Published online by Cambridge University Press: 12 May 2011
The aim of this article is to look at the phenomenon of Europeanization of judiciaries of third countries through the prism of EU external policy. It is argued that external factors (objectives of EU external policies, EU soft law, EU technical and financial assistance, favourable interpretation of EU law by the ECJ towards third country nationals) play important role in persuading third country judiciaries to apply the EU acquis in their judgments. The similar pattern can be envisaged with regard to Russia and Ukraine. Case study shows that EU policies towards these countries led to generally favourable attitude towards applying the EU acquis by Russian and Ukrainian courts, though mainly as a persuasive source of law. However, problems linked to effectiveness, independence and fight with corruption hinder further Europeanization of judiciaries in Russia and Ukraine.
2 Henceforth we apply the notion ‘EU acquis’ instead of ‘EU law’ to emphasize the comprehensive and complex nature of the EU legal heritage. See, generally, Petrov, R, ‘Exporting the acquis communautaire into the legal systems of third countries’ (2008) 13 EFAR 33–52Google Scholar.
3 Cremona, M, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CMLR 553–573Google Scholar.
4 The ENP was launched in 2004 (Communication from the Commission ‘Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (COM (2003) 104 final) and covers immediate and close neighbouring countries to the EU (Armenia, Algeria, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Occupied Palestinian Territory, Syria, Tunisia and Ukraine. Information is available at <http://ec.europa.eu/world/enp/policy_en.htm>, accessed 17 March 2011. The Eastern Partnership was launched in 2009 as a complementary policy to the ENP (Communication from the Commission and the European Parliament to the Council “Eastern Partnership” (COM (2008) 823 final). It covers former Soviet countries which participate in the ENP (Moldova, Ukraine, Belarus, Armenia, Azerbaijan, and Georgia) with exemption of Russia.
5 EC–Russia PCA  OJ L327, entered into force 1 December 1997; EC–Ukraine PCA  OJ L49, entered in force 1 March 1998. Both these agreements have expired but were prolonged upon consent of the parties. Negotiations on new enhanced agreements between the EU and Russia and Ukraine are underway. For academic analysis of the PCAs see Hillion, C, ‘Partnership and Cooperation Agreements between the European Union and the New Independent States of the Ex-Soviet Union’ (1998) 3 EFAR 399–420Google Scholar.
6 S Kashkin, Kalinichenko, P, ‘“Problema 2007” v otnosheniakh mezhdu Rossiey i Evropeyskim Souzom i pravovye puty ee reshenia’ (2005) 3 Zhurnal zarubezhnogo zakonodatelstva i sravnitelnogo pravovedenia 68–87Google Scholar.
7 R Petrov, ‘Legal and Political Expectations of Neighbouring Countries from the European Neighborhood Policy’ in M Cremona and G Meloni (eds), The European Neighbouhood Policy: A Framework for Modernisation? EUI Law Working Paper, 2007/21, 7–22.
8 ibid 4. See also M Cremona and C Hillion, ‘L‘Union Fait la Force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy’ EUI LAW Working Paper, 2006/36.
9 For instance, Recommendation No. 1/2005 of the EU–Ukraine Partnership and Cooperation Council of 21/02/2005 on the implementation of the EU/Ukraine Action Plan.
11 Information available at <http://ec.europa.eu/world/enp/documents_en.htm>, accessed 17 March 2011.
12 EU–Ukraine Association Agenda to prepare and facilitate the implementation of the Association Agreement (substituted the outdated EU–Ukraine AP from 23 November 2009), available at <http://ec.europa.eu/external_relations/ukraine/docs/index_en.htm>, accessed 17 March 2011.
13 For example, EU Action Plan on Justice and Home Affairs in Ukraine  OJ C77/01.
14 Joint Evaluation Report of EU–Ukraine Action Plan, March 2008, available at <http://ec.europa.eu/external_relations/ukraine/docs/ukraine_eu_joint_evaluation_2008_en.pdf>, accessed 17 March 2011. The evidence of the deteriorating state of corruption is the fact that Ukraine dropped from rank 107 (out of 158) in 2005 Transparency International's Perceptions of Corruption Index to rank 134 (out of 178) of the same Index in 2010.
15 Regulation 1638/2006 of the European Parliament and the Council of 24 October 2006, laying down General Provisions Establishing a European Neighbourhood and Partnership Instrument  OJ L310/1. Article 2.2.(d) of the Regulation that assistance can be offered with objective ‘promoting the rule of law and good governance, including strengthening the effectiveness of public administration and the impartiality and effectiveness of the judiciary, and supporting the fight against corruption and fraud’.
17 This is EU funded think tank comprised European and Ukrainian experts in EU law and economics. It offers expert assistance to the Ukrainian government. More information is available at <http://www.ueplac.kiev.ua>, assessed 17 March 2011.
18 Information about the project is available at <http://www.jp.coe.int/CEAD/JP/Default.asp?TransID=146>, accessed 17 March 2011.
19 Communication from the Commission to the Council and the European Parliament ‘On Strengthening the European Neighbourhood Policy. ENP Progress Report. Ukraine’ COM (2006) 726 final. The EU stated that ‘progress [in Ukraine] is being hindered by endemic corruption, which is the main challenge to the development and economic growth of Ukraine, and by the lack of a truly independent judiciary’ (Communication from the Commission to the Council and the European Parliament ‘On Strengthening the European Neighbourhood Policy in 2007. ENP Progress Report. Ukraine’ COM (2008) 164).
20 See <http://ec.europa.eu/world/enp/pdf/action_plans/ukraine_enp_ap_jls-rev_en.pdf>, accessed 17 March 2011.
21 For instance, on 12 June 2007 the EU and Ukraine signed a working agreement with FRONTEX (the European Border Exchange Agency) which allows better exchange of information and cooperation with courts in the EU.
22 See ‘The Rule of Law in Ukraine, Report by Sir Brian Neill and Sir Henry Brooke’ (The Slynn Foundation) from December 2008, available at <http://www.britishukrainiansociety.org/en/index2.php?option=com_content&do_pdf=1&id=171>, accessed 17 March 2011. In particular, the Report puts forward the idea that arbitrary judicial decisions by Ukrainian judges are explained by lack of guidelines from higher courts and preference to apply procedural law over substantive law in their judgments.
23 See the regular surveys of Ukrainian judiciary system by the ‘Rule of Law Project’ funded by the US Agency for International Development, available at <http://www.usaid.gov/locations/europe_eurasia/countries/ua>, accessed 17 March 2011.
24 ibid. Surveys show that 72.6 per cent Ukrainians have no trust in the judiciary and are aware of its corruption; this figure is rising by 9 per cent annually. Interestingly enough only 55.9 per cent of respondents believe that Ukrainian citizens are law abiding only in the cases, when it is of benefit to them (See Analytical Report ‘Corruption and Service Provision in Judicial System in Ukraine’ by Kyiv International Institute of Sociology, 2006).
25 Transparency International ranks Russia 154 and Ukraine 134 out of 178 positions in its Corruption Perception Index 2010. Available at <http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table>, accessed 17 March 2011. For comprehensive sociological research in corruption in Russia see A Ledeneva, Russia's Economy of Favours: Blat, Networking and Informal Exchange (CUP, Cambridge, 1999).
26 For instance, see Global Corruption Report 2007: Corruption in Judicial Systems (CUP, Cambridge, 2007). This study finds that in Russia, an estimated US$210 million in bribes is thought to be spent on Russian courts annually.
27 EU Strategy towards Russia in the area of justice and home affairs envisages judicial cooperation in civil and criminal matters. In the former case the EU supports twinning on cooperation between Constitutional Courts of Russia and EU Member States, and the creation of administrative courts. In addition, the EU enables Russia to benefit from the Technical Assistance and Information Exchange (TAIEX) Programme, available at <http://ec.europa.eu/enlargement/taiex/index_en.htm>, accessed 17 March 2011. Also the EU wants to enhance judicial cooperation in civil matters through the framework of the Hague Conference on Private International Law. In the latter case the EU encouraged Russia to sign several Council of Europe legal documents including the Second Additional Protocol to the 1959 European Convention on Mutual Assistance in Criminal Matters and the Convention on Cybercrime, see the Second Progress Report on the implementation of the strategy for the External Dimension of JHA: Global Freedom, Security and Justice 21 May 2008 9391/08, available at <http://www.eurowarrant.net/documents/cms_eaw_id1821_2_CouncilDoc.9391.08.doc>, accessed 17 March 2011.
28 At the St Petersburg Summit in May 2003, the EU and Russia agreed to reinforce their cooperation by creating in the long term four ‘common spaces’ in the framework of the EU–Russia PCA (Common Economic Space, Common Space of Freedom, security and Justice, Common Space of External Security, Common Space of Research and Education).
29 EU–Russia Road Map on Common Space of Freedom, Security and Justice, available at <http://ec.europa.eu/research/iscp/pdf/russia_eu_four_common_spaces-%20roadmap_en.pdf>, accessed 17 March 2011.
33 Joint Statement on the Partnership for Modernisation EU–Russia Summit 31 May–1 June 2010 (Presse 154), available at <http://ec.europa.eu/external_relations/russia/index_en.htm>, accessed 17 March 2011.
35 According to the European Council Conclusion from 1 September 2008 the EU recognized the Russian military action to enforce peace in South Ossetia as disproportional, and postponed the negotiation of the New Partnership Agreement with Russia (CONCL 3, 12594/08).
36 For instance, Blockmans, S, ‘EU–Russia Relations Through the Prism of the European Neighbourhood and Partnership Instrument’ (2008) 13 EFAR 167–187Google Scholar.
41 V Kartashkin, Prava cheloveka v mezhdunarodnom i vnutrenem prave (Moscow, 1995) 16; N Blatova (ed), Mezhdunarodnoe Publichnoe Pravo (Moscow, 1987) 64. In accordance with the Soviet theory of relations between international public law and municipal law application and the enforcement of international agreements concluded by the USSR in the Soviet legal system could take place only in cases when: a) provision of an international agreement is applied together with relevant provision of Soviet legislation; b) priority application of provision of international agreement over relevant provision of Soviet law.
42 The full text in English is available at <http://www.kremlin.ru/eng/articles/ConstMain.shtml>, accessed 17 March 2011.
44 E Kozlova and O Kutafin, Konstitutsionnoe Pravo Rossii (Moscow, 1995) 101.
45 Federal Law ‘On International Treaties of Russian Federation’ Law of 15 July 1995, 101-FZ, Sobranie Zakonodatelstva Rosiyskoy Federatsii, 1995, No. 29, 2757. In particular, article 5(3) of this law states: ‘The provisions of the officially published international agreements of the Russian Federation are directly applicable in the Russian Federation, if they do not require the adoption of domestic acts for their application’.
46 R Livshitz, Precedent kak Istochnik Prava (Moscow, 1997) 4.
47 See ‘Protiv ignorirovaniya praktiki EvroSuda’, available at <http://www.golosa.info/node/1122>, accessed 17 March 2011.
48 More than 20 cases on applying the PCA and about 100 cases with links to the EU law are known in the Russian judicial practice today.
49 Kalinichenko, P, ‘Primenenie Soglashenia o Partnerstve i Sotrudnichestve mezhdu Rossiey i EC Rossiskimi sudami’ (2007) 11 Zakon 225–234Google Scholar.
50 Judgment of the Supreme Court of Russia of 7 June 2002 (5-Γ02-64).
51 Judgment of the Federal Commercial Court of Moscow District of 2 March 2006 (KG-A40/698-06-P).
52 For instance, Judgment of the Federal Commercial Court of North-West District of Russia of 8 October 1998, Master Shipping v Tax Office of St.-Petersburg (A56-11044/98), Judgment of the Federal Commercial Court of Moscow District of 7 April 1999 ‘Popelensky and Partners’ v Central Bank of Russia (КA-A40/824-99 BPP), Judgment of the Federal Commercial Court of Far East District of Russia of 24 September 2001 Sakhalinmorneftegas v Office for Monetary Control of Sakhalin Region (F03-A59/01-2/1791).
53 See Judgment of the Federal Commercial Court of Moscow District of 29 June 2005 (КA-A40/5565-05) and Judgment of the Federal Commercial Court of Moscow District of 31 August 2005 (КA-A40/8111-05).
54 Judgment of the Federal Commercial Court of North Caucasus District of Russia of 2 July 2003 Nalchinsky Zavod Poluprovodnikovykh Priborov v Custom Office of Kabardino-Balkaria (F08-1873/2003-839A).
56 Art 4(4) of Russian Federal Law ‘On technical regulations’, adopted on 18 December 2002.
57 Joint Cases C-354/03, C-355/03 and C-484/03 Optigen Ltd., Fulcrum Electronics Ltd., Bond House Systems Ltd v Commissioners of Customs & Excise  ECR 483; Case C-384/04 Federation of Technological Industries v Commissioners of Customs & Excise  ECR 4191.
58 Order of the Constitutional Court of the Russian Federation of 19 February 2009 (137-O-O) (case Beslan mothers); Judgment of the Constitutional Court of the Russian Federation of 22 June 2010 (14-P) (case Malitsky); Order of the High Court of the Russian Federation of 31 July 2008 (КAS08-434) (case NPO “Rezonans”); Judgment of the Federal Commercial Court of Moscow District of 15 April 2009 (A40-31562/08-130-338) (case Natsrybkachestvo).
59 Case C-265/03 Igor Simutenkov v. Ministerio de Educación y Cultura, Real Federación Española de Fútbol  ECR I–2579.
60 For example, Kalinichenko, P, ‘Zashita prav grazhdan Rossii v EC v contexte dela Simutenkov’ (2008) 11 Zakon, 211–220Google Scholar. Case note by Hillion, C, ‘Case C-265/03 Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol  ECR I-2579’ (2008) 45 CMLR, 815–833Google Scholar.
61 Case T-348/05 JSC Kirovo Chepetsky Khimichesky Kombinat v Council  ECR II-00159.
62 Case T-84/07 Mineral and Chemical Company EuroChem v Council (OJ 2007 C117/26).
63 Case T-249/06 Niko Tube and Nyzhniodniprovskyi Tube Plant v Council  ECR II-00383.
64 Case T-192/08 Tansnational Company Kazchrome and ENRC Marketing v Council (OJ 2008 C197/26).
65 Kalinichenko, P, ‘Zashita prav grazhdan Rossii in EC v contexte dela Simutenkov’ (2008) 11 Zakon 211–220Google Scholar.
66 There is a growing number of claims against Russia from Russian nationals to the ECtHR. Hitherto the ECtHR has considered 1079 cases wherein the Russian government was a respondent. In 815 cases the Russian government was found in violation of the ECHR. As of 31 December 2010 40295 cases are pending their further consideration by the EctHR against Russia: see Annual Report 2010 of the ECtHR, available at <http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Reports/Annual+Reports>.
67 Salikov, M, ‘Aspects of protection of Citizens of the Russian Federation in the European Court of Human Rights’ (2006) Uppsala Yearbook of East European Law 98–115Google Scholar, at 106.
69 Burkov, A, ‘Implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms in Russian Courts’ (2006) 1 Russian Law: Theory and Practice 71Google Scholar.
70 Judgment of the Federal Commercial Court of Moscow District of 2 March 2006 (KG-A40/698-06-P). Hornsby v Greece, ECHR (1997), ECHR Rep, 1997-II, 510, 40.
71 Such as TAIEX. See: Council Decision of 23 January 2006 enabling countries covered by the European Neighbourhood Policy, as well as Russia, to benefit from the Technical Assistance and Information Exchange (TAIEX) Programme (OJ 2006 L32/80). For instance compulsory EU law related subjects were introduced to curricula of the Kutafin Moscow State Academy of Law, the Moscow State Institute of International Relations (University), and the Peoples' Friendship University of Russia. Due to financial and technical support from the EU the European Studies Institute was set up at the Moscow State Institute of International Relations in 2006. This institution as well as the Kutafin Moscow State Academy of Law bear major burden in educating Russian civil servants in area of EU law.
72 For instance, in the Lobachev case (Judgment of the High Court of Russia of 21 October 2008, GKPI08-1741), Russian prisoner Vyacheslav Lobachev asked the High Court of Russia to apply article 47 of the EU Charter of Fundamental Rights (right to an effective remedy and to a fair trial) as well as provisions of the European Convention of Human Rights. The High Court of Russia refused to consider the EU Charter of Fundamental Rights as relevant source of law due to the fact that Russia has no full membership in the EU and, therefore, based its judgment on the European Convention of Human Rights ((2009) 11 Vestnik Verkhovnogo Suda Rossii).
73 Shevchuk, S, ‘Tvorcha Rol Syddi u Processi Tlumachenia Konstitusii’ (2008) 4 Vystnyk Konstitutsiynogo Sydy Ukrainy 100-109Google Scholar.
74 For instance, see the works of the former Soviet/Ukrainian judge of the ICJ Koretskiy, Izbrannie trydy (ed Denisov) (Kiev, Naukova Dumka 1989).
75 Full text in English is available at <http://www.rada.gov.ua/const/conengl.htm>, accessed 17 March 2011.
76 This happens mainly due to: 1) the belief that international case law is not relevant to civil law systems; 2) luck of translation of international case law and jurisprudence into Ukrainian to help judges to adapt their decisions to best European standards. Furthermore, the Verkhovna Rada of Ukraine is not always expedient in solving conflicts between ratified international agreements and national legislation. See D Wilkinson, “Interpreting Ukrainian legislation in light of international law and jurisprudence”, available at <http://www.ukma.kiev.ua/ua/nauka/pratsi_vidan/nz/index.php?option=com_content&task=view&id=52&Itemid=31>, accessed 17 March 2011. Also see G Burd, ‘High Commercial Court tramples international agreements’, available at <http://www.kyivpost.com/opinion/op_ed/28483>, accessed 17 March 2011.
77 Good example of such assistance is jointly funded by the EU and Council of Europe project “Transparency and efficiency of the Judicial System of Ukraine” with budget of 6 million Euro conducted in the period from 2008 to 2011. One of the major objectives of this project was to improve “Efficiency of the judicial system strengthened and quality of judicial decisions corresponding to European standards”. For more information see <http://www.coe.int/t/dghl/cooperation/capacitybuilding/projects/tejsu_en.asp>, accessed 17 March 2011.
78 Decision of Supreme Court of Ukraine on 3 December 2004 Yuschenko v Central Election Committee of Ukraine.
79 Prescott, N, ‘Orange Revolution in Red, White, and Blue: US Impact on the 2004 Ukrainian Election’ (2006) 16 Duke J of Comp & Int Law 219–248Google Scholar.
80 Judges of the Constitutional Court of Ukraine are regular visitors to international tribunals, European constitutional courts, participants to international and European professional and academic events. The Constitutional Court of Ukraine pursues active cooperation with the Council of Europe, EU, Venice Commission and other international institutions. See further <http://www.ccu.gov.ua/en/index>.
81 Selivon, M, ‘Harmonistsia natsionalnogo zakonodavstva z normami mizhnarodnogo prava i yogo vykorystannia Konstitutsiynym Sudom Ukraini’ (2003) 3 Vystnyk Konstitutsiynogo Sydy Ukrainy 36–51Google Scholar.
82 Decision 23/2001 of the Constitutional Court of Ukraine on 15 June 2001 (Bank Savings case). See Temchenko, V, ‘Vydnosyny mizh praktikoy ECtHR i jurisprudentsii Konstitutsiynogo Sydy Ukrainy’ (2007) 4 Vystnyk Konstitutsiynogo Sydy Ukrainy 91–99Google Scholar. On the same problem encountered in the post accession period by constitutional courts in Central and Eastern Europe see Albi, A, ‘Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums’ (2009)15 ELJ 1, 46–69Google Scholar.
83 Kampo, V, ‘Konstitutsionalisatsiya zovnishnoi politiki Ukraini: Eurointegratsionnie aspecty’ (2007) 6 Vystnyk Konstitutsiynogo Sydy Ukrainy 50–61Google Scholar.
84 Regulation 2004/2003 of the European Parliament and the Council of November 4 2003 ‘On the regulations governing political parties at European level and the rules regarding their funding’  OJ L297.
85 Decision of the Constitutional Court of Ukraine on 12 June 2007, No. 2/2007.
86 EC Council Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  OJ L303/16.
87 Decision of the Constitutional Court of Ukraine on 16 October 2007, No. 8/2007 (case on the maximum retirement age for civil servants).
88 Petrov, R, ‘Recent Developments in the Adaptation of Ukrainian Legislation to EU Law’ (2003) 8 EFAR 125–141Google Scholar. Muraviov, V, ‘Pytannia harmonisatsii vnutrishnogo prava neassociovannykh krain z pravom Evropeyskogo Souzy’ (2003) 4 Pidpriemnitsvo, hospodarstvo ta pravo 91–94Google Scholar.
89 This initiative was proposed by Poland and Sweden in 2008 as complimentary to the ENP with the objective of enhancing the political, economic and legal integration of Eastern neighbouring countries (Ukraine, Belarus, Moldova, Georgia, Armenia and Azerbaijan). The Eastern Partnership Programme was formally launched on 20 March 2009. See <http://ec.europa.eu/external_relations>
90 Law of the Verkhovna Rada of Ukraine ‘About the All State Programme of adaptation of Ukrainian legislation to that of the EU’, 18 March 2004, No. 1629-IV.
91 Judgment of the High Commercial Court of Ukraine on 2 February 2005, No. 12/267. Also Judgment of the High Commercial Court of Ukraine on 25 March 2005 (Closed Stock Company ‘Chumak’ v Kherson Custom Office), No. 7/299. Also Judgment of the High Commercial Court of Ukraine on 22 February 2005 (‘Odek’ LTD v Ryvne Custom Office) No. 18/303.
92 Judgment of the High Commercial Court of Ukraine on 22 June 2004, No. 28/296-03-6901.
93 Judgment of the District Administrative Court of Kiev on 22 May 2008, No. 4/48. Judgment of the District Administrative Court of Kiev on 13 October 2008, No. 4/375.
94 Council Directive 2004/83 of 29 April 2004 ‘On minimum standards for the qualification and status of third country nationals or stateless persons as refugees or a persons who otherwise need international protection and the content of the protection granted’  OJ L304.
95 The OSCE conducted about 25 workshops for about 600 judges of administrative courts in Ukraine during the period 2005–2008, funded exchange visits and provided training: see <http://www.osce.org/item/35850.html>.
97 Judgment of the District Administrative Court of Kiev on 18 November 2008, No. 9/556.
98 Law of Ukraine ‘About application of decision of the European Court of Human Rights’, adopted on 23 February 2006, No. 3477-IV.
99 Ukraine is in third position after Russia and Turkey with regard to number of claims to the ECtHR. Hitherto there were 982 admissible claims from Ukrainian nationals against the Ukrainian state to the ECtHR. In 602 cases the Ukrainian government was found in violation of the ECHR. As of 31 December 2010 10434 cases are pending their further consideration by the EctHR against Ukraine: see Annual Report 2010 of the ECtHR, available at <http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Reports/Annual+Reports>.
100 Judgment of the District Administrative Court of Kiev on 26 June 2008, No. 4/337. Apparently, this judgment became pattern for subsequent decisions by Ukrainian administrative judges (See judgments of the District Administrative Court of Kiev (on 10 November 2008, No. 5/435, on 24 November 2008, No. 5/503, on 25 November 2008, No. 2/416, on 1 December 2008, No. 5/451, and many other judgments)).
101 Case 41/74 van Duyn v Home Office ECR 1974 1337.
102 Judgment of the District Administrative Court of Kiev on 26 June 2008, No. 4/337.
103 For instance, Maiani, F, ‘Legal Europeanisation as Legal Transformation: Some insights from Swiss “outer Europe”’ EUI Working Paper MWP 2008/32, 16–17Google Scholar.