Justice in Ukraine vs EU states: how far is Ukraine from the European standards?
Justice in Ukraine vs EU states: how far is Ukraine from the European standards according to Assessment of Ukrainian justice system
After the victory of Revolution of Dignity in Ukraine at the beginning of 2014 and move away from the authoritarian regime, the achievement of quality changes in the judiciary has become the key issue. An important event that year was the signing of the Association Agreement between Ukraine and the EU, which launched the process of reforming Ukraine’s justice system in accordance with the European standards. Since then, Ukraine has gradually taken steps toward bringing its national judiciary into compliance with the standards of the EU member states. Since Ukraine’s acquisition of the status of candidate for EU membership, the reform of justice has become even more urgent, as it is a priority on the path of European integration.
At the same time, in conducting judicial reform and evaluating the effectiveness of its implementation, it is also advisable to refer to the tools used in Europe to evaluate justice systems. One of such tools is the EU Justice Scoreboard – a monitoring tool for assessing the efficiency, quality, and independence of the national justice systems of the EU states, which aims at improving their efficiency by providing objective, reliable, and comparative data on a number of key, specifically measurable indicators. Starting in 2013, the European Commission regularly conducts evaluation according to this methodology in all EU member states. In the resolution of the European Parliament of February 11, 2021 No. 2019/2202(INI) regarding Ukraine’s implementation of the Association Agreement (paragraph 46), the use of this mechanism was indicated as necessary when assessing the progress and correcting the course of reforms in the sphere of justice in Ukraine.
Starting in December 2021, the Centre of Policy and Legal Reform has been implementing the project “Assessment of Ukrainian justice system using the EU Justice Scoreboard methodology” with the support of the European Union and the International Renaissance Foundation within the framework of the EU4Usociety project. Despite the full-scale war, project activity did not stop, and its output was the study “Ukrainian Justice Matrix” published in October 2022. The study launched the – for now – informal monitoring of the Ukrainian justice system according to the EU Justice Scoreboard indicators which, we hope, will be conducted by the government on a regular basis in the future, while its results will have a positive impact on the formation of state policy in the area of justice and the effectiveness of judicial reform.
The study’s results were to some extent surprising since – as it turned out – in many aspects, the level of the Ukrainian justice is not that much below that of other, more developed, Western European countries, while in some ways it can even be regarded as a model to emulate. At the same time, the data that was obtained indicate that there is still a lot of work ahead on the path of improving the justice system and implementing the European standards of quality, independence, and accessibility of justice.
In this article, we attempt to summarize the results of the study and analyze the Ukrainian judiciary according to each of the three criteria of the EU Justice Scoreboard methodology (efficiency, quality, independence), while drawing an analogy with the results of the assessment of EU member states conducted within the framework of the study published by the European Commission in 2022.
Efficiency of justice system
The first factor under which justice is assessed within the framework of the methodology is its efficiency, which includes the assessment of indicators on the level of incoming non-criminal cases, estimated length of proceedings (disposition time), clearance rate, and number of pending cases by the end of the year.
The Ukrainian judicial system is quite efficient in comparison with the EU countries in terms of the estimated length of proceedings. According to the EU Justice Scoreboard methodology, this indicator actually reflects the estimated minimum time that a court would need to clear the number of unresolved cases at the end of the relevant period, taking into account the current working conditions of the court (disposition time). In Ukraine in 2020, the disposition time for the first instance courts to clear the balance of unresolved non-criminal cases was 138 days. This is average compared to the EU countries, since in 10 countries, this indicator was less than 100 days, in 5 countries – from 100 to 150 days, and in 7 countries – more than 150 days. In Cyprus, France, and Italy, this indicator was as many as 1087, 554, and 471 days, respectively. Also, the results of the study showed that the estimated time needed for the courts of first instance to clear the balance of pending civil and economic cases in which there is a dispute between the parties is somewhat higher, and amounted to 170 days, while in 13 EU countries this indicator exceeds 200 days. Regarding the clearance of pending administrative cases, in Ukraine this indicator amounted to as many as 203 days, while in 18 EU countries it exceeds 220 days.
Ukraine shows a fairly high level regarding the clearance rate and the number of pending cases as of the end of the year. For the clearance rate, which reflects the capacity of the judicial system to keep up with the flow of incoming caseload, in 2020 the Ukrainian courts of first instance considered 94% of incoming non-criminal cases. At the same time, for civil and commercial cases this indicator was as much as 99%, while for administrative cases – only 81%. By comparison, 63% of the EU member states had the case clearance rate for non-criminal cases by the first instance courts of less than 100%. For civil and commercial cases in which there is a dispute between the parties, the indicator is even worse, as the courts of first instance in only 29% of countries are efficiently dealing with the number of incoming cases. If one were to assess the number of pending cases, as of the end of 2020, there was almost one non-criminal case pending in courts of first instance per 100 inhabitants in Ukraine, which is also quite a good result, because the average number among the EU countries is 2.7 cases per 100 inhabitants.
However, the results of the study show a significant decrease in the efficiency of Ukrainian judiciary in recent years in this regard. Thus, compared to 2012, the estimated time to clear the backlog of cases has almost tripled, the number of pending cases has almost doubled and the clearance rate of cases has decreased by 20% (while for administrative cases, this indicator has fallen by as much as almost 40% – from 130% to 81%). This is caused by the shortage of judges which, starting from 2014, is being felt more and more acutely. At the same time, the resumption of the activity of the High Qualification Commission of Judges of Ukraine, which should occur in the coming months, will allow to fill the existing vacancies of judges and eventually stabilize the mentioned indicators.
Quality of justice system
One of the most all-encompassing criteria for assessing the justice system according to the EU Justice Scoreboard methodology is the “quality of justice” criteria which, in particular, includes the indicators of access to justice (right to legal aid, court fees and legal fees, compensation for legal fees, child-friendly justice and adaptability to needs of persons with disabilities, and level of providing courts with financial and human resources) and the level of digitalization of justice (use of digital tools, online availability of courts and access to court decisions).
In terms of the level of digitalization of justice, Ukraine is significantly ahead of most of the EU-member states, with the digital technologies implemented in the Ukrainian justice among the most progressive in Europe. A person does not even have to leave their home to apply to a court, pay the court fee, attend the hearing, and receive the decision. Furthermore, special resources provide unhindered, 24-hours, free online access to both information on the judicial system’s functioning and various legal consultations, as well as to court decisions of various instances. Despite the progressive legislation in this area, in practice, due to the lack of funding, it is frequently impossible to fully use all available tools. Among the shortcomings of the Ukrainian justice, one should also note the lack of any development of artificial intelligence and blockchain technologies that could be used in the activities of courts and prosecutors’ offices, although some EU countries already have successful experience in this area.
In contrast to digitalization, Ukraine lags behind most EU countries in a number of components of the indicator of access to justice. This, in particular, concerns the availability of the right to free secondary legal aid (including defense in criminal proceedings, representation of the interests in courts or before other persons). In Ukraine, only the lowest-income citizens can avail of this right, and even a person who receives the minimum wage cannot expect to receive free legal aid. By contrast, in the EU countries, as a rule, a person has the right to legal aid even if his/her income is significantly above the poverty threshold. This ensures better access to justice for people with low incomes. Moreover, in some countries (for example, in the Czech Republic, Austria, and Poland), there is no reference to a specific amount of income at all, and the decision on the provision of legal aid is within a judge’s discretion.
In the context of financial accessibility, the Ukrainian justice is one of the cheapest among the EU member states. For example, an individual who applies to the court with a claim of a property nature must pay a court fee in the amount of 1% of the price of the claim, while in EU countries its average amount is as much as 5%. The relative cheapness of the Ukrainian justice has one significant drawback – the state assumes the major portion of the court system’s costs, as the courts’ income from the court fees each year is only about 20% of all budget allocations for first instance and appellate courts.
In general, the judicial system of Ukraine is in a state of permanent underfunding, which has become more acute in recent years. According to the report of the State Judicial Administration, the state budget for 2021 covered the needs of the judicial system in terms of financial resources at only 42.5% (and as statistics show, this percentage is rapidly decreasing, for example in 2017-2018 it reached 79%). Currently, more than 90% of the budget expenditures on the courts are salary costs (due to the excessively high salaries of judges) and only 2% are development expenditures. It is obvious that in such conditions, there сan be no talk of the judicial system’s modernization (new premises, technical equipment, digitalization of procedures, etc.).
Ukraine ranks the lowest among the EU countries in terms of court expenditures per one resident. Thus, only EUR 13 was spent on the court system per resident in 2020, which is more than seven times below the European average (92 euros). For example, in Germany this number is as high as EUR 160, while in neighboring Poland – EUR 76.
Additionally, Ukraine’s ratio of the number of judges to the population size is twice below the European average. In particular, in 2020, there were slightly more than 12 working judges per 100,000 residents in Ukraine, which is one of the lowest indicators among the EU countries. By comparison, Slovenia and Croatia are among the leaders in Europe for this indicator, which both have more than 40 judges per 100,000 residents. Overall, the European average is 22 judges per 100,000 residents.
At the same time, increasing the number of judges in Ukraine is not the optimal way for improving the judicial system, as this will lead to an increase in judicial expenditures: for salaries for new judges, as well as providing them with support staff, premises, and technical means. This is why the development of mechanisms for alternative and pre-trial dispute resolution, which are cheaper and will allow to reduce the burden on the judicial system without the need to increase courts expenditures, looks promising.
In this context, insufficient development of alternative dispute resolution mechanisms (hereinafter, ADR) does not benefit the Ukrainian justice. According to the results of the study, despite having rather progressive legislative regulation, which provides for various ADR mechanisms (arbitration, arbitration courts, mediation), the state’s passivity negatively affects the frequency of using out-of-court dispute resolution methods (according to the results of a public survey, more than 70% of respondents knew nothing about ADR). For example, as judicial statistics shows, the institution of reconciliation with the participation of a judge has not become widespread in practice despite existing in Ukraine for more than four years: in 2021, there were only 99 cases in which parties resorted to this method of dispute resolution (60% of them were civil cases), while reconciliation was successful only in 28 cases. Given that hundreds of thousands of cases are pending before courts every year, these numbers are critically low.
In terms of the level of accessibility of justice from the point of view of its adaptability for vulnerable categories of population (people with disabilities, children), Ukraine’s indicators are also quite low. Thus, due to problems with the financing of the judicial system and inconsistent state policy, special measures to ensure unhindered access to justice for persons with disabilities are insufficiently implemented. Although some courts conduct assessments of their own barrier-free accessibility, but the recommendations based on the results of such assessments are largely not carried out due to the lack of budget funding. Ensuring physical (architectural) accessibility is also complicated, since most courts in Ukraine are not located in specially adapted premises, which makes impossible to adapt them without reconstruction.
There are also significant problems in obtaining the necessary information by people with disabilities. Before the start of the full-scale war, only 44% of courts had the names of main premises and direction signs reproduced in Braille. However, information about the work of the court (schedules of court sessions, information booklets, etc.) was not reproduced at all. The electronic format of information for people with disabilities is also not perfect. Although the official web portal “Judicial Power of Ukraine” and court websites have a version for people with visual disabilities, they are mostly not functional and require the use of special software separately.
At the same time, the “Electronic Court” system, which already provides the opportunity to apply to the court, review case materials, and participate in trials without leaving home, will be able to improve access to justice for persons with disabilities.
The situation regarding child-friendly justice standards in Ukraine is not any better, as the formation of such system is at a relatively early stage. Despite the high level of online accessibility of information about the judicial system for the general public, there is no special website adapted for children in Ukraine, just as there are no other resources where a child could get information regarding the work of the justice system in an accessible form. Meanwhile, such special websites for children are successfully functioning in 20 out of 27 EU countries. Therefore, the creation of appropriate information service for children would be another step that would bring the Ukrainian justice closer to the EU countries’ level.
Although Ukraine has ratified most of the international documents related to the rights of the child and the procedural legislation provides for special procedural measures to protect the interests of children, in practice, justice is not sufficiently adapted to the needs of children. The premises of courts and police offices are mostly not adapted for the stay of children (for example, even the Supreme Court does not have a courtroom adapted for the participation of children), while the gaps in legal regulations do not allow to reduce the number of a child’s contacts with justice. Nevertheless, positive changes are gradually occurring in this area, including creation of juvenile prevention units in the police, introduction of juvenile investigators, prosecutors, and judges, the increasing use of the “green room” method for questioning children, possibility of remote interrogation of children, the introduction of the institution of probation, etc.
According to the EU Justice Scoreboard methodology, the perception of the independence of justice by the general public and business representatives, as well as the institutional independence of judges, prosecutors, and lawyers are assessed as part of the judicial independence criterion.
The results of the study show that Ukraine has one of the last places in terms of the level of perception of independence of justice, compared to the EU countries. Ukrainian courts traditionally rank among the lowest when it comes to trust rating among other state institutions.
Thus, according to the survey, conducted in 2022, 72% of citizens did not trust the courts, and only 28% considered the courts to be mostly or completely independent (according to survey results in 2020). Business representatives rate the impartiality of the Ukrainian judicial system somewhat better (2.69 points out of 5 possible, where 5 points means that the judicial system is completely impartial).
Negative perception of the independence of the Ukrainian justice system by business representatives is confirmed by a 2020 survey of foreign investors, where distrust for the judicial system led the anti-rating of obstacles to foreign investment, displacing widespread corruption from the top spot it occupied in previous years.
Similar results were received in a survey by the American Chamber of Commerce in Ukraine (2021), according to which 56% of respondents recognized that the Ukrainian courts are the biggest obstacle to doing business (this is the highest indicator out of other institutions). 93% of companies noted that the implementation of real and effective judicial reform, rule of law, fair justice, and elimination of corruption is the number one strategic step that the Ukrainian government should undertake to achieve economic growth, improve business climate, and attract foreign investment.
By contrast, as of 2022, in 17 EU member states, more than 50% of respondents rate the independence of courts and judges as very good and fairly good (the highest result is in Finland, at almost 90%), while in 7 more countries, this opinion is shared by 30% to 50% of respondents, and only in three countries (Slovakia, Poland, Croatia), less than 30% of those surveyed consider judges to be independent. With regard to business representatives, the level of business confidence in the security of their investments is over 50% in 16 countries. In 10 other states, the level of confidence is from 30 to 50%. Only in Poland, less than 30% of investors tend to believe that their investments are effectively protected by the legislation and courts.
In contrast to the perception of independence, the Ukrainian justice overall meets international standards according to the indicator of institutional independence. Legislation as a whole guarantees the independence of judges, prosecutors, and lawyers, and some of the existing mechanisms in Ukraine are even more advanced compared to some EU members states. This, in particular, relates to the legislative requirements for the political neutrality and impartiality of Ukrainian judges and prosecutors in the performance of their functions. By contrast, in many EU countries, a judge or prosecutor can temporarily become employed in a political position then return to the administration of justice/execution of prosecutorial functions. Only six EU states do not allow such temporary employment.
In general, significant improvement of the legislation and procedures aimed at ensuring the independence of justice in Ukraine occurred in 2016, when the constitutional amendments transferred all power to judicial self-government bodies. However, unsuccessful legislative mechanisms for the formation of such bodies in practice preserved the existing informal corruption influences and connections in the judicial system. Only a complete reboot of these bodies, which began in summer 2021 and is still ongoing, will allow to achieve the expected goal and ensure the real independence of the judiciary.
Thus, the results of the study showed that the level of the Ukrainian justice system is not lower than in the EU member states in terms of key indicators, and in some issues (for example, digitalization or openness) it is even among the leaders. However, in order to gain full membership in the EU, Ukraine must complete a number of important tasks aimed at improving the judiciary and achieving truly quality changes in the justice area. The government’s initiative in regularly assessing the national judiciary in the future according to the EU Justice Scoreboard methodology, which is implemented in the EU member states, will not only contribute to strengthening the justice system, its efficiency, and integrity, but will also allow it to become one step closer to the European family.
The full results of the study “Ukrainian justice matrix: assessment of Ukrainian justice system according to the EU Justice Scoreboard 2022 methodology” are available at this link.
This publication was produced with the support of the European Union and the International Renaissance Foundation within the framework of the EU4USociety project. Its contents are the sole responsibility of the authors and do not necessarily reflect the views of the European Union and the International Renaissance Foundation.