On December 13, the Verkhovna Rada adopted three laws that had a status even greater than simple “European integration”. Implementation of the reforms provided for by these laws is one of the conditions for starting EU accession negotiations for Ukraine.
In June 2022, the European Commission recommended granting Ukraine the EU candidate status and set seven recommendations related to the reform: The selection of judges of the Constitutional Court and judicial reform, the fight against corruption and money laundering, proper implementation of anti-oligarchic legislation, adoption of a new law on media, as well as ensuring the rights of national minorities.
However, even following the last parliamentarian gathering, it cannot be said that Ukraine has fulfilled the EU requirements.
Kyiv really demonstrates progress in implementing all the recommendations of the European Commission. But still, they need to be fully completed.
The coalition “Reanimation Package of Reforms” has prepared an analysis of how far Ukraine has gone in terms of performance on each European Commission criterion.
Introducing a transparent and independent competition for candidates for the positions of judges of the Constitutional Court is a long-standing recommendation of Ukraine’s international partners. The G7 ambassadors mentioned it many times, as well as the Venice Commission, but the Ukrainian authorities were in no hurry to implement it.
Even in July 2022, contrary to the recommendations of the European Commission and in violation of the requirements of the law on The Constitutional Court, the Verkhovna Rada appointed a “Sluga’s” MP, Olha Sovhyria as a CCU judge. However, they have launched the reform.
In September, the Rada adopted draft law No. 7662 in the first reading and, on December 13, approved it. But it could be more nicely done. A new special body, the Advisery Group of Experts (AGE), should primarily assess candidates’ moral qualities and integrity. The candidate can proceed to the next stage based on its conclusions.
However, the problem is that the President, the Verkhovna Rada and the congress judges form half of the AGE list. So there is a chance to form a mutual agreement, which will make it impossible to give a “green light” to those candidates whom the authorities (judicial or political) will consider unacceptable.
The final conclusion on the text of the adopted law can be made when it is published
on the Rada website, i.e. in a few days. The adopted law needs finalisation.
The second recommendation of the EU is about the integrity verification of the members of the Supreme Council of Justice (SCJ) and the selection of candidates for the High Qualification Commission of Judges (HQCJ).
These demands are not new: Ukraine’s international partners have been calling for this since 2019.
SCJ and HQCJ are the heart of the entire judicial system because they should determine the standards of integrity, independence and professionalism of all judges in Ukraine.
In 2016, when these bodies were created, the majority of their members received representatives then still unreformed and generally unscrupulous judicial corps.
Some SCJ members were even accused of corruption.
The implementation of the European Commission’s recommendation on the selection of Central Committee members is currently in its first stage: due to full-scale Russian aggression, the start was postponed to July, 2022, and candidates could apply until August 22.
The situation is somewhat better with the SCJ update. The current SCJ members tried in every possible way to avoid revision by the Ethics Council. When it failed, 12 people simply voluntarily resigned. Another SCJ member was dismissed based on the Ethics Council conclusion. The SCJ received 17 new vacancies, which made it possible to update its composition by 80%.
Currently, only seven positions are filled.
According to the experts of the coalition “Reanimation Package of Reforms,” the implementation of this EC recommendation is in an active phase and coming to an end.
Ukraine has fully implemented only one part of the EC recommendation: on July 19, 2022, the winner of the competition, Oleksandr Klymenko was appointed the head of the Specialised Anti-Corruption Prosecutor’s Office.
Selection of the Heads of the National Anti-corruption Bureau and the Asset Recovery and Management Agency is still ongoing.
But “further strengthen the fight against corruption, in particular at high level, through proactive and efficient investigations, and a credible track record of prosecutions and convictions” (as the European Commission states) are yet to start.
This task is complex and depends on several measures. For example, it is necessary to deprive the National Security Service of Ukraine and the National Agency on Corruption Prevention unnecessary duties: combating economic crimes and making proposals on imposing international sanctions.
According to the first part of this recommendation, Ukraine is at same time way behind and on the front line.
Our country is among the top 15 countries in the world of money laundry (almost 11 billion dollars annually). At the same time, it is one of the leading countries in ultimate beneficial owner check and disclosure.
At the same time, the opening of information about ultimate beneficial owner check and disclosure is one of the main recommendations of the Financial Action Task Force to combat money laundering (FATF).
Currently, one of the most important tasks of Ukraine is to determine the state body responsible for the formation and implementation of the beneficial ownership policy.
The European Commission expects Ukraine to adopt a comprehensive strategic plan reforming the law enforcement sector.
This recommendation can be formally implemented based on the already available work of the Ministry of Internal Affairs, Ministry of Justice, and the Office of the Prosecutor General.
During the full-scale Russian aggression, the law enforcement sector of Ukraine has faced new challenges, such as bringing to justice guilty of war crimes and the crime of aggression.
Currently, more than 32,000 criminal proceedings have been registered under this classification. With the de-occupation of new territories, the number of such proceedings is only increasing.
Therefore, we need reforms in military justice and public order.
Another EC recommendation touches the law on oligarchs adopted in September 2021.
The EC underlines the need for proper implementation of this legislation by the upcoming conclusion of the Venice Commission. The conclusion is yet to be announced.
Besides, the Register of oligarchs foreseen by the law still needs to be implemented.
On the one hand, this indicates problems with developing effective methods of assigning a specific person to the oligarchs. On the other hand, the deterioration of the financial situation of the richest citizens of Ukraine as a result of the war complicates the use of the term “oligarch.”
Limiting the influence of oligarchs is also related to the next EC recommendation — the adoption of the law on media, which harmonises the legislation of Ukraine with the EU Directive on audiovisual media services.
The adoption of the new law on media in the second reading on December 13 was significant progress in implementing this EC recommendation. In particular, this document strengthens the media regulator’s powers — the National Council for Television and Radio Broadcasting.
The next necessary step will be the adoption of a separate law on television advertising. In the EU, advertising is regulated by the Directive, while in Ukraine by separate legislation.
Without a new law on television advertising, it is unlikely that the EC recommendation on media reform will be fully implemented.
The EC recommendation for ensuring the rights of national minorities is not unique to Ukraine. Previously, Romania, Bulgaria and Croatia had adopted it as part of their EU accession.
The problem is that monitoring the rights of national minorities and indigenous peoples is ensured by several laws and regulations, not by one document.
Minority rights are ensured at the level of education, decentralisation, broadcasting, culture, participation and governance, prevention of discrimination, etc. However, the EC recommendation is quite vague and abstract.
Therefore, the law “On National Communities in Ukraine” adopted on December 13 can be considered progress in implementing this EC recommendation.
In general, the development of all legislation on ensuring the rights of minorities should be worked upon in communication with the European Commission and the Council of Europe (Venice Commission).
Therefore, none of the EC recommendations has yet been completed.
For most points, it depends on the adoption of the relevant draft laws by the Verkhovna Rada (some have already been adopted, but there are concerns about their quality), as well as on the completion of tenders for anti-corruption and judicial institutions, such as NABU, ARMA, SCJ, HQCJ, etc.
If, by the end of 2022, the parliament can adopt most of the necessary legislation, then the tender procedures will still need to be completed.
However, the European Commission is also not in a hurry to prepare an assessment of individual recommendations or their parts. Therefore, Ukraine is able to complete all procedures on time.
Implementation of these seven recommendations, however, is not only necessary for Ukraine’s further EU integration.
These reforms should determine the independence and stability of state institutions for years, ensuring the further democratic development of Ukraine as a state governed by the rule of law — something that Ukrainians are now fighting for at the front in the war against Russia.
Dmytro Kryvosheiev, Olha Lymar, Denys Davydenko, the RPR Coalition, for European Pravda
The publication uses abstracts from an analytical document written by a group of experts. Read the full version of the analysis of Ukraine’s implementation of the European Commission’s recommendations in the analytical document prepared by the coalition “Reanimation Package of Reforms.”