Building the rule of law: An enormous challenge

Although Ukraine has been independent for close to 35 years and the influence of its Soviet legacy is slowly waning, progress towards the rule of law has been anything but straightforward. Under President Leonid Kuchma (1994–2005), a form of oligarchy emerged that was underpinned by an opaque symbiosis of politics and business. Powerful economic actors wielded their financial and media clout to help politicians consolidate their power. In return, political decisions were taken that served the interests of those oligarchs, allowing networks based on cor­ruption to form and become entrenched over time.

That system continued under Kuchma’s successors, albeit with significant nuances. Under Viktor Yushchenko (2005–2010) and Petro Poroshenko (2014–2019), a more pluralistic form of oligarchy developed than under Viktor Yanukovych (2010–2014), but there was no significant change in the mechanisms of the system.

Although during this period key pillars of democracy were established in Ukraine – including largely free and fair elections – other hallmarks failed to materialise or were sabotaged by the oligarchy. In particu­lar, the general principle of the separation of powers, the independence of the judi­ciary and certain mechanisms of account­ability have not been sufficiently enforced. And it is the deficiencies in these areas that are enabling corruption at the highest political levels to persist. Even though the recently formed anti-corruption institutions have managed to more or less preserve their independence and carry out their work, they operate alongside a dysfunctional judi­cial system that not only undermines their achievements but has also enabled the oli­garchs to secure positions in the courts for individuals well disposed towards them or otherwise exercise influence over court decisions.

The fact that a fully independent judiciary has not yet been established in Ukraine is closely linked to developments within the other branches of government. Ukrain­ian presidents have systematically sought to expand their powers via both official and unofficial channels. The power struggle between the president and the government or the parliament is reflected in the chang­ing competences attributed to those insti­tutions under the various versions of the Ukrainian Constitution. In fact, successive presidents have sought not only to control the government and parliament either di­rectly or indirectly; they have also attempted to extend their influence to a range of other institutions, such as the Prosecutor Gen­eral’s Office or the Constitutional Court. Thus, a fundamental step towards improving the rule of law in Ukraine would be a shift of real power away from the president towards the other branches of government or within the executive itself. Furthermore, the so-called fourth estate – namely, the media – would need to be strengthened and become more independent. Only then could it perform an adequate monitoring role and ensure a pluralistic public debate.

However, it is not just the considerable power of the president that is preventing the parliament from fulfilling its functions. Another major factor is that political par­ties in Ukraine have a problematic history. Since the emergence of oligarchic structures in the 1990s, parties have tended to become mere groupings that subordinate themselves to the interests of a single individual or clique. They are often founded by strong personalities who have no clear political programme, act opportunistically and offer their services to one or the other oligarch. Thus, numerous political parties become integrated into and support the oligarchic governance structure.

As a result of these processes, certain key institutions are associated – directly or indirectly – with a particular oligarch. The oligarchs, in turn, cooperate or com­pete with one another, depending on the situa­tion and their interests. They form either a single pyramid (under Kuchma and Yanu­kovych) in which they vie for positions, or multiple pyramids (under Yushchenko and Poroshenko). In both constellations, they and their supporters are able to use their influence to exempt themselves from legal obligations and escape accountability. Thus, the rule of law is compromised by oligarchic rule in several fundamental areas.

Regime development under Zelenskyi: Contradictory

Volodymyr Zelenskyi was elected president in 2019 not least because he was seen as someone from outside the political system. Nevertheless, his election campaign received significant support from an oligarch, Ihor Kolomoyskyi. Over time, however, Zelens­kyi not only distanced himself from Kolo­moyskyi but also confronted the oligarchs. Kolomoyskyi lost both his bank (PrivatBank) and his influence over several key energy companies and was even arrested. Furthermore, in autumn 2021, Zelenskyi introduced a bill into the parliament that estab­lished four criteria for defining an oligarch and tasked the National Security and Defence Council, which is chaired by the president himself, with compiling a register of oli­garchs. Various political and economic restrictions were to be imposed on those individuals.

Despite still not having been fully imple­mented, the “anti-oligarch law” has already had an impact. Influential oligarchs such as Rinat Akhmetov and former President Petro Poroshenko divested their media holdings or reduced their stakes in those companies. However, the Venice Commission of the Council of Europe has criticised the law, stating that it was directed less against the oligarchic system itself than against indi­viduals.

The situation for the oligarchs changed even more drastically following the Russian full-scale invasion in February 2022. As further territories were occupied by Russia, major industrialists lost key assets. At the same time, it became significantly more dif­ficult for the oligarchs’ companies to con­tinue to export their products, primarily owing to Russia’s increasing control over the Black Sea. Moreover, some companies that belonged to oligarchs were nationalised by the Ukrainian leadership for war-related purposes.

Despite all these setbacks for the oligarchs, it cannot be assumed that the oligarchic model is a thing of the past in Ukraine and the country has thus inevitably embarked on a path towards greater rule of law. First, the fight against the oligarchic system is not being waged consistently, and second, this fight cannot be equated with the complete removal of obstacles on the path to the rule of law. President Zelenskyi has demonstrated through other actions that he is not always inclined to take institutions seriously but prefers rather to rely on individuals. Fur­thermore, like other Ukrainian presidents before him, he has sought to expand his power and take control of parts of the judi­ciary. Moreover, he repeatedly neglects the core function of the parliament as a source of checks and balances and expects it to rubber-stamp the laws proposed by him and the government.

More important than Volodymyr Zelens­kyi’s personal attitude towards the rule of law, however, is that the oligarchic model has become firmly entrenched in the minds of many key Ukrainian political and eco­nomic actors. They include not only the oli­garchs themselves and those who support them but also large sections of Ukrainian society who are unfamiliar with other forms of governance and who either toler­ate the manifold impacts of the oligarchic system on their daily lives or are simply unaware of them This fact does not detract from the significant changes that Ukrain­ians have obtained by means of major pro­tests or “revolutions”. But those achieve­ments have not yet led to the establishment of a fundamentally new form of governance.

In addition, the oligarchic model enjoys a certain acceptance among the population because it allows for a degree of pluralism. For example, it has frequently been pointed out that the oligarch-controlled media rep­re­sent different points of view. Even within the landscape of political parties, which are often financed by oligarchs, controversial opinions and stances are expressed. Never­theless, it must be noted that both the par­ties and the media have often served as in­struments for advancing oligarchs’ agendas, particularly during election campaigns.

Opportunities for a new govern­ance model during wartime

The full-scale Russian invasion in February 2022 undoubtedly marked a turning point for Ukraine. It is viewed by some as an event that could drive the transformation of gov­ernance in the country. At the start of the invasion, it was not uncommon to hear it said that under the new circumstances, no one would dare engage in corrupt practices as this could cost lives and would amount to a betrayal of Ukraine.

Developments show that this prediction has not been fulfilled. On the contrary, the consequences of the invasion have, in some respects, created conditions that encourage corruption. First, the flow of funds into Ukraine from abroad in the form of mili­tary, financial and humanitarian aid has increased many times over. Second, restric­tions imposed for security reasons have reduced transparency in numerous areas. This makes it more difficult not only for external actors such as the EU but also for civil society organisations within Ukraine to establish whether corruption is taking place.

It should be emphasised that in wartime, it is never easy to focus on political goals and measures not directly linked to the con­flict. Nevertheless, an eye must be kept on the development of the political system in Ukraine amid the ongoing hostilities be­cause the direction that will be taken in the post-conflict period is being shaped now.

Some observers see the forced departure of Andriy Yermak, Zelenskyi’s former chief of staff, as an opportunity to include cer­tain competent and capable individuals in the leadership of the Ukrainian state – individuals who, until now, have not been part of the inner circle owing to their diffi­cult relationship with Yermak. It is hoped that these and other developments could lead to less tolerance for corruption and thus a different kind of governance.

However, there are good reasons to doubt such an outcome, not least because Yermak was merely a product of a system that is deeply entrenched in Ukrainian politics (and the Ukrainian economy) and provides substantial benefits for many influential actors. Neither the president’s personnel decisions to date nor the repeated blocking of rule-of-law reforms suggest the emergence of a new elite that would significantly alter the current governance model.

After the war (assuming the continued existence of a sovereign and independent Ukraine), it is likely that those who have distinguished themselves through outstanding achievements during the conflict – whether on the battlefield or behind the front lines – will come to power. Not only would this be seen as logical by many Ukrainian voters; it could prove advantageous if (as is to be expected) Ukraine were to come under attack from Russia again. However, it is unlikely that such figures will have extensive experience of other models of governance or that the transformation of the rule of law in Ukraine will be a top priority for them. Thus, it is all the more important to start thinking now about measures that can be 1) introduced during the war and 2) easily adopted and continued by a post-war elite.

Measures to strengthen the rule of law in the Ukrainian context

The reform of the judiciary in Ukraine is a clear priority for both the EU and civil society actors in the country. Efforts in this direction have been under way for many years now, but progress has been both slow and partial. The vested interests and path dependencies within the system are simply too strong, while the preferences of the president and his team are often contrary to the spirit of the reform. Nevertheless, this reform remains firmly on the agenda of many Ukrainian and external actors. For this reason, the following proposals focus on additional measures which – like judi­cial reform – can strengthen the separation of powers.

Furthermore, the primary focus here is not on anti-corruption institutions. There is no doubting the importance of these in­sti­tutions, which already receive a great deal of attention. However, in the long term they cannot function in an environment in which the three branches of government are confronted with the threat of state cap­ture by oligarchs or other influential groups.

For this reason, it is important to view the extent of corruption in Ukraine as symp­tomatic of deficiencies in the rule of law and to acknowledge the resulting need to work towards a different model of governance on several tracks simultaneously. The measures proposed here are based on this holistic approach. Nevertheless, each meas­ure can be implemented effectively on its own. Moreover, the list is not exhaustive. There are many other measures that could expand and consolidate the rule of law in Ukraine as the transformation required is extremely complex.

First, it could help to involve more indi­viduals from the diaspora or with relevant experience abroad by appointing them to senior posts. Efforts along these lines during Petro Poroshenko’s presidency can be described as having been partly success­ful. Ultimately, however, the entrenched corrupt elements within the system proved stronger than the innovative reformist forces from outside.

The larger the number of posts that are given to people with experience of other governance models, the greater the likeli­hood of transforming the existing system. Such individuals need not always be ap­pointed as ministers since they can also play an important role at other levels. They must, however, wield decisive influence in their field.

Second, efforts should be made to ensure that political parties become more issue-ori­ented and less dependent on specific per­sonalities. Parties led by a single individual are more attractive as instruments for oli­garchs because they are easier to control and focus on particular interests rather than questions important to society as a whole.

One obvious measure would be to improve the monitoring of the sources of party funding. Although there are rules in place for reporting on such sources and the National Agency on Corruption Prevention (NACP) is supposed to ensure compliance, the former are too easy to circumvent and the latter lacks the necessary capacity to adequately monitor the situation.

At the same time, it would make sense to promote initiatives aimed at enabling voters to elect politicians and parties that champion their interests. Such increased transparency can be achieved, for example, by monitoring the voting behaviour of elected legislators – something that vari­ous NGOs have been doing for years at both the national and local level. The relevant platforms should be made more visible and could be expanded to cover a wider geo­graphical area. Furthermore, monitoring has declined in the wake of the full-scale Russian invasion and needs to be stepped up again.

Third, alongside existing measures in the area of judicial reform, more attention should be paid to the issue of legal educa­tion. The idea here is to train a new genera­tion of lawyers and judges who would not tolerate the current state of affairs in the judiciary. It involves ensuring that legal edu­cation is more closely linked to an ap­propriate system of values. This can be best achieved within a university setting, where it is possible to forge strong links between legal content and other subjects. To this end – and because there is a surplus of law students in Ukraine – many of the smaller law programmes offered by various institu­tions should be closed.

Fourth, efforts should be made to strength­en the independence of the media. Rather than having to depend on “oligarchic plu­ralism”, the media should be able to carry out their work under as little political influ­ence as possible. Zelenskyi’s “anti-oligarch law” was oriented in this direction. How­ever, it is also necessary to provide public media services with increased resources and to support smaller media outlets in the creation of new strategies and funding models. Since USAID withdrew from this sector, local and regional media have had to rely on financial assistance from other external sources, including the EU and Member States. But it is equally important to work with those outlets to develop a sus­tainable model for a new media landscape.

Fifth, the coalition of actors committed to the rule of law needs to be expanded. The close cooperation between Ukrainian civil society organisations and external actors such as the EU is an example of con­structive engagement in this area: coordinated pressure from the two parties (the so-called sandwich method) has often led to successful reforms or prevented problematic decisions from being taken. Nevertheless, based on experience to date, more than just this joint approach will be needed to trans­form the governance model in Ukraine, particularly as the influence of the US in this area has not only declined, it has even become counterproductive.

Against this background, a more concerted effort should be made to recruit and engage other stakeholders with an interest in the rule of law. Of particular relevance here are businesspeople and business asso­ciations outside the oligarchic circles. As they are at a disadvantage owing to the privileges enjoyed by the oligarchs, they have a strong interest in the introduction of a system in which everyone has the same rights and is treated equally before the law. A “bottom-up” component could thus com­plement the more elite-oriented measures mentioned above – not least as the eco­nomic actors being considered here tend to already support the rule of law agenda, albeit while adopting a low profile. Greater cooperation between such actors and civil society representatives could strengthen the Ukrainian layer of the “sandwich”.

The rule of law and EU accession

The issue of the rule of law has always been of crucial importance in the EU accession process. But it has gained even greater sig­nifi­cance following the 2020 reform of the accession methodology. The cluster of nego­tiation chapters titled “Fundamentals” deals with, above all, the characteristics of a state governed by the rule of law. It is the first to be opened and is not closed until the nego­tiation process has been completed. The aim is to ensure that the principles of the rule of law are incorporated and addressed throughout the entire process.

Considerations about accelerating the accession process and, where appropriate, introducing a form of partial membership are unlikely to change the central role played by the rule of law; at most, they may affect the point in the process at which the issue is included on the agenda. Given that several EU Member States have experienced difficulties implementing the rule of law since their accession, it is unlikely that Brus­sels or the individual European capitals will be prepared to relax standards in this area.

How can the EU best contribute to the proposals aimed at strengthening the rule of law in Ukraine that are outlined in the previous section? As regards the involvement of politicians from the diaspora, the EU’s scope for action is very limited, as it is Ukraine that decides who fills ministerial and other relevant posts. With regard to the de-oligarchisation of political parties, assess­ments by EU institutions (or the Coun­cil of Europe) concerning the enforcement of rules on the financing of political parties could feature in the negotiations on the “Fundamentals”. Through the provision of funding for projects designed to increase the transparency of the voting behaviour of elected legislators (including in the regions), the EU can signal that an issue-oriented approach is desirable. Closer cooperation between Ukrainian political parties and those represented in the parliaments of EU Member States (and, in the case of Germany, political foundations) would help achieve progress in implementing such an approach.

As regards legal education, the EU or individual Member States could promote additional training programmes intended to forge closer links between values and law-making. The absence of USAID is mak­ing itself felt in this area. An increased ex­change between law faculties in the EU and Ukraine on the issue of curriculum design could be beneficial, although some Ukrain­ian educational institutions have already taken significant steps in this direction.

In the media sector, it will be important to seize the opportunity that will arise once the war is over and the pressure to central­ise has eased, so that the oligarchs can be prevented from reclaiming control of the media landscape. Thus, it would be advis­able to strengthen public media in Ukraine by influencing legislation as part of the ac­ces­sion process and consolidating the insti­tutional standing of those outlets. Furthermore, the legal framework for private media and for the treatment of journalists could become another topic of the acces­sion process, as the shaping of the media landscape is linked in many ways to the development of the rule of law.

Finally, the EU can help involve additional stakeholders in the agenda for strengthening the rule of law, especially small and medium-sized enterprises (SMEs) that are not integrated into oligarchic networks. It can work towards ensuring that both SMEs and the associations representing them are better informed and more actively involved as partners in addressing those aspects of the transition to rule of law structures that directly affect them. This can be achieved in two ways: through increased communication between relevant directorates-general and the corresponding economic actors in Ukraine and by fostering links between the latter and sections of Ukrainian civil society. Clearly identifying overlaps in the priorities of business and civil society actors – for example, with regard to the development of an independent judiciary – could broaden the coalition for the rule of law and in­crease its chances of success.

Checklists will not suffice

The fight against corruption in Ukraine is of the utmost importance, and the actors involved in the country’s anti-corruption institutions and civil society deserve con­tinued encouragement and support. How­ever, corruption is so deeply rooted in the country because the rule of law remains underdeveloped. Russia’s war of aggression has only exacerbated the shortcomings in certain areas. However, the EU accession process requires Ukraine to transform its governance system in order to fully comply with the Copenhagen criteria.

Among the useful tools with which to achieve that transformation are lists of meas­ures such as the one presented in December 2025 by Enlargement Commissioner Marta Kos and Ukrainian Deputy Prime Minister Taras Kachka to combat corruption and strengthen the rule of law. But in order to tackle the underlying governance issues, a broader approach is needed – one that focuses on rebalancing the separation of powers. At the same time, it is important that the measures target and involve both the elite and societal levels.

There is no doubt that serious geopolitical reasons exist for accelerating the current round of EU enlargement. However, such an acceleration will have little bearing on the complexity and difficulty of the trans­formation process in Ukraine. It will be a pro­longed affair, but it is necessary if Ukraine is to exit the grey zone and become a full-fledged EU Member State. Ultimately, of course, such a development is predicated on the assumption that the EU itself remains a space where the rule of law is upheld.