Ukraine – annual report 2020

Online lecture on civil law as part of the German-language supplementary studies as an introduction to German law at the Ivan Franko National University of Lviv; top left: Dr Silvia Deuring, Ludwig Maximilian University of Munich
Online lecture on civil law as part of the German-language supplementary studies as an introduction to German law at the Ivan Franko National University of Lviv; top left: Dr Silvia Deuring, Ludwig Maximilian University of Munich

Strategic Framework

Legal Policy Starting Point

The issue of conflict resolution in the east of the country remains on the political agenda in Ukraine. Important reform projects, especially with regard to legal and judicial reforms as well as effective lawmaking policy to combat corruption, application of the law and case-law, must be advanced and implemented at the same time. Among other things, these reforms might increase the chances of foreign investments in Ukraine. However, the Constitutional Court has declared some of the judicial reforms and reform ideas for policy to combat corruption unconstitutional. The Land Market Act urged by the International Monetary Fund (IMF) was adopted; the first reading of the long-awaited Administrative Procedure Act and the Mediation Act has also passed parliament. Furthermore, the Ministry of Justice plans extensive reforms in the penitentiary system. IRZ has provided advice on all of these projects, in some cases over a period of many years.

Overall Concept

Cooperation with Ukraine during the reporting year 2020 was financed exclusively with grants from the Federal Ministry of Justice and Consumer Protection. Not everything went according to plan due to the pandemic, although most events were held in an online format. Cooperation prioritised the professional exchange of experience and the further training of judges, especially in administrative court jurisdiction and ordinary general jurisdiction with references to constitutional court jurisdiction. Furthermore, IRZ again provided expert advice on the Administrative Procedure Act and the Mediation Act as well as on reform of the penitentiary system – the latter in connection with implementing the Joint Declaration on Cooperation between the Federal Ministry of Justice and Consumer Protection and the Ukrainian Ministry of Justice. The issue of e-justice was addressed together with the State Judicial Administration of Ukraine. Cooperation with the legal profession and notaries was continued together with the German Federal Bar and the Federal Chamber of Notaries, with a focus on combating money laundering as well as disciplinary law for notaries. IRZ believes that the supplementary studies established at the Ivan Franko National University of Lviv with an introduction to German law with European references is of particular, ground-breaking significance with regard to the promotion of young lawyers. The guest lectures were held under difficult conditions in 2020, and some of them were virtual.

Focus of Activity in 2020

Constitutional Law, Human Rights and their Enforceability

  • Online talk on the topic of transitional justice using the example of the vetting of former GDR judges
  • Multilateral online conference with the Constitutional Court of Ukraine
  • Expert opinion on the safeguarding of a subsistence minimum in Germany under constitutional law

Civil and Commercial Law

  • Expert paper on court jurisdiction for land law disputes in Ukraine
  • Written dissemination of information on consumer protection by the Federal Ministry of Justice and Consumer Protection

Public Law

  • Ongoing advice to the Administrative Cassation Court at the Supreme Court of Ukraine by the Higher Administrative Court of Rhineland-Palatinate
  • Online expert talk on consent decrees in administrative proceedings
  • Online conference marking the 15th anniversary of the adoption of the Ukrainian Code of Administrative Court Procedure
  • International online workshop on how decisions of the Constitutional Court impact administrative court jurisdiction
  • Contribution to the “IIIrd Conference of Ukrainian administrative court jurisdiction” on the protection of social rights

Administration of Justice

  • Online expert talk on the role of lawyers in mediation
  • Online expert talk on mediation in construction law
  • Advice on Ukrainian notary law in the form of online talks and written statements
  • Expert opinion on the draft Mediation Act
  • Online conference on e-justice and the special electronic mailbox for lawyers
  • Online expert talk and exchange of experience on e-justice with the State Judicial Administration of Ukraine
  • Online expert talk between the Oldenburg Higher Regional Court and the Kiev Court of Appeal
  • Expert opinion on “Court-appointed experts” for the Ukrainian Ministry of Justice
  • Expert paper on the selection of judges, promotion of judges and integrity checks on judges for the Supreme Council of Justice of Ukraine

Criminal and Penitentiary Law

  • Statements and online expert talks on the Ukrainian reform of the penitentiary system
  • Online expert talk on how notaries’ offices can combat money laundering
  • Online conference on how lawyers can combat money laundering

Basic and Further Training 

  • Supplementary studies as an introduction to German law at the Ivan Franko National University of Lviv (online formats from autumn 2020)

Outlook

IRZ will continue to support the aforementioned reforms in the justice sector and efforts to combat corruption. The exchange of experience between judges will also continue. Depending on progress on legislative procedure, IRZ will continue to advise Ukrainian partners on the drafts of the Administrative Procedure Act and the Mediation Act or on their implementation. IRZ will also continue to accompany the penitentiary system reform together with its current cooperation partners. In addition, the now eleventh IRZ supplementary studies on German law will be continued at the Ivan Franko National University of Lviv.

Ukraine - annual report 2019

Valentina Danishevska, President of the Supreme Court of Ukraine, and Christian Schmitz-Justen, Vice President of the Higher Regional Court of Cologne, Project Leader, during the closing ceremony in Kiev (Photo: Supreme Court of Ukraine)
Valentina Danishevska, President of the Supreme Court of Ukraine, and Christian Schmitz-Justen, Vice President of the Higher Regional Court of Cologne, Project Leader, during the closing ceremony in Kiev (Photo: Supreme Court of Ukraine)

Strategic Framework

Legal Policy Starting Point

The reporting year was dominated by the Ukrainian presidential and parliamentary elections. Volodymyr Zelensky emerged as the winner in the run-off for the presidential elections on 21 April 2019. The President‘s newly founded party ‘Servant of the People‘ achieved an absolute majority in the early parliamentary elections in July, which had initially been scheduled for October. The President declared that the most important goals of his tenure, besides the desired progress in the conflict over eastern Ukraine, would include policy to combat corruption. He intends to continue along the path of European integration. Zelensky disbanded the Constitutional Commission set up by his predecessor to reform the Constitution and established a Legal Reform Committee with several working groups specialising in specific legal areas. The newly constituted Verhovna Rada rapidly introduced numerous legislation projects, many of which have already been adopted, among them the abolition of parliamentary immunity or the renewed reform of the new Judicial Organisation Act ratified in 2016. The Plenum of the Supreme Court, which was not re-established until 2017 and whose number of judges is to be halved by the law amending the Judicial Organisation Act, submitted this law to the Constitutional Court of Ukraine.

Overall Concept

In 2019, cooperation with Ukraine was again funded firstly by the Federal Ministry of Justice and Consumer Protection, and secondly by the Federal Foreign Office within the project “Strengthening Constitutional Court Jurisdiction and the Judiciary/Administration of Justice in Ukraine“, which was launched in August 2018. Cooperation prioritised work with the Constitutional Court in matters relating to the constitutional complaint, which was introduced in 2016, as well as with the Supreme Court and, furthermore, with the administrative jurisdiction, which is particularly important for the rule of law. The judiciary as a whole was supported by further training for judges carried out together with the Judges Association of Ukraine as well as within the framework of the professional exchange between the Kiev Appeal Court and the Oldenburg Higher Regional Court, which has been maintained since 2016. Cooperation in the areas of policy to combat corruption and the promotion of consumer protection will be intensified in the future.

On 22 February 2019, a new work programme was agreed on the Joint Declaration on Cooperation of the Federal Ministry of Justice and Consumer Protection with the Ministry of Justice of Ukraine, already signed in March 2017. In this framework, a working visit was carried out on the penitentiary system/open prison enforcement and, in the important area of policy to combat corruption, a working visit on covert investigations.

In Kiev, IRZ organised expert talks on mediation in connection with the “Hague Convention on the Civil Aspects of International Child Abduction“ and other expert talks on the “Hague Convention on Maintenance Obligations“.

IRZ also resumed cooperation with its Ukrainian partners to reform notarial law. In previous years, IRZ had already provided intensive advice in this field.

A small anniversary was celebrated in the reporting year with the tenth course of German-language supplementary studies at the Ivan Franko National University of Lviv as an introduction to German law. IRZ will remain committed to this promotion of law students and young legal professionals in the future.

Focus of Activity in 2019

Constitutional Law/Human Rights and their Enforceability

  • Several expert discussions with judges of the Ukrainian Constitutional Court and academic staff of the Constitutional Court in Bonn and Kiev
  • Working visit by academic staff of the Constitutional Court to the Federal Constitutional Court, Max Planck Institute for Comparative Public Law and International Law and the European Court of Human Rights

Civil and Commercial Law

  • Trilateral working visit to Berlin on consumer protection (for Ukraine, Belarus and Moldova)
  • Expert discussions at the Ukrainian Ministry of Justice on “Mediation in connection with the Hague Convention on the Civil Aspects of International Child Abduction“ and the Hague Convention on Maintenance in Kiev

Public Law

  • Regional further training for administrative judges on administrative court procedure law in Kramatorsk (at the Donetsk Administrative Court of Appeal, which had been transferred there) and several specialist conferences with the Administrative Cassation Court at the Supreme Court in Kiev
  • 15th German-Ukrainian Colloquium on Administrative Court Procedure at the Higher Administrative Court of Rhineland-Palatinate in Koblenz
  • Expert talks in Kiev and Bonn on civil and criminal procedure law with the Ukrainian Supreme Court
  • Mutual working visits with expert talks between representatives of the Oldenburg Higher Regional Court and the Kiev Appeal Court
  • Further training for judges with the Judges Association of Ukraine on the subject of court mediation in Lviv
  • Workshop on drafting of the Ukrainian draft legislation on mediation in Wustrau and Berlin and further training of Ukrainian mediators in Berlin
  • Participation of a German expert at a conference of the Razumkow Centre on the issue of non-execution of court judgements in Kiev
  • German-Ukrainian expert talks on notarial law in Berlin and Kiev

Criminal Law and Penitentiary Law

  • Working visit to Aurich by the Qualification and Disciplinary Committee of Prosecutors of Ukraine on law governing the profession of public prosecutors
  • Working visit to Berlin by the Ministry of Justice of Ukraine on the penitentiary system (prioritising the open prison enforcement)
  • Working visit to Bonn by a delegation from the Judges Association of Ukraine on the subject of investigative judges
  • Expert talks on the law of lawyers (prioritising criminal defence) with the Ukrainian Bar Association in Odessa
  • Working visit to Berlin by a delegation from the Ukrainian Specialized Anti-Corruption Prosecutor‘s Office on policy to combat corruption

Basic and Further Training

  • Supplementary studies as an introduction to German law at the Ivan Franko National University of Lviv (tenth course)
  • Research trip to Munich for the best graduates of this IRZ supplementary studies at the University of Lviv (postponed to 2020)

Project funded by the EU

EU Twinning Project: Strengthening the institutional capacity of the Supreme Court of Ukraine in the field of human rights protection at the national level

This EU Twinning Project was implemented by IRZ and the Latvian Ministry of Justice as the junior partner and was brought to a successful conclusion in 2019 after a term of 28 months. Equipped with a budget of around €1.3 million, the project aimed to support the Supreme Court, reorganised as a court of Cassation in 2017, in its alignment with European standards. It consisted essentially of the following components:

  • Drafting of proposals for the improvement of appeals law in Ukraine
  • Training of newly appointed judges
  • Improving the workflows of judges and court staff
  • Public access to information on case-law

This year, the project owners were able to enlarge on and successfully complete the planned support for all three components by providing further workshops, seminars and training for judges and Supreme Court staff.

High-ranking experts from Germany, the Netherlands and Austria joined with Ukrainian Supreme Court judges and representatives from the Ukrainian Ministry of Justice, the Public Prosecutor‘s Office, the legal profession and other relevant institutions to draft proposals for improving appeal law in Ukraine, which were presented at the end of the project.

In addition, the Ukrainian judges were given insight into the practical work of the Supreme Courts as well as public relations within the judiciary during two study trips to Germany, the Netherlands and Austria. During the final conference of the project on 21 June in Kiev, the President of the Supreme Court of Ukraine, Valentina Danishevska, emphasised the special importance of the project at a time of Supreme Court reform.

Outlook

IRZ will support the reform projects envisaged by Verhovna Rada and the new government in line with European standards for the rule of law, depending on the possibilities and needs of the Ukrainian partners. It also plans to participate in the reform of the Public Prosecutor‘s Office by providing meaningful further training. Support for Ukraine‘s efforts in the fight against corruption will also continue, also in the framework of the Joint Declaration of the Federal Ministry of Justice and Consumer Protection and the Ukrainian Ministry of Justice, whose work programme IRZ will continue to implement in coordination with the Federal Ministry of Justice and Consumer Protection.

Going forward, IRZ will also cooperate with its main partners and promote law students and young legal professionals, which has been in place now for ten years, by organising the German-language IRZ supplementary studies on German law at the Ivan Franko National University of Lviv.

 

Ukraine - annual report 2018

Working visit by the Ukrainian Administrative Cassation Court within the Supreme Court to the Federal Administrative Court in Leipzig: President of the Federal Administrative Court Prof. Klaus Rennert (centre) and President of the Administrative Cassation Court Mykhailo Smokovych (to the left)
Working visit by the Ukrainian Administrative Cassation Court within the Supreme Court to the Federal Administrative Court in Leipzig: President of the Federal Administrative Court Prof. Klaus Rennert (centre) and President of the Administrative Cassation Court Mykhailo Smokovych (to the left)

Strategic Framework

Legal Policy Starting Point

The situation in the east of Ukraine did not change substantially during the reporting year. But there was some additional tension in the Sea of Azov, which toward the end of the year led to the imposition of aspects of martial law in some regions of Ukraine. The separation of the Ukrainian Orthodox Church from the Russian Orthodox Church became a dominant issue over the course of the year, which also influenced the political realm. Against the backdrop of this general situation, a continuation of legal reforms in the country remains a significant challenge.

Many reforms have already been implemented nonetheless. Reconstituted and reformed in December 2017, the Supreme Court can now look back on a year of business. Numerous constitutional complaints have already been submitted to the Constitutional Court of Ukraine after introduction of this instrument (as complaint against a law) as part of the constitutional reform two years ago. After the passage of the new Law on the Constitutional Court of Ukraine in 2017, judges at the Constitutional Court are now able to address these complaints.

Overall Concept

In addition to the measures funded with the support of the Federal Ministry of Justice and Consumer Protection (BMJV), a project financed by the Federal Foreign Office was again launched in August 2018 (scheduled to run until the end of 2019): “Strengthening of constitutional court jurisdiction and the judiciary/administration of justice in Ukraine“. The Constitutional Court, which was assigned new competencies as part of the constitutional reform, will be strengthened by this project, especially in regard to the new legal remedy of constitutional complaint. This extends also to general jurisdiction and its independence, aspects which are facing significant challenges due to the extensive judicial reform. The measures funded by the BMJV and the Federal Foreign Office work together in synergy. A Twinning Project is also in place to support the Supreme Court.

Another important partner in 2018 was again the National School of Judges with its reforms of the training programme for judges. Initiated in 2016, the cooperation between the Kiev Appeal Court and the Higher Regional Court of Oldenburg has since been broadened into a regular technical exchange of opinions. The Ukrainian National Bar Association was also supported by the IRZ in cooperation with the German Federal Bar.

Some progress has been achieved in preparing the Ukrainian Administrative Procedure Act, for which a draft version has been available for years and on which the IRZ has provided ongoing counselling. The act may be passed in the near future. A codified administrative procedure law would be an important instrument in policy to combat corruption, among other things. Moreover, it would serve as a basis for case-law at administrative courts. Administrative court jurisdiction remains one of the priorities of IRZ counselling in Ukraine. In this area, partners include the (new) Administrative Cassation Court within the Supreme Court, as well as the administrative courts of first and second instance in the various regions of Ukraine.

For 2019, there are plans to revise the work programme for the Joint Declaration on Cooperation between the BMJV and the Ministry of Justice of Ukraine, which was signed in March 2017. During the reporting year, implementation of the Joint Declaration by the two Ministries of Justice was dominated by cooperation in the area of the Hague Convention on the Civil Aspects of International Child Abduction (HCCA), for which the IRZ conducted two measures in Germany and two in Ukraine, in some cases together with the Bavarian State Ministry of Justice.

The promotion of young legal professionals continued at the Ivan Franko National University in Lviv with the ninth course of German-language supplementary studies as an introduction to German law.

Foci of Activity in 2018

Constitutional Law/Human Rights and their Enforceability

  • Expert conference with judges and academic staff at the Constitutional Court of Ukraine in Kiev
  • Expert talks in Bonn with judges at the Constitutional Court of Ukraine on current issues of constitutional law
  • Preparation of expert assessments and working papers on individual questions of constitutional law

Administration of Justice

  • Working visit to Munich by a delegation from the Ukraine Ministry of Justice on the Hague Convention on Child Abduction (HCCA)
  • Workshop in Wustrau and Berlin on the text for the necessary amendments to civil procedure law and other wordings of laws necessitated in connection with HCCA
  • Working visit by the President of the Supreme Court to the Federal Court of Justice in Karlsruhe
  • Expert talks with the National School of Judges on legal internships in Kiev
  • Expert talk with representatives of the Higher Regional Court of Oldenburg at the Kiev Appeal Court
  • Working visit to the Higher Regional Court of Oldenburg by a delegation from the Kiev Appeal Court
  • Continuation of the exchange of experience with the President of the Ukrainian Supreme Court during the Conference of the Presidents of the Supreme Judicial Courts of the European Union in Karlsruhe
  • Expert talk on the issue of “Enforcement in connection with the HCCA“ in Kiev
  • Continuation of the expert talks on the issue of enforcement in connection with the HCCA in Kiev

Public Law

  • Contribution to the “Conference of Ukrainian administrative court jurisdiction“ in Kiev
  • Preparation of a working paper on the topic of “Legal succession under public law“
  • 14th German-Ukrainian Colloquium on Administrative Court Procedure at the Higher Administrative Court of Rhineland-Palatinate in Koblenz
  • Seminar on administrative court procedure law and administrative procedure law at the Ivano-Frankivsk District Administrative Court
  • Expert assessments of the current draft of the Administrative Procedure Act of Ukraine
  • Workshop in Bonn on the draft text of the Ukrainian Administrative Procedure Act
  • Working visit to Mainz and Leipzig by the Administrative Cassation Court within the Supreme Court of Ukraine

Criminal Law and Penitentiary Law

  • Expert talks on the law on lawyers (prioritising criminal defence) with Ukrainian lawyers in Lviv

Basic and Further Training

  • Supplementary studies as an introduction to German law at the Ivan Franko National University in Lviv (ninth course)
  • Research trip to Munich for the best graduate of the IRZ supplementary studies at the University of Lviv

Project funded by the European Union

EU Twinning project: Strengthening the institutional capacity of the Supreme Court of Ukraine in the field of human rights protection at the national level

This EU Twinning Project supports the newly established Ukrainian Supreme Court to move closer to modern European standards. This 24-month project has been led by the IRZ with the Latvian Ministry of Justice as junior partner since March 2017. It has a budget of approximately €1.3 million.

The Ukrainian Supreme Court was restructured in 2017 as a court of cassation during a comprehensive judicial reform. In addition, a review procedure was conducted in late 2017, during which all judges were replaced.

The main objective of the project is to familiarise the newly appointed judges with the newly introduced approach of cassation. Moreover, it is also intended to improve the legal framework for the business of the Ukrainian Supreme Court in accordance with EU standards, increase the professionalism of judges and court employees and add to the effectiveness of the Supreme Court’s case-law. Also included is the plan to enable greater public access to information on case-law and to establish more efficient working processes.

After delays in selecting and appointing the new judges, who represent the main target group of the project activities, the initial measures were not put into practice until the second half of 2018. The third component of strengthening the capacity of the Supreme Court and improving public access to the judiciary was brought to a successful conclusion in 2018, despite the initial delays. In this context, training courses and seminars were organised, including study trips to the Higher Regional Court of Cologne with the aim of building knowledge among Ukrainian legal experts within the area of judicial administration. Components 1 and 2 are earmarked for completion by June 2019 and should contribute to improving the legal frameworks, as well as the further training of judges.

Outlook

Constitutional and judicial reform will continue to shape cooperation with Ukraine going forward. The Constitutional Court and the Supreme Court will remain key partners in this context. In connection with counselling on the law of judges, cooperation with the Highest Judicial Qualification Committee, the Supreme Judicial Council, the Qualification and Disciplinary Board of the Public Prosecutor‘s Office and the National School of Judges will continue.

As a key institution for the protection of civil rights, administrative court jurisdiction will remain a priority of the IRZ‘s work in Ukraine. Further training for the Ministry of Justice and representatives of public administration will be addressed in order to implement the Administrative Procedure Act, which may be adopted in the following year.

Cooperation between the BMJV and the Ukrainian Ministry of Justice will continue to be expanded within the framework of the Joint Declaration by the two institutions.

Promotion of young legal professionals will also proceed by means of the German-language supplementary studies on German law organised by the IRZ at the Ivan Franko National University in Lviv.