In this interview, Costanza Hermanin (EUI’s Robert Schuman Centre), Iurii Barbash (Yaroslav Mudryi National Law University), and Enrico Albanesi (Università di Genova) reflect on a legal framework that is politically acceptable, legally effective, and compatible with EU standards—particularly concerning the protection of national minorities within the broader EU rule of law framework.
Ukraine cannot amend its Constitution while under martial law. So, what realistic changes can it make to adapt its legal framework to European standards during the war?
Iurii Barabash: Ukraine can adapt its legal framework to the EU’s accession criteria pending the war adopting or amending primary legislation. For instance, Ukraine modified its “Law on National Minorities (Communities)” recently to adhere to some criteria established under European and international law. In our view, most of the provisions of this law are compliant. We suggest adopting a more transparent and participatory process to designate the areas where persons belonging to minorities reside, acquiring new population data to establish such a framework, and strengthening the independence of Ukraine’s Ombudsperson when it comes to its selection process and its institutional competences on minorities.
Your project focuses on highly sensitive political issues such as the situation of the Hungarian minority and the use of Russian. How can these controversial issues be assessed given the current war circumstances?
Costanza Hermanin: Paradoxically, the European Union does not have clear standards for protecting persons belonging to minorities. Most research shows that the EU applied a case-by-case approach in the context of the enlargements. Among the minorities with a kin state in the EU, the protection of the Hungarians of Ukraine is among the most controversial issues. This is not because the persons belonging to the Hungarian minority in Ukraine claim to be discriminated against but because the Hungarian government is placing political demands on Ukraine concerning this minority that Ukraine cannot fulfil. These include quotas for parliamentary representation or the right to use Hungarian flags and anthems in Ukrainian territory. We suggest that Ukraine is under no obligation to grant these rights.
On the persons belonging to the Russian minority, our reflection paper affirms that under the framework established by European standards, in times of war or other public emergency, Ukraine can derogate from its obligations concerning the rights of persons belonging to national minorities, given that those restrictions are “the results of the Russian aggression”, as the Venice Commission noted. We also support the view that the right to use Russian for public life can be restricted until this interference is necessary and proportionate for protecting national security, i.e. until the Russian Federation continues to use Russian for its geopolitical expansion.
What are the other significant legal areas Ukraine needs to review to align with EU requirements?
Enrico Albanesi: In 2023, the European Commission adopted detailed recommendations for Ukraine to align with EU requirements regarding the rule of law and democratic institutions. These recommendations will be monitored under the Negotiation Framework established in June 2024. For instance, Ukraine will have to implement its new laws to select and appoint the judges of ordinary courts and the Constitutional Court; it will have to continue fighting against corruption by building a further track record of corruption investigations and convictions; it has to enact a law regulating lobbying in line with European standards, as part of the anti-oligarch action plan. Moreover, Ukraine has been invited to prepare and adopt а road map for the functioning of democratic institutions and a road map for public administration reform.
More information about the project 'Supporting Ukraine’s progress on EU reforms' and the EUI Widening Europe Programme initiative.