Despite, or perhaps due to, the war in Ukraine there have been positive developments in combating corruption and other issues in anticipation of EU membership. In this RevDem Rule of Law podcast Teodora Miljojkovic discusses these issues around transition with Professor Maria Popova.
Professor Maria Popova’s work explores the rule of law and democracy in the post-communist region. Her recent work has focused on judicial reform in Ukraine, the politics of corruption, prosecution in Eastern Europe, conspiracies, democratic backsliding, and illiberalism. Her new book, co-authored with Oxana Shevel, Russia and Ukraine: Entangled Histories, Diverging States examines the root causes of the Russia Ukrainian war and will be released in fall 2023 by Polity Press.
Teodora Miljojkovic: Today it is widely accepted that Ukraine belongs to the EU and that it deserves its membership. As we know, the Russian aggression might have prompted Ukraine’s application to the EU but even before the war, Ukraine made important steps towards Europeanization. In one of your op-eds, for the Journal of Democracy, you emphasized Ukraine’s pre-war achievements. Could you tell our listeners more about Ukraine’s transitional reforms before the war?
Maria Popova: The Euromaidan revolution of 2014 was really about Ukraine’s path towards Europe. It was about Ukraine wanting to sign this Association Agreement with the European Union, Russia objecting, and the pro-Russian government trying to stop this path. So as soon as the Yanukovych administration was ousted, the first task of the new government was to resume on this path towards Europe which was then in the form of this Association Agreement. But the Association Agreement between the EU and Ukraine was really one of a kind as it was unprecedented. It was one of the deep association agreements that was multifaceted and that included a conditionality component which meant that Ukraine was taking on the responsibility of showing progress on certain areas of reform in order to move forward with the trade agreement, with the lifting of trade barriers, freedom of movement barriers etc.
In the eight years between 2014 and the full scale invasion by Russia in 2022, Ukraine implemented a lot of reforms in many areas, notably in the area of judicial reform. They really tried to reset the entire judiciary.
There were constitutional amendments, new laws, and every single institution was reconstituted. There were new institutions created both in judicial reform and also in anticorruption efforts. So really the last eight years were a series of institutional, legislative, and cadre reforms all aimed towards preparing Ukraine for European accession. So, indeed, a lot of progress was done in those years.
It’s clear that Ukraine had this European vision for a very long time, so it’s not like it was prompted by war. You have conducted a lot of research on judicial reforms. It seems that judiciary and judicial reforms will be one of the critical steps in Ukraine’s progress towards EU membership. Could you tell us more? What was the vision for the judiciary before Russia’s attack? Do you think the war will somehow change this institutional landscape of Ukraine? What will be the most urgent reforms? Now we have to take into consideration the occupied territories as well. How do you think that these judicial reforms will be implemented when hopefully all of this is over and Ukraine can move forward towards further implementation of the conditions for EU membership?
One of the difficulties of the post-maidan period in terms of judicial reform was that a lot of the institutional changes that were implemented did not necessarily prompt a decisive change in judicial behavior, but in fact were met with quite a bit of resistance from entrenched networks within the judiciary that wanted to protect the status quo rather than moving towards creating a judiciary that is a guarantor of the rule of law, politically independent, and controls corruption both in the other branches but also within its own branch.
In fact, in the eight post-maidan years we have had a situation in which judicial reform was really driven by civil society – it was driven by organizations that were dedicated to monitoring how judicial reform goes forward, helped by the process of EU conditionality by international partners.
But there was significant resistance from within the judiciary. What the 2022 full scale invasion may be changing here is the landscape within the judiciary itself. We know that since the full scale invasion some judges have volunteered or fought at the front. We also know that some judges who are really connected to the pro-Russian networks of influence have left the country.
We know that the war has had a fundamental effect on the entirety of the Ukrainian state and Ukrainian society, making it even more united than before in terms of motivation to make sure that Russian influence is neutralized. So, in the area of judicial reform, what we can expect is actually the appearance of an internal constituency within the judiciary that is motivated to push reforms forward. If such a constituency emerges and consolidates within the judiciary, the success of these reforms is likely to be much greater, because there will be synergy between the civil society organizations that are pushing for these reforms, the international partners who are also pushing for these reforms, and the judiciary itself, which is going to be the subject of these reforms. So I think that’s the window of opportunity that we have right now, and I think in the next couple of years we’re going to see how widely open that window of opportunity is.
It’s very interesting that you mentioned that, before the attack, there was this internal resistance from the judiciary. One of our other interviews, Nino Tsereteli, discussed the Georgian case, which was very similar when it comes to this internal lack of independence within the judiciary and these political pressures. You also conduct research on other post-communist countries, and especially countries which are within the accession procedure. Do you think that the EU should somehow change its conditionality framework? More specifically, the rules and the requirements that the EU asks from these countries in the Copenhagen criteria, be somehow framed differently or perhaps implemented differently? There are many legal and political realities that we are facing with these new countries acceding. Most recent this concerns Moldova and Ukraine, but also Georgia, which is trying to obtain the candidacy status, and also the Balkan countries which have been on this path for a very long time. Do you think that this framework somehow needs to be changed?
It seems that in the Balkan countries everything was very much like a “Potemkin village” where the problem was that the conditions are met on paper, but the legal culture somehow remains unchanged. Do you think that perhaps the war and this new will for democracy and to join Europe in Ukraine could change the legal culture that was there before and differentiate it somehow from these other accession countries?
Yeah, this is a really good question, and it’s a very important issue to consider. The question is how to build on institutional reforms which are following best practices and are indeed very useful to create an independent judiciary. But how can these countries build on these reforms further to make sure that the judicial independence that is achieved structurally sets up the judiciary as an institutional fortress? How can they make sure that this institutional fortress is then used for the right purpose, which is the delivery of impartial justice, and adjudication of political disputes which is not governed by high political relationships and collusion, but by interpreting the law in good faith? It’s a problem that affects not only the new candidate countries that are trying to achieve membership, but many of the current EU Members States. We have judiciaries which are institutionally insulated, but their independence is actually used as a shield to protect judicial elites from abusing their office and using it to push through their corporate and political interests. I think the way to try to resolve this problem is to start paying more attention to the kinds of people that are put in crucial positions affecting judicial reform.
International organizations and, for example, the US have long had this maxim where they explicitly say that what they promote is the institutions and they don’t look at who the individuals are. I think there has to be some re-evaluation on that front. Institutions are no doubt highly important and they’re very important for the sustainability of reform. So attention should of course be given to institutional building, but there should also be attention given to who is actually selected to be the inaugural incumbent for many of these institutions.
It does matter who the people holding judicial office are. For example, having a long track record in civil society, and trying to push through judicial reform, is probably a good sign that these people are motivated, and that they’re socialized within the ethos of the ideas.
It’s important to pay close attention to who will be driving reform forward. I think that should start to be on the top of the agenda of the European partners. They’ve had, I think, some lessons from Bulgaria and Romania. For example, in Romania it did matter when Laura Kövesi was in charge of the anticorruption prosecution. Bulgaria established similar institutions, but they didn’t achieve anything because, as you mentioned, they were used more like a Potemkin village as a facade. It’s important to start thinking about how to make sure that these institutions are not facades but actual vehicles for change. The way to do that is to start thinking about who is staffing them.
That’s a great point, but I see a problem there which has already been visible in some other countries. There is a problem about how the EU can assess who is good for these positions. On one hand, that’s the problem of the EU being this technocratic establishment – they’re not really familiar with the national realities. On the other hand, if the EU installs international experts, which also is often is the case, then we have a problem. I saw a lot of arguments around the Albanian judicial reforms that have been prompted by accession. We see that if the international experts are leading the process, then there is not enough democratic will and support for the reforms which is crucial for its success. I think that this is a huge problem because we are asking the question about how united the EU is in terms of these societal circumstances and not just on legal and organizational issues. For example, in Ukraine there is a problem now because of the suggestion that international experts will somehow be contributing to the appointment of Constitutional Court judges.
What do you think generally about this debate? Do you think that the presence of international experts is a good solution broadly for candidate countries, and specifically regarding Ukraine should international experts be in a country which is currently at war although hopefully will be out of the war soon? There are examples such as the Bosnian example after the war when there were international experts guiding the whole process, but there were serious problems afterwards. What do you think about that?
It’s a tricky balance to strike between trying to have international partners and relying on their judgment on who to empower domestically. Absolutely there are potential problems, but in the Ukrainian case specifically the debate about international experts has been going on for a while, and Ukrainian civil society has seen the international experts as a shield against entrenched domestic interests who may otherwise seek to veto or hamstring the process and push through their own selected candidates. So civil society saw the international experts as allies as opposed to the source of the decision-making. Now the civil society in Ukraine has probably gained even more stature during the war as they have started cooperating with state institutions because now there’s an external enemy as opposed to the state being the internal enemy of civil society. Therefore, I think that the role of international experts may be somewhat re-evaluated, but for now I think that civil society actors would still prefer international experts to be involved in order to provide a balance of power between the different domestic interests and provide some sort of check. It’s important to have a targeted approach in different countries and to think about what the main source of potential paralysis is in a given country.
I think it’s definitely very important to keep in mind that international experts are not going to have the silver bullet. They’re not more knowledgeable than local experts, they’re not necessarily more honest, and they are not necessarily more committed to the rule of law. The way to think about these experts is not as these bringers of justice from outside, but as a potential additional actor in a process that’s going to have a lot of checks and balances and will require significant consensus to move forward.
If there are different representatives from different domestic interests and from the international partners and from civil society, the chances are that this will create enough fragmentation that it is possible to come up with a consensus figure that is not going to be anybody’s top choice, but would be constrained from all sides. That increases the chances of having an impartial figure that is dedicated to continued reforms. I think that the way to think about the role of the international experts is not as these advisors who have the upper hand but as additional actors that are inserted into the process.
Yes, I guess that was the initial idea behind all of these reforms, but somehow that was twisted in reality. Besides being an expert in judicial reforms you also work on other topics in relation to transitional regimes. So what do you think will happen after the war in Ukraine? What will be the other sectors which will need serious reform in order for Ukraine to adapt to its new EU reality? What is lacking which needs to be improved in order to reach this EU accession?
Another major issue on the agenda is the control of corruption. Again, Ukraine had already started making progress on this issue. In the eight years between Euromaidan and the full scale invasion they really reformed the public tenders system. They instituted a transparent system for public tenders that saved the state a lot of money. They instituted income declarations for state office holders and for politicians. Those were enforced. People who misrepresented their assets were indeed then investigated and some of them prosecuted. So, there was a lot of progress. Ukraine also started the process of de-oligarchization right in the run up to the full scale invasion. There was an attempt by the Zelenskyy administration to decouple oligarchs from politics through transparency measures forcing people who were identified by the criteria of the law as oligarchs to divest themselves of their political tools such as media.
The steps to fight corruption in Ukraine are going to have to continue in order to make sure that the massive funds coming for reconstruction after the war will be used properly rather than being used to fuel corruption. In a lot of ways, the war has sped up this process.
At the beginning of the war, when military aid and other types of aid started flowing to Ukraine, there were a lot of articles about how Ukraine’s high level of corruption meant that we were likely to see arms smuggling, and funds disappearing. Most of the articles were talking about the fears of these things happening, with predictions being made based on Ukraine’s track record. But now, more than a year and a half into this war, there aren’t really any major stories about arm smuggling. So it seems that the Ukrainian state has proven itself to be strong enough to make sure that these arms are going towards the right purpose. There have been some scandals with diversions and potential misuse of funds, but the encouraging part is that these cases have been exposed. The institutions have been put into gear to try to punish those who were engaged. So they will become a cautionary tale for others who may be considering setting up these corruption schemes. So I think that things are moving in the right direction.
Now, two things must happen. First, the government has to continue to move in that direction as the Ukrainian economy reorients towards Europe, and the majority of Ukrainian oligarchs actually internalize the message that for them to continue to be successful as businessmen, they will have to play by European rules. Also, Europe must be able to recognize progress when it does happen.
It’s important for the EU to monitor the situation, but also not to be overly committed to the stereotype of Ukraine as a corrupt country, and to be able to see that when corruption is in fact not happening, we should be recognizing that it’s not happening.
Certainly, the direction in which Ukraine is going to go remains to be seen. But I think that the last year has been cause for optimistic and this is in fact reflected in some of the opinion polls that I’ve seen. For example, in 2021 there were only 4% of Ukrainians who, based on their experience living in their own country, thought that corruption was on the decline and things were moving in the right direction. In 2022 that number was 29%. A third of Ukrainians now see an improvement. The polls are also showing that a decreasing proportion of Ukrainians report personally having encountered corrupt schemes within the state. So it’s important to monitor where things go and hope that things will continue developing in a positive direction.
I think it’s important to emphasize that there is evidence for this shift, not just predictions. But I’m interested now that you have mentioned these stereotypes of corrupted post-communist candidate countries. Once Ukraine, Moldova, and also the Balkan countries hopefully do acquire membership do you think that there will be some change in the nature of the EU? Because we usually couple the EU with a certain idea of the West will this have to change somehow, or will these countries simply have to somehow fit into this Western framework culturally, legally, and politically?
Well, it’s a very good and very big question.
I think one of the effects of the 2022 war has been a change in the point of gravity within the EU. It has shifted slightly to the East. The Eastern European members of the EU have shown that, geopolitically, they have the right instincts, and the West didn’t. They have shown that they’re ready to support Ukraine.
As you remember, the first countries that supported Ukraine back in the spring were the Central European countries. The first people who visited Kyiv as it was besieged were the Prime Ministers of the Central European countries. And they triggered Western Europe to think that Ukraine is worth supporting and maybe they can effectively resist here. The leadership was definitely in the East, and I think that leadership will spill over in terms of other EU-wide issues where Eastern European positions will have to be respected a bit more than they were before. Eastern European warned that European states had to be careful about Russian hybrid warfare and potential Russian infiltration of European states to try to undermine European unity. Basically, the Eastern Europeans are leading on this, and there is evidence coming out that in Western Europe there has been some of this infiltration because their guard was lowered.
I think that will have a certain effect on the EU, but I think that on issues such as rule of law, corruption, democracy, and the maintenance of civil and political rights, the EU will still have to be united and the Eastern European countries that are not meeting some of these thresholds will have to meet them. But the debate will be going on at an EU-wide level. It’s funny because in some way Putin is making these arguments about multipolarity in the world, which are of course, totally disingenuous. But in some ways the Russian attack on Ukraine has had the effect of creating multiple poles within the EU that are going to work better together in negotiating the future direction of the EU. I think that has been a good thing for the EU overall.
This angle is something that hasn’t been discussed that much, but the declines that we see in the liberal regimes of Poland and Hungary shows that this is obviously a problem. But, on the other hand, it’s also a warning that we indeed need to start thinking more deeply about the values and ideas of the EU. We discuss the responsibility of the EU institutions, officials, and politicians. But now, lastly, what do you think is the responsibility of scholars in all of this? You have been very active, and you have said that it’s an interesting feeling to have your area of research become the hot topic overnight. What is your experience in that? Secondly, what is the responsibility not just of scholars who are researching Ukraine, but also EU scholars, rule of law scholars, and judicial independence scholars? So how should we bridge this gap between our academic debates and reality now that we see that our research does have value and importance and that we somehow need to democratize our findings and bring them to a wider audience?
I firmly believe that scholars absolutely have a responsibility to be active participants in public discourse on the topics which they research. Of course, there is a risk of simplifying your research and your findings. There’s also a risk of making predictions that are going to turn out not to be true.
But I think it’s very important for academics to bring the level of discourse higher by intervening and sharing takes that are informed by wider and deeper knowledge because there is so much misinformation out there, and so many bad takes that require countering.
Sometimes I spend a lot of time countering takes that are very manifestly wrong. I know that there is absolutely no chance that the person who is making these claims is going to be convinced by anything I say. But I think it’s still very important to have these claims countered for the record because people are reading them, and we see the debate on social media sort unfolding through a lot of different accounts arguing with each other. But when the people are reading, we don’t see all of those arguments.
I know that people sometimes do change their minds when they read something that’s informed and that is based in deeper or wider research. So, I think there’s absolutely a responsibility for scholars to engage on social media, and to talk to journalists, especially because our research allows us to examine things beyond the simple stereotype. Very Journalists who report on current affairs jump from topic to topic so very often they are going to reach for the most basic approach and very often this is informed by stereotypes. It’s important to provide the nuance and the context, and to push back if necessary. I think that scholars are in a perfect position to do that and there is definitely a responsibility to do so.
This transcript has been edited for length and clarity.
In collaboration with Oliver Garner and Lucie Hunter
