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Olha Stefanishyna: "We need to lay the foundation for the country that Ukraine will always be"

Olha Stefanishyna: © Ольга Стефанишина/facebook
What will be discussed at the Ukraine-EU summit and are the authorities ready to report on the implementation of the seven recommendations of the European Commission?

The Ukraine-EU summit will be held in Kyiv on February 3, namely Friday. It should be noted that this is, of course, a regular summit, but at the same time, it is unique, because for the first time in the history of the European Union, the summit will be held in the capital of a candidate country, which is the victim of the largest and most brutal armed aggression since the Second World War.

Although, despite the war and forecasts of an imminent new massive offensive by the enemy, the Ukrainian side at the summit will try to expand the window of European opportunities for Ukraine and accelerate its advancement to full membership in the EU. However, has Kyiv fulfilled its "candidate minimum" in order to qualify for the start of accession negotiations? We talked about this with the Deputy Prime Minister for European and Euro-Atlantic Integration of Ukraine Olha Stefanishyna.

About expectations from the summit

— Ms. Olha, President Zelenskyy said that he expects "very specific results and agreements" at the Ukraine-EU summit. What issues will this summit be devoted to? What results do you expect?

— There are several important political aspects related to this summit. First of all, if we compare with previous events of this level, the summit, which will be held on February 3, is attracting unprecedented international attention. Almost all the leaders of the European Union were involved in the preparation of the summit and the determination of its concrete results at the highest level. In the same way, the media and analytical centers are preparing for this meeting, because today the future of the EU is really associated with the historical decisions that are being made regarding Ukraine. In addition, as a person who has participated in a large number of events of this level, I confirm: the attention is truly unprecedented.

The second important point is that against the backdrop of growing threats from the Russian Federation, the EU leaders decided to physically arrive in Kyiv to participate in the summit. Let me remind you: this summit should have taken place in Brussels, but the leaders are aware that the level of threats is high, that the Ukrainian Supreme Commander cannot leave the territory of Ukraine these days. Therefore, despite all the existing security risks, the decision was made to arrive here physically. This is a very important political context in our relations.

During the summit and meetings on the eve of it, the next steps of Ukraine to prepare for accession negotiations will be announced. The European Union will also determine the next steps necessary to start preparing Ukraine for membership in the European Union.

Of course, political reforms will be discussed at the summit. In addition, the members of the summit will also note that despite the fact that the full-scale war has been going on for almost a year, in the conditions of the continuation of hostilities, it is important to maintain the level of economic and financial support that is provided for this year. It is about the program of macro-financial assistance. We should also maintain all the economic preferences that were received last spring.

пресс-служба вице-премьера по вопросам европейской и евроатлантической интеграции Украины

It will also be discussed that the future reconstruction of the state, after our victory in the war, should be based on the understanding that we are building a country that will be a member of the EU. Therefore, it is important to start accession negotiations in 2023, it is important to hold them before the end of the war, in order to start rebuilding the country already with an understanding of a specific strategy. That is why this summit is important. After all, this is how we determine our work for the next year.

I cannot speak now about the specific results of the summit. There are only expectations and I defined them. We already have such a format for relations with the EU that it will be a real dialogue - negotiations, not just protocol meetings. From the moment of the application, my team worked to ensure proper coordination of European integration so that it was at the summit that we discussed the most important political issues. It is about Ukraine's implementation of the seven recommendations of the European Commission (EC) and key decisions that we can make in 2023, understanding that the next year, 2024, is the year of elections to European institutions, which may narrow political opportunities.

About the selection of judges of the Constitutional Court

— Our goals in this matter are very ambitious. However, both you and the prime minister said at the beginning of autumn that we will implement the seven recommendations of the European Commission by the end of the year. In addition, Mr. Shmyhal even spoke about the beginning of accession negotiations. However, this did not happen. Indeed, much has been done in this short period of time, but there is still work to be done. It is obvious that it will not be possible to get approval for all the seven points of joining the European Union before the summit.

For example, the other day Speaker Stefanchuk received a letter from the president of the Venice Commission, Claire Bazi Mallory, which contained sad news for Ukraine — they are not ready to appoint international members of the advisory group of experts (MAGE) until Ukraine amends the law on improving the selection procedure for candidates for the post of a judge of the Constitutional Court. Is Ukraine ready to fulfill these requirements? After all, not only the Venice Commission, but also the European Commission emphasized several times that they expect Ukraine to fulfill this point. So when might this happen?

— Recently, I gave a presentation to members of the government on preparations for the accession negotiations. So that the ministers are aware of their responsibility and work on forming the appropriate team. One of my key messages was that the foundations of the reforms we are laying on our way to the EU are not changes that can be revisited in three or four years, revisited after elections, and officials change. It is about what our country will always be like.

When we talk about the political reforms envisaged by the seven recommendations of the European Commission, it is actually about the image of the state, about the perception of Ukraine. Will we be perceived as a developed democracy with the rule of law or something else? We are aware of the responsibility, as well as the fact that the recognition of political reforms does not take place in the format of putting a check mark under each item. In addition, I can confirm an important thing: as of December 31, 2022, we have done everything that depends on the Ukrainian side, with each recommendation, we have taken the necessary steps - whether it is the adoption of legislation, or the implementation of certain appointments, or the announcement of competitions and the completion of selections. We are currently in the process of evaluating these steps. Based on its results, we will understand what needs to be done to complete the implementation of each recommendation.

One of the most important aspects was indeed the adoption of the law on the selection of judges of the Constitutional Court. We had a very constructive dialogue with the European Commission, the draft law was sent for examination by the Venice Commission (VC) immediately after the first reading. However, today, unfortunately, we have a situation with the published position of the Venice Commission with the demand to add a seventh expert to the advisory group that will select judges. I see neither high standards of the rule of law nor any legal basis in this recommendation. I believe that this is a purely political recommendation. In addition, apparently, the negative tone of this issue, which arose against the background of the drafting and adoption of this law, was connected with the fact that the dialogue of the Ukrainian authorities with the Venice Commission was not transparent on the part of the Commission itself. There were active consultations, negotiations and we provided explanations. However, when we asked for clarification and additional arguments, we always received after the fact some decisions and conclusions of the VC that were not discussed with the Ukrainian side.

Likewise, at the moment when the president had already signed the law on the selection of the Constitutional Court of Ukraine judges on a competitive basis, which came into force the next day, the conclusion of the Venice Commission with additional recommendations was published.

— However, the European Commission supported these recommendations of the VC, and in January its representatives emphasized at least twice that Ukraine should amend this law in accordance with the recommendations of the VC.

— Literally two days before the last conclusion of the VC, which you are talking about, was published, last Monday (January 23. — T.S.), we held consultations with the president of the Venice Commission, the speaker of the Verkhovna Rada of Ukraine, the head of the specialized committee. We emphasized that we are ready to make amendments to the law and we want to discuss them because the process of the previous dialogue was not transparent and some things that we agreed on in the working order were not subsequently confirmed by the Venice Commission.

I emphasize: we have declared our readiness to update the law and make changes. We wanted additional consultations to understand what these changes would be and in what way. After all, it is worth reminding, we are a democratic country and after communicating with the Venice Commission, we are returning to the parliament. In addition, it is necessary to form a majority in the parliament that will support these changes to the legislation.

I am sorry that, despite our openness, communication with the VC takes place in this way. However, I hope that we will speak frankly about this issue at the summit. Of course, the implementation of this recommendation is a priority for us. However, the main priority is the formation of the Constitutional Court of Ukraine, which will be trusted. Neither in the current version of the law nor in any amendments to it should there be any provisions that would call into question the possibility or desire of the Ukrainian side to hold this competition according to high standards.

In addition, I want to emphasize: for the first time in our history, competitive selection of judges of the Constitutional Court of Ukraine is envisaged. I understand that some of my statements may seem emotional, but unfortunately I have seen a lot of hype about these changes, statements like "we finally defeated the authorities" and "the Venice Commission is forcing changes to the law", but I did not see that all these people who are criticizing help us to jointly implement this recommendation and promote European aspirations. This is also an experience for us. However, I repeat: the first priority for us is the implementation of the seven recommendations of the EC. We will talk politically about how this can be done, already at the summit, and this recommendation will be implemented in the spring (until the interim conclusion of the EC — T.S.).

About the anti-oligarchic reform

— We have one more of the seven recommendations of the European Commission related to cooperation with the Venice Commission — regarding the anti-oligarchic reform. There is no conclusion of the Venice Commission on the signed law. This also slows down the implementation of the seven points and, accordingly, our progress towards accession negotiations. So what's the problem? What can be done in this matter? Some experts believe that the Venice Commission is delaying because the conclusion will be negative.

— Given the experience of working on the legislation on the Constitutional Court of Ukraine and the conclusions that, in fact, have always been a surprise for Ukraine, despite our constant dialogue with the VC, it is difficult for me to assess what the conclusion will be to the law on oligarchs.

  And when will it be?

— We communicated with the Venice Commission back in the summer, we talked about everything. We have reached a common understanding with the VC that the evaluation will cover both the law and its implementation. We have provided the Commission with all the information about the legislative acts that we have developed, that is, how we see the implementation of the law. In addition, I hope that the Commission's assessment will be comprehensive.

Therefore, several things are also evident. First, to a certain extent, the law partially fulfilled its role. Some of the most famous figures have left the media business or publicly stated that they do not support any political parties. Secondly, we have, in principle, the entire by-law base ready to implement the law. There are several principled positions of the Venice Commission, which entail changes to the legislation, and we are also ready to adopt them. There are no pitfalls here. Thirdly, the situation has changed a lot since the adoption of the law, which, I will remind you, was before the full-scale invasion of Russia. There is a war in our country, and it is obvious that the issue of creating a register of oligarchs cannot be a priority. We are fighting on the battlefield, we are also fighting to maintain the control of the state — financial, economic. In addition, I see an understanding of this process on the part of the European Commission.

About the assessment of the European Commission

— The interim assessment of the European Commission will be ready in the spring. In March or later?

— This is exactly what we will agree on at the summit. The European Commission apparently expects this assessment to be in the spring at the latest. In addition, the European Commission and the European Council know for sure that when they come to Kyiv, they will hear our position: this assessment should be at the beginning of spring. I think we will find some kind of compromise on this issue. That is, this period of time has not yet been determined, because we have different expectations, but it will definitely be in the spring.

— Aren't you afraid that you won't have time to fulfill all the instructions of the European Commission? Do you want to get this assessment as soon as possible so that you can see what else needs to be done, what is expected of us, so that we can start accession negotiations as soon as possible?

— I think there are two main components here. The main assessment will be in October 2023. In addition, the logic of the spring assessment is to decide on a list of fundamental steps that we need to complete by October. In order to receive the most ambitious recommendations for the start of negotiations, the next steps. This is very important from the viewpoint of political clarity. We will lay the basis for this on February 3 at the level of the leaders' talks and discussions. Political work will be continued by the government team that I coordinate.

The first thing is to prepare as ambitiously as possible for October.

The second important factor is that we understand that we received a candidate status a little more than half a year ago. However, we already have almost eight years of experience in the implementation of the Association Agreement, experience in the functioning of the free trade zone. In addition, these are very strict conditions in which our country has to work on the European market. It is not about political agreements, but about money, about business and about the economy. There are strict rules of the game, it is very difficult to agree, there is very high competition. Therefore, it required us to change legislation and institutions, create new bodies, independent regulators, and unbundling. The result — we became part of the EU energy and digital market; entered the TOP-20 EU importers. We should not underestimate ourselves. Apart from that it is worth to note that we have already done a lot of work. In a certain sense, we are already "integration tigers". I see no reason to doubt Ukraine's ability to implement the necessary political reforms in the best possible way that will be acceptable to all parties. We are in a hurry because we understand that we need to prepare the country for the victory. We need to lay the foundation for the country that Ukraine will always be. This is a completely different process than the one that started in 2014 with the signing of the Association Agreement. In addition, in our opinion and the conviction of the president himself, this is the best safeguard against any change in the state's course, constant economic instability — when business today lives in the same conditions, with the same reformers, and tomorrow other reformers come. That is, we are laying the foundations of the country in which we, our children and grandchildren will live. This is stability, an indicator of belonging to the European Union. Therefore, the responsibility is crazy. That is why we are in a hurry, we know that we already have considerable experience behind us, we have complete unity of the parliament, the president and the judicial branch. Therefore, this political window of opportunity is not only from the side of the EU, it is now in Ukraine, we have no right not to use it.

About negotiations on accession to the EU

— I am impressed by your drive and confidence. However, Radio Liberty columnist Rikard Jozwiak, who has read the draft conclusions of the European Commission on Georgia, Moldova and Ukraine, writes that, on a five-point scale, Ukraine received a rating of "four" out of 32 sections (chapters), only two of which are foreign policy - "a good level of preparation". Of all the other chapters, this assessment is the second from the end - "a certain level of preparation." This contrasts somewhat with your definition of "integration tigers". It is worth noting that Ukraine has indeed done a lot, but is this enough to start accession negotiations?

— It is worth noting that we made absolutely not enough changes. In addition, we had a whole discussion in the government on this issue. Everything we did, we did within the framework of fulfilling our obligations in relation to the Association Agreement. It should be noted that this is a lot. However, if we're talking about membership, that's only 10-15% of everything we'll need to do. The negotiations are the construction of the structure of the European state according to each of the 35 chapters of the future Membership Agreement.

These are social policy, energy, transport, human rights — that is, all spheres. This means that we commit to certain transformations and make reservations about certain changes. Where we need to preserve our market, our leadership, for example in the agricultural sector, etc. That is, it is kind of a book of the Ukrainian statehood, of what our country will be like. It is important for us that at the moment when we can fully begin the restoration of the economy and the state, we are ready with an idea of what our state will be, taking into account each section. We are now swimming, relatively speaking, in the Black Sea and flowing into the great ocean, with bigger waves, bigger storms and a bigger space. Therefore, it is important for us to enter this process as strong as possible. It will be extremely complex, extremely voluminous, it will be a process that neither the Ukrainian authorities nor the Ukrainian state have yet encountered. However, we are truly "integration tigers", we know how to swim in this ocean and that is why we do not want to lose pace.

— Although, should we send a message to society that we will be able to complete these negotiations in two years? After all, there were such statements. You yourself say that we need not only to change our legislation and practices to European ones, but also to preserve our industries.

— For us, the decision to start negotiations is politically important. Its adoption is possible either this year, or it will take some time. However, this decision should not be politicized for the reasons I have already mentioned. Negotiations must continue until we are sure that we have defended everything, because we are talking about building the country as it will be in the future - in principle, regardless of the elections results or the political processes - we cannot allow to politically end the negotiations simply because one wants to. This is an extremely responsible process.

Albeit, we as "integration tigers" figured out how all this can be done quickly. Relevant decisions will be announced at a meeting between the European Commission and the Government of Ukraine. The President will participate in these events. We will announce how we see this process. In addition, we will stick to the date of the start of negotiations. That is, we will start working already. 

About the judicial reform and selection to the Supreme Court of Ukraine (SCU) and the High Qualification Commission of Judges (HCJC).

— Let's go back to the seven recommendations that the EU gave us. We stopped at the second one - about SCU and HCJC. This is also part of the judicial reform. Yes, the selection is taking place, the SCU is even authorized, but the public has questions about some decisions of the Ukrainian Ethics Council. The question arises, to what extent our partners pay attention not only to the fact of selecting certain persons, but also to the quality of the selection process?

— Public discourse about acceptance or non-acceptance of certain decisions is primarily a sign of a democratic state. We always have a discussion. More than 600 candidates applied for selection to the Supreme Court of Ukraine. Someone from civil society, someone from the legal community, someone representing the Supreme Court of Ukraine or courts of first instance. That is, these are people from different professional and social strata. 

The Ukrainian Ethics Council, which evaluates all candidates, consists of Ukrainian and international representatives. This council has complete freedom and independence in its activities. Its work is supported by a separate secretariat that does not belong to any power structure. The meetings were broadcast, and the public had the opportunity to submit their suggestions. From this whole array of candidates, only 16 were recommended. There could have been more, but only 16 met the highest criteria.

Therefore, we do not pay attention to any criticism today, because we understand that the Supreme Court of Ukraine is already efficient. In addition, it is not only the implementation of one of the seven recommendations, it is finally bringing judges to disciplinary responsibility and considering complaints. You can imagine how many occupied territories we had; that, obviously, there were cases when the administration of justice was either not carried out, or was not carried out in a way that was in the national interest. There are many different cases, and the Supreme Court of Ukraine is a key institution that had to work.

Now that the Supreme Council of Ukraine is competent, we are starting the formation of the High Qualification Commission of Judges, which selects all judges. The Ukrainian Ethics Council also works here, and I don't see any problematic issues at the moment. There is already experience of the previous ethical council and experience of previous selections.

The only thing is that we call on both this Ukrainian Ethics Council and the selection commission for the director of the National Anti-Corruption Bureau of Ukraine to work more efficiently. Although not in such a way as to affect the quality of work of these bodies, but to more effectively organize processes through mutual communication between different branches of government. It can be done. I understand that these bodies include international experts and this factor also affects the timeframe for implementing new changes. Albeit, there are two important things: firstly, these experts agreed that certain obligations will be imposed on them, and secondly, these obligations are imposed on them by legislation and government decisions. If it is necessary to be physically in Ukraine, then they must be here to perform their functions. Otherwise, these contests and selections will not take place.

However, so far we do not see very critical things.

About the election of the director of the National Anti-Corruption Bureau of Ukraine (NABU) and the fight against corruption

— But in two weeks, as Mr. Shmyhal urged, it is obviously unrealistic to elect the head of NABU. After all, it is still important to conduct tests and interviews.

— I believe that it would be absolutely real. It is worth mentioning that only 22 people were admitted to the next stages of the competition for the director of NABU. These are not hundreds or dozens of people. In addition, the work of the Commission is supported by the secretariat, which has already worked on other contests, in particular, the selection of a specialized anti-corruption prosecutor. That is, the basic materials, documents, everything that is necessary for the holding of contests has already been prepared. It is possible to complete in the coming weeks all the final stages related to the identification of the three key candidates who will be recommended to the government for appointment. However, we do not have any tools to influence the commission, except for public appeals, as we do now.

— It is worth noting that the paragraph on the fight against corruption refers not only to the appointment of the heads of the SAPO and NABU, it is more broadly about the fight against corruption. Will there be, for example, a renewed declaration for officials?

— There is no such obligation within the political recommendations of the EC. However, the National Agency for Prevention of Corruption (NAPC) and MPs, as far as I know, understand that sooner or later this issue will become relevant. Thus, it is obvious that it will be supported in communication with international partners. I know that such decisions are being made. Such an institution as NAPC is working on them. In the parliament, the concerned committee also forms a vision for the adoption of various decisions. In due time, this declaration must be resumed.

As for anti-corruption indicators related to the European Commission recommendations, it is worth focusing on statistical data regarding the opening, investigation and referral to court of cases of crimes related to corruption. These indicators, if we take the end of 2022 — the beginning of 2023, have increased significantly. In particular, the number of cases sent to courts has increased.

— What about the convictions?

— We are talking about the year we lived in the conditions of a full-scale war. The detectives of NABU and other agencies were also on the front line, and all possible resources were used to protect the state. That is why we are talking about year-end figures that are not bad, particularly in terms of convictions. If we had sky-high numbers, it probably wouldn't be a reason for special joys. In addition, the available indicators show that the institutions are functioning, they are effective.

About laws on media and national minorities

— The last two points are the media and national minorities. It is worth noting that even a significant part of independent experts assesses that we really have progress here. However, there are comments from representatives of the profession regarding the media law. They claim that this law strengthens the government's control over the mass media, and some journalistic organizations even appealed to the president to amend this law.

There were public comments on the law on national minorities in Romania, and we still have to take into account the interests of Hungary... So what can be done with this law when we depend on certain countries, in particular on their future vote, when the issue of starting negotiations will be decided in the European Union about the accession of Ukraine?

— Regarding national minorities. It can be assumed that this legislation would eventually be passed. This law maximally takes into account the results of consultations, the expertise of the Council of Europe and consultations with national minorities. It is general and rather framework. All individual expectations of representatives of minorities, who show an active position, will be taken into account in the state program, which is currently being prepared by the government; the concept of the state program has already been put up for public discussion. The program will provide funding on a five-year basis for measures to support and develop national minorities. It is worth noting that we understand the importance of an inclusive dialogue with representatives of national minorities.

As for the law on media, I can say as a person who has worked on many legislative initiatives in various fields that certain risks are always seen at the stage of the law-making process — that the law will be distorted and implemented improperly, that institutions will be corrupt and that there will be manipulation of powers. It always happens, it is the nature of the law-making process. However, we have one preventive measure here so that this does not happen. It is worth to mention that when we talk about the implementation of the seven recommendations, we are talking not only about the adoption of the law, but also about its implementation. This means that a positive assessment is possible only if the National Council of Television and Radio Broadcasting of Ukraine acts within the framework of the principles of the European regulation and in the spirit of freedom of the media market development. In addition, I have confidence in this law, because behind its implementation is a very long process of monitoring and evaluation — so that we reach the point when Ukraine becomes a member of the EU and we are told: you have a truly developed democratic media market.

Read this article in russian and Ukrainian.

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