chief Judges/Deputy Chief Judges
• provision of training for judges and court personnel and coordination of foreign Technical Assistance for training
• maintenance of court statistics, office work and archives; and its performance control;
• caseload analysis (jointly with Council of Judges)
• maintenance of court libraries
• developing procedures on court management for Chief Judges and court personnel
• development and performance of budgetary planning and financial planning for courts; making changes once every three years (i.e. between the two consecutive Conferences of Judges)
• maintenance and performance of court financing in accordance with agreed budget quotas
• development and maintenance of uniform accounting procedures for court system in Ukraine
• submitting court system budgeting proposals to the Ministry of Finance
• acting as the main budgetary agent in administering the annual operating budget for state expenditure related to the court system ;
• performing budgetary control of expenditure from lower-level budgetary agents (i.e. SCA's territorial departments and courts);
• performing analysis of expenditure for the court system of Ukraine
• provision of social security, pension and household services for active and retired judges and court personnel
• provision of healthcare services for active and retired judges, and court personnel
• provision of housing services for active and retired judges, and court personnel
• provision of funeral and commemoration services for active and retired judges, and court personnel
• arrangement of personal security and safety for active judges (i.e. from intimidation, violence and threats) in cooperation with Law enforcement agencies;
• financing (contractual services, supplies and materials) of construction, repair and maintenance of court system operational facilities:
• office space,
• courtrooms,
• jury rooms,
• other space needed to support the court's operations (e.g. cages for serious criminal offenders, meeting rooms to support formal court activities);
• financing (contractual services, supplies and materials) of procurement for:
• technical equipment (incl. one for trial recording);
• IT and software;
• office supplies
• maintaining Court Marshals Service
• handling complaints related to judges' behaviour (jointly with Judges' Appointments Commission)
• maintaining confidentiality and state secret keeping policies
• participating in defense procurement and military mobilization in case of war

The functions of SCA's headquarters are being set up by its own Charter approved by the Chairman of SCA. [68]

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[69]. 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 [70].

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[71]). He/she can be dismissed upon recommendation of the Conference of Judges of Ukraine[72].

His/her main tasks are:

• managing State Court Administration, including its territorial departments
• public policy development in relation to court management
• appointment and dismissal of civil servants of the SCA, including salaries determination, promotion and disciplinary proceedings
• provision of technical assistance in appointment of judges of local courts and appellate courts
• setting up the structure of the Academy of Judges
• setting up the structure of the Court Marshals Service
• submitting draft proposals to the State budget of Ukraine concerning financing of judiciary

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.

Quality Management in Ukrainian Executive bodies

Introduction of QMS in Ukrainian Executive bodies

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:

• Absence of unified standards and procedures of activity for all Ukrainian Executive bodies;
• Insufficient customer-oriented activity of Ukrainian Executive bodies, in particular in the field of provision of services;
• Low quality of most services which are given by Ukrainian Executive bodies;
• Necessity of additional measures aiming to prevent corruption among public servants.

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:

• user-oriented approach;
• leading role of top civil servants;
• personal involvement of office civil servants in achieving results;
• process approach;
• systemic approach.

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:

• rule of law,
• accountability,
• transparency,
• efficiency of decision-making,
• satisfaction of interests of all participants in administrative decision-making,
• Combating corruption.

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.

Purpose and task of Ukrainian Executive Quality Management Programme

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.

Programme implementation: directions

The following directions are foreseen:

• activities co-ordination for Ukrainian Executive bodies in relation to introduction of QMS;
• information support and methodology guidelines for introduction of QMS in Ukrainian Executive bodies;
• organization of training on Quality Management issues for Ukrainian civil servants;
• establishment of effective control procedures after introduction of QMS in Ukrainian Executive bodies

Programme implementation: stages

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.

The first stage foresees:

• to provide information support and methodology guidelines for introduction of QMS in Ukrainian Executive bodies in accordance with the requirements of ISO 9001-2001;
• to select senior civil servants from Ukrainian Executive bodies who should act as contact points/persons responsible in their respective institutions for introduction of QMS and to organize their training;
• organization of training on Quality Management issues for the rest of Ukrainian civil servants;
• to develop action plans on introduction of QMS in Ukrainian Executive bodies;
• to define the list of services which are to be provided by Ukrainian Executive bodies and processes for providing such services;
• to develop necessary paperwork for introduction of QMS in Ukrainian Executive bodies;
• to select auditors for results evaluation of introduction of QMS in Ukrainian Executive bodies;

to provide for:

• internal audit (periodic results evaluation on introduction of QMS);
• pre-certification audit (results evaluation on introduction of QMS before conducting certification audit);
• certification audit (results evaluation of introduction of QMS which will result in assigning a certificate which confirms implementation of requirements of ISO 9001-2001)

The second stage (as of 2009) foresees introduction and full functioning of QMS in the territorial (local) departments of Ukrainian Executive bodies.

Financing the Programme

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).

Expected results

Implementation of Program will enable:

• to promote effectiveness and efficiency of public administration, in particular as a result of decreasing expenditure and avoiding waste of time by consumers;
• to take into account consumer need in certain services and to provide for its proper quality;
• to provide for clear regulation of activity of civil servants, responsible on implementation of functions of the state;
• to make a clear definition of the list of services which are to be given by Ukrainian Executive bodies;
• to secure transparency of administrative decision- making and promote its quality;
• To provide for positive international image of Ukraine.

Analysis

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:

• It has not been defined, who will be the users of services provided by SCA. Those employees of SCA headquarters who are responsible for introduction of QMS, do think that such users should be the citizens, although, in my opinion, the users of services provided by SCA should be the relevant courts - those of first jurisdiction and appellate.
• The country-wide standards of services provided by SCA are not being set up. The list of such services is not clearly defined; little is done towards creating effective QMS in territorial departments of SCA, which are directly engaged in providing these services.
• SCA does not possess operating certificates on the QMS systems in accordance with ISO standard.
• The new high-quality benchmarks for provision of administrative services to users are not being set up. The mechanism of information or document receipt is not transparent and expressly prescribed which gives room for abuse and corruption, and decreasing the level of trust of citizens to the justice system in general.
• The purpose of introduction of the QMS system in SCA is allegedly only a receipt of certificate, instead of improvement of management the judicial system on the whole;
• The existent mentality of employees and management of SCA headquarters and territorial bodies of SCA, which do not perceive new decisions, is hostile to any new initiatives;
• There is no personal interest of SCA's top management in introduction of the QMS system;
• The general mood in SCA headquarters towards introduction of everything new is pessimistic
• The existent hierarchy of SCA is cumbersome, and communication between separate structural subdivisions of SCA headquarters is weak;
• The management of SCA headquarters, especially middle rank officers, are busy with their day-to-day tasks, try avoid problems, try to appoint lower-rank civil servants which would be engaged in QMS implementation
• There exist an appalling absence of knowledge and desire to study ISO standards; many of SCA management regard it as «superfluous» work
• There exist an appalling absence of desire to show problems in activity of SCA
• There currently exist several different management systems in the SCA headquarters (labour protection, office work control, documentary control et al), which duplicate each other
• There is insufficient knowledge among SCA employees for development of clear, accessible, concrete documents linked with introduction of QMS
• Many Ukrainian legislative acts which regulate the order of activity of cenral government, are often unclear and contradict each other;
• The terminology of Ukrainian version of ISO 9001:2000 standard is a poor translation from English, often incomprehensible to SCA employees and is very little adapted to the actual terms of activity of the judicial system of Ukraine;
• There is a clear disparity of financial possibilities of the Ukrainian state withregard justice system financing to those proclaimed in Ukrainian Constitution and other legislative acts. Absence of proper financial support of SCA (many courts refer for financial assistance to local businessmen, sometimes of dubious reputation, which makes them vulnerable to impartiality principle).
• There is an absence of clear understanding which services must be financed

Conclusion

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.

Significance of the research and expected results

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.

Key argument/research question:

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?

1. 1. These theses form part of my PhD research proposal at the School of Law, University of Westminster, UK.
   2. Actually, when the wall came down there was no EU but three European Communities - EEC, ECSC and EAEC. A must-do reading is Monnet, Jean. 1959 [1994]. Prospect for a New Europe. In The Origins and Development of European Integration. A Reader and Commentary, edited by P. Stirk and D. Weigall. London and New York: Pinter.
   3. The fifth enlargement of the EU in 2004 was the largest single expansion of the EU, both in terms of population and territory but not in terms of GDP (wealth). This simultaneous accessions concerned Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, whereas seven of these were members of the former Eastern bloc, with one from the former Yugoslavia and the remaining two being Mediterranean islands. Part of the same fifth enlargement was the accession of Bulgaria and Romania in 2007 (mostly for political reasons), who - for economic reasons - were unable to join in 2004 but constitute according to the Commission as part of the fifth enlargement. A quite comprehensive analysis of the fifth enlargement could be found in: Assya Kavrakova. Comparative Report. The Unfinished Business of the Fifth Enlargement Countries. © 2009 Open Society Institute - Sofia, ISBN 978-954-9828-69-6. Withregard the sixth and subsequent enlargements, at present (December 2009), there are three obviously accepted candidates: Croatia (applied 2003), Macedonia (applied 2004) and Turkey (applied 1987), albeit the latter' admittance to the EU has been halted by some MS for various reasons; however Macedonia has not yet officially (as of December 2009) started negotiations to join. The other countries in the Western Balkans have already signed the Stabilisation and Association Agreements (SAA) that have entered into force for Albania, Croatia and Macedonia, and which generally precede the lodging of formal application for membership. Montenegro (applied December 2008) and Albania (applied April 2009) have also applied for membership, but the European Commission has not given its consent yet. For more comprehensive analysis of recent enlargements see: Handbook on European enlargement: a commentary on the enlargement process. Andrea Ott, Kirstyn Inglis (Eds.),2002, T.M.C. Asser Instituut, The Hague.
   4. It should be made clear that some European countries joined the EU and others, like Ukraine, became closer to the EU, for various political and economic reasons, both internal as well as external.
   5. “Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union”, as amended by the Treaty of Lisbon. https://www.consilium.europa.eu/showPage.aspx?id=1296&lang=en
   6. Petrovic, B. M., 2004-03-17 “European Union Adaptive Pressures and Political Party Systems of (Potential) Candidate States: The Cases of Croatia and Serbia”Paper presented at the annual meeting of the International Studies Association, Le Centre Sheraton Hotel, Montreal, Quebec, Canada Online . 2009-05-26 from https://www.allacademic.com/meta/p72222_index.html
   7. Presidency Conclusions, Copenhagen European Council 1993, 7.A.iii https://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf
   8. It should be worth noting that European Council does not have the competence to adopt legislative acts (under the new framework). Prior to Lisbon Treaty it had had no competence to adopt anything binding at all. Presidency Conclusions were only political documents.
   9. One observation should be made at the very beginning. When we discuss EU accession, we leave aside recent unwise comments made by some failed political figures about EU as a Christian club.
   10. Adam Lazowski. Enhanced multilateralism and enhanced bilateralism : Integration without membership in the European Union. CMLR, p.1433 Volume 45, N°5, 2008
   11. Taking the case of Ukraine, maybe the membership carrot is not strong enough, and arguments that worked with relatively stable countries may not necessarily work with states suffering from fundamental problems of statehood, like Ukraine which had had 13 Prime Ministers (18 counting acting PMs) since Ukrainian independence from the Soviet Union in 1991, 13 Prime Ministers (18 counting acting PMs)?
   12. See inter alia The European Union and its Neighbours. A Legal Appraisal of the EU's Policies of Stabilisation, Partnership and Integration. Steven Blockmans, Adam Lazowski (Eds.), pp. 3-10, 2006, T. M. C. Asser Institute, The Hague.
   13. “Legal questions of enlargement”. Enlargement of the European Union. The European Parliament. 1998-05-19. https://www.europarl.eu.int/enlargement/briefings/23a2_en.htm. Retrieved 2008-07-09.
   14. Monitoring the EU Accession Process: Judicial Capacity (2002), and Monitoring the EU Accession Process: Judicial Independence (2001)
   15. European Parliament resolution on the comprehensive monitoring report of the European Commission on the state of preparedness for EU membership of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (COM(2003) 675 - C5-0532/2003 - 2003/2201(INI)).
   16. Hayek, F von. The Constitution of Liberty, Ch 14- The Safeguards of Individual Liberty. University of Chicago Press, 1960
   17. von Hayek, F von. The Constitution of Liberty, Ch 14- The Safeguards of Individual Liberty. University of Chicago Press, 1960
   18. Venn Dicey. A. Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.
   19. Ott,Katarina. Croatian Accession to the European Union: Institutional Challenges. In: “Monitoring the Process of Croatia's Accession to the EU “,December 2003, Institute of Public Finance. Zagreb. https://www.ijf.hr/eng/EU2/Ott.pdf
   20. Roos, S.. The “Rule of Law” as a Requirement for Accession to the European Union. Working papers of Konrad-Adenauer Stiftung. www.kas.de/wf/doc/kas_15604-544-2-30.pdf
   21. Wood P. Principles of International Insolvency, 2nd ed., Sweet & Maxwell, 2007, p.74
   22. The EU typically signs Association Agreements with those countries who wish to join the EU in exchange for political, economic, trade, and human rights reform commitments. In exchange, the country may be offered financial or technical assistance and free access to some or all EU. The AAs most recently signed also included a Free Trade Agreement provision between the EU and those countries.

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).

1. 1. https://www.absoluteastronomy.com/topics/Acquis
   2. 6th Meeting of the Members of the European Network for the Exchange of Information Between Persons and Entities Responsible for the Training of Judges and Public Prosecutors (Lisbon Network). Bucharest, Romania, 18-19 November 2003. General Report. The Position of Schools of Magistrates in the Judiciary and their Role in the Training of Magistrates. The Lisbon Network and the Future of the Professional Training of Magistrates in a Wider Europe. General Rapporteur: Raffaele Sabato, Judge, Tribunal of Naples, Italy. https://www.coe.int/t/dghl/cooperation/lisbonnetwork/rapports/Rapport-Sabato_en.pdf
   3. EU Accession Monitoring Program. February 2002. Monitoring the EU Accession Process - Judicial Capacity. www.eumap.org/reports/2002/.../2002_00_judicial_method.doc
   4. Emmert F. Administrative and Court Reform in Central and Eastern Europe. European Law Journal, Vol. 9, pp. 288-315, July 2003
   5. Bobek M. The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries. 2008 EPL, pp.99-123.
   6. Mohr, R. and Contini, F. Judicial Evaluation in Context: Principles, Practices and Promise in Nine European Countries. Vol.1 EJLS No.2,
   7. Mohr, R. and Contini, F. Judicial Evaluation in Context: Principles, Practices and Promise in Nine European Countries. Vol.1 EJLS No.2,
   8. EU Accession Monitoring Program. February 2002. Monitoring the EU Accession Process - Judicial Capacity. www.eumap.org/reports/2002/.../2002_00_judicial_method.doc
   9. Daniela Piana. The Power Knocks at the Courts' Back Door: Two Waves of Postcommunist Judicial Reforms. Comparative Political Studies, Vol. 42, No. 6, 816-840 (2009)
   10. EU Accession Monitoring Program. February 2002. Monitoring the EU Accession Process - Judicial Capacity. www.eumap.org/reports/2002/.../2002_00_judicial_method.doc
   11. A.Lazowski, Adaptation of the Polish legal system to European Union law: Selected aspects, SEI Working Paper No. 45, available at https://www.sussex.ac.uk/sei/documents/wp45.pdf
   12. https://cmiskp.echr.coe.int/tkp197/lookup.asp?datasource=judge_en_pd_respondent&input=pd_respondent
   13. L.E. Ramsey, How to Join the Club: Poland, Pre-accession and Agenda 2000. [1999] 5 Web JCLI
   14. Emmert F., Administrative and Court Reform in Central and Eastern Europe. European Law Journal, Vol. 9, pp. 288-315, July 2003.
   15. https://www.jbblegal.lt/upload/doc/lt/Valentinas%20M-Civil%20Procedure%20as%20Legal%20Form%20of%20Judicial%20Lawmaking.pdf
   16. Journal of the Faculty of the public administration of Moscow State University named after M.V. Lomonossov @Public Administration. Electronic Herald”. »), https://e-journal.spa.msu.ru/images/File/2009/18/Schultz.pdf
   17. Arina Hayrapetyan. Court Administration and Management in Armenia. https://www.policy.hu/themes05/governance/hayrap_b.htm
   18. Bravo, Karen E. Smoke, mirrors, and the joker in the pack: on transitioning to democracy and the rule of law in post-Soviet Armenia. Houston Journal of International Law, Spring, 2007. https://www.entrepreneur.com/tradejournals/article/168283782_19.html
   19. To be replaced in 2010, when AA is to be signed with Ukraine.
   20. Any progress in EU-Belarus relations stopped in 1996 after serious abuses in the development of the rule of law and democracy in Belarus, for the reason that EU did not recognize the 1996 constitution. Neither the PCA nor its trade-related elements were implemented, and Belarus was not invited to join the ENP at that stage. As a consequence, Belarusian membership in the Council of Europe was turned down, bilateral relations at the ministerial level were suspended, and EU TACIS programs were put on hold. In 1998, relations were again worsened when President Lukashenka deported several western ambassadors. In 2004, the Council of Europe adopted a report calling on Belarusian authorities to dismiss several officials after conducting a thorough investigation of the cases of prominent Belarusian politicians who have disappeared. The EU spoke strongly against the outcome of the 2006 election, noting that additional restrictions were to be imposed against those responsible for abuses. As a resul of that, the EU has also imposed travel restrictions and financial sanctions against those responsible for abuses. The EU also launched a project to support access to independent information in Belarus. In June 2007, the EU further announced the withdrawal of GSP trade preferences for Belarus, following an assessment by the ILO that Belarus had not ensured the protection of freedom of association. After the September 2008 parliamentary elections, the EU issued a statement again expressing its concern about the conduct of the elections, which did not correspond to the democratic standards. In October 2008, the EU suspended its visa sanctions for six months on numerous Belarusian officials, including President Lukashenka, in response to Belarus' release of political prisoners in August; this suspension has been extended until December 2009. In May 2009, the EU finally invited Belarus to take part in the Eastern Partnership Initiative.
   21. They are usualy referred to as ‘Euro-med Agreements'
   Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union (OJC115, 9.5.2008)
   22. There are actually two areas where the CoE standards are adopted as a basis of the EU acquis: the fundamental rights (has the force of law effective from 1 December 2009) and the efficiency of justice (including the administration and quality of justice). We will analyze below why this is the case, just going briefly through the fundamental rights and focussing more on efficiency of justice.

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.

1. 1. Keir Starmer QC. Introduction to Fundamental Rights in EU Law and the Charter. In: conference materials ‘Human Rights and the European Union: Using EC fundamental rights and remedies in domestic law'. Friday 25 June 2004. The Hatton Conference Centre, 51-53 Hatton Garden, London EC1N 8HN. www.justice.org.uk/images/pdfs/Starmer.pdf
   2. Jacobs F. The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice. The Impact of European Union Accession to the European Convention on Human Rights. In: The Future of The European Judicial System in a Comparative Perspective 291, 291-292 (Ingolf Pernice, Juliane Kokott, & Cheryl Saunders eds., 2006).
   3. see, e.g., Volker Steam v Deutsche Bundespost (No.2) [1994] I ECR 2715
   4. Opinion 2/94 ECR (1996) I-1789.
   5. Council of Europe Secretariat written evidence to the European Union Committee's Call for Evidence for the inquiry into the initiation of EU legislation. Strasbourg, 31 March 2008. Retrieved from: https://www.parliament.uk/documents/upload/CouncilofEurope.31.03.08.pdf
   6. Lebeck C. The European Court of Human Rights on the relation between ECHR and EC-law: the limits of constitutionalisation of public international law. Zeitschrift für öffentliches Recht. Volume 62, Number 2 / June 2007.
   7. C-4/73 Nold KG v. Commission, ECR (1974) 491 C-44/79 Hauer v. Land Rheinland- Pfalz, ECR (1979) 3727, C-136/79 National Panasonic v. Commission, ECR (1980) 2033, C-209-215-218/78 Van Landewyck v. Commission, ECR (1980) 3125, T-11/89 Shell v. Commission, ECR (1992) II-757, C-63/83 Kirk, ECR (1984) 2689, C-222/84 Johnston v. Chief Constable of the

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) [1991] I-2925.

1. Arnull, The European Court of Justice (2001) 202-243; de Burca, Fundamental Rights and the Reach of EC-law, 13 Ox. Jnl. L. St. (1993) 283; Coppel/O'Neill, The European Court of Justice: Taking Rights Seriously? 29 CML Rev. (1992) 669, Hilf, Europaeische Union und Europaeische Menschenrechtskonvention, in Beyerlin et al (eds) Recht zwischen Umbruch und Bewahrung (1995) 1193-1210; Iglesias, Zur Stellung der Europaeischen Menschenrechtskonvention im Europaeischen Gemeinschaftsrecht, in Beyerlin et al (eds) Recht zwischen Umbruch und Bewahrung (1995) 1269-1281; Mendelson, The European Court of Justice and Human Rights, 1 Yb. Euro. L. (1981) 125-166; Weiler/Lockhart, “Taking rights seriously” seriously: The European Court and its fundamental rights jurisprudence I, 32 CML Rev (1995) 51;
2. Jacobs, op.cit.
3. Lock, Tobias. The ECJ and the ECtHR: The Future Relationship between the Two European Courts. The Law and Practice of International Courts and Tribunals, Volume 8,Number 3, 2009, pp. 375-398(24)
4. Douglas-Scott, Bosphorus Hava Youllari Turizm Ve Ticaret Anonim Sirketi v. Ireland, 43 CML Rev (2006) 243
5. “Council of Europe — European Union ‘A sole ambition for the European continent'”, Report to the attention or the heads of state or government of the member states of the Council of Europe (April 2006)
6. Observations by the Council of Europe on a new version of the proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, EU Council document 13759/06 DROIPEN 62 (2006); see also House of Commons, European Scrutiny Committee, Twenty-second Report of Session 2006—07, 18 et seq.
7. https://history-gatchina.ru/article/komm.htm
8. https://uk.wikipedia.org/wiki/__ (an article about administrative-territorial division of Ukraine (in Ukrainian)
9. ibid.
10. Order of the President of Ukraine “On State Court Administration of Ukraine” (in Ukrainian), https://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=780%2F2002
11. Order of the President of Ukraine “On the Reglament of State Court Administration of Ukraine” (in Ukrainian), https://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=182%2F2003
12. This contradicts with the para. “h”, item 5 of Montreal Universal Declaration on Independence of Justice (1983) that executive branches cannot control judicial bodies through courts administration. By the para. “b” of Principle I of Recommendation? (94) 12 “Independence, effectiveness and role of judges”, accepted by the Committee of Ministers of Council of Europe at October 13th, 1994, it is determined that legislative and executive power should provide judges' independence and nonconformity of measures which can lead to the judges dependence. European Charter about the law “On status of judges”, accepted in Lisbon on June 10th, 1998, states that judges through their own representatives or through their own professional organizations can take part in a decision-making process, related to the courts management and determination of their providing measures, and also with the division of the former at national and local level.
13. Order Of Head Of State Court Administration Of Ukraine dated 15.09.2006 N 99 “About the division of duties between Chairman, first deputy and deputies of Head of State judicial administration of Ukraine” (in Ukrainian), https://yurist-online.com/zakoni/004/11/007055.php
14. Law of Ukraine “On court system of Ukraine”, Art. 127 pp.5,6, https://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=3018-14&p=1222851943035534
15. Regulation about State judicial administration of Ukraine, p.9 (introduced by a Decree of a President of Ukraine dated 03.03.2003 N 182)
Law of Ukraine “On court system”, art.112, https://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=3018-14&p=1222851943035534
16. Reglament of State Court Administration of Ukraine https://gca.court.gov.ua/court/info/getfile.php?id=17633
17. Settling down the Femida. A State Court Administration of Ukraine has been created. “Khreshchatyk” newspaper,?144 (2155), 27.09.2002 (in Ukrainian). https://www2.kreschatic.kiev.ua/id=2155&page=6
18. List of alumni of the Law Faculty, Kyiv Shevchenko University. https://who-is-who.com.ua/bookmaket/yurfak/1/3.html
19. p.7 Decree of the President of Ukraine “On Charter of State judicial administration of Ukraine”, https://zakon1.rada.gov.ua/cgi-bin/laws/main.cginreg=182%2F2003
20. p.2 art.112 Law of Ukraine “On court system”

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