In “The Introduction and Consolidation of the Rule of Law in Ukraine: Domestic Hindrances at the Level of the Demand for Law,” Olga Burlyuk analyzes Ukraine’s difficulties in transitioning from rule by law to rule of law since the adoption of the Constitution of Ukraine. Burlyuk observes that Ukraine’s legal system during the Soviet era preferred the concepts of the lawful state (provova derzhava, Rechtsstaat) or rule by law (verkhovenstvo zakonu) to the rule of law, which was seen as an Anglo-American concept. The 1996 Ukrainian constitution’s proclamation that “The rule of law principle is acknowledged and in effect in Ukraine,” however, signaled a transition from rule by law under the prior regime of the United Soviet Socialist Republic to rule of law under the newly independent Ukrainian government.
Despite the adoption of the rule of law under the Ukrainian constitution, Burlyuk notes that Ukraine’s rule of law compliance is universally deemed as poor due to high-level corruption amongst elites, lack of access to justice, and little government accountability or openness. Burlyuk identifies resistance from Ukrainian business, political, and legal elites to acceptance of the rule of law and negative societal attitudes toward law as the main hindrances in transitioning from rule of law on paper to actual implementation and acceptance of the rule of law in Ukraine.
Burlyuk points to the oppressive detention and prosecution of Euromaidan demonstrators, who protested government corruption and abuse of power, in the winter of 2013-2014 as an example of ongoing government elite rule by law. Burlyuk argues that while there has been continuous reformation in Ukraine’s legal institutions and statutes, implementation of the laws by the institutions has failed because ruling elites who wish to maintain their power have little incentive to enforce the law resulting in a system that remains marred by blackmail and corruption.
Burlyuk observes that both elite and popular social attitudes have been slow to transform from a conception of law that is state-centric to one that is human-centric. Burlyuk cites a Ukrainian legal expert who asserts that Ukrainians pay bribes as a custom, not even realizing that doing so breaches the law. Even amongst Ukrainian legal scholars, many of whom were trained under the Soviet legal system, rule of law is often viewed as too abstract for application in traditional civil and criminal domestic forums, but, instead is viewed as an ideological banner to gain support for admission to the European Union.
Attitudes of the Ukrainian populace toward the law and its institutions demonstrate the failure of rule of law reforms to gain traction in Ukraine. Less than 10% of those polled fully supported the police, prosecutors, and courts, whereas over 50% of those polled did not support Ukraine’s police, prosecutors, or courts. These three institutions have also been consistently ranked by Ukrainians as three of the top four most corrupt government institutions with trust in each of these institutions declining over the past ten years. Similarly, only about 10% of the population believe achieving justice through the legal system is possible while approximately 40% believe it is possible but very expensive and 30% believe obtaining justice through the legal system is not possible. Underscoring the lack of faith in Ukrainian courts, taking the extraordinary measure of seeking justice from the European Court of Human Rights is viewed by Ukrainians as being slightly more effective than seeking justice in domestic courts.
Despite business and political elites’ desire to maintain power, legal elites’ tendency to equate rule of law with rule by law, and Ukrainian citizens’ lack of trust in legal institutions, Burlyuk sees the recent civic uprisings against corruption as a potential catalyst for transformation in the demand for rule of law. Given the window of opportunity opened by the Euromaidan, Burlyuk concludes by recommending in the investment of forming new elites through training and cultural exchange programs, reform in legal education, and efforts to engage with Ukrainian civil society to increase the demand for rule of law in Ukraine.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).