Judicial independence, rule of law and application of foreign law in Ukraine and Poland

Supreme Court Judges Kostiantyn Pilkov and Olena Kibenko took part in the International Conference ‘Judicial Independence and the Rule of Law: Overcoming Challenges for Ukraine and Poland in the Process of EU Integration’, which was held at the Faculty of Law and Administrative Management of the Jagiellonian University in Krakow (Republic of Poland).

‘The judge's speech: freedom and duty of a judge to speak out in order to safeguard the rule of law and judicial independence’ was the topic of the presentation by Kostiantyn Pilkov, Judge of the Grand Chamber of the Supreme Court.  

He described how the perception of judges' public statements has changed dramatically in the democratic world when it comes to acute political issues, which are, however, related to the defence of democracy, judicial independence and the rule of law. From the restrained wording of the judicial ethics guidelines of the late 1980s and even the middle of the last decade stating that judges should refrain from public statements on sensitive political issues, the democratic world has in recent years come to realise that when it comes to preserving democracy, fundamental human rights and the rule of law, a judge not only has the right to freedom of speech, but freedom of speech is even transformed into an ethical or legal obligation to speak out in defence of these fundamental values.

The milestone documents that trace this change in approaches to understanding the public role of each judge in protecting judicial independence and the rule of law, to which Kostiantyn Pilkov drew attention, were the judgments of the Inter-American Court of Human Rights in López Lone et al. v. Honduras (2015) and the European Court of Human Rights in Żurek v. Poland (2022). Further, the thesis on the transformation of judges' freedom of speech and the duty to speak out in defence of the rule of law and judicial independence and the rule of law was enshrined in the CCJE Opinion No. 25 of 2022.

Judges should be aware of this ethical and even legal obligation. The traditional perception of judges' silence on sensitive issues as a judicial virtue and communication with society in the “language of court decisions” is changing, because in the defence of democracy, the rule of law and judicial independence itself, every judge not only has the right to freedom of expression, but also has an obligation not to remain silent.

For more details, see the presentation of the Supreme Court judge.

Olena Kibenko, Supreme Court Judge in the Commercial Cassation Court, spoke about the application of foreign law by Ukrainian courts.

In her presentation, she analysed the problematic issues on the example of the resolution of the Chamber for Corporate Disputes, Corporate Rights and Securities of the Commercial Cassation Court of the Supreme Court of 16 March 2024 in case No. 911/231/22, and also focused on the individual opinions of the judges in this case.

In particular, a number of legal issues arose:

- what should be the requirements for an expert providing an opinion on foreign law;

- whether the court/judge can determine the content of foreign law itself and whether he/she can use the Internet, translation software, books from the court's library or his/her own, or whether the court must apply to the Ministry of Justice of Ukraine and other competent institutions, or engage experts;

- whether the court must notify the parties of the sources of foreign law that it plans to apply, and whether these sources should be attached to the case file;

- how the court shall indicate in the decision on the application of foreign law sources, etc.

According to the speaker, to answer the above questions in case No. 911/231/22, she used the Hamburg Guidelines 2023, which were developed by the Max Planck Institute for Comparative and International Private Law.

Olena Kibenko's presentation is available here.

The conference was organised within the framework of the research project ‘Restoration of the Rule of Law and Independent Judiciary as Key Challenges for Poland and Ukraine in the Context of European Integration’, supported by the Polish Science Foundation within the framework of the FOR UKRAINE programme.