From legality to the rule of law: Supreme Court Judge examines the evolution of the application of legal principles in Supreme Court case law

Ukraine has declared the irreversibility of its European course and is focused on the European future. Moreover, the granting of EU candidate status to Ukraine in June 2022 deepened the integration process and confirmed the European aspirations of the Ukrainian people.

This was stressed by Supreme Court Judge Kostiantyn Pilkov in his speech at an international seminar on the rule of law in times of war. The speaker presented the topic "From legality to the rule of law: the evolution of the application of fundamental legal principles in the case law of the Supreme Court".

Describing the trends in the application of general principles of law, academics tend to believe that in the past Ukrainian courts mostly referred formally to principles of law and did not use them as a tool for resolving disputes. Such general principles were applied rather declaratively in the decisions of national courts.

Although scholars and practitioners have generally emphasised the fundamental, systemic importance of the principles of law, in practice their application has been based on the rules of the procedural codes, which state that if the relationship in dispute is not regulated by law, the court applies the law that regulates similar relationships (analogy of law), and in the absence of such a law, the court is guided by the general principles of law (inference from general principles of law). In other words, the legislator focused on the use of principles to address legal relationships not regulated by law as a last resort. In such a case, the application of legal principles has only the practical function of filling in the gaps.

According to the Supreme Court judge, the situation is changing radically today. Kostiantyn Pilkov highlighted the key factors in this process. In 2006, national legislation was amended to make the judgments of the European Court of Human Rights a source of law. These amendments were of great importance for the development of the legal system, as they paved the way for the application of the conventional principles by Ukrainian courts.

The next stage was in 2017, when the procedural codes underwent significant changes. Then the courts were effectively empowered not to apply a law that, in the court's opinion, does not comply with the Constitution. This created the basis for the direct application of constitutional principles, although cases in which a constitutional principle constitutes an independent and sufficient legal basis for resolving a case are extremely rare. Another important factor is the recruitment of academics and lawyers to the judiciary, in particular their involvement in the formation of the new Supreme Court in 2017. As a result, many representatives of other legal professions became judges of the Supreme Court, bringing with them new knowledge, doctrines and ideas that were not inherent in Ukrainian judicial practice and the legal system in general. The last stage mentioned by the speaker was the consolidation of the new structure of the Supreme Court. In his opinion, the creation of the mechanism of the Grand Chamber of the SC, in which representatives of the four jurisdictions work to ensure the uniformity of case law in all four jurisdictions, in particular on the basis of the principles of law common to all or several jurisdictions, implies a new understanding of the application of general principles.

The Supreme Court judge illustrated the process of integrating legal principles into the realm of practical application of the law with the example of the doctrine of venire contra factum proprium (prohibition of contradictory conduct), which is a manifestation of the principle of good faith, particularly in civil relations, and which was not applied by the courts until 2018. In 2018, this doctrine was already mentioned in seven judgments, in 2019 - in 203 judgments, in 2020 - in 551, in 2021 - in 866, and in 2022 - in 814. There are many other examples that demonstrate the growing tendency for courts to accept "new" doctrines based on principles that are actually deeply rooted in domestic law. Thanks to the doctrines introduced by legal science, which embody the principles known in national law but which, because of their lack of specificity, have not been directly applied as an independent and sufficient basis for resolving a dispute, these general principles have been given life in judicial decisions.

A separate factor, or rather the fourth wave of principles to enter Ukrainian case law (along with the principles of the European Convention on Human Rights, constitutional principles and principles inherent in certain branches of law) was the application of EU law principles by the Ukrainian court. Kostiantyn Pilkov stressed that the national judiciary was preparing for Ukraine's full integration into the EU and was doing its "homework". For example, in its resolution of 3 August 2022 in case No. 910/9627/20 (proceedings No. 12-59гс21), the Grand Chamber of the Supreme Court stated that the judgment of the Court of Justice of the EU should be regarded as one that allows to determine the content of the provisions of EU legislation. In line with the practice of applying ECHR judgments, the principles arising from its decisions on similar issues, even if they relate to other states, are subject to consideration. Thus, starting with the energy sector, where Ukraine has international obligations under the Energy Community, the basic principles of EU law that apply there are gradually becoming applicable in Ukrainian courts.

At the same time, the speaker called for a distinction to be made between the category of rules of conduct and the multiplicity of what is often lumped together in our law into a single category of principles, and referred to the book "Efficiency in Private International Law" by Toshiyuki Kono, Professor Emeritus of Kyushu University (Japan), in which the scholar distinguishes between rules and standards. The professor calls for a distinction to be made between the main approaches of the legislator, which are to regulate social relations by means of clear and specific rules for each specific situation, or the approach in which standards are the main tool. For example, the standards of reasonableness and fairness are more flexible and general categories, the understanding of which should be common to all members of society and judges. A legislator who focuses on regulation through clear rules will never be able to foresee all situations, and there will always be a loophole for an unscrupulous player who is formally within the law. Instead, the emphasis on regulation by means of standards and principles focuses on a general understanding of what is permissible in a democratic society and entrusts the courts with the task of truly evaluating this, rather than formally checking compliance with the letter of the law in the form of specific rules.

Kostiantyn Pilkov is positive about the evolution of the Ukrainian judiciary from the literal application of the law, where the legislator is held responsible for the fact that in some cases this can lead to paradoxical results or create advantages for those who formally abide by the law but in reality abuse it, to the application of principles-standards, which brings greater flexibility, clarity and fairness, but less formal legal certainty, for which the judiciary can be criticised. At the same time, legal certainty is ensured in the application of the principles-standards. It is also consistent with the common understanding of what is fair because it means that by applying the categories of reasonableness, good faith and other standards of a person's behaviour in a relationship, the court will argue more clearly why it has judged the person's behaviour in the way it has and what that means for the case.

Nataliia Blazhivska, Judge of the Supreme Court in the Administrative Cassation Court, also participated in the international online seminar. She stressed that the international legal community is stronger when it is united. According to the Supreme Court judge, a constructive dialogue between judges and academics from other countries was extremely important, as it facilitated the discussion of similar legal issues and the development of similar approaches to the application of law. For example, the Taxation Working Group of the Association of European Administrative Judges regularly analyses approaches to international taxation. Another important project is a unique one-year training course for judges in international taxation, supported by the OECD.

Speaking about Ukraine's further integration into the European community, Nataliia Blazhivska said that many Ukrainian laws already complied with the EU's aquis communitare principles. Such legislative integration makes it possible to discuss the application of legal norms and doctrines in practice with foreign colleagues effectively and without barriers in the same legal language. The Supreme Court judge noted that even in the absence of electricity due to massive missile attacks by Russia, Ukrainian judges were not only reviewing cases but also maintaining a constant dialogue with colleagues from around the world through scientific and practical online events.

Other presentations, largely focused on Ukraine, were made by Professor Stanislav Shevchuk, former President of the Constitutional Court of Ukraine ("Human Rights Limitations in Times of War (Ukrainian Experience)"), Middlesex University in London - Professor William A. Schabas ("Independence and Impartiality of the International Judiciary") and Dr Alice Donald ("Defending the Rule of Law in the Council of Europe: The Road from Reykjavik"), Professor Angela Di Gregorio of the University of Milan ("Constitution-Building in the Former Soviet Republics: Competing Models and Recent Evolutions"). Prof. Monika Florczak-Wątor, Head of the Centre for Interdisciplinary Constitutional Studies at the Jagiellonian University and Leader of the Research Group “Rule of Law and the Future of European Democracy”, delivered a welcoming speech. The seminar was moderated by Kristina Trykhlib, Associate Professor at Yaroslav Mudryi National Law University, member of the Research Group “Rule of Law and the Future of European Democracy” at the Jagiellonian University.

The international seminar "The Rule of Law in Times of War: Risks and Practical Implementation" was held on 26 June 2023 at the Jagiellonian University in Krakow (Poland) and was organised by the Research Group "The Rule of Law and the Future of European Democracy".

An excerpt of the seminar recording with Kostiantyn Pilkov's speech is available at https://rb.gy/a0mbj.