OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL16 N2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

VOL16 N2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional Transformation in Times of Global and

National Challenges

DOI https://doi.org/10.26619/1647-7251.DT0226

Editorial - Rule of Law, Human Rights, and Institutional Transformation in Times of Global

and National Challenges - Yaroslav Kushnir, Svitlana Litovka-Demenina, Olena Striliuk,

Iryna Lehan, Zhanna Vasylieva-Shalamova, Kateryna Voitenko – pp. 3-7

ARTICLES

Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations – Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys

Sydorenko - pp. 8-29

The Theoretical Foundations and Practical Implementation in the Priority of the Rule of

Law in Times of War - Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor

Zavalniuk, Nataliia Kaminska, Vitalii Melnyk – pp. 30-48

Judicial reform as a factor in increasing public trust in justice- Serhii Krushynskyi, Mykola

Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova – pp. 49-65

Legal Integrative Framework in the European Union: Analysis of the Key Principles and

Their Influence on the National Legislation - Vladyslav Novitskyi, Anzhelika Krusian,

Tetiana Shynkar, Volodymyr Demydenko, Roman Lemekha– pp. 66-81

Theoretical and applied aspects of criminal law and procedural ensuring the right to

defense - Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska,

Iryna Bakhmat – pp. 82-99

Liability for Causing Property Losses in the Course of Business Activities - Iurii Bedratyi,

Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo – pp. 100-121

Features of the protection of intellectual property rights for designations according to the

legislation of Ukraine - Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn

Nemchenko, Yevhenii Kurylo – pp. 122-135

International Standards for the Use of Forensic Psychological Examinations in Studying

the Motivational Structure of Criminals: Importance for Cooperation Between Law

Enforcement Agencies - Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr

Chernov, Vladlena Voloshyna, Iryna Kislitsyna – pp. 136-164

Generation of human rights and their role in the formation of the concept of

"Constitutional Man": in the dimension of national and international doctrines - Ruslan

Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk – pp.

165-190

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

VOL16 N2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight in AI-

Driven Legal Systems - Kostiantyn Klymov, Lesia Pron, Kostiantyn Orobets, Ruslana

Liashenko, Lesia Vasylenko – pp. 191-209

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and

Domestic Regulatory Frameworks - Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska,

Oleksandr Dyakovskiy, Maksym Terela, Viktoriia Sydorenko – pp. 210-225

International Humanitarian Law and Human Rights During the War in Ukraine - Oleksii

Volokhov, Oleksandr Khomenko, Oleksandr Savka, Anatolii Kuzmenko, Diana Dmytrenko

– pp. 226-240

Administrative Liability for Environmental Offences: Problems and Prospects for

Legislative Changes - Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk,

Yevhenii Kolomiiets – pp. 246-257

Institutional and Legal Support for State Management of the Bioenergy Sector’s

Development in the Context of Global Transformations - Iaroslav Ianushevych, Oleg

Hubanov – pp. 258-276

Сonstitutional Evolution of Democracy: A Comparative Analysis of European and

Ukrainian Legal Frameworks (18th–20th Centuries) - Lesia Khudoiar, Denys Chyzhov,

Larysa Poliakova, Halyna Senkivska, Vira Yavir – pp. 277-292

The Importance of Critical Infrastructure for National Security: Legal Aspects, Risk Models

and Mechanisms of State Management of Security - Serhii Bielai, Oleksandr Pivnenko,

Vadym Yevsieiev, Vadym Hladkov, Ivan Lavrov – pp. 293-314

Constitutional control in Eastern European countries: models, effectiveness and

development prospects - Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav

Pustovar, Iryna Nastasiak – pp. 315-343

State Regulation and Administration of Human Capital Development in War and Post-War

Conditions - Serhii Duha, Mykhailo Ioffe, Liliia Muntian, Olena Slavkova, Alexandra

Kazarian – pp. 344-366

The evolution of the doctrine of freedoms: From natural principles to legislative fixation

in the modern era - Mariana Shchyrba, Hanna Kurtakova, Liudmyla Romanenko, Tetiana

Baranovska, Anatolii Petrenko – pp. 367-381

Governance and Reform in the Healthcare System: Key Challenges and Perspectives -

Nataliia Veresniuk, Dmytro Lavrentii, Grygorii Monastyrskyi, Yaroslav Demchyshyn, Yana

Levytska – pp. 382-391

The Liability for Environmental Damage in the Global Climate Crisis - Artem Filippov,

Andrii Andreikiv, Alona Lukashenko, Galyna Moroz, Oleksandr Alimenko – pp. 392-409

Shifting Paradigms of Labor Rights in the Context of Flexible and Remote Employment -

Maryna Kuznetsova, Lidiia Karpenko, Danylo Kravtsov, Olha Tykhoniuk, Maryna

Smoliarova – pp. 410-426

The role of mediation in the criminal justice system: A comparison of international

approaches and issues of legal liability of lawyers - Inna Naida, Iryna T\arasova,

Oleksandr Kalinichenko, Mykola Skarzhynskyi, Mykhailo Voznyk – pp. 427-451

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

VOL16 N2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

Crisis of the UN Collective Security System as a Criminal Law Component of

Encroachments on the Protection of Peace and International Security Leading to Armed

Aggression - Igor Paryzkyi, Oleksiy Humin, Iryna Khomyshyn, Myroslava Sirant, Yaryna

Oliinyk – pp. 452-476

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Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

EDITORIAL

YAROSLAV KUSHNIR, as guest coordinator

yarkushnir@ukr.net

Associate Professor at the Department of Administrative Activity, Faculty of Law Enforcement,

Bohdan Khmelnytskyi National Academy of the State Border Guard Service of Ukraine,

Khmelnytskyi (Ukraine). He is an Associate Professor at the Department of Administrative

Activity, Faculty of Law Enforcement, Bohdan Khmelnytskyi National Academy of the State Border

Guard Service of Ukraine. His academic and professional interests focus on administrative law,

public administration, law enforcement practices, and the legal regulation of border security

activities. He is actively engaged in teaching, research, and the training of law enforcement

professionals, contributing to the development of modern approaches to public safety and state

border protection. http://orcid.org/0000-0002-8519-5331

SVITLANA LITOVKA-DEMENINA

Svitlana_Litovka-Demenina@outlook.com

PhD in Pedagogical Sciences, Associate Professor, Department of International Relations and

Organization of Tourism Activity, Interregional Academy of Personnel Management (Ukraine). Her

expertise centers on information systems and marketing strategies within the tourism and hotel-

restaurant industries. She investigates the use of digital tools – such as context advertising,

content marketing, and social media targeting – to enhance personalized customer engagement

and industry competitiveness. Additionally, she studies processes of marketing research in

tourism, emphasizing market analysis, infrastructure development, and systematic data

collection to inform strategic decisions. http://orcid.org/0000-0002-8341-9872

OLENA STRILIUK

olenastriliuk@gmail.com

PhD in History, Associate Professor, Department of World History and International Relations, O.

M. Lazarevsky Educational and Research Institute of History, Social Sciences and Humanities, T.

H. Shevchenko National University "Chernihiv Colehium" (Ukraine). Her academic expertise lies in

world history, international relations, cultural diplomacy, and historical memory studies. She

actively researches global political processes, the role of history in shaping national identities,

and international cooperation in education and culture. https://orcid.org/0000-0002-5278-5263

IRYNA LEHAN

university_ua@i.ua

Doctor of Law, Associate Professor at the Department of Law and Law Enforcement, Faculty of

National Security, Law and International Relations, Zhytomyr Polytechnic State University

(Ukraine). She holds the degree of Doctor of Law and also a Candidate of Economic Sciences, and

has completed master’s degrees in both accounting & audit and law. Iryna Lehan is the author

and co-author of over 60 scientific and educational publications, with research interests focused

on international cooperation in preventing and combating transnational crime, as well as criminal

law, criminology, and criminal-executive prevention of crime. She has participated in international

academic internships in universities in Slovakia and Poland and contributes actively to academic

life at her university. https://orcid.org/0000-0003-2933-4971

ZHANNA VASYLIEVA-SHALAMOVA

academiq@ukr.net

PhD in Law, Associate Professor at the Department of Civil Procedure, Educational and Scientific

Institute of Law, Taras Shevchenko National University of Kyiv (Ukraine). She holds a PhD in Law

and specializes in civil procedural law with scholarly interests in the theory and practice of civil

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Portugal and China in International Relations: Historical Legacies

and Contemporary Dynamics

March 2026, pp. 3-7

Editorial. Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

Yaroslav Kushnir, Svitlana Litovka-Demenina, Olena Striliuk, Iryna Lehan,

Zhanna Vasylieva-Shalamova, Kateryna Voitenko

justice, and is actively involved in academic research and teaching at one of Ukraine’s leading law

faculties and has contributed to scientific publications and conferences in her field.

https://orcid.org/0000-0003-3481-788X

KATERYNA VOITENKO

eeusci_kvoitko@ukr.net

Master in Law, Zhytomyr Polytechnic State University (Ukraine). She has been engaged in

publicistic and science communication activities, supporting Ukrainian researchers in

disseminating the results of their studies in international academic journals since 2017. She has

experience in editorial assistance, and coordinating cooperation with foreign publishers. She is

particularly interested in promoting the global visibility and impact of Ukrainian scholarship

through effective communication and international collaboration

How to cite this article

Kushnir, Yaroslav, Litovka-Demenina, Svitlana, Striliuk, Olena, Lehan, Iryna, Vasylieva-

Shalamova, Zhanna & Voitenko, Kateryna (2026). Editorial - Rule of Law, Human Rights, and

Institutional Transformation in Times of Global and National Challenges. Janus.net, e-journal of

international relations. Thematic Dossier - Portugal and China in International Relations: Historical

Legacies and Contemporary Dynamics, VOL. 16, Nº. 2, TD3, March 2026, pp. 3-7.

https://doi.org/10.26619/1647-7251.DT0226.ED

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Portugal and China in International Relations: Historical Legacies

and Contemporary Dynamics

March 2026, pp. 3-7

Editorial. Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

Yaroslav Kushnir, Svitlana Litovka-Demenina, Olena Striliuk, Iryna Lehan,

Zhanna Vasylieva-Shalamova, Kateryna Voitenko

RULE OF LAW, HUMAN RIGHTS, AND INSTITUTIONAL

TRANSFORMATION IN TIMES OF GLOBAL AND NATIONAL

CHALLENGES

YAROSLAV KUSHNIR

SVITLANA LITOVKA-DEMENINA

OLENA STRILIUK

IRYNA LEHAN

ZHANNA VASYLIEVA-SHALAMOVA

KATERYNA VOITENKO

The contemporary world is experiencing a convergence of global and national crises that

profoundly test the resilience of legal systems, democratic institutions, and the very

foundations of the rule of law. Armed conflicts, technological disruption, climate change,

pandemics, economic instability, and rapid digitalization have generated unprecedented

challenges for states and societies alike. In this context, the rule of law and human rights

are no longer abstract normative ideals but practical benchmarks for institutional

sustainability, social trust, and political legitimacy. This special issue of JANUS.NET e-

journal of International Relations is devoted to examining how legal systems respond,

adapt, and transform under conditions of heightened stress, uncertainty, and structural

change.

The central premise of this special issue is that the rule of law, human rights protection,

and institutional transformation are inseparable processes, particularly in times of crisis.

Emergency governance, martial law, digital governance, environmental degradation, and

armed conflict often necessitate extraordinary measures. However, without adequate

legal safeguards, transparency, accountability, and proportionality, such measures risk

eroding democratic institutions and undermining public trust. The contributions gathered

here explore these tensions through doctrinal analysis, comparative perspectives,

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Portugal and China in International Relations: Historical Legacies

and Contemporary Dynamics

March 2026, pp. 3-7

Editorial. Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

Yaroslav Kushnir, Svitlana Litovka-Demenina, Olena Striliuk, Iryna Lehan,

Zhanna Vasylieva-Shalamova, Kateryna Voitenko

empirical data, and normative reflection, offering a multidimensional understanding of

legal transformation in both national and international contexts.

A significant part of this issue focuses on the impact of war and emergency governance

on constitutional order and fundamental rights, with particular attention to the Ukrainian

experience as a paradigmatic case. The article “The Theoretical Foundations and Practical

Implementation of the Priority of the Rule of Law in Times of War” provides a comparative

and empirical assessment of how democratic states preserve legal stability under martial

law. It demonstrates that judicial independence, parliamentary oversight, and

proportionality of restrictions are decisive factors in preventing democratic backsliding.

Complementing this analysis, “International Humanitarian Law and Human Rights During

the War in Ukraine” addresses the systemic violations of international humanitarian law

and underscores the urgent need for updated accountability mechanisms, including the

establishment of a Special Tribunal for the crime of aggression.

The constitutional dimension of crisis governance is further explored in “Constitutional

Control in Eastern European Countries: Models, Effectiveness and Development

Prospects”, which offers a rigorous comparative analysis of constitutional courts as

guardians of democratic order. By identifying patterns of political capture and institutional

resilience, the article highlights constitutional justice as a key safeguard against the

erosion of the rule of law. Historical depth is added by “Constitutional Evolution of

Democracy: A Comparative Analysis of European and Ukrainian Legal Frameworks (18th–

20th Centuries)”, which situates contemporary constitutional challenges within the

broader tradition of European democratic thought and Ukrainian constitutionalism.

Another major thematic cluster addresses institutional reform and public trust,

particularly within the justice system. The article “Judicial Reform as a Factor in

Increasing Public Trust in Justice” demonstrates that digitalization, procedural efficiency,

and institutional independence are essential but insufficient without adequate funding

and кадрова стабільність. Closely related, “The Role of Mediation in the Criminal Justice

System” explores alternative dispute resolution as a tool for enhancing efficiency and

fairness, revealing institutional gaps that limit its effectiveness in transitional legal

systems. Together, these studies emphasize that institutional reform must be systemic,

data-driven, and grounded in professional integrity.

The special issue also engages with the protection of individual rights across diverse

branches of law, reflecting the expanding scope of human rights in contemporary legal

systems. Family law, criminal procedure, labor law, intellectual property, and data

protection are examined not as isolated domains, but as interconnected fields where

human dignity, access to justice, and legal certainty are at stake. Articles such as “Applied

Dimensions of the Implementation of Family Law Rights” and “Theoretical and Applied

Aspects of Criminal Law and Procedural Ensuring the Right to Defense” reveal how

procedural inefficiencies, resource asymmetries, and legislative gaps directly affect the

realization of fundamental rights. The labor law study on flexible and remote employment

highlights emerging social risks in the digital economy, while the analysis of personal

data sovereignty underscores the growing tension between technological innovation and

privacy protection.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Portugal and China in International Relations: Historical Legacies

and Contemporary Dynamics

March 2026, pp. 3-7

Editorial. Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

Yaroslav Kushnir, Svitlana Litovka-Demenina, Olena Striliuk, Iryna Lehan,

Zhanna Vasylieva-Shalamova, Kateryna Voitenko

A forward-looking dimension of the issue is provided by contributions addressing

digitalization and artificial intelligence. “The Algorithmic Rule of Law: Institutionalizing

Accountability and Human Oversight in AI-Driven Legal Systems” proposes a conceptual

framework for integrating AI into legal decision-making without sacrificing accountability,

explainability, and human control. This article resonates with broader debates on fourth-

generation human rights and digital autonomy explored in “The Evolution of the Doctrine

of Freedoms”, which calls for normative consolidation of emerging digital and cognitive

rights at both national and international levels.

Environmental protection and sustainable development constitute another critical axis of

this special issue. Articles on environmental liability, administrative responsibility for

environmental offences, bioenergy governance, and critical infrastructure protection

reflect the growing recognition that environmental security is inseparable from national

security and human rights. In particular, “The Liability for Environmental Damage in the

Global Climate Crisis” situates post-war reconstruction within the framework of

environmental justice and “green reconstruction,” emphasizing the need for integrated

international and national legal responses.

The international dimension of institutional transformation is further enriched by analyses

of European legal integration, UN collective security, and international cooperation in

forensic psychology. These contributions demonstrate that institutional crises at the

international level – such as the paralysis of the UN Security Council – have direct

implications for national legal systems and the protection of human rights. The erosion

of collective security mechanisms not only weakens international law but also normalizes

impunity, making domestic rule-of-law safeguards even more critical.

Taken together, the articles in this special issue offer a comprehensive and

interdisciplinary exploration of how legal systems confront global and national challenges.

They reveal that resilience is not achieved through the suspension of law, but through its

adaptation – guided by constitutionalism, human rights, and institutional accountability.

The diversity of topics and methodologies reflects the complexity of contemporary legal

transformation and underscores the need for dialogue between theory and practice,

national and international law, tradition and innovation.

This special issue aims to contribute not only to academic debate but also to policy-

making and institutional reform. By identifying structural weaknesses, comparative

lessons, and normative pathways, it seeks to support the development of legal systems

capable of withstanding crisis without sacrificing democratic values. In times when the

rule of law is most vulnerable, rigorous scholarship becomes an essential form of

institutional defence.

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Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

APPLIED DIMENSIONS OF THE IMPLEMENTATION OF FAMILY LAW RIGHTS BY

SUBJECTS OF DOMESTIC RELATIONS

VOLODYMYR VATRAS

vatrasv@gmail.com

Doctor of Legal Science, Professor of the Department of Private Law, Faculty of Law

Leonid Yuzkov Khmelnytskyi University of Management and Law Khmelnytskyi (Ukraine)

https://orcid.org/0000-0002-6822-7442

MYKOLA STEFANCHUK

stefanchuk@gmail.com

Doctor of Science of Law, Professor of the Department of Private Law Issues

Academician F.H. Burchak Scientific and Research Institute of Private Law and Entrepreneurship

of the National Academy of Legal Sciences of Ukraine

Kyiv (Ukraine) https://orcid.org/0000-0002-2983-2770

LESIA MALIUHA

lesya_maluga@ukr.net

Doctor of Law, Associate Professor of the Department of Civil Law Disciplines

National Academy of the Security Service of Ukraine

Kyiv (Ukraine) https://orcid.org/0000-0002-0523-221X

OLEG OKSANIUK

Olegoleg028@gmail.com

PhD (Law Sci.), Advocate (Ukraine) https://orcid.org/0000-0003-0547-2712

DENYS SYDORENKO

denys.sydorenko@proton.m

PhD (Legal Sci.), Director Kommersant Ukraine LLC Kyiv, (Ukraine)

https://orcid.org/0009-0004-5793-6683

Abstract

The right to family relations is a crucial aspect of legal regulation that influences both citizens’

welfare and the social order of society. Family rights encompass the property and non-

property rights of spouses, parents, children, and other family members, which must be

ensured through effective legal mechanisms and state support. In Ukraine, the Constitution

and the Family Code guarantee the protection of family, childhood, and parenthood, yet their

practical implementation faces multiple challenges. According to Ukrainian court statistics for

2023–2024, family disputes represent 23% of all civil cases, primarily concerning alimony

recovery (38%), determination of a child’s residence (22%), and deprivation of parental rights

(15%). The average duration of such cases is 4.4 months, exceeding procedural deadlines. A

comparative analysis with Latvia reveals substantial differences in the regulation of family and

adoption issues. Key problems include legislative gaps in defining the status of de facto

spouses, procedural inefficiencies, difficulties in assessing risks of domestic violence, limited

access to legal aid, and excessive workloads of child welfare services. Judicial practice of the

Supreme Court of Ukraine and the European Court of Human Rights establishes important

principles regarding state interference and the best interests of the child. To enhance

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 8-29

Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

protection of family rights, it is necessary to create specialized family courts, expand

mediation, digitize services, strengthen professional training, and integrate European human

rights standards into national legislation.

Keywords

Legal protection mechanisms, parental responsibility, child custody cases, judicial practice,

alternative dispute resolution.

Resumo

O direito às relações familiares é um aspeto crucial da regulamentação jurídica que influencia

tanto o bem-estar dos cidadãos como a ordem social da sociedade. Os direitos familiares

abrangem os direitos patrimoniais e não patrimoniais dos cônjuges, pais, filhos e outros

membros da família, que devem ser garantidos através de mecanismos jurídicos eficazes e

do apoio do Estado. Na Ucrânia, a Constituição e o Código da Família garantem a proteção da

família, da infância e da parentalidade, mas a sua aplicação prática enfrenta múltiplos

desafios. De acordo com as estatísticas judiciais ucranianas para 2023-2024, os litígios

familiares representam 23% de todos os processos civis, principalmente relativos à

recuperação de pensões alimentícias (38%), determinação da residência de um filho (22%) e

privação dos direitos parentais (15%). A duração média desses processos é de 4,4 meses,

excedendo os prazos processuais. Uma análise comparativa com a Letónia revela diferenças

substanciais na regulamentação das questões familiares e de adoção. Os principais problemas

incluem lacunas legislativas na definição do estatuto dos cônjuges de facto, ineficiências

processuais, dificuldades na avaliação dos riscos de violência doméstica, acesso limitado à

assistência jurídica e cargas de trabalho excessivas dos serviços de proteção à criança. A

prática judicial do Supremo Tribunal da Ucrânia e do Tribunal Europeu dos Direitos Humanos

estabelece princípios importantes relativos à interferência do Estado e ao interesse superior

da criança. Para reforçar a proteção dos direitos da família, é necessário criar tribunais

especializados em família, expandir a mediação, digitalizar os serviços, reforçar a formação

profissional e integrar as normas europeias em matéria de direitos humanos na legislação

nacional.

Palavras-chave

Mecanismos de proteção jurídica, responsabilidade parental, casos de custódia de menores,

prática judicial, resolução alternativa de litígios.

How to cite this article

Vatras, Volodymyr, Stefanchuk, Maliuha, Mykola Lesia, Oleg, Oksaniuk & Sydorenko, Denys

(2026). Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human

Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.

2, TD3, March 2026, pp. 8-29. https://doi.org/10.26619/1647-7251.DT0226.1

Article submitted on 15 November 2025 and accepted for publication on 15 December

2025.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 8-29

Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

APPLIED DIMENSIONS OF THE IMPLEMENTATION OF FAMILY

LAW RIGHTS BY SUBJECTS OF DOMESTIC RELATIONS

VOLODYMYR VATRAS

MYKOLA STEFANCHUK

LESIA MALIUHA

OLEG OKSANIUK

DENYS SYDORENKO

Introduction

One of the most important areas of legal regulation is the exercise of family rights by

members of family relationships, as the significance of this issue directly affects the well-

being of millions of citizens and the social stability of society. The current situation of

changing traditional family models, increasing population mobility, and the consequences

of globalization are creating new challenges for legal systems, which must ensure the

effective protection of the rights of all family members. The issue of exercising family

rights is highly heterogeneous: the legal status of various types of subjects of family

relations is studied, as well as effective mechanisms of protecting violated rights are

being created, which presupposes the detailed scientific research of the theoretical and

practical bases of their use. According to Smith (2025), there is a need to re-examine

the limits of the family law in accordance with the shifts in the social structure of families

that can no longer fit the existing legal system. The author of the study writes that

modern family law does not have to rely on the formal legal construct but approach to

the real needs of the families with all their diversity.

This strategy can be especially relevant to legal systems that are in the process of reform

et alignment to the European standards. George (2025) develops this concept by viewing

family law as a social policy tool that should not only respond to conflicts that have arisen,

but also prevent problems in family relationships by creating a favorable legal framework.

Barker and Casla (2024) examine the international aspect of family rights protection to

study how Article 10 of the International Covenant on Economic, Social and Cultural

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 8-29

Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

Rights protects and assists families. The authors argue for the need to consolidate family

rights at the constitutional and legislative levels, as well as to ensure the successful

functioning of the mechanism for their implementation and the allocation of the necessary

resources to assist vulnerable families. In Article 8 of the European Convention on Human

Rights, the Council of Europe (2020) systematizes the principles of protecting the right

to respect for family life, which are binding on member states and serve as an example

for other countries’ legal systems to follow.

In its study on family-oriented policies, UNICEF (2021) points to the need to create

conditions that allow family responsibilities to be combined with work, which directly

affects the ability of parents to exercise their rights and responsibilities towards their

children. The issue is particularly relevant in the context of the COVID-19 pandemic and

its impact on family life, which has exposed the vulnerabilities of family support systems.

Eekelaar and George (2020) provides a detailed study of family law and family policy, as

well as a systematization of the modern approach to regulating family relations in

different legal systems and the identification of common trends and characteristics of

national models. The authors demonstrate that the success of legal regulation is based

on a balance between the role of the state and the independence of the family, on the

role of protecting vulnerable relatives and preserving family cohesion.

Although there is a significant amount of research devoted to certain aspects of family

rights, the actual application of these rights by members of family relationships has not

been studied in detail. The existing literature focuses mainly on the theoretical and legal

study of family law norms or the study of judicial practice in specialized niches of cases.

At the same time, we do not have any in-depth studies that combine theoretical

achievements, analysis of normative standards, and facts about the practice of exercising

family rights as such.

Strategic gaps in the scientific sphere are also related to the fact that there is still a lack

of literature addressing issues such as the accessibility of mechanisms for protecting the

family rights of different population groups, the effectiveness of state bodies in protecting

family rights, and the impact of socio-economic factors on the realization of rights.

Particularly relevant is the problem of adapting legal mechanisms to modern realities,

such as the digitization of services provided, the creation of alternative dispute resolution

measures, and the introduction of European standards into the national legal system.

This study aims to conduct an in-depth examination of the pragmatic features of the

implementation of family rights by members of relationships by studying the theoretical

foundations and system, mechanisms for the implementation and protection of rights,

identifying systemic problems, and developing scientifically sound proposals that should

be used to improve the legal regulation and practice of applying family law norms.

To achieve this goal, the following tasks must be performed: to consider the theoretical

foundations and legal nature of the exercise of family rights; to study the system of legal

regulation of family relations at the national and international levels using a comparative

legal method; to study the main problems of the exercise of family rights and propose

ways to solve them with reference to international experience.

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

The research hypothesis is that the effectiveness of the exercise of family rights is

determined not only by the quality of legislative regulation, but also by the work of

institutional mechanisms, access to legal aid, the level of legal culture in society, and

socio-economic factors that open up or limit opportunities for family relations through

the practical activities of various categories of participants in family relations.

Literature review

Research into how participants in family relationships exercise their family rights can be

characterized as interdisciplinary and involving a variety of methodological approaches.

An analysis of the scientific literature allows us to identify several key areas of research:

theoretical and legal understanding of the essence of family rights, research into the

mechanisms of their implementation, research into law enforcement issues, and the

search for ways to improve legal regulation.

Ferrer-Riba (2023) addresses the theoretical and practicable elements of family rights in

the realm of social changes through the lens of the evolution of the notion of parental

responsibility in the digital one. The scholar states that the conventional view of the rights

and responsibilities of parents should be revised, in order to consider the recent problems

concerning child safety on the Internet, digital literacy, and privacy of the personal data

concerning minors. Ferrer-Riba makes the point that it is necessary to create an

equilibrium between the right of parents to raise their children in the light of their own

personal beliefs and the right of children to independence in the digital area, which is

particularly significant during adolescence. This method enables the classic notion of

parental responsibility to be broadened to make more new elements that may not have

been formerly controlled by law.

The protection of children rights as per the international standards is organized in the

General Comment No. 26 (United Nations Committee on Economic, Social and Cultural

Rights, 2023) on the rights of children in the light of climate change and environmental

issues. The document stipulates the roles that states have on safeguarding the rights of

children against environmental risks and on the involvement of children in environmental

decisions and the provision of a secure environment in order to have children grow up.

This approach suggests the extension of the idea of family rights beyond the intimate

legal ties and up to the right to a healthy environment as an element of the right to

proper family upbringing.

In the monograph on the legal regulation of family relations, Cherneha (2022b) provides

the main research on the mechanism through which this legal regulation should work in

a legal environment in Ukraine and its opportunities, functions, and structure. The author

classifies the elements of the mechanism of legal regulation consisting of legal norms,

legal relations, acts of realization of rights and obligations, legal responsibility, and

discusses how they interact during the process of regulation of family relations. Cherneha

claims that the operation of the mechanism has several issues, which are: flaws in the

regulatory framework, inadequacy of legal regulation of particular elements of family

relations, and ineffectiveness of family law obligations implementation.Particular

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

emphasis is placed on the potential of the mechanism, which can be ensured by

improving legislation, raising the legal culture of the population, and optimizing the

activities of law enforcement agencies.

Cherneha et al. (2022c) examine children’s rights and their legal protection, comparing

normative guarantees of children’s rights in Ukrainian legislation. The authors classify

children’s rights and emphasize non-property rights (the right to family upbringing, the

right to know one’s parents, the right to communicate with parents and relatives, the

right to protection) and property rights (the right to maintenance, the right to housing,

the right to property). The study shows that the legislative unification of children’s rights

in Ukraine is generally in line with international standards, but there are problems with

the practical implementation of these rights in Ukraine, in particular, whether children

are adequately represented in processes that concern them and whether mechanisms for

protecting their rights from violation are effective.

Cherneha et al. (2022d) is a comparative study of Ukraine and Latvia, which describes

the forms and methods of protecting family rights in Ukraine. The authors distinguish

between substantive legal methods of protection (definition of rights, cessation of actions

that violate rights, restoration of the status quo ante, fulfillment of obligations) and

procedural legal methods (judicial protection, administrative protection, notarial

protection). The comparative analysis shows similarities and differences between national

practices for protecting family rights, namely: greater formality of procedures in the

Latvian model and greater flexibility of Ukrainian legislation in defining means of

protection. The study emphasizes that an alternative method of resolving family conflicts

should also be established, namely mediation, through which family relationships can be

preserved and joint decisions can be made.

Analyzing the sources of family law, Vatras (2020) examines the regulatory framework

of family relations and explores its hierarchy and interaction. Among the main sources of

constitutional guarantees of family rights, the author mentions the Constitution of

Ukraine, the Family Code of Ukraine as a special codified act, international treaties as a

source of international standards, subordinate normative acts, judicial practice, and legal

custom. In an attempt to regulate family relations, Vatras emphasizes that it is extremely

important to eliminate different sources of law and ensure their systemic unity.

Hunter et al. (2021) discuss family justice issues in child contact cases based on empirical

studies of court practice in England, which identified problems related to the assessment

of risks in cases of suspected domestic violence or other types of threats to the child.

The authors show that courts often face a dilemma of what to do to ensure that such a

parent’s right to contact with the child does not expose the child to the risk of harm.

According to Hunter and co-authors, to prevent risks, a standardized risk assessment

protocol should be implemented, the involvement of expert psychologists in complex

cases should be mandatory, and parent support programs should be created to reduce

risks. These conclusions can be applied to other legal systems, as the issue of rights

versus interests is universal in the field of family law.

An analysis of the scientific literature shows that researchers are increasingly interested

in the practical aspects of exercising family rights, international standards, and

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

comparative law. At the same time, there is a lack of research on the effectiveness of

certain mechanisms for protecting rights in different legal systems, socio-economic

factors that may affect the ability to exercise family rights, and how legal regulation can

be adapted to contemporary issues, in particular, the digitalization and globalization of

family relations. It is these gaps that define the topicality of the present research and its

orientation at synthesising the theoretical analysis and empirical data on the practice of

exercising family rights.

Materials and methods

This research was done through formidable methodology to examine the facts on the

exercise of the family rights by parties in family relationships. The study was based on

the use of numerous data sources to ensure the reliability and validity of the results

obtained.

The empirical data of the study consisted of various sets of legal sources:

- The regulatory framework consisted of international documents, namely the Convention

on the Rights of the Child (United Nations, 1989), the European Convention on Human

Rights (Council of Europe, 1950), and General Comment No. 26 (United Nations

Committee on Economic, Social and Cultural Rights 2023). The Constitution of Ukraine

(Verkhovna Rada of Ukraine, 1996), in particular Articles 51 and 52 on family rights, the

Family Code of Ukraine (Verkhovna Rada of Ukraine, 2002), the Civil Code of Ukraine

(Verkhovna Rada of Ukraine, 2003) and the Law of Ukraine “On Preventing and

Combating Domestic Violence” (Verkhovna Rada of Ukraine, 2018) were part of the

national legislation.

- Case law materials covered decisions, in particular the decision in Strand Lobben and

Others v. Norway (European Court of Human Rights, 2019) of the European Court of

Human Rights on parental rights and state interference in family life. National case law

included decisions of the Supreme Court of Ukraine in family cases (in particular, case

No. 757/54751/18-ц (Supreme Court of Ukraine, 2021a) on deprivation of parental rights

and No. 372/504/19 (Supreme Court of Ukraine, 2021b) on compensation for child

support). The selected decisions were taken from the Unified State Register of Court

Decisions depending on their precedential value and role in answering the research

questions.

- The sources of statistical information were the official reports of the State Judicial

Administration of Ukraine for 2023–2024 (form No. 1-c), which contain quantitative data

on the consideration of family cases, and the assessment of the situation of children in

Ukraine, developed by UNICEF Ukraine (2024), which contains demographic and social

indicators of family relations.

The methodological framework included a number of complementary approaches.

Systematic analysis of normative legal acts, interpretation of legal provisions, and

classification of types of family rights were carried out using a formal legal (dogmatic)

approach.

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Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

The comparative legal method made it possible to conduct a comparative legal analysis,

namely to compare Ukrainian family law with the standards and practices of the European

Union, Latvia, and other European countries. The comparison was based on the

mechanisms for the implementation of family rights, procedural guarantees, and

enforcement mechanisms.

The historical and legal approach traced the regulation of family rights in Ukraine from

2002 (adoption of the Family Code) to 2023, including the 2018 law on domestic violence.

The analysis of judicial practice was also an important methodological element. The

systematic analysis of court decisions was carried out in several stages: (1) selection of

representative cases; (2) grouping of cases by legal issues; (3) identification of patterns

in judicial reasoning; (4) derivation of legal principles and norms; (5) assessment of

judicial consistency. A total of 87 court decisions on the exercise of rights were reviewed,

of which 12 cases were examined in detail as illustrations of practical problems.

Judicial statistical data were subjected to statistical analysis. The volume and structure

of family cases were described statistically, and trend analysis revealed temporal patterns

in 2020-2024. No inferential statistical tests were performed because complete data were

used.

Results

Theoretical foundations for exercising the family rights of participants

in family relationships

The exercise of family rights is a complex legal phenomenon that should be carefully

considered from a theoretical point of view. The concept of family rights implies the

possibilities provided for and defined by law, according to which participants in family

relations must act in a certain way in order to satisfy their individual property and non-

property needs in the family. The basic principles of protection of the family, childhood,

motherhood, and fatherhood are provided for in Articles 51 and 52 and form the basis

for their protection, since protection is a constitutional duty of the state (Verkhovna Rada

of Ukraine, 1996). These provisions are the normative basis for the entire system of

family rights in Ukraine and emphasize its special significance for society.

The category of family rights provides for more active involvement of legal entities in

exercising the powers granted to them by law. According to Lind (2024), parental

responsibility and parenthood are not only abstract legal concepts, but also specific forms

of legal practice, as a result of which the rights and obligations of representatives of

family relations are exercised. This proves the complex nature of family rights, which are

constantly linked to specific duties and responsibilities.

Participants in family relations constitute a specific type of legal entity. According to

Morgan (2021), the concept of parenthood encompasses not only biological relationships

but also legal status, which determines access to possible rights and claims regarding

the child. Table 1 systematizes the list of the main groups of participants in family

relations and their basic rights based on the current legislation of Ukraine.

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

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Table 1. Classification participants family relationships and their fundamental rights

Category

participants

Basic personal non-property rights

Basic property rights

Married couple

The right to motherhood/ fatherhood,

the right to respect for dignity, the right

to physical and mental protection

The right to common compatible

ownership, right to maintenance,

right to division of property

Parents

The right to education child, the right to

communicate with the child, the right to

determine places residence child

The right to manage property

child, right to representation

property interests child

Children

The right to family upbringing, the right

to know one’s own parents, the right to

communicate with parents and relatives,

the right to protection from violence

Right to maintenance from

parents, right to housing, right to

inheritance

Other family

members

(grandparents,

siblings, etc.)

The right to communicate with the child,

the right to participate in upbringing

The right to maintenance under

certain conditions, the right to

inheritance

Source: compiled by the author on basis analysis of the Family Code of Ukraine (Verkhovna Rada

of Ukraine, 2002) and the Constitution of Ukraine (Verkhovna Rada of Ukraine, 1996).

The legal nature of the exercise of family rights is determined by various aspects. First,

family rights are personal and, as a rule, inextricably linked to the person who holds

them. According to Daly (2018), children’s autonomy in court proceedings cannot be

viewed through the lens of the right to be heard, as this is a broader concept that implies

the child’s ability to influence decisions affecting their life. This provision is particularly

important given how children’s rights must evolve in line with changes in their age and

maturity, as some of them may change.

Secondly, family rights are never exercised in contravention of the principle of the

inviolability of other people’s rights and the interests of the child. Barnes Macfarlane

(2024) also notes that in court proceedings related to neglect of duties towards children,

questions always arise about the need to balance the rights of different parties. The first

factor to consider when resolving any family disputes is the best interests of the child,

and this is not contrary to international standards on children’s rights.

Thirdly, many family rights must be exercised with the support of the state and the

development of appropriate mechanisms for their implementation. In a comparative

analysis of the constitutions of European states, Arsic and Jerinic (2024) show that

constitutionally enshrined support for the family provides the legal basis on which the

social protection system for the family is developed. The state not only regulates family

relations but also guarantees the creation of conditions for the full realization of family

rights.

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Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

International standards are of great importance for the development of national policies

regulating family rights. International documents such as the Convention on the Rights

of the Child (United Nations, 1989) and the European Convention on Human Rights

(Council of Europe, 1950) establish minimum standards of protection that states must

adopt in their national legislation. The range of issues addressed by these standards is

very broad: on the one hand, the right against discrimination of children based on any

grounds; on the other hand, the right to family life and non-interference in the personal

affairs by the state authorities without any theory.

Therefore, the constitutional provisions, international principles, and the achievements

of theology provide the theory of the exercise of family rights. It is possible to define

family rights as complex, which are closely connected with the personality of the

individual possessing them, which should be necessary to organize the interests of the

different parties involved in the interaction and which should help the state to make sure

that they are successfully implemented. Interpretation of these theoretical principles is a

condition of studying the practical mechanisms of the implementation of the family rights

and determining the issues of their application in the current situation.

Legal regulation of family rights in Ukraine and in the international

context

Utilization of constitutional norms, specific family law, civil law. and the international

standards dictate the legal regulation of the exercise. of family rights in Ukraine as multi-

level. The main normative act in the field of family relations is the Family Code of Ukraine

(Verkhovna Rada of Ukraine, 2002), which regulates the emergence, exercise, and

termination of family rights in their entirety. The Code reflects the fundamental principles

of family law, such as the priority of family upbringing of children in the best interests of

the child, the equality of women and men in family relations, and the inadmissibility of

arbitrary interference in family life.

A supporting role is played by the Civil Code of Ukraine (Verkhovna Rada of Ukraine,

2003), which should be taken into account in the case of family relations regulated by

the Family Code or which should be considered by analogy. Such special and general

legal regulation provides greater protection of the rights of family members, primarily in

relation to property and the means of protecting violated rights.

An important step towards strengthening the protection of family members was the

adoption of the Law of Ukraine “On Preventing and Combating Domestic Violence”

(Verkhovna Rada of Ukraine, 2018), which proposed a comprehensive system of

measures to combat domestic violence. The legislation provides for systems to identify

and prevent domestic violence, provide assistance to victims, and punish perpetrators.

Most significant is the introduction of restrictive measures that make it possible to protect

victims of violence fairly quickly without lengthy court proceedings.

This law was supplemented in 2023 by the Law of Ukraine “On Amendments to the Laws

of Ukraine on Strengthening Social Protection of Children and Support for Families with

Children” (Verkhovna Rada of Ukraine, 2023), which expanded the guarantees of

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children’s rights and strengthened the means of their implementation. This legislative act

reflects current trends in the development of family law towards more active state

assistance to families and ensuring adequate conditions for children.

Cherneha et al. (2022d) conduct an analytical comparison of legislation regulating family

relations in Ukraine and the Republic of Latvia, which confirmed the existence of

similarities and differences in the means of implementing family rights. Table 2 shows

the main differences between legal regulation in the two jurisdictions.

Table 2. Comparative analysis of legal regulation family rights in Ukraine and Latvia

Regulatory aspect

Ukraine

Latvia

Codification

Separate Family Code (2002)

Inclusion of norms in the Civil

Code

Marriage age

18 years old (with the possibility

of reduction to 16)

18 years old (no exceptions)

Recognition actual

marriages

Not automatically recognized

Registered partnership

Shared property married

couple

Shared mode compatible default

property

Property separation regime

with the possibility of

agreement

Adoption same-sex

couples

Forbidden

Allowed under certain

conditions

Child participation in

court proceedings

processes

From 14 years old mandatory

consideration of opinion

Active participation since the

age of 12

Source: adapted from Cherneha et al. (2022a)

Rusinova (2025) analyzes European family law, which establishes important parameters

for cooperation between countries on family-related issues. EU regulations on

jurisdiction, recognition, and enforcement of decisions in family matters have formed the

legal basis for the settlement of international family conflicts, which is particularly

relevant in the context of increasing population mobility.

The case law of the European Court of Human Rights is important for establishing criteria

for the protection of family rights. The decision in Strand Lobben and Others v. Norway

(European Court of Human Rights, 2019) established important principles regarding the

rights of parents in relation to the need to protect children from potential harm. The

Court emphasized that removing a child from the family and restricting parental rights is

the most drastic form of state intervention in family life, which can only be fully justified

in exceptional circumstances that pose a threat to the life or health of the child.

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An analysis of national legislation reveals significant gaps in the law. Table 3 systematizes

the identified gaps in legislation and their practical consequences.

Table 3. Gaps in legal regulation implementation family rights in Ukraine

Regulatory scope

Gap

Practical consequences

Alternative forms

families

Absence regulation of de facto

marriage

Exposure actual property rights

partners

Paternity

Unclear regulation father’s

involvement in upbringing after

divorce

Conflicts of communication with

children

Adoption

Duration and complexity

procedures

Children remain without family for

a long time environment

Homemade violence

Insufficiency implementation

control mechanisms restrictive

prescriptions

Repeated violence of victims

persons

International family

disputes

Inefficiency mechanisms return of

illegally exported children

Long-lasting divorce children with

one of parents

Source: compiled by the author based on analysis case law and national legislation

Thus, the legal regulation of family rights in Ukraine can be considered quite complex

and multi-layered, although it needs further improvement to bring it into line with

European standards. A comparative analysis shows the successes of Ukrainian legislation,

as well as areas in which reforms are needed, particularly in the sphere of alternative

family life, adoption practices, and the effectiveness of mechanisms for protection against

domestic violence.

Practical aspects of exercising and protecting family rights

The effective functioning of family rights is organized in the form of a system of

interrelated actions, actions of authorized persons, and actions of state bodies that

stimulate and guarantee rights. Practical considerations can be discussed in order to

prove the effectiveness of legislative norms and highlight problematic issues related to

their application.

Statistical data provided by the State Judicial Administration of Ukraine (2024) show that

the number of court cases related to the protection of family rights is quite high. In 2023,

more than 156,000 civil cases were heard, and approximately 23% of them were family-

related cases in courts of first instance. The most common categories are cases

concerning the recovery of alimony (38%), determination of the child’s place of residence

(22%), deprivation of parental rights (15%), and division of joint property of spouses

(18%). Table 4 shows how family cases are distributed across each category.

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Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

The forms and methods of protecting family rights have been systematized by Cherneha

et al. (2022a), and there is a difference between jurisdictional and non-jurisdictional

mechanisms for protecting family rights. Jurisdictional mechanisms include judicial

protection, administrative protection through guardianship, guardianship powers, and

notarial protection through the certification of agreements. Other non-jurisdictional forms

include self-protection, mediation, and appeals to human rights organizations. The

success of these mechanisms is largely determined by citizens’ awareness of their rights

and access to legal assistance.

Krasytska (2025) examines in detail the issues of problematic legal regulation and law

enforcement of family rights protection measures. The researcher emphasizes that the

main obstacles to successful protection are citizens’ lack of awareness of procedural

mechanisms, the length of court proceedings, high court costs, and the low qualifications

of some judges on certain family law issues. Such issues are especially acute in those

cases when the intervention is required in order to defend the rights of children.

The Supreme Court of Ukraine has its case law that establishes key legal posts on the

use of the norms of family law. In its decision of September 22, 2021, in case No.

372/504/19 (Supreme Court of Ukraine, 2021b) clearly defined the principles by which

the amount of alimony is determined and emphasized that the court must take into

account not only the financial situation of the person paying alimony, but also the actual

needs of the child, the level of inflation, and the minimum subsistence level. The court

noted that child support should ensure the child a decent quality of life necessary for

physical, mental, spiritual, moral, and social development.

Table 4. Structure of family cases considered by courts of first instance instances in 2023

Case category

Number of

cases

Interest from

general quantities

Medium duration

consideration

(months)

Penalty child support

13.680

38%

2.3

Definition places residence

child

7.920

22%

4.7

Deprivation parental rights

5.400

15%

5.2

Divide joint property of

spouses

6.480

18%

6.8

Installation paternity

1.440

3.5

Others family disputes

1.080

4.1

Together

36.000

100%

4.4

Source: composed by the author on basis data from the State Judicial Administration of Ukraine

(2024)

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Another landmark decision was the Supreme Court’s ruling of January 13, 2021, in case

No. 757/54751/18-ц (Supreme Court of Ukraine, 2021a) on the deprivation of parental

rights. The court ruled that deprivation of parental rights is an extreme measure that

should only be applied in cases of culpable unlawful actions by parents and exclusively

in the interests of the child. The main conclusion is that it must be proven that the

preservation of parental rights poses a real threat to the life, health, or moral

development of the child.

An assessment of the situation of children in Ukraine provided by UNICEF Ukraine (2024)

indicates serious problems with the implementation of children’s rights. Table 5 shows

the main indicators of the situation of children and their access to protection of their

rights.

Table 5. Indicators of the situation of children and access to protection their rights in Ukraine

(2024)

Indicator

Value

Dynamics compared

to 2020

Children who are under guardianship states

94.300

-12%

Children in foster care families

15.780

+34%

Cases home violence of children (registered)

4.520

+28%

Children who received free of charge legal help

8.940

+45%

Appeal to authorities guardianship and care

32.100

+18%

Cases of deprivation parental rights

5.400

+7%

Source: adapted from UNICEF Ukraine (2024)

The role of state bodies in ensuring the realization of family rights is extremely important.

Child welfare agencies pay attention to the observance of children’s rights and provide

them with assistance in the form of counseling, as well as participate in court

proceedings, representing the interests of children. Child welfare services play the role

of integrating the efforts of various institutions in the field of child protection. However,

in most cases, their activities are hampered by a lack of funds, overworked specialists,

and a lack of interagency coordination.

Procedural issues relating to the exercise of family rights are governed by both procedural

and substantive law. A distinctive feature of family cases is that in cases involving

children, child protection authorities must be involved, court hearings are held in camera

to ensure confidentiality, and reconciliation procedures may be applied. However, as

practice shows, procedures need to be simplified, particularly in matters of child support

and visitation rights.

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 8-29

Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

Thus, the implementation of family rights has demonstrated both successes and

shortcomings in practice. Statistical data and judicial practice show that judicial

protection mechanisms are actively used, but there are difficulties related to the length

of the process, access to legal aid, and the effectiveness of state bodies in the field of

family rights protection.

Problems in exercising family rights and ways to solve them

Research into the application of family law and the exercise of family rights reveals a

complex systemic problem that hinders the effective exercise and preservation of the

rights of persons involved in family relationships. These problems include gaps in

legislation, shortcomings in law enforcement procedures, organizational and financial

constraints on the activities of authorized bodies, as well as socio-economic aspects that

affect the right to exercise rights.

In their article on the study of barriers to family justice, Hunter et al. (2021) note that

one of the most difficult aspects is the issue of risk assessment in cases involving contact

with children. Courts are often faced with a dilemma: whether to grant the father the

right to communicate with the child or to protect the child in case they may be harmed.

This is particularly difficult in cases where there are signs of domestic violence or alcohol

or drug abuse. The lack of training for judges in psychological and social assessment

forces them to make decisions that are not always in the best interests of the child.

Krasytska (2025) summarizes the problematic issues of legal regulation and ensuring

methods of protecting family rights and identifies several important groups of problems.

First, due to the lack of legislation regulating new types of family relationships, in this

case the lack of legal status for common-law spouses, the property rights of

representatives of long-term relationships who have not registered their marriage are

not protected. Second, procedural mechanisms are imperfect, as evidenced by the

excessive length of proceedings, the difficulty of proving the circumstances in family

conflicts, and the lack of opportunities to ensure immediate protection of violated rights.

According to statistics prepared by the State Judicial Administration of Ukraine for 2023

(State Judicial Administration of Ukraine, 2023), there are systemic problems. The

average duration of family cases is 4.4 months, which significantly exceeds the time

limits provided for by procedural law. The studies of the higher court appeals are taken

in one quarter of the cases, which signifies the inconsistency of the application of

legislation to the courts and the lack of adequate justification of the court decisions.

An analysis of the situation of children in Ukraine conducted by UNICEF Ukraine (2024)

shows that there are serious problems with ensuring children’s rights. The fact that the

number of reported cases of domestic violence against children increased by 28% to the

level of 2020 indicates not only a deterioration in the situation, but also an increase in

awareness and willingness to seek help. However, the response mechanisms are not

effective enough, as child protection services are overloaded, there is a lack of temporary

accommodation for affected children, and the various child protection agencies do not

coordinate their activities properly.

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

Table 6 systematizes the main problems in the implementation of family rights by

category and proposes specific ways to solve them based on an analysis of national

practice and international experience.

Table 6. Main problems implementation family rights and ways to exercise them solution

Problem category

Specific manifestations

Proposed solutions

Legislative gaps

Absence regulation of de facto

marriage; vagueness criteria

deprivation parental rights

Application amendments to the Family

Code regarding settlement of the

status of unregistered partners;

specification reasons limitation

parental rights

Procedural

disadvantages

Duration processing time

(average 4.4 months);

complexity of adoption

procedures

Introduction simplified procedures in

uncontested cases; digitalization

document management; creation

specialized family courts

Disadvantages law

enforcement

Unequal case law; insufficient

motivation solutions

Conducting systematic training judges;

development methodical

recommendations Supreme Court;

ensuring participation psychologists in

matters concerning children

Organizational

problems

Overload organs burns;

insufficient interdepartmental

coordination

Magnification numbers specialists of

the affairs services children; creation

the only one informational systems

accounting cases violation of children’s

rights

Economical barriers

High judicial costs; limited access

to legal assistance

Expansion systems free of charge legal

relief; release from court fee in cases

of protection of children’s rights

Social factors

Low legal awareness population;

stigmatization requests for help

Carrying out informational campaigns;

creation available consulting centers;

development institute family mediation

Source: compiled by the author based on Hunter et al. (2021), Krasytska (2025), State Judicial

Administration of Ukraine (2023), UNICEF Ukraine (2024)

International experience proves the effectiveness of a number of methods for solving this

problem. In particular, the creation of specialized family courts in most European

countries has reduced the length of proceedings and improved the quality of court

decisions thanks to the specialization of judges. The emergence of other forms of dispute

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

resolution, such as family mediation, also contributes to reaching compromises and

reducing the burden on the judicial system.

One area of focus is improving the training and professional development of specialists

working in the field of family rights protection. This is not only relevant to the judges,

but also to the child welfare workers, psychologists, and social workers. A

multidisciplinary strategy of conflict resolution in the family which involves specialists in

different fields will enable the interests of all the parties including the children to be

considered better.

The administrative and judicial service of the sphere of relations within the family can be

made considerably more accessible and efficient with the introduction of their

digitalization. The electronic registry, web-based systems where the applications and

appeals can be registered, electronic systems of documents management between

various agencies will assist in accelerating the process and eliminating all the

bureaucratic obstacles.

Thus, the failure to coordinate a legislative change, organizational change, professional

development, the use of modern technologies, and the assimilation of the best practices

of other countries necessitates the multifaceted approach to the implementation of the

family rights. Unless rigorous efforts are implemented in all these spheres, there will be

no chance to create a proper mechanism of securing and safeguarding family rights in

Ukraine.

Discussion

The outcomes of the examination of the practical implications of the introduction of family

rights by the actors of family relations prove the multidimensionality of the given law

area and its complexity, et also the aspects that should be corrected the most, both on

the legislative and practical levels. The findings prove the hypothesis that the success of

the application of family rights is not necessarily determined by the quality of regulatory

frameworks only, but also by the work of institutional mechanisms, access to legal

assistance, and legal culture in society.

The gaps in legislation identified in the research, like the fact that the law does not control

de facto relationships of marriage and the flaws in the process of adopting a child, are in

line with the findings of Smith (2025), who claims that the limitations of the family law

are also one of the problems that should be reconsidered in the given situation. This is

because the conventional method of defining family and family relations are not mirrors

of social reality since there are numerous forms of the family life which ought to be legally

acknowledged and safeguarded (Smith, 2025). Our example work on the example of the

Ukrainian legal system also supports this thesis, as the fact that unregistered

partnerships are not regulated causes a legal grey zone and places the property rights of

many citizens in danger.

This theoretical method of our family law as a social policy instrument suggested by

George (2025) can be reflected in the light of the problems we have defined in terms of

the access to justice, as well as the efficiency of state organizations in the defense of

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

family rights. George claims that family legal system cannot be considered a reactive

system in resolving conflicts, but a proactive system, which assists in supporting families

and preventing issues. Our study results, in particular, the analysis of UNICEF statistics

showed the growth of the number of cases of domestic violence, which supports the idea

that the national system does not have enough preventive mechanisms to ensure the

protection of family rights, which is why the methods that George applies to the Ukrainian

situation are applicable.

Comparative study of the Ukrainian and European laws demonstrates that there are great

disparities in their approach to the regulation of some areas referring to the family

relationships. To some extent, these variations can be attributed to the dissimilarities in

legal traditions, but they also indicate varying levels of maturity of the legal systems and

their suitability to the modern social conditions.The more lenient approaches of European

jurisdictions to the recognition of other types of families, in particular, show potential

guidelines for changing Ukrainian legislation.

Cherneha’s (2022b) monographic study on the mechanism of legal regulation of family

relations provides a theoretical basis for interpreting the practical results obtained.

Cherneha critically analyzes the organization, functioning, and capabilities of the legal

regulation mechanism, formulating its main components and the relationships between

them. Our empirical data on judicial practice and statistical results of family case

proceedings confirm Cherneha’s conclusions regarding the existence of systemic

problems in the functioning of this mechanism, in particular, shortcomings in the

regulatory framework, procedures, and organizational work of the relevant state bodies.

In particular, it is important to compare the results of the study with those of Hunter et

al. (2021) on the problems of family justice in cases involving contact with children.

Hunter and co-authors refer to the example of the English court system to prove that it

is difficult to assess the risks and balance the rights of parents and the safety of children.

Research into Ukrainian judicial practice reveals the same problems, which also indicates

that these challenges are common to other legal systems. At the same time, despite the

fact that risk assessment procedures and special training for judges have been developed

in the UK, these mechanisms are still under development in Ukraine, resulting in a higher

level of inconsistency in court decisions.

An analysis of the European Court of Human Rights’ decision in Strand Lobben and Others

v. Norway (European Court of Human Rights, 2019) allows us to contextualize national

practice within the framework of European human rights standards. The ECHR has set

high standards for justification in cases of state interference in family life and emphasized

the exceptional circumstances of actions such as removing a child from the family. The

comparison with the Ukrainian experience shows that procedural guarantees to parents

in the given situation should be strengthened and the extent of justification of the

decisions by the bodies of guardianship and courts should be raised.

The practical importance of the research is the definition of particular areas of concern

that should be tackled on the legislative and institutional levels. The legal regulation,

mechanisms of work, and structure of the activities of the authorized bodies are

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Applied Dimensions of the Implementation of Family Law Rights by Subjects of Domestic

Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

recommended through the analysis of the empirical data and consideration of best

practices abroad.

Future research covers a number of areas. First, it is necessary to carefully examine the

effectiveness of other means of resolving family conflicts, in particular mediation, which

can be an important complement to court proceedings. Second, it is necessary to study

how the process of digitalization affects the accessibility and quality of services in the

field of family relations. Third, the topic of introducing European standards for the

protection of family rights into national legislation and practice should be studied

separately, especially given Ukraine’s intentions to integrate into Europe.

Thus, the study proves the expediency and importance of a comprehensive approach to

improving the system for the implementation and protection of family rights, which

should be a combination of measures taken by the legislative branch, the judicial system,

state bodies, and even civil society.

Conclusions

An analysis of the practical nature of the exercise of family rights by participants in family

relations allows us to draw the following conclusions.

First, theoretical analysis has shown that the exercise of family rights is a complex legal

phenomenon, which is determined by the fact that it is a personal phenomenon,

inextricably linked to the interests of the child, and requires support from the state.

Persons classified in family relations are spouses, parents and children, as well as other

family members, and each of them is granted a certain set of personal non-property and

property rights.

Second, research on legal regulation has revealed a multi-level system of norms, such

as constitutional provisions, special family legislation, and international norms. A

comparative study with European jurisdictions revealed several similar approaches, as

well as several key differences in the regulation of certain aspects of family relations,

particularly with regard to the recognition of non-traditional family forms and adoption

processes.

Thirdly, research into practical issues with reference to statistical data and judicial

practice has shown that there are a significant number of family issues, among which

cases concerning the recovery of alimony (38%), determination of the child’s place of

residence (22%), and deprivation of parental rights (15%) predominate. The average

duration of case consideration is 4.4 months, which indicates the inefficiency of

procedures.

Fourth, systemic problems with the implementation of family rights have been identified:

gaps in legislation regulating the status of common-law spouses, the time spent on case

consideration, the lack of training for specialists in risk assessment in cases involving

children, the inability to obtain the services of a lawyer, and the overload of guardianship

courts.

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Relations

Volodymyr Vatras, Mykola Stefanchuk, Lesia Maliuha, Oleg Oksaniuk, Denys Sydorenko

The originality of the study is scientific, as it is based on an in-depth examination of the

relationship between theoretical concepts, the regulatory framework, and the application

of family law norms using a comparative legal approach and court statistics.

The practical value of the findings is that the scientifically reasonable recommendations

have been drawn to enhance the legislation and practice in the sphere of family rights

protection, namely: the establishment of specific family courts, the evolution of

mediation, and the digitalization of the services in the given field.

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OBSERVARE

Universidade Autónoma de Lisboa

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VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

THE THEORETICAL FOUNDATIONS AND PRACTICAL IMPLEMENTATION IN THE

PRIORITY OF THE RULE OF LAW IN TIMES OF WAR

YEVHEN ROMANCHENKO

kppd_ryeyu@edu.ua

PhD (Law Sci.), Associate Professor of the Department of Law and Law Enforcement

Zhytomyr Polytechnic State University (Ukraine) https://orcid.org/0000-0003-3507-8820

VALENTYNA LUKIANETS-SHAKHOVA

valentyna_ukraine@ukr.net

PhD (Legal Sci.), Professor of the Constitutional Law and Human Rights, Law Department

National Academy of Internal Affairs Kyiv (Ukraine) https://orcid.org/0000-0003-2397-613X

IHOR ZAVALNIUK

zavalniuk@ukr.net

Doctor of Law, Judge of the Odessa District Administrative Court, Professor Department of Public

Law International University Odesa (Ukraine) https://orcid.org/0000-0002-6387-0199

NATALIIA KAMINSKA

na-pro@ukr.net

Doctor of Law, Professor, Leading Researcher of the Department of International Law and Law of

the European Union V. M. Koretsky Institute of State and Law, National Academy of Sciences of

Ukraine Kyiv https://orcid.org/0000-0002-7239-8893

VITALII MELNYK

mail_melnik@ukr.net

Graduate Student, Department of Administrative and Information Law Sumy National Agrarian

University Sumy (Ukraine) https://orcid.org/0000-0002-9419-0196

Abstract

The rule of law under martial law is one of the most complex and urgent issues of modern

legal science, as it defines the limits of permissible restrictions on human rights and the degree

of state responsibility for upholding democratic principles in times of extreme threats. This

topic requires balancing security, legal certainty, and compliance with international human

rights standards. The study aims to identify and characterize the constitutional, judicial, and

administrative mechanisms that ensure the rule of law under martial law. The methodological

framework includes comparative legal, systemic, institutional, and analytical methods, as well

as generalization of statistical data from the World Justice Project, V-Dem, Freedom House,

and Transparency International. The results show that the effectiveness of legal institutions

in wartime depends on judicial independence, legislative transparency, and the proportionality

of legal restrictions. A comparative analysis revealed that democratic states with strong

constitutional control mechanisms (e.g., Germany, France, Poland) preserve legal stability,

while excessive power concentration undermines the rule of law (e.g., Hungary, Vietnam).

The Ukrainian experience demonstrates that military measures can coexist with adherence to

international humanitarian norms and parliamentary oversight. The practical significance of

the study lies in identifying models of legal stability applicable for improving martial law

legislation, developing public monitoring mechanisms, and preventing abuse of emergency

powers.

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March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Keywords

Environmental protection, criminal offenses, rule of law, martial law, constitutional control.

Resumo

O Estado de direito sob a lei marcial é uma das questões mais complexas e urgentes da ciência

jurídica moderna, pois define os limites das restrições permitidas aos direitos humanos e o

grau de responsabilidade do Estado pela defesa dos princípios democráticos em tempos de

ameaças extremas. Este tema requer um equilíbrio entre segurança, certeza jurídica e

conformidade com as normas internacionais de direitos humanos. O estudo visa identificar e

caracterizar os mecanismos constitucionais, judiciais e administrativos que garantem o Estado

de direito sob a lei marcial. O quadro metodológico inclui métodos jurídicos comparativos,

sistémicos, institucionais e analíticos, bem como a generalização de dados estatísticos do

World Justice Project, V-Dem, Freedom House e Transparency International. Os resultados

mostram que a eficácia das instituições jurídicas em tempo de guerra depende da

independência judicial, da transparência legislativa e da proporcionalidade das restrições

legais. Uma análise comparativa revelou que os Estados democráticos com fortes mecanismos

de controlo constitucional (por exemplo, Alemanha, França, Polónia) preservam a estabilidade

jurídica, enquanto a concentração excessiva de poder compromete o Estado de direito (por

exemplo, Hungria, Vietname). A experiência ucraniana demonstra que as medidas militares

podem coexistir com a adesão às normas humanitárias internacionais e à supervisão

parlamentar. O significado prático do estudo reside na identificação de modelos de

estabilidade jurídica aplicáveis para melhorar a legislação da lei marcial, desenvolver

mecanismos de monitorização pública e prevenir o abuso dos poderes de emergência.

Palavras-chave

Proteção ambiental, infrações penais, Estado de Direito, lei marcial, controle constitucional.

How to cite this article

Romanchenko, Yevhen, Lukianets-Shakhova, Valentyna, Zavalniuk, Ihor, Kaminska, Nataliia &

Melnyk, Vitalii (2026). The Theoretical Foundations and Practical Implementation in the Priority of

the Rule of Law in Times of War. Janus.net, e-journal of international relations. Thematic Dossier

- Rule of Law, Human Rights, and Institutional Transformation in Times of Global and National

Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 30-48. https://doi.org/10.26619/1647-

7251.DT0226.2

Article submitted on 8 December 2025 and accepted for publication on 14 January 2026..

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

THE THEORETICAL FOUNDATIONS AND PRACTICAL

IMPLEMENTATION IN THE PRIORITY OF THE RULE OF LAW IN

TIMES OF WAR

YEVHEN ROMANCHENKO

VALENTYNA LUKIANETS-SHAKHOVA

IHOR ZAVALNIUK

NATALIIA KAMINSKA

VITALII MELNYK

Introduction

The issue of the rule of law under martial law is of particular relevance in the modern

world, where military conflicts, emergencies and global crises change the established

legal guidelines. The rule of law is the foundation of a democratic state, ensuring the

stability of the legal system, equality of all before the law and predictability of the actions

of the authorities. However, in times of military threats, this principle is severely tested,

as the state is forced to restrict certain rights and freedoms for security reasons while

trying to maintain legal balance. It is at such moments that the real quality of democratic

institutions and the stability of the constitutional order are revealed.

The relevance of this study stems from the need to understand how the system of legal

guarantees is transformed during martial law, what institutional mechanisms ensure a

balance between governmental powers and protection of citizens, and how effectively

international standards are integrated into national legal practice. The theoretical value

of the work lies in the disclosure of the relationship between constitutional control,

judicial independence and compliance with international humanitarian norms that form

the basis of the modern legal order. The practical significance of the study is determined

by the possibility of using its findings to improve martial law legislation, to form effective

safeguards against abuse of emergency powers and to ensure real protection of human

rights even in conditions of limited freedoms. An analysis of current research shows that

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

the scientific community is increasingly interested in the problems of legal regimes of

martial law. The works of Binder et al. (2025), Mészáros (2024) and Dang and Hoang

(2024) emphasize the risks of concentration of power and undermining democratic

control mechanisms. Kelbia et al. (2025), Honcharenko (2024) and Grynchak and

Grynchak (2022) conduct a comparative analysis of the constitutional systems of

different countries, demonstrating the varying degrees of readiness of legal institutions

for crisis situations. Ukrainian researchers Korentsov (2024), Prytyka et al. (2022) and

Nakonechna& Novosad (2023) focus on the problems of observance of the administrative

and legal status of citizens and the proportionality of restrictions during martial law.

Despite the existence of a large number of studies, the issue of integrating international

humanitarian standards into national legal regimes, as well as assessing the sustainability

of democratic institutions in prolonged crisis conditions, remains insufficiently developed.

Thus, the problem of the study is the contradiction between the need to ensure the

security of the state and the preservation of the rule of law in emergency conditions. A

comprehensive assessment of the effectiveness of constitutional and judicial mechanisms

for controlling emergency powers, as well as an analysis of local legal resilience at the

community level, remains an unfilled scientific niche.

The purpose ofthe study is to clarify the theoretical, legal and practical mechanisms for

ensuring the rule of law under martial law, to identify the risks of abuse of emergency

powers and to characterize the instruments of legal control and balance between security

and human rights.

Analysis of Recent Research and Publications

An analysis of recent research and publications demonstrates a wide range of approaches

to the study of the rule of law and legal regimes under martial law. Modern scholarly

works pay attention to the monitoring of the current legislation during martial law

(Ahapova& Ivanchuk, 2023), the administrative and legal regime of martial law

(Bezkrovniy, 2024), as well as the assessment of human rights protection practices in

times of emergency (Binder et al., 2025; Krotiuk, 2025). The studies by Kondos (2024),

Dang and Hoang (2024) and Condos (2024) raise the issues of colonial rule and

challenges to law and order in emergencies, in particular, on the example of the COVID-

19 pandemic. A significant number of publications are devoted to a comparative analysis

of constitutional mechanisms for ensuring the rule of law during martial law in different

countries (Kelbia et al., 2025; Grynchak & Grynchak, 2022; Honcharenko, 2024). In the

Ukrainian context, the problems of applying martial law and its impact on the

administrative and legal status of citizens are discussed (Korentsov, 2024; Kramarchuk,

2025), as well as the protection of fundamental human rights (Kuchyk et al., 2023;

Nakonechna& Novosad, 2023).

Particular attention is paid to the mechanisms of international humanitarian law and the

role of the judiciary in protecting rights under martial law (Paskar, 2023; Nijs, 2024), as

well as to the local and regional dimensions of state resilience in times of armed

aggression (Melnykovska&Sokhey, 2025). Analysis of international practice also

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

demonstrates negative examples of abuse of emergency powers that undermine the rule

of law (Mészáros, 2024). Contemporary research emphasizes the need to balance

security with the preservation of human rights in wartime, and emphasizes the

importance of constitutional oversight and international standards during martial law

(Stadnik &Buravska, 2022; Statsenko, 2025; Yatsun, 2024). Modern research also

emphasizes the importance of balancing the public interest of the state with the

protection of human rights in wartime. In particular, Prytyka et al. (2022) emphasize the

protection of civil, property and labor rights even under martial law, as well as the

challenges of ensuring a fair trial. Lupu and Wallace (2024) examine the specifics of

international humanitarian law and support for foreign fighters, which is of direct

relevance to the regulation of legal issues in the armed conflict zone. Novitskyi (2025)

focuses on the peculiarities of the rule of law in modern conditions, emphasizing the

practical aspects of its implementation. Won (2025) analyzes the issue of emergency

powers in the context of the COVID-19 pandemic, which opens the way for a comparative

analysis with martial law and its impact on human rights. These works add to the general

understanding of the challenges to the rule of law in extreme conditions, demonstrating

the need for a comprehensive and systematic approach to legal regulation.

Continuing the analysis of recent studies, it is worth noting that additional sources focus

on the role of administrative courts in protecting human rights during martial law (Paskar,

2023), as well as on the local and regional dimensions of Ukraine's resilience in the fight

against Russian aggression (Melnykovska&Sokhey, 2025). The issue of legal restrictions,

in particular, restrictions on the right to movement under martial law, is important on

the example of Ukrainian practice (Marushak, 2023). Emphasis is placed on international

aspects, in particular, international humanitarian law and its application in wartime (Nijs,

2024), as well as on the negative consequences of abuse of emergency powers for the

rule of law (Mészáros, 2024). Recent publications also consider the challenges of

implementing constitutional mechanisms in times of emergency in different countries,

highlighting lessons for Ukraine (Honcharenko, 2024; Kelbia et al., 2025). Particular

attention should be paid to the analysis of practices of human rights restrictions in the

context of martial law, with an emphasis on the problems of uncontrolled expansion of

mobilization powers (Statsenko, 2025) and ways to overcome them (Nakonechna&

Novosad, 2023).

Based on the above, it can be stated that despite significant progress in research, the

issues of the optimal balance between ensuring the security of the state and preserving

the rights and freedoms of citizens in wartime remain unresolved. There is also a lack of

in-depth analysis of practical mechanisms to control the use of emergency powers and

prevent their abuse.

Research Methods

The study was conducted in 2024-2025 by the author on the basis of an interdisciplinary

approach using official statistics from international organizations and the results of

modern scientific publications. The main sources of empirical data were the open reports

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

of the World Justice Project (2021, 2023, 2024), V-Dem Institute (2024a, 2024b),

Freedom House (2024) and Transparency International (2024), which contain

comparative indicators of the rule of law, democracy and anti-corruption effectiveness in

more than 140 countries. The information base was also based on scientific articles by

recognized experts in the field of constitutional and administrative law, international

humanitarian law and human rights published in professional journals such as Oslo Law

Review, International Journal of Constitutional Law, Amazonia Investiga, Problems of

Legality, etc. The methodological basis was formed by the comparative legal method –

for comparing the mechanisms of ensuring the rule of law in different states; the systemic

method – for analyzing the interrelationships between the legal, institutional and social

elements of the martial law regime; the analytical method – for interpreting international

indices and statistics; the institutional method – for identifying the role of judicial and

constitutional bodies in ensuring control over emergency powers; and the structural and

functional approach – for classifying the main elements of the martial law regime. The

obtained data were systematized in tables and diagrams created by the author, which

reflect comparative results and allow assessing the interdependence between security

measures and the preservation of legal guarantees in wartime.

Research Results

The problematic aspects of the application of martial law, in particular in Ukraine, are

quite multifaceted and complex. First, the key challenge is balancing the need to ensure

national security and protect the administrative and legal status of citizens. Often, martial

law provisions provide for temporary restrictions on rights and freedoms related to

movement, assembly, the right to work, and other basic freedoms (Korentsov, 2024).

These restrictions can create significant pressure on the population, complicating their

normal daily life and administrative processes. The second important aspect is the risk

of abuse of emergency powers of the authorities arising from unclear legislative

regulation or the lack of effective mechanisms to control their implementation (Mészáros,

2024). All of this can lead not only to violations of fundamental human rights, but also

to the demystification of systemic problems in public administration. At the same time,

the administrative and legal status of citizens is changing under the influence of martial

law, which complicates the operation of the usual rules of administration and law. The

application of the special regime is often accompanied by restrictions on legal procedures,

such as access to a fair trial, which increases the level of legal uncertainty for citizens

(Prytyka et al., 2022). The third problematic issue is the discrepancy between the

provisions of military legislation and international human rights standards. Some national

regulations are not able to fully ensure compliance with international humanitarian law,

which requires enhanced judicial oversight and better consolidated procedures (Kuchyk

et al., 2023; Paskar, 2023). As a result, citizens may find themselves in a situation where

their rights remain mere declarations rather than guaranteed labor or social guarantees.

It is important to add to the issue of the impact of martial law on the labor rights and

property status of citizens. Restrictions related to mobilization, changes in the operation

of enterprises, and measures to protect against security threats create additional

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

obstacles to the stable functioning of the labor market and business (Nakonechna&

Novosad, 2023). This poses a threat to social instability for vulnerable populations, which

requires additional regulation and social protection from the state. Summarizing, it can

be stated that the problems of applying martial law have deep legal, social and

administrative roots. Overcoming them requires clearer legislative coding of restrictions,

introduction of effective control and constitutional mechanisms, as well as adaptation of

national legislation to international human rights standards (Kelbia et al., 2025;

Honcharenko, 2024). Only a systematic and multicomponent approach will make it

possible to protect not only state security but also the rights of citizens in the emergency

conditions of martial law.

Table 1. Mechanisms for the protection of fundamental human rights in the context

of martial law

Protection

mechanism

Description

Examples and specifics of application

International

humanitarian

law

A body of international law

governing behavior in armed

conflicts.

It ensures the protection of civilians, the

prohibition of torture, and humanitarian

assistance (Nijs, 2024).

Constitutional

control

Judicial review of the

constitutionality of martial law

measures in relation to human

rights.

Protection from illegal restrictions,

refutation of unconstitutional norms

(Krotiuk, 2025).

Administrative

courts

Consideration of citizens' complaints

against the actions of administrative

bodies during martial law.

They protect the right to a fair trial and

prevent abuse of power (Paskar, 2023).

International

human rights

institutions

Mechanisms of the UN, ECHR and

other human rights monitoring

bodies.

They accept individual complaints and

monitor the situation with rights

violations (Kuchyk et al., 2023).

Legislative

restrictions

Temporary restrictions on rights and

freedoms provided for by martial

law.

They regulate movement, assembly, and

information activities (Marushak, 2023).

Monitoring and

evaluation of

legislation

Analyzing the compliance of martial

law norms with human rights

standards and improving them.

Constant review of laws, elimination of

discriminatory norms (Ahapova&

Ivanchuk, 2023).

Source: created by the author based on (Ahapova& Ivanchuk, 2023; Krotiuk, 2025; Kuchyk et

al., 2023; Marushak, 2023; Nijs, 2024; Paskar, 2023)

The protection of fundamental human rights is critical during martial law, when states

introduce emergency measures to ensure security. One of the key instruments of such

protection is international humanitarian law, which regulates minimum standards of

behavior during armed conflicts and guarantees the inviolability of fundamental human

rights even in emergency situations. At the same time, the role of judicial systems, in

particular administrative courts, is crucial in ensuring proper control over the application

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

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The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

of restrictions and protection of citizens' rights. The complex of protection mechanisms

can best be summarized through a comparative overview of the key approaches and

instruments presented in Table 1.

Thus, modern mechanisms for the protection of fundamental human rights in the context

of martial law are based on a combination of international humanitarian law, effective

judicial practice, state legislation and international control. They are aimed not only at

minimizing the negative consequences for human rights in times of emergency, but also

at preserving the rule of law and public trust in legal institutions. It is important to

emphasize that the success of these mechanisms depends on their implementation in

national law, proper judicial independence and the activities of international

organizations. Continuous monitoring and adaptation of legislation helps to reduce the

risks of abuse and violations, which is especially important for countries undergoing

martial law.

The rule of law under martial law is of particular importance, as it is in times of emergency

that states face a dilemma between the need to ensure security and the preservation of

fundamental human rights and freedoms. Constitutional mechanisms for guaranteeing

the rule of law should prevent the usurpation of power, ensure judicial control over the

actions of the executive branch of government, and harmonize national norms with

international standards. A comparative analysis of the experience of different countries

allows us to identify optimal models of interaction between the branches of government

in a state of emergency or martial law, to identify effective safeguards against the abuse

of emergency powers, and to trace trends in constitutional reform aimed at strengthening

the rule of law (Kelbia et al., 2025; Honcharenko, 2024; Mészáros, 2024).

In order to systematize the approaches introduced in different countries, Table 2 provides

a comparative analysis of the constitutional mechanisms for ensuring the rule of law

under martial law.

A comparative analysis of the constitutional mechanisms for ensuring the rule of law

shows that the success of the legal regime during martial law depends not only on the

existence of formal control institutions, but also on their real independence and ability to

limit the extraordinary powers of the executive branch. European countries with a

developed culture of constitutionalism demonstrate a higher level of legal balance

between security and freedom, while countries with hybrid or centralized models face the

risk of undermining the principle of separation of powers. Ukraine, despite the objective

challenges of war, continues to maintain basic guarantees of constitutional control, which

confirms its commitment to European standards of the rule of law (Kelbia et al., 2025;

Honcharenko, 2024).

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Table 2. Comparative analysis of constitutional mechanisms for ensuring the rule

of law under martial law

Country

Main

constitutional

mechanism

Key elements of

control

Peculiarities of

implementation

during martial

law

Effectiveness /

challenges

Ukraine

Constitutional

Court,

parliamentary

oversight, martial

law decrees of the

President with

subsequent

approval

Judicial control,

restrictions on

term extension,

parliamentary

monitoring

President can

declare martial law

only with the

consent of the

Verkhovna Rada;

judiciary remains

operational

Constitutional

stability is

preserved, but there

is a risk of executive

power expansion

(Korentsov, 2024;

Statsenko, 2025)

Poland

Constitutional

tribunal and "state

of emergency"

mechanism

Parliament has the

right to control the

validity of

emergency

measures

Limitation of terms

and scope of

emergency powers

Effective

parliamentary

oversight, but slow

response of the

judiciary (Grynchak

& Grynchak, 2022)

Hungary

Emergency powers

of the government

under the 2020

constitutional

amendment.

Limited

parliamentary

oversight,

increased role of

the government

Use of the state of

emergency for

political

concentration of

power

Violation of the

principle of

separation of

powers, undermining

confidence in the

courts (Mészáros,

2024)

Germany

"Grundgesetz

(Basic Law) –

Articles 115a-115l

The Federal

Constitutional

Court controls the

legality of

government

actions

Emphasis on

maintaining

parliamentary

oversight even in

times of war

High level of stability

and legal certainty

(Kelbia et al., 2025)

France

Constitutional

Council, "état

d'urgence" regime

President initiates

state of

emergency, but

parliament can

limit it

The Constitutional

Council assesses

the legality of

government

decisions

Balance between

speed of decisions

and legal control

(Honcharenko, 2024)

United

Kingdom

Unwritten

constitution,

parliamentary

sovereignty

Judicial precedent

and parliamentary

oversight

Emergency powers

are realized

through acts of

parliament

High flexibility, but

dependent on

political culture

(Binder et al., 2025)

USA

US Constitution,

judicial review of

the Supreme Court

Division of powers

between Congress

and the President,

"War Powers

Resolution"

President acts

within the

framework of

congressional

delegated powers

Clear system of

checks and balances,

but controversy over

executive orders

(Lupu & Wallace,

2024)

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Israel

Basic laws and

judicial review by

the Supreme Court

The Court controls

the proportionality

of restrictions on

rights

During martial law,

the Court actively

intervenes in

executive decisions

A positive example

of active judicial

review (Binder et al.,

2025)

Vietnam

Socialist model of

control – party

responsibility and

government

centralization

No independent

constitutional court

Emergency

measures are

adopted centrally

without judicial

review

High level of

efficiency but low

legal transparency

(Dang & Hoang,

2024)

Source: created by the author on the basis of (Binder et al., 2025; Dang & Hoang, 2024;

Grynchak & Grynchak, 2022; Honcharenko, 2024; Kelbia et al., 2025; Korentsov, 2024; Lupu &

Wallace, 2024; Mészáros, 2024; Statsenko, 2025)

During martial law, the state authorities receive expanded powers to ensure national

security, mobilize resources and protect citizens. However, the granting of such

extraordinary powers is always accompanied by risks of abuse, ranging from political

concentration of power to restrictions on civil rights and arbitrary interpretation of laws.

The main challenge is to find a balance between the effectiveness of government

decisions and preservation of democratic guarantees. Emergency powers can be justified

only if they are legally proportionate, time-limited and subject to parliamentary control.

The experience of different countries shows that the abuse of such instruments often

leads to the erosion of constitutional principles, usurpation of power and undermining

public trust in the state (Mészáros, 2024; Honcharenko, 2024; Statsenko, 2025). To

summarize the main challenges and proposed mechanisms for overcoming them, Figure

1 provides a structured visualization of the problems and ways to resolve them based on

a comparative analysis of international practice.

Thus, the main threat in the field of emergency powers is the gradual normalization of

military restrictions, when temporary measures become permanent practices of public

administration. To prevent this, it is necessary to create an effective system of checks

and balances that combines internal constitutional control and external international

monitoring. The introduction of transparent procedures, clear terms of emergency acts

and regular parliamentary reporting will help to preserve the rule of law even in times of

war. Ukraine's experience in recent years can serve as an example of gradual

strengthening of democratic governance in times of crisis (Kelbia et al., 2025;

Honcharenko, 2024).

The resilience of the state in wartime is formed not only at the central level, but primarily

in the local and regional dimensions. It is these levels that ensure the viability of

communities, the maintenance of public order, the functioning of infrastructure and the

provision of basic services to the population in the face of constant threats. In the

Ukrainian context, the military resilience of communities is manifested in the ability of

local authorities to coordinate actions between military structures, humanitarian

missions, businesses, and volunteers.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Figure 1. Challenges and ways to resolve the abuse of emergency powers during martial law

Source: created by the author on the basis of (Ahapova& Ivanchuk, 2023; Binder et al., 2025;

Dang & Hoang, 2024; Honcharenko, 2024; Kelbia et al., 2025; Krotiuk, 2025; Mészáros, 2024;

Statsenko, 2025; Yatsun, 2024)

At the same time, the exercise of such powers is accompanied by a number of legal

restrictions, including on freedom of movement, information activities, and public

gatherings. These restrictions are intended to guarantee security, but they should be

applied proportionately and should not undermine the foundations of the democratic

system (Melnykovska&Sokhey, 2025; Marushak, 2023; Nakonechna& Novosad, 2023).

Table 3 presents a comparative description of local and regional aspects of Ukraine's

resilience in wartime, highlighting key legal restrictions, their consequences, and ways

to balance security and human rights.

Ukraine's local and regional resilience during martial law demonstrates a high level of

adaptability and interaction between civil society and the government. At the same time,

the introduction of legal restrictions, especially on movement, creates additional social

challenges, ranging from violations of labor rights to the isolation of certain communities.

The balance between security and human rights is achieved through constant monitoring

of restrictions, a flexible approach to their application, and the development of digital

governance tools. The decentralized model of governance and the active role of

communities remain key factors in preserving the rule of law even in emergency

situations (Melnykovska&Sokhey, 2025; Nakonechna& Novosad, 2023).

In the current conditions of war, an empirical study of the rule of law is of particular

importance, as it allows us to trace real changes in institutional indicators that reflect the

Key challenges:

Concentration of power in executive bodies.

The government has excessive powers to

make decisions without parliamentary

approval, which weakens the principle of

separation of powers (Mészáros, 2024).

Reduced transparency of government

decisions. Some decisions are made behind

closed doors, without public scrutiny, creating

a risk of violating citizens' rights (Dang &

Hoang, 2024).

Weakening of judicial control. Judicial

institutions are often limited in their

jurisdiction or operate under administrative

pressure (Krotiuk, 2025).

Political manipulation of military restrictions.

Use of a state of emergency to suppress

opposition or control the media (Binder et al.,

2025).

Ways to resolve the issue:

Strengthening parliamentary oversight.

Introducing mandatory periodic reports by the

government to parliament on decisions made

under martial law (Honcharenko, 2024).

Limiting the duration of emergency powers.

Setting time limits with the possibility of

extension only with parliamentary approval

(Kelbia et al., 2025).

Enhancing the role of the constitutional court.

Granting the court powers to review acts

adopted during martial law (Krotiuk, 2025).

International monitoring and standardization.

Using the recommendations of the Council of

Europe, the UN, and the OSCE to harmonize

national legislation (Yatsun, 2024).

Transparent communication with the public.

Ensuring public access to decisions made

under martial law through open government

portals (Ahapova& Ivanchuk,2023).

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Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

quality of public administration and the degree of protection of citizens' rights. The study

was conducted on the basis of publicly available official sources and international reports,

including the World Justice Project (2021, 2023, 2024) and Varieties of Democracy (V-

Dem Dataset, 2021-2023), as well as analytical reviews by Freedom House (2024) and

Transparency International (2024). These organizations systematically collect data based

on combined surveys of legal experts, civil society representatives, national statistical

agencies, and open government reports. For example, the World Justice Project annually

covers more than 214,000 respondents and about 3,500 experts in 142 countries using

a standardized questionnaire of eight indicators: limited government, absence of

corruption, open government, fundamental rights, security, regulatory activity, civil and

criminal justice (World Justice Project, 2024). The V-Dem data is compiled by more than

4,000 researchers who assess electoral, liberal, deliberative, and participatory

democracy using multidimensional models (V-Dem Institute, 2024b). The data was

selected for Ukraine, Poland, and Hungary for 2021-2024, which made it possible to trace

the dynamics of legal indicators in a country under martial law and compare it with

European countries with different levels of constitutional stability.

An analysis of statistical indicators suggests that Ukraine maintains relatively stable

positions in global rule of law rankings even in the face of a full-scale war. According to

the World Justice Project, the overall rule of law index decreased from 0.51 in 2021 to

0.47 in 2023, but increased to 0.49 in 2024, indicating gradual institutional adaptation.

For comparison, in 2024, Poland's index was approximately 0.61, and Hungary's was

0.43 (World Justice Project, 2024). According to the V-Dem index of electoral democracy

(v2x_polyarchy), Ukraine had a score of 0.415 in 2023, which is lower than Poland's 0.73

and Hungary's 0.63 (V-Dem Institute, 2024b; Our World in Data, 2024). These values

demonstrate that despite martial law and temporary restrictions on rights, the level of

democratic practices and legal culture remains moderately stable.

As can be seen from Table 1, the Rule of Law Index in Ukraine demonstrates a wave-like

dynamics – first, a decline under the influence of hostilities, and then a gradual recovery

in 2024.

The data show that even under martial law, Ukraine has not lost the basic institutional

foundations of the rule of law. Although some indicators – such as restrictions on rights

and freedoms, independence of the judiciary, or the level of corruption risks – have

deteriorated in the short term, the overall trend shows that legal institutions are resilient.

The score of 0.49 in 2024 demonstrates that the state mechanisms of legal control,

parliamentary oversight and civic monitoring continue to function despite the

extraordinary challenges. This confirms that it is possible to maintain a balance between

security and human rights even in times of deep crisis, which is consistent with the

findings of analytical reports by Freedom House (2024) and Transparency International

(2024). Thus, the quantitative indicators of international organizations confirm that

Ukraine is forming a unique model of legal stability that combines legal restrictions with

the desire to preserve democratic values and legal balance.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Table 3. Local and regional dimension of Ukraine's resilience in wartime

and related legal constraints

Level / Aspect

Key elements of

resilience

Types of legal

restrictions

Impact on

communities

Mechanisms for

balancing rights and

security

Local level

(communities)

Self-organization of

the population,

activities of

volunteer

headquarters, local

resource

mobilization

Temporary

bans on mass

events, control

of movement

between

communities

Restrictions on

social activity,

but increased

security

Local coordination

councils involve the

public in decision-

making

(Melnykovska&Sokhey,

2025)

Regional

military

administra-

tions

Evacuation

management,

distribution of

humanitarian aid,

control of transport

corridors

Access control,

curfews,

document

checks

Slowing down

logistics and

economic

activity

Flexible permitting

procedure for strategic

transportation

(Marushak, 2023)

Transportation

infrastructure

Ensuring the

movement of

military, refugees,

and humanitarian

goods

Restrictions on

interregional

travel,

checkpoints

Temporary

reduction of

population

mobility

Electronic system of

route approvals, military

commandant's offices as

security regulators

Economic

sustainability of

the regions

Support for critical

infrastructure

enterprises,

business relocation

Restrictions on

free movement

of labor, export

regulation

Decline in

economic

activity in

frontline regions

State programs to

support relocated

enterprises

(Nakonechna& Novosad,

2023)

Information

security

Prompt

information,

countering

disinformation

Censorship of

military news,

ban on filming

military

facilities

Restriction of

freedom of

expression, but

reduction of

information

risks

Information centers at

the IAA and content

verification systems

(Ahapova& Ivanchuk,

2023)

Social

sustainability

Provision of basic

services, support

for internally

displaced persons

Restrictions on

freedom of

movement in

dangerous

areas

Psychological

burden and

migration

challenges

Implementation of

humanitarian corridors

and digital passes

(Marushak, 2023)

International

cooperation at

the regional

level

Cooperation with

international

partners, grant

programs for local

recovery

Regulatory

restrictions on

the

involvement of

foreign

volunteers in

combat zones

Delays in the

implementation

of recovery

projects

Simplification of visa and

customs procedures for

humanitarian missions

(Lupu & Wallace, 2024)

Source: created by the author based on (Ahapova& Ivanchuk, 2023; Lupu & Wallace, 2024;

Marushak, 2023; Melnykovska&Sokhey, 2025; Nakonechna& Novosad, 2023)

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Table 4. Rule of Law Index (WJP) in Ukraine in 2021-2024

Year

WJP

index

Rank among

countries

Commentary

2021

0.51

74/139

stable period before the war

2022

0.50

slight decrease due to the introduction of

martial law

2023

0.47

89/142

minimum value for the years of observation

2024

0.49

88/142

the beginning of the restoration of stability

Source: created by the author based on World Justice Project (2021, 2023, 2024), V-Dem

Institute (2024b), Freedom House (2024), Transparency International (2024)

Ensuring a balance between state security and preserving the rights and freedoms of

citizens during martial law is a complex but critical task that requires a systematic

approach and responsible policy. First, a clear legislative framework should be introduced

to define the limits of emergency powers that can be used during martial law, taking into

account international human rights standards. This includes ensuring that the restrictions

are temporary, proportionate and strictly accountable for any abuse, as well as that they

are subject to ongoing monitoring by independent institutions and the public. Second,

the development and strengthening of constitutional and judicial oversight institutions

should be a priority. The judicial system should have the necessary independence and

resources to effectively review cases related to violations of rights during martial law. It

is important to ensure quick access to legal protection for citizens, to create specialized

mechanisms for reviewing such cases, which will allow not only to establish the facts of

violations, but also to respond to them properly. Third, maximum transparency and public

control over the actions of the authorities in wartime should be ensured. Regularly

informing the public about the restrictions imposed, their grounds and duration, as well

as public reporting by the responsible authorities, will help to increase trust and prevent

corruption and abuse. The involvement of civil society organizations, human rights

structures and international partners in monitoring the situation is extremely effective.

Finally, it is necessary to invest in training and professional development of civil servants

and law enforcement officials to ensure that the principles of the rule of law are upheld

even in extreme circumstances. It is important to foster a culture of legal responsibility,

tolerance and respect for human rights as the basic principles of state policy. The

introduction of such measures will help maintain a balance in which national security is

ensured while not violating the fundamental rights and freedoms of citizens, which is the

key to the long-term stability and development of the state.

JANUS.NET, e-journal of International Relations

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

Discussion

The results obtained confirm the difficulty of finding a balance between national security

and preservation of human rights during martial law. According to a number of

researchers, emergency powers can be justified only under conditions of clearly defined

temporality and proportionality, as well as in the presence of effective parliamentary and

judicial control (Binder et al., 2025; Mészáros, 2024). At the same time, some authors,

such as Dang and Hoang (2024), argue that even under severe restrictions, democratic

institutions are able to adapt to crisis conditions, provided that the government is open

and civil society is involved. In the context of Ukraine, this is confirmed by international

reports that demonstrate the stability of key legal indicators despite the large-scale

challenges of war (World Justice Project, 2024; V-Dem Institute, 2024a).

A comparison of the constitutional models of different countries shows significant

differences in the degree of independence of the judiciary and parliamentary control

during the state of emergency. European countries, such as Germany and France,

demonstrate the effectiveness of the system of checks and balances through

constitutionally enshrined mechanisms for verifying the legality of government decisions

(Kelbia et al., 2025; Honcharenko, 2024). Hungary, on the other hand, shows an example

of the gradual erosion of the rule of law due to the concentration of power in the hands

of the executive (Mészáros, 2024). In this context, the Ukrainian model looks

intermediate: despite significant challenges, it preserves the functioning of parliamentary

oversight, the Constitutional Court, and the basic elements of judicial independence

(Korentsov, 2024; Statsenko, 2025).

A number of scholars (Ahapova& Ivanchuk, 2023; Paskar, 2023; Krotiuk, 2025)

emphasize that the real effectiveness of the rule of law in wartime is determined not so

much by legal formulas as by the level of public trust in legal institutions. It is trust that

becomes a critical factor in legal sustainability, which is consistent with sociological trends

that show that Ukraine maintains a moderately high level of legal awareness and public

control, even under martial law. Other researchers, such as Lupu and Wallace (2024),

draw attention to the international dimension of the rule of law, emphasizing that the

support of international partners and external monitoring have a significant impact on

the stability of domestic legal institutions.

The contradictions between the positions of different groups of authors lie primarily in

the interpretation of the limits of permissible restrictions on human rights. Some scholars

believe that severe restrictions are inevitable to ensure national security (Marushak,

2023; Nakonechna& Novosad, 2023), while others emphasize that even in a crisis, the

state has no right to go beyond international humanitarian law standards (Nijs, 2024;

Kuchyk et al., 2023). The empirical evidence presented confirms that Ukraine is trying

to comply with these standards, ensuring that legal restrictions are controlled and

reversible.

At the same time, the analysis showed certain contradictions between the formal

existence of legal guarantees and their practical implementation. As noted by Mészáros

(2024), even democratic institutions can gradually lose their effectiveness in the case of

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

in the Priority of the Rule of Law in Times of War

Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

Nataliia Kaminska, Vitalii Melnyk

"normalization" of emergency powers, when temporary measures become permanent.

For Ukraine, this danger is also relevant, as the war creates conditions under which

emergency governance tools can become commonplace. However, as the experience of

local communities shows (Melnykovska&Sokhey, 2025), local resilience and public

participation remain safeguards against the usurpation of power and excessive

centralism.

Thus, the results of the study confirm that the rule of law under martial law is a

multidimensional phenomenon that encompasses the legal, institutional and social levels.

Its preservation depends on a combination of effective legal mechanisms, political

accountability and the active role of civil society. However, the restrictions imposed

during the war leave a number of open questions, including the limits of legal control,

guarantees of judicial independence, and the long-term implications for democratic

development. These aspects require further interdisciplinary research that combines legal

analysis with sociological, political and psychological approaches to provide a holistic

understanding of the rule of law in extreme circumstances.

Conclusions and Prospects for Further Research

The study reveals the complex nature of the rule of law under martial law as a dynamic

system which combines legal, institutional and social components. Its scientific novelty

lies in the comprehensive comparative analysis of the constitutional mechanisms of

different states, which demonstrate that the effectiveness of the legal regime of martial

law is determined not only by legislative provisions, but primarily by the actual

functioning of the system of checks and balances. The Ukrainian experience confirms that

it is possible to preserve the basic principles of the rule of law even in times of military

threats, but reveals a number of problems, including the risks of normalizing emergency

powers, fragmentation of judicial control, and a lack of parliamentary oversight. The

practical significance of the findings lies in the possibility of using the identified patterns

to improve national legislation on human rights restrictions, develop effective monitoring

mechanisms, and strengthen local legal resilience. At the same time, the study faced

limitations related to the incompleteness of open data, rapid changes in the legal

framework, and the varying levels of availability of international benchmarks. Further

research should be directed at developing models for assessing the proportionality of

legal restrictions, studying the impact of martial law on trust in judicial institutions, and

analyzing the interaction between state and civil society structures in maintaining the

rule of law during crisis situations. Thus, the study lays the groundwork for the formation

of a strategy for the legal stability of the state, which is centered on the individual, his

or her rights and the value of democratic principles even in the most extreme conditions.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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The Theoretical Foundations and Practical Implementation

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Yevhen Romanchenko, Valentyna Lukianets-Shakhova, Ihor Zavalniuk,

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 30-48

The Theoretical Foundations and Practical Implementation

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OBSERVARE

Universidade Autónoma de Lisboa

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VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

JUDICIAL REFORM AS A FACTOR IN INCREASING PUBLIC TRUST IN JUSTICE

SERHII KRUSHYNSKYI

decan_uf@univer.km.ua

PhD (Law Sci.), Professor, Head of the Department of Criminal Law and Procedure

Leonid Yuzkov Khmelnytskyi University of Management and Law

Khmelnytskyi (Ukraine) https://orcid.org/0000-0002-1583-226X

MYKOLA VAVRYNCHUK

avrynchukm@khmnu.edu.ua

PhD (Рolitical Sciences), Docent, Head of the Department of Law Khmelnytskyi National

University Khmelnytskyi (Ukraine) https://orcid.org/0000-0002-8401-5562

OLHA KOHUT

kohutOl@khmnu.edu.ua

PhD (Law Sci.), Docent, Department of Law Khmelnytskyi National University

Khmelnytskyi (Ukraine) https://orcid.org/0000-0001-9164-5477

SERHII MANDZII

mandzii.s@ukr.net

PhD (Law Sci.), Senior Lecturer Department of Law

Khmelnytskyi National University

Khmelnytskyi, (Ukraine)

https://orcid.org/0009-0001-6068-7292

SVITLANA LOGINOVA

lohinovasv@khmnu.edu.ua

PhD (Law Sci.), Senior Lecturer of the Department of Law Khmelnytskyi National University

Khmelnytskyi (Ukraine) https://orcid.org/0000-0001-7413-9556

Abstract

The article examines the stages of development of the judicial system of Ukraine in 2010-

2024 in the context of institutional reforms, digital transformation and procedural

modernization. The dynamics of key indicators of the efficiency of judicial proceedings are

analyzed – the level of funding, staffing, average duration of case consideration, the share of

electronic proceedings and rule of law indices. Based on a comparative analysis of data from

Ukraine and the countries of the European Union (Poland, the Czech Republic, Romania), the

main trends that determine structural changes in the sphere of justice are identified.The

results of the study show that during the period under study, there was a significant reduction

in the duration of case consideration (by 22%), an increase in the completion rate to 0.91, as

well as the active implementation of digital technologies – in particular, the "Electronic Court"

system, which ensured the submission of more than 35% of claims in electronic form. At the

same time, there is a shortage of judicial personnel (more than 28% of vacant positions) and

an insufficient level of financing of the judiciary (0.38% of GDP), which limits the sustainability

of reforms.The paper proves that the digitalization of the judicial system is a key factor in

increasing its efficiency, transparency and citizens' trust in the judiciary. Strengthening the

institutional independence of judges, ensuring financial autonomy and forming professional

integrity are identified as the main conditions for the further development of justice in Ukraine

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

in accordance with European standards of the rule of law.The methodological basis of the

study is the principles of systemic, comparative and statistical analysis. The work uses official

data from international organizations and the State Judicial Administration of Ukraine. The

results obtained have practical significance for developing strategies for reforming the

judiciary, optimizing funding and improving e-justice.

Keywords

Judicial system, rule of law, digitalization of justice, judicial reform, efficiency of judicial

proceedings, trust in the judiciary.

Resumo

O artigo examina as etapas de desenvolvimento do sistema judicial da Ucrânia em 2010-2024

no contexto das reformas institucionais, da transformação digital e da modernização

processual. É analisada a dinâmica dos principais indicadores da eficiência dos processos

judiciais – o nível de financiamento, o quadro de pessoal, a duração média da apreciação dos

processos, a percentagem de processos eletrónicos e os índices do Estado de direito. Com

base numa análise comparativa dos dados da Ucrânia e dos países da União Europeia (Polónia,

República Checa, Roménia), são identificadas as principais tendências que determinam as

mudanças estruturais na esfera da justiça. Os resultados do estudo mostram que, durante o

período em análise, houve uma redução significativa na duração da apreciação dos processos

(em 22%), um aumento na taxa de conclusão para 0,91, bem como a implementação ativa

de tecnologias digitais – em particular, o sistema «Tribunal Eletrónico», que garantiu a

apresentação de mais de 35% das reclamações em formato eletrónico. Ao mesmo tempo, há

uma escassez de pessoal judicial (mais de 28% dos cargos vagos) e um nível insuficiente de

financiamento do poder judicial (0,38% do PIB), o que limita a sustentabilidade das reformas.

O artigo prova que a digitalização do sistema judicial é um fator-chave para aumentar a sua

eficiência, transparência e confiança dos cidadãos no poder judicial. O reforço da

independência institucional dos juízes, a garantia da autonomia financeira e a formação da

integridade profissional são identificados como as principais condições para o

desenvolvimento da justiça na Ucrânia, de acordo com os padrões europeus do Estado de

direito. A base metodológica do estudo são os princípios da análise sistémica, comparativa e

estatística. O trabalho utiliza dados oficiais de organizações internacionais e da Administração

Judicial do Estado da Ucrânia. Os resultados obtidos têm significado prático para o

desenvolvimento de estratégias de reforma do poder judicial, otimização do financiamento e

melhoria da justiça eletrónica.

Palavras-chave

Sistema judicial, Estado de direito, digitalização da justiça, reforma judicial, eficiência dos

processos judiciais, confiança no poder judicial.

How to cite this article

Krushynskyi, Serhii, Vavrynchuk, Mykola, Kohut, Olha, Mandzii, Serhii & Loginova Svitlana (2026).

Judicial reform as a factor in increasing public trust in justice. Janus.net, e-journal of international

relations. Thematic Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times

of Global and National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 49-65.

https://doi.org/10.26619/1647-7251.DT0226.3

Article submitted on 10 December 2025 and accepted for publication on 14 January

2026.

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

JUDICIAL REFORM AS A FACTOR IN INCREASING PUBLIC TRUST

IN JUSTICE

SERHII KRUSHYNSKYI

MYKOLA VAVRYNCHUK

OLHA KOHUT

SERHII MANDZII

SVITLANA LOGINOVA

Introduction

In modern democratic states, the judiciary is one of the main institutions for ensuring

the rule of law, protecting the rights and freedoms of citizens, and maintaining the

stability of public administration. The effectiveness of the functioning of the judicial

system determines the level of legitimacy of the state, since it is through the mechanisms

of justice that the social need for justice, equality before the law, and accountability of

government to citizens is realized.

In Ukraine, the problem of trust in the judiciary remains one of the most urgent and at

the same time the most complex. Since 2014, judicial reform has become a strategic

priority of state policy, which is confirmed by the adoption of a number of regulatory

legal acts: the Law of Ukraine “On the Judiciary and the Status of Judges” (Verkhovna

Rada of Ukraine, 2016), amendments to the Constitution of Ukraine regarding justice,

the creation of the High Council of Justice, the High Qualification Commission of Judges

and the High Anti-Corruption Court. These steps were aimed at ensuring the

independence of the judiciary, increasing its transparency and strengthening the

responsibility of the judiciary.

However, as evidenced by the official analytical reports of the Consultative Council of

European Judges (2024) and the Basel Institute on Governance (2024), Ukraine still faces

a number of institutional challenges. According to the report by CEPEJ (2024), indicators

of trust in the judiciary in Ukraine remain lower than in most European Union countries.

For comparison: the average level of public trust in courts in EU countries exceeds 50%,

while in Ukraine this indicator fluctuates within 25-30%. This lag is explained not only by

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

historical distrust of state institutions, but also by insufficient transparency of judicial

procedures, the duration of court proceedings and the low level of communication

between the judicial system and society.

The problem of trust in justice is complex. It encompasses not only organizational and

legal aspects, but also socio-psychological factors, in particular the perception of the

court as an impartial and effective arbiter. In this context, judicial reform should be

considered not as a separate legislative or administrative measure, but as a systemic

policy of modernization of the entire institutional architecture of justice – from personnel

selection to mechanisms of accountability and control.

International standards play an important role in shaping a positive image of the

judiciary. The documents of the Council of Europe, the Organization for Economic

Cooperation and Development (OECD) and the Venice Commission have repeatedly

emphasized that judicial independence is a basic condition for economic development

and citizens' trust in the state. According to analytical data from the World Bank (2024),

countries with high indicators of judicial independence demonstrate more stable GDP

growth, lower levels of corruption, and higher investment attractiveness.

In this context, scientific substantiation of judicial reform is necessary as a key factor in

increasing public trust in justice through the analysis of official statistical and

international data.

Literature Review

The issue of judicial reform, its impact on the efficiency of justice and the level of public

trust in judicial institutions is a subject of constant attention of both domestic and foreign

scholars. Research in this area covers theoretical and legal, institutional, socio-economic

and managerial aspects of judicial reform.

One of the key areas of modern scientific discussions is the identification of institutional

factors of trust in justice. According to the conclusions of experts from OECD (2024;

2025),trust in the courts is formed primarily through the stability of the legal

environment, the independence of judges, the effectiveness of disciplinary procedures

and the transparency of appointments to the judicial system. The OECD emphasizes that

in countries with high rule of law indicators (e.g. the Netherlands, Denmark, Finland),

the stability of the judicial system is directly correlated with citizens' trust in the state

and the level of economic development.

According to analytical reports of CEPEJ (2024) and Kalliris and Alysandratos (2023), the

main indicators of the efficiency of the judiciary are the duration of court proceedings,

the workload on judges, the level of automation of processes, the financing of the judicial

system and independence from political influence. Comparative analysis of data shows

that in Central and Eastern European countries that have successfully implemented

judicial reforms (Estonia, Lithuania, Poland by 2016), the indicator of trust in courts

increased by 15-20 percentage points after the introduction of e-justice mechanisms and

open access to court decisions.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

The issue of the relationship between the institutional independence of the courts and

economic development has been studied in the works of the World Bank within the

framework of the Worldwide Governance Indicators (World Bank, 2024). The reports

emphasize that countries with high indices of rule of law and control of corruption

demonstrate more stable growth of gross domestic product (GDP) and higher level of

investment attractiveness. Thus, judicial independence and transparency of judicial

procedures are recognized as critical prerequisites for economic stability and democratic

development.

In the works of Venice Commission (n.d.) emphasized that effective judicial reform

requires a balanced model of judicial governance – with a clear division of powers

between the High Council of Justice, the parliament and the executive branch. The

Commission has repeatedly drawn Ukraine's attention to the need to ensure transparency

in the selection of judges, create an effective integrity verification mechanism and

introduce clear criteria for the career growth of judges.

In Ukrainian scientific literature, the issues of judicial reform are studied in the context

of ensuring the rule of law, combating corruption, and increasing the efficiency of justice.

In particular, in the works of Lashyn et al. (2023), Zabokrytskyy (2020), Teremetskyi et

al. (2023), Yara andSologub(2024): KrushynskyiandDankova (2022) and Zhukevych et

al. (2025) examine the problems of personnel renewal of the judicial system,

transparency of disciplinary procedures and interaction of the judiciary with civil society.

In the works of Kryvytskyi (2024), Sereda et al. (2024) and Pomaza-Ponomarenko et al.

(2024) emphasized that a sustainable increase in trust is possible only with the

systematic digitalization of judicial processes and public monitoring of judges' decisions.

Some attention in modern research has also been paid to the digital transformation of

the judiciary. According to the CEPEJ (2021), European Union (2025), Krushynskyi

(2025) and Fabri (2023) electronic justice services (e-Court, e-Filing, online broadcasts

of hearings) significantly reduce the level of distrust of citizens, as they ensure the

openness of processes, accessibility of information and reduce the duration of case

consideration. These conclusions confirm the practical feasibility of implementing an

electronic court in Ukraine, which is gradually covering all regions since 2020. Thus, the

analysis of scientific and official sources allows us to conclude that judicial reform has a

comprehensive impact on citizens' trust in justice. It is not limited to regulatory changes,

but covers organizational, technological and ethical aspects of the activities of courts. A

high level of public trust is formed only under the conditions of a combination of the

independence of the judiciary, the transparency of its procedures and effective

communication with citizens, which is confirmed by both European and world experience.

Materials and Methods

The methodological basis of the study is a systemic, institutional, and comparative-

analytical approaches that allow us to identify the patterns of the impact of judicial reform

on the level of public trust in justice in Ukraine in the context of European standards.

The work used exclusively official statistical sources and analytical reports of international

organizations, in particular:

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

- CEPEJ (2024). Analytical reports 2016-2024, containing data on the financing of the

judicial system, the number of judges, the average duration of case consideration, the

level of automation and openness of justice in European countries;

- World Bank (2024). Rule of law and corruption control indicators used to assess the

effectiveness of legal institutions in international comparison;

- OECD (2025). Official statistics on the effectiveness of public administration, judicial

independence and access to justice in the OECD countries D;

- State Judicial Administration of Ukraine (2024). Data on the financing of the judiciary,

the workload on judges, the number of cases considered, the duration of proceedings

and the digitalization of judicial processes (2016-2024);

- High Council of Justice of Ukraine (2024).Report of the State Judicial Administration of

Ukraine (2024).

To assess trends in the field of justice, a comparative analysis of the main statistical

indicators of Ukraine and the countries of Central and Eastern Europe (Poland, Lithuania,

Romania, Czech Republic), which have similar conditions of legal modernization, was

conducted. This allows us to determine the dynamics of changes and position Ukraine in

the European context.

Research methods include:

1. Comparative legal analysis, which was applied to study the content of judicial reforms

in various EU countries, their regulatory framework and implementation results.

2. Statistical analysis aimed at processing quantitative indicators of justice efficiency –

financing of the judicial system (% of GDP), average duration of case consideration,

number of judges per 100 thousand population, share of electronic proceedings.

3. Trend analysis used to study the dynamics of official European indicators Commission

for the Efficiency of Justice and World Bank for 2010 – 2024.

4. A systemic approach that allows considering judicial reform as a component of the

general policy of public administration aimed at establishing the principle of the rule of

law.

All data were summarized in comparative tables and visualized in the form of graphs to

better reflect the dynamics of changes. Particular attention was paid to the correlation

between institutional indicators and qualitative results of reforms.

Research Results

The development of the judicial system of Ukraine during 2010-2024 is characterized by

a phased reform process, accompanied by changes in the legislative framework, financial

support, staffing structure and the degree of digitalization of justice. The main trends

were formed under the influence of European standards of justice (CEPEJ, Venice

Commission) and internal reforms aimed at increasing the independence of judges and

public trust.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

The level of funding for the judiciary is an indicator of the state’s ability to guarantee

effective justice. In 2010, funding amounted to only 0.34% of GDP, which indicated an

insufficient level of support for institutional infrastructure. Starting from 2016, after the

creation of new institutions, such as the High Council of Justice and the Public Integrity

Council, funding for the judicial system increased to 0.48% of GDP (2018). This allowed

for an increase in judges’ salaries, modernization of court premises and partial

implementation of digital services.

However, since 2022, there has been a decrease in funding to 0.38% of GDP due to

military spending, which has negatively affected the stability of staffing and investments

in judicial infrastructure. For comparison, according to CEPEJ (2021), Venice Commission

(n.d.), the average financing of judicial systems in EU countries is 0.41-0.45% of GDP,

i.e., Ukraine remains below the average European level. One of the biggest problems

remains the shortage of judicial personnel. If in 2010 there were about 8300 judges

working in Ukraine, then in 2024 there will be only 5100, while more than 2000 positions

remain vacant. This means that almost 30% of courts are working understaffed, which

leads to excessive workload – more than 500 cases per judge annually (compared to

230-250 in EU countries).

The reason for the staff shortage is the long process of qualification assessment, the

migration of judges in connection with the reform and the low level of public trust, which

makes it difficult to renew the corps. The presence of vacant positions directly affects the

terms of consideration of cases and the overall quality of justice, creating the risk of

overloading judges and reducing motivation. The efficiency of justice is assessed through

the average duration of consideration of cases, the ratio of considered and unconsidered

proceedings, as well as the level of automation of processes. According to the CEPEJ

(2022), Venice Commission (n.d.), the average duration of civil cases in Ukraine

decreased from 268 days in 2010 to 210 days in 2023, indicating an increase in

procedural efficiency by 22%.

Following the introduction of the new version of the procedural codes (the Civil Procedure

Code of Ukraine, the Commercial Procedure Code of Ukraine, and the Code of

Administrative Procedure of Ukraine) in 2017, there was a certain decrease in the number

of pending cases. According to the State Judicial Administration of Ukraine (2024), the

completion rate (the ratio of resolved cases to the total number) increased from 0.82 in

2015 to 0.91 in 2023. This indicator is approaching the level of Central and Eastern

European countries, in particular Poland (0.93) and the Czech Republic (0.94).

However, the problem of uneven workload between courts of different instances remains:

if in local courts it is 450-480 cases per year, then in appellate courts this figure reaches

over 700. Such imbalances indicate the need to optimize the court network and

redistribute the functional workload. A significant achievement in recent years has been

the introduction of the "Electronic Court" system and the expansion of online access to

court decisions. While in 2010, submission of documents was carried out exclusively in

paper form, in 2024 more than 35% of all claims were filed electronically, and 90% of

court decisions are published in an open register.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

Table 1. Comparative analysis and trends in judicial system indicators in Ukraine and EU countries

Indicator

Ukraine

2010

Ukraine

2024

Poland

2024

Czech

Republic

2024

Romania

2024

Trend

Court financing,

% of GDP

0.34

0.38

0.43

0.39

0.45

Slight increase,

below EU level

Number of

judges per 100

thousand people

18.7

12.5

25.4

24.6

20.1

Staff reduction

Average duration

of case

consideration,

days

268

210

185

170

190

Gradual reduction

Share of

electronic

proceedings, %

Active

digitalization

Vacancies of

judges, % of

total number

5.2

28.4

4.8

3.1

6.5

Critical load

Source: based on Council of Europe data by CEPEJ (2022, 2024), OECD (2025), European Union

(2025) and Basel Institute on Governance (2024).

The growth of digitalization contributes to reducing corruption risks, reducing waiting

times and increasing the transparency of judicial procedures. For comparison: in Poland

the share of electronic proceedings is 38%, in the Czech Republic – 45%, in Romania –

33%. Thus, Ukraine is approaching the average level of digital integration of EU

countries, although the pace of development depends on stable funding and technical

support.

The data shows that positive dynamics are observed primarily in the digitalization of

judicial proceedings and the reduction of case processing times, while staff shortages

and limited funding remain key barriers to the stability of the system. Compared to EU

countries, Ukraine demonstrates a similar pace of procedural changes, but does not reach

the level of structural balance and staffing.

Thus, the period 2010-2024 can be characterized as a stage of forming the foundations

of an independent, digitalized, but still institutionally vulnerable judicial system. Gradual

positive changes in financing, duration of case consideration and transparency of

processes create the basis for increasing public trust, but achieving stability requires staff

renewal, sustainable funding and completion of reforms of the institutional governance

of the judiciary.

The concept of trust in the judiciary is one of the key indicators of a country's democratic

maturity. According to international research, the level of trust in the judicial system is

directly correlated with the indices of the rule of law, judicial independence and control

of corruption, which are measured by the World Bank. Bank, OECD and Transparency

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

International. According to World Bank (2024), Ukraine is gradually improving its position

in the Rule ranking of Law Index: in 2010 the indicator was 0.33; in 2015 – 0.39; in 2023

– 0.46 (on a scale from 0 to 1). This indicates a 40% strengthening of the rule of law

over the past 13 years. For comparison, in 2023 Poland had an indicator of 0.74, the

Czech Republic – 0.78, Romania – 0.67, i.e., Ukraine is still at the stage of forming stable

legal institutions.

The gradual growth of the index is associated with key reforms:

2016: creation of the High Council of Justice, responsible for personnel policy and

disciplinary procedures;

2017: adoption of a new version of procedural codes, which standardized the procedure

for considering cases and introduced the principle of “reasonable time”;

2020 – 2023: implementation of electronic justice and open registers of court decisions.

In parallel, according to OECD (2025), Ukraine increased its Judicial Independence from

41 points in 2015 to 49 points in 2023 (on a scale of 0 – 100). This indicates a moderate

but steady strengthening of the independence of the judiciary, especially in the area of

personnel decisions and financial autonomy of the courts.

One of the determining factors of public trust is the ability of the courts to ensure fairness

and impartiality. According to the analytical report by GRECO (2024), Ukraine has

implemented over 65 % of the recommendations on preventing corruption in the judicial

system, which is significantly higher than in 2016 (less than 30% implementation). The

main achievements relate to the transparency of the selection of judges and disciplinary

liability. An important step was the introduction of the Public Integrity Council, which

participates in the qualification assessment of judges. According to the High Council of

Justice (2024), during 2017-2023, almost 300 candidates were not allowed to be

appointed due to a negative opinion of the council. This contributed to the cleansing of

the judicial corps and increased public trust in the appointment procedures.

At the same time, there is a decrease in the level of corruption perception in the justice

sector. Control Index of Corruption (Worldwide) Governance Indicators, 2023) increased

from 0.26 in 2010 to 0.43 in 2023, reflecting reduced administrative pressure and

increased transparency of funding (Table 2).

Thus, increasing trust in justice in Ukraine is the result of a combination of three factors:

1. Institutional renewal – the creation of new judicial governance bodies that ensured

transparency in the appointment of judges.

2. Procedural modernization – adoption of new versions of procedural codes and

reduction of case processing times.

3. Digitalization – implementation of the “Electronic Court”, online access to decisions

and transparency of disciplinary procedures.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

Table 2. Comparative dynamics indices supremacy rights, independence judicial authorities and

control corruption in Ukraine and countries Central Eastern Europe (2010–2023)

Indicator

Ukraine

2010

Ukraine

2024

Poland

2024

Czech

Republic

2023

Romania

2023

Trend

Rule of Law

Index (World

Bank (0–1)

0.33

0.48

0.72

0.79

0.69

Gradual

improvement

Judicial

Independence

(OECD, 0–100)

Strengthening

institutional

independence

Control of

Corruption

(World Bank (0–

0.26

0.45

0.68

0.80

0.66

Reducing

corruption

pressure

Source: compiled from World Bank (2024), OECD (2025), Basel Institute on Governance (2024).

However, despite the positive dynamics, the level of actual public trust in the courts

remains below potential, as public expectations regarding the complete renewal of the

judicial corps and the elimination of corrupt practices are being realized gradually. For a

stable growth of trust, not only a normative but also a value-based renewal of judicial

culture, the formation of professional ethics of judges, accountability and openness are

necessary. The results obtained indicate that judicial reform in Ukraine has a gradual

positive effect on the formation of public trust in justice.

The growth of international indices of the rule of law, judicial independence, and

corruption control is objective evidence of institutional progress. At the same time,

incomplete personnel procedures, uneven digital integration of courts, and insufficient

financial autonomy leave risks that could slow down the dynamics of change.

Thus, trust in justice is formed not only through regulatory changes, but also through

the stability of their practical application, which requires a long-term state policy of

supporting the judiciary.

The process of building trust in the judiciary in Ukraine in 2010-2024 is complex and

encompasses three interrelated dimensions: institutional, procedural, and digital(Figure

1).

Each of them plays an independent but complementary role in the formation of a modern

model of justice that meets European standards of the rule of law. The institutional

component determines the management structure and personnel policy of the courts,

the procedural component determines the quality and speed of the administration of

justice, and the digital component determines the openness and transparency of judicial

procedures. Their interaction creates the basis for increasing citizens' trust in the judicial

system, which is one of the key indicators of the democratic maturity of the state.

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e-ISSN: 1647-7251

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

Figure 1. Structural and functional scheme of building trust in the judiciary of Ukraine

Source: compiled by authors

The proposed structural and functional scheme (Fig. 1) demonstrates that the

development of the judicial system of Ukraine takes place in the format of multi-level

interaction of reforms. Institutional changes ensure the stability and independence of the

judiciary, procedural changes ensure its efficiency, and digital changes ensure openness

and controllability. It is the synergy of these areas that contributes to an increase in the

level of public trust, which is confirmed by the positive dynamics of international indices

– Rule of Law Index, Judicial Independence and Control of Corruption. In the long term,

achieving a high level of trust requires not only technical modernization, but also the

formation of a new professional ethics of judges, accountability to society, and

sustainable financing of the judicial system as a basic element of the rule of law.

The digital transformation of the judicial system of Ukraine during 2010–2024 is

accompanied by a gradual increase in the share of electronic proceedings and a reduction

in the average duration of case consideration. From 2010 to 2024, the share of electronic

BUILDING TRUST IN THE JUDICIARY

INSTITUTIONAL

DIMENSION OF TRUST

DIGITAL MEASUREMENT

OF TRUST

PROCEDURAL DIMENSION

OF TRUST

Establishment of the

High Council of Justice

Formation of the Public

Integrity Council

Disciplinary

responsibility of judges

Updating procedural

codes

Optimization of case

processing times

Standardization of

procedures and

increased transparency

Implementation of the

“Electronic Court”

system

Open registers of court

decisions

Automated case

distribution and online

access

Strengthening the

independence of the

judiciary

Improving the efficiency of

the judicial process

Increased transparency

and reduced corruption

risks

INCREASING PUBLIC TRUST/STRENGTHENING THE RULE OF LAW / INTEGRATION

INTO THE EUROPEAN LEGAL SPACE

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

claims increased from 0% to 35%, while the average time for case consideration

decreased by 22% – from 268 to 210 days. This trend indicates the effective impact of

digital tools (“Electronic Court”, online registries, automated case distribution) on

increasing the efficiency of judicial proceedings (Figure 2).

Figure 2. Dynamics digitalization judicial systems Ukraine and average duration consideration

cases (2010–2024)

Source: State data Judicial Administration of Ukraine (2024); CEPEJ (2024); Teremetskyi et al.

(2024)

The results obtained confirm that digitalization is one of the key factors in increasing the

efficiency of the judicial system of Ukraine. It not only speeds up the process of

considering cases, but also increases the transparency of procedures, reduces

administrative barriers and contributes to the formation of citizens' trust in the judiciary.

At the same time, the further development of e-justice requires sustainable funding,

unification of technical standards and ensuring cybersecurity of judicial data.

Discussion

The study shows that the judicial system of Ukraine in 2010-2024. went through a

difficult path of structural, procedural and technological transformation. The results

obtained demonstrate that the main driver of increasing the efficiency of justice was

digitalization, which, combined with institutional renewal and procedural reforms,

ensured increased transparency, accountability and public trust in the judiciary.

However, despite the positive dynamics of most indicators (reduction of case processing

times, increase in the share of electronic proceedings, increase in the rule of law index),

structural problems persist – primarily staff shortages and insufficient financial autonomy

of courts. These factors limit the sustainable development of the system and create risks

of slowing down reforms. A comparison with EU countries shows that Ukraine has come

268

250

230

220

215

210

135

203

270

338

2010 2015 2018 2020 2022 2024

Share of electronic

implementations, %

Average duration of case

consideration (days)

Year

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

close to the average European standards of procedural efficiency, but is significantly

inferior in terms of staffing (by 40-45%) and funding.

The key conclusion is that increased trust in justice is not solely a consequence of

legislative changes – it is formed through the practical sustainability of reforms,

transparency in the selection of judges and digital openness of judicial processes. The

positive correlation between the increase in the share of electronic proceedings and the

reduction in the duration of case consideration indicates that digitalization has a direct

impact on the efficiency of judicial proceedings. This is also confirmed by international

indices: Rule of Law, Judicial Independence and Control of Corruption, which demonstrate

the gradual strengthening of the institutional capacity of the judiciary.

At the same time, maintaining trust requires not only technical development, but also an

ethical renewal of judicial culture. The formation of professional integrity, ensuring stable

funding, improving personnel policy and guarantees of cybersecurity are prerequisites

for the sustainability of reforms. It is also important to ensure an even workload between

courts of different instances, as the imbalance of procedural resources continues to

reduce the quality of justice.

Thus, the modern judicial system of Ukraine is at the stage of transition from institutional

reform to the stage of consolidation of the achieved results. The further effectiveness of

the reforms will be determined by the state's ability to combine institutional stability,

technological innovations and public trust. It is this trinity: independence, efficiency and

openness, that is the basis for the formation of a mature legal state in Ukraine.

Conclusions

The results of the study of the development of the judicial system of Ukraine in 2010-

2024 allow us to note the dynamics of its institutional formation, procedural efficiency,

and digital transformation.

The institutional modernization of the judiciary in the mentioned period took place

gradually and under the influence of both domestic reforms and international standards

(CEPEJ, 2024; Venice Commission, n.d.). The creation of new judicial governance bodies,

such as the High Council of Justice and the Public Integrity Council, has provided greater

transparency and accountability to the system. This has contributed to the gradual

strengthening of judicial independence, as evidenced by the increase in the Judicial

Independence from 41 to 52 points (on the OECD scale).

The financing of the judicial system remained unstable and insufficient during the period

under review. Despite the increase in the indicator from 0.34% of GDP in 2010 to 0.48%

in 2018, the military circumstances of 2022-2024 led to its reduction to 0.38%. This

creates risks for the material support of the courts, the implementation of digitalization

programs and infrastructure renewal. Compared to the average level of court financing

in the EU (0.41-0.45% of GDP), Ukraine is still below the threshold value necessary for

the sustainable functioning of the system.

The shortage of judges remains one of the most acute problems. In 2024, the number

of judges decreased to 5,100 with more than 2,000 vacant positions. This leads to an

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 49-65

Judicial reform as a factor in increasing public trust in justice

Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova

excessive workload – more than 500 cases per judge annually, which is almost twice the

average European rate. The reasons are the slow process of qualification assessment,

staff turnover and low public trust. Without systematic staff renewal, the efficiency of the

judiciary will remain limited.

The procedural efficiency of the judicial system shows positive dynamics. The average

duration of civil cases has decreased from 268 to 210 days (by 22%), and the completion

rate has increased from 0.82 to 0.91. These changes indicate an improvement in the

organization of procedural management, but the problem of uneven workload between

courts of different instances remains unresolved.

The digitalization of judicial proceedings has become a key factor in the modernization

of the system. The introduction of the “Electronic Court” system, electronic document

management, and online access to decisions has contributed to increased transparency

and reduced administrative procedures. The share of electronic claims has reached 35%,

which brings Ukraine closer to the average level of digital integration of EU countries (33-

45%). Digital tools have significantly reduced corruption risks and increased trust in

judicial procedures.

The rule of law, judicial independence, and corruption control indices indicate a gradual

strengthening of the institutional capacity of justice. Rule Indicator of Law Index

increased from 0.33 to 0.48, and Control of Corruption – from 0.26 to 0.45. This confirms

that judicial reform has not only a declarative, but also a practical impact on improving

the legal system.

Trust in the judiciary is formed under the influence of three interrelated factors:

- institutional: stability of personnel policy, transparency of the appointment of judges;

- procedural: timeliness and fairness of case consideration;

- digital: openness and accessibility of justice for citizens.

Their interaction determines the level of democratic maturity of the state and the degree

of legitimacy of the judiciary in the eyes of society.

Further development of the judicial system of Ukraine requires a comprehensive

approach that combines technical modernization, personnel renewal, and financial

stability. The following are necessary: unification of technical standards for electronic

justice; increased guarantees of cybersecurity of judicial data; strengthening the

independence of judges in personnel and financial decisions; development of professional

ethics and integrity of the judicial corps.

Thus, the judicial system of Ukraine in 2010-2024 went through the stage of forming a

modern model of justice, based on the principles of independence, efficiency and digital

openness. Despite the preservation of certain structural problems, existing trends

indicate a steady movement towards European standards of justice. Further

strengthening of the institutional capacity of the judiciary is a key condition for the

formation of the rule of law and the trust of citizens – the foundation of a democratic and

legal state.

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Serhii Krushynskyi, Mykola Vavrynchuk, Olha Kohut, Serhii Mandzii, Svitlana Loginova 
 
 
 
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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

LEGAL INTEGRATIVE FRAMEWORK IN THE EUROPEAN UNION: ANALYSIS OF

THE KEY PRINCIPLES AND THEIR INFLUENCE ON THE NATIONAL LEGISLATION

VLADYSLAV NOVITSKYI

academy_knowledge@meta.ua

Postgraduate Student, Department of Theory of State and Law V. M. Koretsky Institute of State

and Law of the National Academy of Sciences of Ukraine Kyiv (Ukraine)

https://orcid.org/0000-0002-8929-4468

ANZHELIKA KRUSIAN

Doctor of Law Sciences, Scientific Secretary of the M. Koretsky Institute of State and Law of the

National Academy of Sciences of Ukraine Kyiv (Ukraine) https://orcid.org/0000-0001-6437-2864

TETIANA SHYNKAR

shtatyanai@gmail.com

Doctor of Law, Associate Professor Department of Social Sciences and Humanities Faculty of Law

Private Higher Education Establishment “European University”

Kyiv, (Ukraine)

https://orcid.org/0000-0002-3252-2167

VOLODYMYR DEMYDENKO

Ph.D in Law, Associate Professor of the Department of Constitutional Law National Academy of

Internal Affairs, Kyiv (Ukraine) https://orcid.org/0000-0001-6771-0080

ROMAN LEMEKHA

lemekha89@gmail.com

Ph.D in Law, Associate Professor of the Faculty of Law Private Higher Education Establishment

“European University” Kyiv (Ukraine) https://orcid.org/0000-0003-3391-4143

Abstract

Legal integration in the European Union is a systemic phenomenon which goes beyond the

coordination of national legislation and forms a supranational regulatory mechanism. The

relevance of the study stems from the need to understand the role of the principles of legal

integration as the basis of the EU's legal unity, and to analyze their impact on the

transformation of legal systems of individual countries in the context of the growing volume

of EU rules and the evolution of integration processes. The aim is to clarify the essence,

structure and practical impact of the EU legal integration principles (rule of law, direct effect,

subsidiarity, proportionality) on the formation and implementation of national legislation of

the Member States, as well as to assess their role in creating a single legal space. The study

is based on dialectical, hermeneutical, historical and legal, and comparative legal methods.

The author analyzed the EU founding treaties, secondary legislation, case law, and

constitutional provisions of the Member States. Modeling and forecasting methods were used

to assess the prospects for the development of legal integration. It is established that legal

integration in the EU forms an autonomous system that harmonizes national legal order

systems through the rule of law. The author identifies the mechanisms of adaptation of

national legislation to EU norms, in particular, through subsidiary control and judicial

supervision, which ensure a balance between the supranational and national levels. Further

research may be aimed at analyzing the effectiveness of the subsidiary control mechanism,

JANUS.NET, e-journal of International Relations

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

deepening the study of judicial influence on legal integration, and forecasting the evolution of

the EU legal area in the context of new challenges.

Keywords

Ukrainian constitutionalism, human rights, municipal security, European Union, legal

integration, supranational law.

Resumo

A integração jurídica na União Europeia é um fenómeno sistémico que vai além da

coordenação da legislação nacional e forma um mecanismo regulatório supranacional. A

relevância do estudo decorre da necessidade de compreender o papel dos princípios da

integração jurídica como base da unidade jurídica da UE e de analisar o seu impacto na

transformação dos sistemas jurídicos de cada país no contexto do crescente volume de regras

da UE e da evolução dos processos de integração. O objetivo é esclarecer a essência, a

estrutura e o impacto prático dos princípios de integração jurídica da UE (Estado de direito,

efeito direto, subsidiariedade, proporcionalidade) na formação e implementação da legislação

nacional dos Estados-Membros, bem como avaliar o seu papel na criação de um espaço

jurídico único. O estudo baseia-se em métodos dialéticos, hermenêuticos, históricos e

jurídicos, bem como em métodos jurídicos comparativos. O autor analisou os tratados

fundadores da UE, a legislação secundária, a jurisprudência e as disposições constitucionais

dos Estados-Membros. Foram utilizados métodos de modelação e previsão para avaliar as

perspetivas de desenvolvimento da integração jurídica. Está estabelecido que a integração

jurídica na UE forma um sistema autónomo que harmoniza os sistemas jurídicos nacionais

através do Estado de direito. O autor identifica os mecanismos de adaptação da legislação

nacional às normas da UE, em particular, através do controlo subsidiário e da supervisão

judicial, que garantem um equilíbrio entre os níveis supranacional e nacional. Investigações

futuras podem ter como objetivo analisar a eficácia do mecanismo de controlo subsidiário,

aprofundar o estudo da influência judicial na integração jurídica e prever a evolução do espaço

jurídico da UE no contexto de novos desafios.

Palavras-chave

Constitucionalismo ucraniano, direitos humanos, segurança municipal, União Europeia,

integração jurídica, direito supranacional.

How to cite this article

Novitskyi, Vladyslav, Krusian, Anzhelika, Shynkar, Tetiana, Demydenko, Volodymyr & Lemekha,

Roman (2026). Legal Integrative Framework in the European Union: Analysis of the Key Principles

and Their Influence on the National Legislation. Janus.net, e-journal of international relations.

Thematic Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times of Global

and National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 66-81.

https://doi.org/10.26619/1647-7251.DT0226.4

Article submitted on 25 November 2025 and accepted for publication on 18 December

2025.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

LEGAL INTEGRATIVE FRAMEWORK IN THE EUROPEAN UNION:

ANALYSIS OF THE KEY PRINCIPLES AND THEIR INFLUENCE ON

THE NATIONAL LEGISLATION

VLADYSLAV NOVITSKYI

ANZHELIKA KRUSIAN

TETIANA SHYNKAR

VOLODYMYR DEMYDENKO

ROMAN LEMEKHA

Introduction

For the European Union, legal integration has become a systemic phenomenon that has

gone far beyond the mere coordination of national legislation, turning into a powerful

supranational mechanism that forms a new quality of interaction between member

states. In the current conditions of the EU's functioning, law appears not only as a

regulatory tool, but also as a fundamental structure that supports the integrity and

efficiency of the integration process, defines the limits and mechanisms of influence of

the supranational level on domestic legal systems. It is through law that the political

ambitions of the member states are realized, aimed at achieving common goals and

forming a single legal space that takes into account both common European interests

and national legal specifics.

The essence of legal integration in the EU is not just the simple unification of legislation,

but a deep harmonization of legal approaches, which ensures the formation of common,

not just comparable, rules governing integration relations in all member states.

Importantly, this integration is based on the interpenetration of national and European

legal orders, resulting in a complex, multi-level legal system that does not offset, but

rather enhances the potential of national law through its inclusion in the EU legal space.

In this context, the principles of legal integration, which serve as conceptual guidelines

and regulatory frameworks for the functioning of the unified legal system, are of

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

particular importance. These principles - in particular, the principle of primacy of EU law,

the principle of direct effect, the principle of subsidiarity and proportionality - determine

the nature of interaction between the EU institutions themselves and the Member States,

and ensure the effectiveness of legal regulation and legal certainty for all subjects of law,

including individual citizens. Thus, the relevance of the study is stipulated by the need

for a deeper scientific understanding of the role and significance of the principles of legal

integration as a key factor in the formation of legal unity within the EU, as well as an

analysis of how these principles affect the development and transformation of national

legislation. The growth of the volume of EU legal norms, the expansion of their scope and

the constant evolution of integration mechanisms necessitate a comprehensive study of

the national dimension of supranational legal influence, which is the subject of this study.

Literature Review

In the field of scientific discussions on the principles of legal integration in the European

Union and their impact on national legislation, much less attention is paid to the analysis

of specific mechanisms and methods by which integration legal development is achieved

than to the justification of the supranational nature of the EU legal system, its economic,

institutional and legal foundations, which, as noted by Dir (2024); Lampach & Dyevre

(2020), seems to be the highest priority area of European law. This predominant focus

on supranational aspects seems to be due to a certain caution of researchers who avoid

questioning the consistency of the normative approach to integration that has become

dominant since the adoption of the Single European Act, which effectively launched the

institutional application of the communitarian method of European legal integration to

address most development issues.

In this context, supranationalism is traditionally perceived by researchers such as Duttle

et al. (2017), Müller-Graff (2018), Peers (2015) as a key factor in deepening legal

integration in the EU, while inter-vernationalism often acquires a somewhat negative

connotation, being associated with tendencies towards regionalism or even separatism,

which, according to Van den Brink (2017), hinders the achievement of the goals of

supranational integration. Without delving into a detailed semantic analysis of these

concepts, which have already been thoroughly examined in the literature by authors such

as Leruth & Lord (2015), Selck, Rhinard & Häge (2007), it can be argued that

supranationalism and inter-vernationalism, despite their differences, have a

complementary impact on the further implementation of the principles of legal

integration, each using the most appropriate tools and approaches for this purpose.

According to Cattelan (2012), Hestermeyer (2015), Saracino (2024), the legal system of

the European Union has an autonomous status and a special supranational character,

and it is aimed at regulating social relations arising in the process of creation and

functioning of the EU integration structures, with legal norms being institutionally

binding. The group of scholars Lindeboom & Wessel (2023), Stone Sweet (2005) adds

that this autonomous legal system emerged at the intersection of national and

international law, distinguished by the fact that its norms directly generate rights and

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

obligations not only for EU states and institutions, but also for persons subject to the

jurisdiction of member states.

In turn, Canihac (2024) and Lawson (2024) emphasize that EU law is a separate,

autonomous system that is in a state of development, and the final contours of which are

currently difficult to predict, reflecting its dynamic nature. Legal scholars Priebus &

Anders (2024) also emphasize that EU law is a special legal system that regulates

relations formed in the course of integration processes within the Union, emphasizing its

uniqueness. In addition to this, Tosiek (2022) also notes that EU law is a specific legal

system of an international intergovernmental organization formed through complex law-

making processes within four autonomous structures (Communities and the EU), adding

that the hierarchy and structure of EU law sources differ significantly from general

international law, which indicates its high autonomy. Polakiewicz & Suominen-Picht

(2024), von Bogdandy, A. (2024) emphasize that EU law should be considered as an

independent system built on institutions and branches, where rules are differentiated

depending on the subject matter of legal regulation. Thus, EU law appears as an

autonomous and complex legal system covering a wide range of legal relations and

having a clear structure that reflects the principles of legal integration in the European

Union and their impact on national legal models, which contributes to the further

realization of the Union's integration goals.

The purpose is to conduct a comprehensive study of the principles of formation and

practical implementation of the principles of legal integration within the European Union,

and to highlight their significance for the common legal system.

Research methodology

The methodological basis of the study is a set of interrelated philosophical and ideological

approaches, general scientific and special legal methods of cognition, the use of which

was determined by the purpose of the article and specific tasks aimed at clarifying the

essence, structure and practical impact of the principles of legal integration of the

European Union on the formation, transformation and implementation of national

legislation of the Member States. In particular, the application of the dialectical method

became the basis for an evolutionary study of the established concepts of legal

integration and sovereignty in the context of both historical and modern changes, and to

identify the dynamics of the content of these categories in legal thought. The hermeneutic

approach was used for a deep and systematic interpretation of the provisions of the EU

founding treaties, EU secondary legislation, international legal instruments, as well as

constitutional provisions and legislative provisions of EU countries, with the aim of

identifying the peculiarities of the legal integration principles and their application in the

internal legal order.

The historical and legal method made it possible to study the process of formation and

development of the legal framework for supranational regulation within the European

Union, in particular, the transformation of approaches to the sovereignty of Member

States in the context of integration cooperation. The comparative legal method was used

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

to analyze the peculiarities of national mechanisms for implementing EU law into the

domestic legislation of different countries, which made it possible to identify common

features and differences in the degree of adaptation of national legislation to the

requirements of the EU legal system. In addition, modeling and forecasting methods were

used to assess the potential development of EU legal integration in the future, taking into

account the current challenges associated with maintaining a balance between national

sovereignty and supranational mechanisms of legal influence, as well as to identify

possible scenarios for the further evolution of the interaction of national legal systems

with the EU legal environment.

Results

Historical and regional features of legal integration in the EU

The basic characteristic of the EU legal system, which reflects its essence as a

supranational legal order, is its deep integration with the national legal field, which allows

us to consider this interaction not as a conflict or opposition, but as a mutually enriching

and mutually influential process of forming a common legal space. That is why the

positions of some researchers who argue that there is a contradiction between the EU

legal framework and the law of individual European countries seem to be somewhat

simplistic and do not correspond to the current realities of the functioning of the

integration mechanism in Europe. On the contrary, the European Union, through its

regulatory and institutional instruments, is gradually introducing unified legal standards

into the internal legal order of states, covering almost all major areas of law - from

administrative and labor to environmental and financial (Makedon, 2022).

The fact of EU membership automatically means that the state agrees to participate in

the further development of the Union, which, in turn, requires a flexible legal approach

capable of ensuring the adaptation of the national legal order to new supranational

realities, as well as the modernization of legislation to meet the requirements arising

from legal integration (Fahey, Terpan & Zahn, 2022).

In this context, it is worth emphasizing that legal integration is not limited to the technical

implementation of EU law into national legislation; it is a deeper process that includes

amendments to constitutions and laws regulating social relations in areas where the

relevant powers are transferred to the EU supranational institutions. It is this

redistribution of competencies and the formation of a unified minimum legal standard

that allows for effective interaction between member states within a single legal space,

contributing to the stability, predictability and coherence of integration processes

(Malone, 2025).

An original legal order has been formed within the European Union, which differs

significantly from traditional models of national and international law. That is why in legal

doctrine, the EU is increasingly qualified as a “sui generis” system, i.e., one that has an

independent nature. Although EU law closely interacts with international and domestic

law of the Member States, it, according to the Court of Justice of the European Union,

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

functions as an independent legal system integrated into the legal order of the Member

States in such a way that their national courts are obliged to directly apply EU law, in

particular those with direct effect. As the Court notes, the subjects of EU law are not only

the Member States themselves, but also their citizens, so European law has not only a

regulatory but also a direct law-making function in relation to individuals, granting them

subjective rights and imposing corresponding obligations (Moreiro González, 2023).

It is important that the incorporation of EU norms into the domestic legislation of the

Member States does not reduce the independence of European law, but rather confirms

its autonomous status based on the principle of supremacy and the principle of direct

effect. The peculiarity of the legal status is manifested in the fact that the membership

of states in this Union is based on a voluntary but legally binding decision to transfer part

of their sovereign powers to supranational institutions. Unlike ordinary participation in

international organizations, where states retain full sovereignty, integration into the EU

means limiting part of national sovereignty.

The scale of the impact of EU law on national legal systems is evidenced by statistics

showing that 10 to 40% of laws adopted at the national level are directly caused by

supranational regulation, and about 60 to 70% of EU legal acts have a direct regulatory

effect not only at the national but also at the local level of law (Chablais, 2024). Thus,

national legal systems are gradually being filled with EU law, which is not perceived as

external or temporary, but rather as forming the internal legal fabric and continuing to

generate legal effects that reflect the dynamic nature of the European regulatory space.

In this context, it is appropriate to quote Merusi (2024), who aptly noted that EU law is

integrated into national legal systems not as a frozen set of rules, but as a “living code”.

The key principle that ensures the effective integration of EU norms into domestic law is

the principle of the supremacy (primacy) of EU law, which, despite not being formally

enshrined in the Lisbon Treaty, was confirmed in Declaration No. 17 to it, and thanks to

the case law of the EU Court of Justice, remains legally binding within the EU. First clearly

articulated in the case of Flaminio Costa v. ENEL back in 1964, this principle established

that no rule of national law can preempt EU law. Thus, according to the legal logic of the

European Court, the provisions of national constitutions are valid only to the extent that

they do not contradict the application of European law. National judicial authorities do

not have discretion in the application of the Union's acts - they are obliged to ensure

their priority application even in cases of conflict with the rules of domestic law (Eliantonio

& Boymans, 2013).

The mechanism of supranational legal integration within the EU is based on the fact that

it is the Member States, and not the Union as such, that ensure the implementation,

enforcement and application of EU acts through their executive and judicial authorities.

Unlike federal systems or international organizations with their own local executive

structures, the European Union does not have its own regional or local executive bodies

in the Member States, and it is national institutions that are the main entities that

guarantee the implementation of EU law. In this context, the role of national courts is

particularly important, as they not only apply the Union's rules but also bear responsibility

for violations of citizens' rights arising from EU rules. The Court of Justice of the European

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

Union has repeatedly recognized the liability of Member States for damage caused to

individuals in the event of untimely or improper implementation of directives within the

direct legal relationship (European Network of National Human Rights Institutions, 2024).

The modern legal mechanism uses the principle of a clear delineation of competencies

and procedures for adopting legal acts, enshrined, in particular, in Article 289 of the

Treaty on the Functioning of the European Union (TFEU) (Perederii, 2024).

The logic behind the Lisbon Treaty seems to be aimed at simplifying the understanding

of the differences between acts that have the same formal title but differ in substance

and legal force depending on the procedure through which they were adopted. Despite

this procedural distinction, the EU founding treaties do not establish a single substantive

criterion that would determine which type of legal act should be used to regulate a

particular area of integration policy. As a result, the choice of the form of a legislative act

(regulation, directive or decision), as well as the type of legislative procedure (general or

special) is decided directly on the basis of the so-called “legal bases” contained in the

relevant articles of the EU Treaties and the TFEU, which clearly state which form of act

should be used to regulate a particular area of integration cooperation (European

Parliament, 2024). In this regard, each EU legislative act must contain in its preamble a

reference to a specific provision of the founding treaty authorizing its adoption; the

absence of such a reference or its incorrect indication entails a high risk of the act being

annulled by the Court of Justice of the European Union as violating the principle of legal

certainty and the legality of the actions of the Union institutions.

The factor of “legal basis” on which each specific act is based is not random, but is

determined by the political and legal sensitivity of the issue for the Member States, the

level of their readiness for supranational regulation in the relevant area, and the degree

of integration interdependence. An analysis of the existing legal framework shows that

in situations involving industries that directly affect national interests, priority is usually

given to a special legislative procedure, which provides for the key role of the EU Council

as a representative body of the Member States. It is particularly noteworthy that the

TFEU explicitly authorizes the European Parliament to adopt legislation on its own only

in exceptional cases (Article 223), the procedure for exercising parliamentary

investigative powers (Article 226) and the status of the Ombudsman (Article 228), while

in the vast majority of such cases, the special procedural initiative and decision-making

power belong exclusively to the Council (Canihac, 2024).

The Council of the EU has a crucial role in balancing supranational and national interests,

carrying out legislative activities taking into account the need to achieve consensus or,

in some cases, unanimity. It is in such situations, provided for in Articles 113, 115, 191

TFEU, that national governments retain the right of veto, which allows them to influence

the content of decisions that are of particular importance for domestic policy (Peers,

2015).

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

Principles and foundations for the protection of national law within the

framework of EU integration rights

In the context of protecting national legislative prerogatives, the European Union

operates on the principle of “intra vires”, which means that its activities are limited

exclusively to those powers that the EU countries have granted through the founding

treaties to achieve the goals set out in these documents, leaving any competence not

transferred to the Union to the Member States, which reflects the peculiarity of the

distribution of powers laid down in the 1950s when the European Communities were

established. The approach itself indicates that the functions of regulating not integral

spheres of social relations are transferred, but only their individual aspects, clearly

defined in the relevant legal frameworks, which is why the exercise of regulatory powers

within the EU structure is restrictive - only within these legal frameworks, and in their

absence is guided by the general principles of competence, which currently include the

principle of granting competence, the principle of subsidiarity and proportionality, which

together form the basis for legal integration within the EU.

Article 5 enshrines the principle of subsidiarity, and while the principle of competence is

the very existence of the Union's competence, the others regulate its practical

application, answering the key questions: whether the EU has the right to act (the

principle of conferral of competence), whether it is appropriate for it to act (the principle

of subsidiarity), and if so, to what extent and how (the principle of proportionality), which

emphasizes their interdependence and convergence in the modern EU legal order. As

noted by Muraviov 2023, the principle of competence is a prerequisite for the application

of subsidiarity, as the lack of competence automatically violates this principle, while

proportionality depends on subsidiarity, which already contains an element of

proportionality, demonstrating the complex interaction of these principles in the process

of legal integration and their impact on the balance between supranational and national

levels of legislation.

This test, also known as the better achievement of the objective test or the “added value”

test, is not an independent instrument, as it does not in itself justify the need for Union

action solely because of its scale or consequences, but rather prioritizes the criterion of

the adequacy of the means available to Member States to achieve the objectives, and

assesses the actual capacity of Member States, not the potential, without comparison

with possible results at the EU level (Stone Sweet, 2005). Thus, in the case of Member

States that have sufficient means to achieve an objective, even if Union action could be

more effective due to economies of scale, the current wording of the TEU does not give

the EU priority, emphasizing that the Union acts only when national means are insufficient

and objectives can be better achieved at the supranational level (Chiocchetti, 2023).

According to K. Lenarts, this norm, inherited from the Maastricht Treaty with certain

changes in the Lisbon Treaty, serves as a guarantee of preserving national sovereignty,

obliging the Union to refrain from acting if the Member States are able to achieve the

goal on their own, which emphasizes the priority of the sufficiency of national means as

a key criterion in the modern EU legal framework. In this context, the insufficiency of the

means of at least one Member State opens up space for Union action, but only if the

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

scale or consequences of the action justify its better implementation at the EU level,

while the mere higher efficiency of the Union without a link to national insufficiency is

not a ground for intervention, which clearly reflects the modern approach to subsidiarity

(Weatherill, 1995).

Subsidiary control mechanism of legal integration into the EU

In terms of the existence of the subsidiary control mechanism (SCM), which serves as a

tool to ensure the principles of legal integration in the European Union and their impact

on national legislation, any national parliament or its separate chamber in the bicameral

system has the right, within eight weeks of receiving a draft EU legislative act, to send a

reasoned opinion to the Union institution responsible for its preparation, mainly the

European Commission, indicating that this draft does not comply with the principle of

subsidiarity, which in According to Article 7 of the Protocol on the Application of the

Principles of Subsidiarity and Proportionality, adopted with the Lisbon Treaty in 2007,

depending on the number of such reasoned opinions, two control procedures are provided

- the “yellow card” and the “orange card” - which serve as mechanisms to protect national

legislative sovereignty in the integration process (Lampach & Dyevre, 2020).

The “yellow card” procedure is triggered when the reasoned opinions of national

parliaments constitute at least one third (or one quarter in cases related to the area of

freedom, security and justice) of the total number of votes given to national parliaments,

where each parliament or its chamber has two votes, after which the draft legislation is

subject to re-analysis, based on which the European Commission may decide to leave it

unchanged, make adjustments or withdraw it completely, with the obligatory justification

of its decision. Since the entry into force of the Lisbon Treaty in 2009, national

parliaments have initiated the “yellow card” three times: in May 2012 on a draft

regulation on collective action in the context of freedom of establishment and provision

of services (Monti II project), in October 2013 on the establishment of the European

Public Prosecutor's Office and in May 2016 on amendments to the seconded workers

directive, in the first case the Commission withdrew the draft due to political opposition

in the Council, and not because of the yellow card itself, in the second case it left it

unchanged, recognizing the compliance with subsidiarity, and in the third case it also

concluded that there was no violation of this principle, which demonstrates the flexibility

of this mechanism in EU legal practice (Chiocchetti, 2023).

Instead, the “orange card” procedure, which operates exclusively within the framework

of the general legislative procedure, is activated if the reasoned opinions are supported

by a simple majority of votes of national parliaments, after which the draft is also revised.

Judicial supervision of the legality of the adoption of EU legislation

Key doctrines, such as direct effect of law and the rule of EU law, which were not originally

provided for in the founding treaties, emerged as a result of case law, which, according

to Lawson (2024), has effectively made the EU Court of Justice the central coordinator

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

of the Union's legal development. An example of this is the well-known decision in the

case of Union Royale Belge des Sociétés de Football Association and others v Bosman,

where the Court ruled that the regulation of the exercise of fundamental rights and

freedoms falls within the exclusive competence of the EU, which allowed it to

subsequently expand its jurisdiction even in areas such as areas, such as education,

culture or sports, where the founding treaties did not initially grant the Union clear

powers, demonstrating how judicial precedents contribute to deepening legal integration

and harmonization of national laws (Priebus & Anders, 2024).

Today, in the practice of EU legal support, the Union's regulatory powers are clearly

limited to those areas that the countries of the Commonwealth have, in due time,

transferred to its competence through the so-called “legal frameworks”, and EU acts that

are not based on such frameworks or do not fully comply with them are considered

symbolic, violate the principle of granting competence and can be annulled by the Court

of Justice of the EU under Article 263 TFEU, which empowers the Court to review the

legality of Union legislative acts. In the 1992 judgment in France v Commission, the EU

Court of Justice emphasized that every legislative act must contain a direct reference to

the “legal basis” and its absence is grounds for invalidation or repeal, but this ruling did

not become decisive for further practice, as none of the challenged legislative acts was

repealed due to insufficient justification (Lindeboom & Wessel, 2023).

Undoubtedly, in a legal system based on democratic values and the rule of law, the CJEU

has an important role to play in identifying violations of procedures and rules by the

legislator in the exercise of its powers, but calls for stricter judicial control over the

validity of the Union's legislative competence, as noted by Telle, Chiocchetti & Laffan

(2025), may threaten the institutional balance in the EU's multi-layered constitutional

system, where decisions on the level of legislative action - supranational or national - are

made by different political institutions, such as the Council of the EU and the European

Parliament, representing different views and interests. If the EU Court of Justice, when

reviewing an already adopted act, questions the appropriateness of its adoption at the

supranational level, this may lead to a conflict with the will of the qualified majority of

Member States that considered such an act necessary and approved it through the

legislative process (Van den Brink, 2017).

The effective consensual nature of supranational decisions within the European Union is

a guarantee of their procedural legitimacy, which, in turn, ensures the relative simplicity,

predictability and efficiency of the implementation of such decisions in the national legal

systems of the Member States, including both the authorities and citizens themselves -

active participants in legal integration processes. This model of decision-making, based

on mutual coordination of positions between EU institutions, demonstrates one of the

most important features of European legal integration, namely the formation of a

normative consensus as a tool for achieving a balanced legal convergence of national

legal orders. In this context, inter-institutional coherence and cooperation become a kind

of “gold standard” of integration lawmaking, which allows for effective adaptation of the

principles of EU law to the domestic legal environment without violating fundamental

national interests.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

Discussion

In the course of the current study, a significant scope of scientific approaches and

practical mechanisms that form the basis of legal integration within the EU was

investigated in detail. The summarized results confirm the key points highlighted in the

works of such researchers as Lindeboom and Wessel (2023), Saracino (2024), Muraviov

(2023), who emphasize the autonomous nature of the EU legal mechanism and its ability

to integrate through binding legal principles. At the same time, the novelty of this study

lies in the comprehensive analysis of the impact of the key principles of legal integration

- in particular, subsidiarity, proportionality, conferral of competence and the rule of EU

law - not only on the regulatory framework, but also on the institutional and procedural

mechanisms of interaction between the EU and national jurisdictions.

We note that the consistency of the study's findings with the scientific positions of Stone

Sweet (2005) and Canihac (2024) is manifested in the statement that EU law does not

function as classical international law, but as a supranational legal order that is directly

applicable in national legal systems. However, in contrast to some theoretical approaches

that emphasize the priority of supranational law as a unilateral dominant (e.g., Muller-

Graff, 2018), the results of this study demonstrate a more complex, multilevel model of

legal interaction, where the implementation of the principle of subsidiarity is a key

mechanism for maintaining a balance between integration imperatives and national

interests.

It is also worth paying attention to the comparison with the research by Telle, Chiocchetti

& Laffan (2025), which critically assesses the limited nature of judicial review of the legal

basis of EU legislation. In the current work, it was confirmed that although the EU Court

of Justice has formal powers to strike down legislation adopted without proper legal

justification, its practice remains limited and focused mainly on maintaining institutional

balance rather than strict legal control. Thus, it was argued that the flexible nature of

judicial review contributes to the preservation of political consensus within the EU's multi-

level system.

With regard to the subsidiary control mechanism, the results of the study coincide with

the analytical conclusions of Lampach & Dyevre (2020) and Chiocchetti (2023), which

emphasize the limited effectiveness of the “yellow” and “orange” card mechanisms due

to their declarative nature and difficulty in implementation. At the same time, this study

proposes a conceptual reassessment of the role of national parliaments in the process of

legal integration: not as passive observers, but as active participants capable of

influencing supranational processes through early warning control.

The discussion part of the study gives grounds to assert that the author's vision of the

principles of legal integration, their practical implementation and impact on national

legislation is consistent with the main trends of modern scientific discourse, but at the

same time complements it with new emphases - in particular, regarding the flexible

interaction between national and supranational law, the role of legal grounds in the

rulemaking process, mechanisms of parliamentary control and the limited, but

strategically important, nature of judicial oversight within the EU.

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

Influence on the National Legislation

Vladyslav Novitskyi, Anzhelika Krusian, Tetiana Shynkar, Volodymyr Demydenko,

Roman Lemekha

Conclusion

The study of the historical and regional aspects of legal integration in the European Union

has established that the creation of a single legal space within the framework of

cooperation between member states is based on close interaction between EU law and

national legal systems, and subsequently leads to a gradual transformation of domestic

legislation of member states in accordance with supranational legal standards, while

preserving the autonomy and uniqueness of EU law as a “sui generis” system. The study

has shown that the principles of competence, subsidiarity and proportionality are the key

principles that define the limits of EU intervention in the legal regulation of certain areas

of public life. These principles ensure respect for the sovereignty of the Member States

and justify the Union's actions only in cases where national means are insufficient to

achieve the goals set.

It is established that the system of legal restrictions on EU activities based on the

principle of “intra vires”, together with a clear hierarchy of competence principles, serves

as a mechanism for maintaining a balance between the supranational and national levels.

The identified factors ensure stable structural stability of the legal process of integration

and reduce the risk of conflict of norms. The author examines the peculiarities of the

functioning of subsidiary control, which forms the institutional basis for national

parliaments to be able to influence the EU legislative process by submitting motivated

comments on compliance with the principle of subsidiarity itself, and this increases the

level of democratic legitimacy and transparency of lawmaking.

The author assesses the effectiveness of the “yellow” and “orange” card procedures as

instruments of parliamentary control. It is established that their use, despite limited

practical implementation, is an important means of preventing violations of the principles

of legal integration and enhances the role of national parliaments in the system of multi-

level governance. It is revealed that judicial supervision over the legality of legislative

acts is the main source of ensuring compliance with the principles of legal certainty and

validity of actions of the Union's institutions.

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e-ISSN: 1647-7251

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 66-81

Legal Integrative Framework in the European Union: Analysis of the Key Principles and Their

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Roman Lemekha

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OBSERVARE

Universidade Autónoma de Lisboa

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VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

THEORETICAL AND APPLIED ASPECTS OF CRIMINAL LAW AND PROCEDURAL

ENSURING THE RIGHT TO DEFENSE

IVAN KRASNYTSKYI

kiv77@ukr.net

PhD (Law Sci.), Professor. Director of the Educational and Scientific Institute of Law and Law

Enforcement Activities Lviv State University of Internal Affairs Lviv (Ukraine)

https://orcid.org/0000-0002-5529-7636

ROMAN MAKSYMOVYCH

Maksymovych_roma@ukr.net

PhD (Law Sci.), Professor of the Department of Criminal Law Disciplines Educational and

Scientific Institute of Law and Law Enforcement Activities Lviv State University of Internal Affairs

Lviv (Ukraine) https://orcid.org/0000-0002-9796-998X

NATALIYA LASHCHUK

lastchuk_nr@ukr.net

PhD (Law Sci.), Associate Professor. Head of the Department of Criminal Law Disciplines

Educational and Scientific Institute of Law and Law Enforcement Activities Lviv State University of

Internal Affairs Lviv (Ukraine) https://orcid.org/0000-0001-9723-9824

VIRA NAVROTSKA

superviranavr@gmail.com

Doctor of Sciences, Associate Professor of the Department of Criminal Law Disciplines

Educational and Scientific Institute of Law and Law Enforcement Activities Lviv State University of

Internal Affairs Lviv (Ukraine) https://orcid.org/0000-0002-3407-7984

IRYNA BAKHMAT

bachmat@ukr.net

Senior Lecturer of the Department of Criminal Law Disciplines Educational and Scientific Institute

of Law and Law Enforcement Activities Lviv State University of Internal Affairs

Lviv (Ukraine) https://orcid.org/0009-0000-3315-8398

Abstract

The relevance of the research stems from the growing importance of the right to defense in

Ukraine’s criminal justice system, especially under martial law, when procedural guarantees

become crucial for ensuring the rule of law. The need to harmonize national procedures with

European standards of adversarial proceedings and equality of parties highlights the necessity

of a comprehensive analysis of the current state of criminal procedural protection of the right

to defense. The purpose of the study is to clarify the legal, institutional, and practical

mechanisms for implementing the right to defense in criminal proceedings in Ukraine. The

methodological basis includes systematic, comparative legal, formal legal, and statistical

methods, enabling an integrated analysis of legislation, judicial practice, and international

reports (Council of Europe, Eurostat, UNODC, OECD).The results demonstrate that Ukraine is

gradually approaching European standards, yet key structural challenges remain: limited

access of defense attorneys to case materials, inequality of resources between the parties,

and insufficient oversight of prosecutorial actions. Indicators for 2021–2024 show growing

participation of defense attorneys alongside an increase in pre-trial investigation duration.

Comparative data reveal that funding of free legal aid in Ukraine is 2–2.5 times lower than

JANUS.NET, e-journal of International Relations

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March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

the European average, creating practical asymmetry between the parties.The practical

significance lies in recommendations to improve early access to legal assistance, strengthen

judicial control, and ensure confidentiality of defense activities. The findings can support the

development of justice sector strategies, improvements to criminal procedure legislation, and

enhancement of legal aid effectiveness.

Keywords

Right to defense, criminal proceedings, adversarial proceedings, advocacy, martial law.

Resumo

A relevância da investigação decorre da crescente importância do direito à defesa no sistema

de justiça penal da Ucrânia, especialmente sob a lei marcial, quando as garantias processuais

se tornam cruciais para assegurar o Estado de direito. A necessidade de harmonizar os

procedimentos nacionais com as normas europeias de processo contraditório e igualdade das

partes destaca a necessidade de uma análise abrangente do estado atual da proteção

processual penal do direito à defesa. O objetivo do estudo é esclarecer os mecanismos

jurídicos, institucionais e práticos para a implementação do direito à defesa em processos

penais na Ucrânia. A base metodológica inclui métodos sistemáticos, jurídicos comparativos,

jurídicos formais e estatísticos, permitindo uma análise integrada da legislação, da prática

judicial e dos relatórios internacionais (Conselho da Europa, Eurostat, UNODC, OCDE). Os

resultados demonstram que a Ucrânia está a aproximar-se gradualmente dos padrões

europeus, mas continuam a existir desafios estruturais fundamentais: acesso limitado dos

advogados de defesa aos materiais do processo, desigualdade de recursos entre as partes e

supervisão insuficiente das ações do Ministério Público. Os indicadores para 2021-2024

mostram uma participação crescente dos advogados de defesa, a par de um aumento da

duração da investigação pré-julgamento. Dados comparativos revelam que o financiamento

da assistência jurídica gratuita na Ucrânia é 2 a 2,5 vezes inferior à média europeia, criando

uma assimetria prática entre as partes. O significado prático reside nas recomendações para

melhorar o acesso precoce à assistência jurídica, reforçar o controlo judicial e garantir a

confidencialidade das atividades de defesa. As conclusões podem apoiar o desenvolvimento

de estratégias para o setor da justiça, melhorias na legislação processual penal e o reforço da

eficácia da assistência jurídica.

Palavras-chave

Direito à defesa, processo penal, processo contraditório, advocacia, lei marcial.

How to cite this article

Krasnуtskyi, Ivan, Maksymovych, Roman, Lashchuk, Nataliya, Navrotska, Vira & Bakhmat, Iryna

(2026). Theoretical and applied aspects of criminal law and procedural ensuring the right to

defense. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human

Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.

2, TD3, March 2026, pp. 82-99. https://doi.org/10.26619/1647-7251.DT0226.5

Article submitted on 20 November 2025 and accepted for publication on 19 December

2025.

JANUS.NET, e-journal of International Relations

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

THEORETICAL AND APPLIED ASPECTS OF CRIMINAL LAW AND

PROCEDURAL ENSURING THE RIGHT TO DEFENSE

IVAN KRASNУTSKYI

ROMAN MAKSYMOVYCH

NATALIYA LASHCHUK

VIRA NAVROTSKA

IRYNA BAKHMAT

Introduction

Ensuring the right to defense in criminal proceedings is one of the fundamental principles

of a democratic state based on the rule of law, on which citizens’ trust in the justice

system directly depends. In conditions of martial law, when the national legal system is

under institutional strain, guarantees of the right to defense become particularly relevant,

since they determine the limits of permissible state interference in human rights. World

experience shows that the effectiveness of criminal justice is measured not only by the

speed of investigations or the number of convictions, but primarily by the ability to ensure

equality of arms, access to legal aid, and real, rather than formal, compliance with the

adversarial principle (Council of Europe, 2024; FRA, 2024; OECD, 2024). Scientific

interest in the problem of protecting the rights of a suspect in Ukraine has increased as

a result of legislative changes in recent years and armed aggression, which has imposed

new requirements on law enforcement. In the domestic doctrine of criminal procedure

(Ablamskyi, 2021; Pivnenko, 2021; Ostavciuc, 2022; Yanovska, 2024), there is a desire

to develop a balanced model of ensuring the right to defense, which would combine the

guarantees of national legislation and European human rights standards. At the same

time, foreign authors (Corda & Hester, 2021; Johnston et al., 2023; Dsouza, 2024)

emphasize the need for early access to counsel as a prerequisite for preventing

arbitrariness and violations during the pre-trial investigation. Despite significant progress

in reforming the criminal procedure, a number of “blank spots” remain, in particular, the

lack of an appropriate mechanism for monitoring the actions of the prosecutor, the

difficulty in ensuring confidential communication between a lawyer and a client, as well

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

as inequality of the parties in access to evidence and procedural resources (Korniichuk,

2024; Kovalenko, 2024; Babikov et al., 2025). International monitoring organizations

(UNODC, 2023; World Justice Project, 2024) also record a systemic problem – the formal,

rather than substantive, application of the right to protection, which reduces the

effectiveness of justice as a whole. Thus, the relevance of the research is due to the need

for a comprehensive rethinking of the mechanisms for ensuring the right to protection in

the context of European integration and martial law.

The purpose of the research is to examine the modern criminal law and criminal

procedural principles of ensuring the right to defense in criminal proceedings in Ukraine,

identify key problems of its implementation, characterize development trends under the

influence of military realities, and propose areas for improvement based on a comparative

analysis of international experience.

Analysis of Recent Studies and Publications

Studies on the right to defense in criminal proceedings in recent years have focused on

the issues of implementing constitutional guarantees in the context of legal system

reform and martial law. The scientific works of Ukrainian legal scholars emphasize the

evolution of procedural principles, in particular the participation of defense counsel in a

special pre-trial investigation (Ablamskyi, 2021; Pivnenko, 2021; Ostavciuc, 2022).

Considerable attention is paid to the analysis of legal mechanisms for ensuring equality

of parties, which is a key element of the adversarial principle in criminal proceedings

(Voloshanivska& Fedorov, 2021; Yanovska, 2022; Kovalenko, 2024). Comparative

studies emphasize the influence of European standards, primarily the practice of the

European Court of Human Rights, on the formation of the Ukrainian model of criminal

procedure (Gutnyk, 2022; Corda & Hester, 2021; Johnston et al., 2023). At the same

time, it is emphasized that the real provision of the right to defense depends not only on

legislative guarantees, but also on practical mechanisms for access to a lawyer, collection

of evidence, and the effectiveness of judicial control (Korniichuk, 2024; Kovalenko, 2024;

Babikov et al., 2025).

Scholars pay special attention to the transformations of criminal procedural legislation

under the influence of martial law. Laws of Ukraine No. 2201-IX (2022) and No. 3341-IX

(2023) changed the conditions of pre-trial investigation, granting prosecutors expanded

powers, which caused numerous discussions about the balance between state interests

and the rights of the defense (Hloviuk&Zavtur, 2022; Zhovtan, 2023;

Mozgawa&Shupyana, 2024). These issues are actively covered in scientific works devoted

to the protection of human rights under emergency legal regimes (Kaplina, 2022;

Shumska, 2025; Fomina, 2025).

Foreign publications explore the concept of “early access to counsel” as a key tool for

protecting the rights of the suspect, which has already been implemented in most EU

countries (Hodgson, 2011; Lattimore, 2022; Dsouza, 2024). The idea of the need to

integrate such approaches into Ukrainian practice is supported, in particular, regarding

the confidentiality of lawyer-client communication and procedural control over the actions

of the prosecutor (Chernenko & Shiyan, 2024; Oliynyk, 2022). International institutions,

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

including the Council of Europe (2024), FRA (2024) and OECD (2024), in their reports

emphasize the importance of effective guarantees of legal aid, equality of procedural

opportunities and accountability of justice bodies. Comprehensive analytical reports

emphasize that the protection system in Ukraine demonstrates gradual convergence with

European standards, but structural challenges remain related to access to a lawyer,

financing of legal aid and the quality of law enforcement (Council of the European Union,

2023; Eurostat, 2024; World Justice Project, 2024).

Studies of recent years have also shown interest in issues of legal responsibility and the

adaptation of the national criminal justice system to the challenges of war. In particular,

changes to the Criminal Code of Ukraine caused by military actions are analyzed, as well

as the legal status of prisoners of war and persons participating in armed conflict.

(Mozgawa&Shupyana, 2024; Kaplina, 2022). Scholars emphasize that effective

enforcement of the right to defense in such cases should include special guarantees for

persons deprived of their liberty or displaced to a combat zone, in accordance with

international humanitarian law standards (Yanovska, 2024; Shumska, 2025). A

significant part of the publications is devoted to the analysis of the judicial practice of the

Supreme Court of Ukraine, which forms approaches to the interpretation of the principle

of adversarial and equality of parties in criminal proceedings. Researchers note that

judicial practice contributes to the gradual equalization of the imbalance between the

prosecution and defense, but remains selective in the application of international

standards (Yanovska, 2022; Verkhovna Rada of Ukraine, 2022, 2025). At the same time,

the academic papers of foreign authors emphasize the ethical aspect of the defense

attorney’s activities, his role in ensuring procedural justice and limiting the prosecutor’s

discretionary powers (Zhou, 2025; Dsouza, 2024; Abebe et al., 2022).

In the context of interstate cooperation and the impact of international legal mechanisms,

the studies of the Council of Europe (2024), OECD (2024) and FRA (2024) are

complemented by empirical assessments from international projects, such as the World

Justice Project (2024), which makes it possible to trace the connection between

institutional reforms and the actual level of protection guarantees. The need to further

strengthen the independence of the legal profession, expand access to free legal aid and

implement effective mechanisms for monitoring procedural abuses is emphasized

(Council of the European Union, 2023; Eurostat, 2024). Additionally, it is worth noting

scientific and practical sources that deepen the understanding of the mechanisms for

implementing the right to defense in criminal proceedings. Chernenko and Shiyan (2024)

systematized the stages of the defense attorney’s activities at the pre-trial stage,

clarifying the procedural boundaries of the lawyer’s participation. Oliynyk (2022)

analyzed the Ukrainian criminal justice system in the comparative context of the UN,

emphasizing the need to harmonize national procedures with international standards.

Lattimore (2022) examined the challenges of criminal justice reform through the prism

of institutional efficiency and access to legal aid, which is relevant for modern Ukraine.

At the same time, Abebe et al. (2022) draw attention to the risks of using statistical

software in evidence, emphasizing the need for its transparent examination and control

by the defense.

Thus, a review of modern studies demonstrates a concerted effort by the scientific

community to improve the effectiveness of legal protection through a synthesis of

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

national and international experience. At the same time, a number of problems remain

unresolved – primarily, the insufficient level of actual equality of parties in the criminal

process and the lack of effective control over the implementation of guarantees of the

right to protection during wartime.

Research Methods

The research was carried out in 2024-2025 as part of an analytical review of the state of

criminal procedural protection of the right to defense in Ukraine using empirical data,

regulatory legal acts and comparative analysis of international reports. The main

materials were official statistical indicators of the State Judicial Administration of Ukraine,

the Prosecutor General’s Office, the Coordination Center for the Provision of Free Legal

Aid, as well as data from international organizations – Council of Europe (2024), Eurostat

(2024), UNODC (2023), OECD (2024) and World Justice Project (2024). In the course of

the research, a complex of general scientific and special legal methods was used, among

which the leading place was taken by the method of system analysis – to identify the

relationships between procedural guarantees and their practical application, the method

of comparative law – to compare Ukrainian practice with the legislation and judicial

models of EU countries, as well as the formal-legal method – to interpret the norms of

the Constitution of Ukraine, the Criminal Procedure Code and special laws No. 2201-ИХ

(2022) and No. 3341-ИХ (2023). The empirical basis was the analysis of judicial decisions

of the Supreme Court of Ukraine, analytical materials of the Higher School of Advocacy,

publications of Ukrainian and foreign jurists (Ablamskyi, 2021; Babikov et al., 2025;

Johnston et al., 2023; Dsouza, 2024). The results were summarized using logical-

deductive and statistical methods, which ensured the objectivity of the assessment of

the dynamics of law enforcement and enabled to formulate recommendations for

improving the mechanisms for implementing the right to defense in criminal proceedings.

Research Results

The current state of criminal law and criminal procedure in Ukraine is characterized by

active reform of the legal system aimed at approaching European standards of fair trial.

The Constitution of Ukraine, the Criminal Procedure Code and the practice of the Supreme

Court are gradually forming a holistic model of protecting the rights of the suspect,

accused and defendant; however, this model remains dynamic and is influenced by

military realities, international obligations and internal challenges to law enforcement.

Under martial law, the state is forced to balance between security interests and human

rights guarantees, which creates new debatable aspects regarding the limits of rights

restrictions in the criminal process (Babikov et al., 2025).

An important role in understanding modern approaches to the right to defense is played

by the case law of the European Court of Human Rights, which defines the concept of a

“fair trial” through the prism of real, rather than formal, access to legal aid. The Ukrainian

judicial system is gradually adapting these standards, which is evident, in particular, in

the Supreme Court rulings on proper notification of suspicion, the right to silence, and

the effective participation of a defense attorney during interrogation. Studies by domestic

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

scholars show that ensuring the right to defense in the national criminal process is

developing in two interrelated directions – procedural and institutional. The procedural

dimension concerns the proper preparation of evidence, equality of parties, and

admissibility of the results of investigative actions, while the institutional dimension is

related to the development of a system of free legal aid, professional ethics of lawyers,

and guarantees of the independence of the defense attorney (Ablamskyi, 2021;

Voloshanivska& Fedorov, 2021).

However, the actual application of the right to defense in reality is hampered by systemic

issues. These include limiting defense attorneys’ access to pre-trial investigative

materials, making it harder to guarantee that all parties have equal procedural

opportunities, and not having a reliable system in place to ensure that promises made

during questioning, searches, or detention are being followed (Korniichuk, 2024;

Kovalenko, 2024). In a comparative perspective, it is worth noting that the European

Union countries pay special attention to mechanisms for early access to a lawyer, the

possibility of confidential communication with a client, and the procedure for legally

informing a person about his or her procedural rights (Corda & Hester, 2021).

In this context, studies by international experts are indicative, emphasizing the

importance of a systemic approach to legal guarantees: the right to defense must be

ensured at all stages of the process – from the moment of detention to the execution of

the sentence (Johnston et al., 2023; Dsouza, 2024). Ukrainian legislation, despite certain

gaps, has already laid the foundations for such an approach through Articles 20-22 of

the CPC of Ukraine, which guarantee the inviolability of the right to defense, however,

practice indicates the need for a clearer algorithm for ensuring the participation of a

defense lawyer in investigative actions and court hearings, especially in the absence of

the suspect (Fomina, 2025).

Thus, the current state of ensuring the right to defense in criminal proceedings in Ukraine

can be defined as transitional – it is characterized by a gradual approximation to

European standards, but at the same time it retains significant structural challenges

related to the effectiveness of law enforcement, the quality of legal assistance, and the

harmonization of national practice with the principles of the rule of law (Gutnyk, 2022;

Yanovska, 2024). The prospects for further development lie in the creation of stable

judicial and prosecutorial practice, which will guarantee not only the formal, but also the

actual provision of a person’s right to defense in each criminal proceeding.

The empirical substantiation of the current state of ensuring the right to defense in

criminal proceedings in Ukraine is based on the analysis of official statistical data

published by the State Judicial Administration of Ukraine, the Prosecutor General's Office,

the Coordination Center for the Provision of Free Legal Aid, as well as international

monitoring organizations – Eurostat (2024), the Council of Europe (2024) and UNODC

(2023). Additionally, data from the World Justice Project (2024) was taken into account.

Comparative statistics make it possible to assess both the dynamics of law enforcement

in Ukraine and its correlation with trends in the European Union countries. To better

illustrate internal changes in the national legal protection system, summarized

performance indicators for 2021-2024 are presented in Table 1.

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

Table 1. Dynamics of the implementation of the right to defense in criminal proceedings in

Ukraine (2021 - 2024)

Indicator

2021

2022

2023

2024

Number of criminal proceedings in which

the participation of a defense lawyer was

ensured

145 213

153 490

166 872

178 560

Share of proceedings with a defense

attorney out of the total number (%)

62.4

68.1

72.3

75.8

Number of applications to the free legal

aid system

534 000

491 000

576 000

612 000

Average duration of pre-trial investigation

(days)

117.5

120.8

126.4

132.9

Source: compiled by the author based on (Hloviuk&Zavtur, 2022; Zhovtan, 2023; Verkhovna

Rada of Ukraine, 2025; 2023).

Table 2. Comparison of indicators of the implementation of the right to protection in Ukraine and

EU countries (2024)

Country

Share of proceedings

with early access to a

lawyer (%)

Average duration of

investigation (days)

State costs for

legal aid

(euro/case)

Ukraine

75.8

132.9

41.2

Poland

89.4

118.5

73.6

Germany

92.7

110.2

95.4

France

90.1

115.8

87.0

Spain

87.3

121.4

65.8

Source: compiled by the author based on (Council of the European Union, 2023; Eurostat, 2024;

FRA, 2024).

The share of criminal proceedings in which the participation of a defense lawyer was

ensured increased by 13.4% over four years, which indicates positive dynamics in the

implementation of European standards of a fair trial. At the same time, the average

duration of the pre-trial investigation increased by 15.4 days, which may be a

consequence of the complication of procedures during the war period. A comparison

analysis of key indicators was conducted to determine the correlation between Ukrainian

indicators and the trends of the European Union countries. The results are summarized

in Table 2.

Ukraine demonstrates a gradual approach to European standards, but the financing of

the legal aid system remains 2-2.5 times lower than the average European level. This

causes an asymmetry between formal guarantees and real possibilities of protection.

Ukraine’s standing in global rankings and monitoring studies was examined in order to

comprehend the global context of the establishment of the right to protection institution.

This is shown in Table 3.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

Table 3. International Access to Justice Indices (2022-2024)

Indicator

2022

2023

202

Criminal Justice Accessibility Index (Ukraine’s place among 142

countries)

Impartiality of Criminal Process Index (0-1 score)

0.46

0.49

0.52

Share of persons who received free legal assistance upon

detention (%)

Source: compiled by the author based on (UNODC, 2023; World Justice Project, 2024; OECD,

2023).

Over the past three years, Ukraine has risen seven positions in the global ranking of

access to criminal justice, which confirms the positive impact of the reforms. However,

the share of persons who actually receive free legal aid is still 17 percentage points lower

than the average level in the EU countries. Thus, the above statistical indicators make it

possible to conclude that Ukraine is demonstrating gradual movement towards

strengthening the guarantees of the right to defense, but this progress is uneven and

requires strengthening the mechanisms for the practical implementation of the

procedural rights of the defense. That is why further analysis is focused on studying the

principles of adversarial and equality of arms as basic tools for ensuring a fair trial.

In criminal proceedings, the principles of adversarial proceedings and equality of arms

are fundamental guarantees of a fair trial. They provide that the prosecution and defense

have equal opportunities to present their positions, evidence, motions, and objections,

and that the court impartially evaluates the arguments of both sides (Verkhovna Rada of

Ukraine, 2025). However, in practice in Ukraine, the implementation of these principles

faces numerous difficulties, which have become especially acute in the conditions of

martial law after 2022. For the purpose of systematizing key issues, regulatory changes

of 2022-2025 were considered, in particular, the Law of Ukraine No. 2201-IX of April 14,

2022 “On Amendments to the Criminal Procedure Code of Ukraine Regarding the Conduct

of Criminal Proceedings under Martial Law” and the Law No. 3341-IX of August 23, 2023

“On Amendments to the Criminal Procedure Code of Ukraine Regarding the Peculiarities

of Pre-Trial Investigation of Crimes Against the Fundamentals of National Security, Peace,

Human Security and International Law” (Verkhovna Rada of Ukraine, 2022; Verkhovna

Rada of Ukraine, 2023). Additionally, analytical materials of the High School of Advocacy

were analyzed, which highlighted the novelties of criminal proceedings during martial law

and the Supreme Court’s clarifications on the application of relevant provisions

(Hloviuk&Zavtur, 2022). In the context of protecting the rights of the parties in the pre-

trial investigation, special attention was paid to the problem of limited access of the

defense party to investigation materials, which was disclosed in professional comments

to Article 255 of the Criminal Procedure Code of Ukraine (Zhovtan, 2023). Thus, the

principles of adversarial and equality of parties remain not only legal, but also practical

challenges for the Ukrainian criminal process (Verkhovna Rada of Ukraine, 2023; 2025),

which require further improvement of the regulatory framework and mechanisms of

judicial control (See Table 4).

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 82-99

Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

Table 4. Problematic aspects of implementing the principles of adversarial proceedings and

equality of parties in criminal proceedings under martial law

No.

Problem/challenge

Source (CPC

norm /

legislative

change /

practice)

The essence of the

problem

Potential

consequences for

the defense

Limited access to

pre-trial

investigation

materials

Article 255 of the

CPC, criticism in

professional

literature

The defense is sometimes

not informed about the

conduct of secret

investigative (search)

actions or loses the

opportunity to familiarize

themselves with their

results

Complicating the

preparation of

objections or

motions, violating

equal conditions of

adversarial

proceedings

Uneven use of

prosecutorial powers

Law No. 2201-IX

(Chapter IX-1 of

the Criminal

Procedure Code)

Martial law conditions

give the prosecutor the

opportunity to authorize

certain investigative

actions without the

intervention of the

investigating judge,

which weakens control by

the defense

Risk of abuse, lack

of balance

between

prosecution and

defense

Changes in the

calculation of pre-

trial investigation

deadlines

Law No. 3341-IX

of 23.08.2023

(Part 8, Article

615 of the

Criminal

Procedure Code)

An exception has been

introduced: the term “is

not calculated” in

proceedings concerning

certain crimes (Articles

437-439, Part 1 of Article

442)

Prolonged delays

in pre-trial

proceedings,

which create

unequal conditions

for defense

Incomplete response

to change of

jurisdiction/loss of

materials due to

hostilities

Letter of the

Supreme Court

dated 03.03.2022

No. 1/0/2-22,

norms of the Code

of Criminal

Procedure 615

In cases where case

materials are not

transferred or are lost

due to hostilities, the

investigating judge is

guided by an incomplete

set of documents

The defense is

forced to deal with

incomplete

information, which

makes it difficult

to prepare

objections

Insufficient clarity in

appealing the

actions of the

prosecutor/investiga

tor

Part 4 of Article

615, additions and

clarifications to

the CPC

Procedures for appealing

prosecutorial actions or

inactions during wartime

remain insufficiently

detailed

Defense may

experience legal

uncertainty, which

affects the speed

of response

Declarative nature of

the principle of

equality of parties

Constitutional

provisions on

equality, but

practical

inconsistency

Although the law

guarantees equal rights

of parties (Article 22 of

the CPC), in practice

access to resources,

experts, and evidence is

often unequal

The defense is in a

more vulnerable

position, especially

in cases involving

state prosecution

Abuse of

prosecutorial

Works of legal

scholars on Article

255 of the CPC

The prosecutor may

decide to destroy

information, items or

The inability of the

defense to verify

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

decisions to destroy

evidence

documents without

proper notification to the

defense

or challenge such

actions

Lack of guarantees

regarding the use of

a lawyer in the early

stages

General principles

of the CPC (Article

7), practice and

comments of

lawyers

In some cases,

detentions or

interrogations occur

without timely access to

protection

Contradicts

international

standards,

reduces the

effectiveness of

protection

Source: compiled by the author based on (Verkhovna Rada of Ukraine, 2022; 2023; Zhovtan,

2023; Hloviuk&Zavtur, 2022)

The table illustrates that the key challenges to implementing the principle of adversarial

proceedings and equality of parties in the criminal process of Ukraine are not only the

formal existence of norms on equal rights of the parties, but also their actual provision

in conditions of martial law. The regulatory changes of 2022-2025 largely adapted the

process to wartime circumstances (for example, through Section IX-1 of the Code of

Criminal Procedure, the peculiarities of calculating deadlines, the expansion of the

prosecutor’s powers), but they also created new “risk zones” for the defense. The main

problems include the restrictions on access to pre-trial investigation materials, the ability

of the prosecutor to act without proper control, disproportionate terms of proceedings,

loss of materials due to hostilities, and the lack of clear mechanisms for appealing

individual decisions. Further legislative and practical efforts should prioritize

strengthening the guarantees of protection in addition to “military” adjustments. Some

examples of this include a more transparent process for appealing prosecutorial

decisions, alerting the defense to all procedural actions, and outlawing the destruction of

evidence without the defense’s consent. Thus, the implementation of the principle of

adversarial proceedings and equality of arms should become not a declaration, but an

integral component of fair criminal proceedings even under martial law.

The institution of the participation of a defense attorney in the pre-trial investigation and

trial is a key element of the implementation of the constitutional right of a person to

defense, which guarantees compliance with the principles of adversarial proceedings,

equality of parties and fairness of criminal proceedings.

The effectiveness of the participation of a defense attorney is determined not only by the

formal enshrining of this right in legislation, but also by the practical possibility of its

implementation – in particular, in the field of collecting evidence, participation in

investigative (search) actions, access to case materials and the process of interaction

with pre-trial investigation bodies (Ablamskyi, 2021; Kovalenko, 2024). In recent years,

Ukraine has seen significant progress in the development of legal mechanisms regulating

the powers of a defense attorney. However, a number of problems remain related to the

practical implementation of these mechanisms in the context of both the national judicial

system and international standards (Voloshanivska& Fedorov, 2021; Gutnyk, 2022).

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Transformation in Times of Global and National Challenges

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

Table 5. The effectiveness of the institution of defense counsel’s participation in pre-trial

investigation and trial

No.

Performance

indicator

Current status of

implementation

Main problems

Defense attorney’s

access to pre-trial

investigation materials

Guaranteed by Article 221 of the

CPC, but limited due to delays or

refusals of investigators

Lack of clear

deadlines for granting

access, formal nature

of decisions

The right of the

defense attorney to

initiate the collection

of evidence

Articles 93, 99 of the CPC allow

the defense to submit evidence,

but their assessment by the courts

is often subjective

Judges sometimes

rule evidence

inadmissible due to

“insufficient

procedural form”

Possibility of

participationof a

defense attorney in

investigative actions

The norms of the CCP give the

right to be present, but the

practice depends on the

investigator

Insufficient

awareness or

deliberate failure to

notify about the

action

Guarantees of

confidential

communication with

the client

Guaranteed by law, but limited in

places of pre-trial detention

Lack of control over

confidentiality

Equality of arms in the

process of proof

It is declared in Article 22 of the

CPC, but in practice the prosecutor

has greater access to resources

Imbalance between

the prosecution and

the defense

International

standards of advocacy

participation

Partially established through the

implementation of ECHR case law

Insufficient

adaptation to martial

law conditions

Source: compiled by the author based on (Ablamskyi, 2021; Korniichuk, 2024; Kovalenko, 2024;

Pivnenko, 2021; Fomina, 2025; Gutnyk, 2022; Yanovska, 2024; Voloshanivska& Fedorov, 2021;

Johnston et al., 2023; Babikov et al., 2025).

The table below provides a comparative analysis of key indicators of the effectiveness of

the defense attorney’s participation in the criminal process of Ukraine, taking into account

the results of research by scholars and generalizations of judicial practice. (See Table 5).

As can be seen from Table 2, the effectiveness of the institution of the participation of a

defense attorney in criminal proceedings in Ukraine remains selective. Although the

legislation formally guarantees equal procedural rights, their practical implementation

depends on the integrity of investigators, prosecutors and judges. Issues of access to

case materials, proactive collection of evidence and ensuring real equality of the parties

remain problematic. The situation is further complicated by the limited level of application

of international standards during wartime, when some guarantees are temporarily

narrowed.

Thus, further improvement of this institution requires not only clarification of legislative

norms, but also changes in approaches to law enforcement, strengthening of ethical and

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

professional standards of the legal profession, as well as integration of Ukrainian practice

into the European system of guarantees of the right to defense.

Recommendations for improving mechanisms for ensuring the right to protection in

criminal proceedings, taking into account international experience (EU countries, USA)

and Ukrainian realities of the transitional justice period. First of all, it is advisable to

implement some best practices of the European Union and the United States into the

Ukrainian criminal procedure system, adapting them to the context of martial law and

transitional justice. For example, in EU countries, the institution of early access to counsel

is widespread, i.e. the right of a suspect to consult with a lawyer immediately after

detention and before the first interrogation, without unreasonable delays. Such a

mechanism serves as a strong safeguard against coercion to testify and guarantees a

balance between state coercion and the individual’s right to defense. In parallel, Ukraine

should introduce a rule on confidential communication between a lawyer and a client

even before interrogation, with practical guarantees (for example, mandatory audio or

video recording of the interrogation with the exclusion of outsiders), as implemented in

some jurisdictions of the USA and the EU. In addition, a mechanism for automatic judicial

control over refusals or delays in access to a lawyer should be created, with the obligation

of the investigator or prosecutor to provide a substantiated written motivation that can

be appealed. The legislation should clearly define the period within which the investigator

must provide the defense attorney with access to the case materials (for example, no

later than 24-48 hours from the moment of the request), and failure to comply with this

requirement should be accompanied by sanctions for the investigator or prosecutor (for

example, disciplinary liability or exclusion of certain evidence).

Secondly, it is necessary to strengthen institutional guarantees and resources for defense

so that the practical participation of the lawyer becomes real, not formal. In particular,

it is advisable to expand and strengthen the network of free legal aid and guarantee that

in complex criminal cases the public defender has access to resources (experts,

professional services, permission to travel to the scene of the incident, etc.). A deterrent

obstacle to full defense in Ukraine is the limited access to financial, laboratory or technical

means, which is often important in complex cases (for example, with economic or military

elements). Therefore, it is necessary to legislatively and procedurally provide for the right

of the lawyer to initiate and conduct expert examinations (“counter-expert

examinations”), independent investigative actions (with the consent of the investigating

judge), to involve private experts and to have a guaranteed budget for such actions in

the budget of the justice bodies. Another important element is to improve the interaction

between the defense attorney and the investigative authorities: establish a mandatory

regime of joint planning of investigative actions with advance notice, determination of

the scope of procedures (when the lawyer can be present, grounds for refusal, etc.), as

well as the introduction of judge control or an automatic system of randomization of

participation. In American systems, public protocols of interaction between the defense

and the prosecutor’s office are often used to minimize the subjective decisions of

investigators, and this can serve as a model for Ukraine. Such an approach, combined

with ongoing training of judges, prosecutors, and lawyers on ECHR/US standards and

monitoring through independent institutions (GPU, government human rights agencies),

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

will contribute to the fact that the right to defense becomes a de facto guarantee, not a

declaration.

Discussion

The results of the research indicate that ensuring the right to defense in criminal

proceedings in Ukraine remains a dynamic process that combines positive legislative

developments with the presence of significant practical limitations. The position of most

Ukrainian authors (Ablamskyi, 2021; Korniichuk, 2024; Kovalenko, 2024) is that the

national model of criminal proceedings is gradually moving towards European standards,

but the effectiveness of these guarantees largely depends on the level of their actual

application. A similar approach is also observed in the studies of Gutnyk (2022) and

Yanovska (2024), who emphasize that the practical content of the adversarial principle

often remains declarative, since the parties to the process do not have equal access to

evidence and procedural resources.

At the same time, another group of researchers (Babikov et al., 2025; Fomina, 2025;

Mozgawa&Shupyana, 2024) draws attention to the fact that under martial law, the state

has an objective right to introduce temporary restrictions to ensure public safety. In their

opinion, these changes are justified from the standpoint of the need to preserve

statehood, even if they somewhat narrow the possibilities of defense. Such an

interpretation is controversial since it contradicts European standards, according to which

even in times of emergency the state cannot deprive a person of the basic guarantees of

a fair trial (Council of Europe, 2024; FRA, 2024).

Supporting a more moderate position, authors, analyzing the practice of the ECHR (Corda

& Hester, 2021; Johnston et al., 2023; Dsouza, 2024), propose to consider the right to

defense as a balance between security interests and procedural rights of the individual.

They believe that it is through the introduction of mechanisms for early access to counsel

that real equality of parties can be ensured even in crisis conditions. This vision

corresponds to the results of the study by Oliynyk (2022), which emphasizes that Ukraine

should move from a formal to a substantive interpretation of defense guarantees by

introducing mandatory judicial control over denials of access to a lawyer.

While foreign researchers (Lattimore, 2022; Zhou, 2025) tend to systematically analyze

the functional effectiveness of the institution of protection, Ukrainian authors, as a rule,

focus on procedural and institutional gaps. Thus, Voloshanivska and Fedorov (2021) note

that even the presence of detailed procedures does not guarantee equal opportunities

for the parties due to uneven application of law. This is confirmed by statistical data

(Eurostat, 2024; World Justice Project, 2024), which indicate an improvement in formal

indicators, but the gap between the norm and practice remains.

The contradictions between the positions of scholars can be explained by different

theoretical emphases: supporters of the formalized approach assess effectiveness

through changes in legislation, while the institutional school considers access to justice

as part of a broader socio-legal system. A comparison of both approaches shows that the

legal model of protection can be effective only if it is implemented in practice through

clear procedures, an ethical lawyer culture and adequate funding (OECD, 2024).

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Transformation in Times of Global and National Challenges

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Theoretical and applied aspects of criminal law and procedural ensuring the right to defense

Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat

Thus, the results obtained confirm the hypothesis that Ukraine is in a transitional stage

of developing an effective criminal defense system. Although reforms contribute to

harmonization with European standards, significant structural challenges remain –

primarily insufficient equality of parties, limited access of defense attorneys to evidence,

and an imbalance of procedural powers. In view of this, further studies should be aimed

at identifying optimal mechanisms for adapting the right to defense to martial law

conditions, strengthening control over the actions of the prosecutor, and expanding

institutional guarantees for advocacy.

Conclusions and Prospects for Further Studies

The conducted research revealed that the system of criminal law and criminal procedure

ensuring the right to defense in Ukraine is at the stage of essential transformation, when

legislative reforms are only partially implemented in real law enforcement practice. The

combination of military challenges and obligations to international partners necessitates

the search for a balance between state security interests and guarantees of personal

rights, which determines the relevance of further scientific studies in this area. The

novelty of the obtained results lies in the systematic combination of a comparative

analysis of European practices with national mechanisms of criminal procedure, which

made it possible to identify key points of imbalance – primarily in the area of defendant's

access to case materials, control over the actions of the prosecutor and financing of legal

aid. A comparison of expected and actual results showed that the positive dynamics of

statistical indicators do not always reflect the real level of compliance with the principles

of adversarial and equality of parties. The practical significance of the study lies in

formulating specific proposals for improving the institution of protection, in particular,

the introduction of the early access to counsel mechanism, mandatory standards of

confidential communication between a lawyer and a client, and the creation of an

independent mechanism for monitoring the actions of pre-trial investigation bodies. At

the same time, the identified limitations of the research are related to the lack of

empirical data on the regional differentiation of law enforcement practices and the lack

of a comprehensive analysis of the effectiveness of free legal aid during martial law.

Further studies should be directed at assessing the impact of changes to the Code of

Criminal Procedure of Ukraine on the quality of judicial control, examining models of

lawyer participation in the pre-trial process according to international standards, and

determining indicators of real equality of parties in criminal proceedings. The analysis of

digital tools for recording procedural actions, in particular electronic protocols and

platforms for interaction between lawyers and judicial authorities, is also promising. It is

the integration of legal, technological, and ethical approaches that will ensure the

formation of a stable system of guarantees of the right to defense that will meet both

national and European standards of justice.

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              Thematic Dossier - Rule of Law, Human Rights, and Institutional  
Transformation in Times of Global and National Challenges 
March 2026, pp. 82-99  
Theoretical and applied aspects of criminal law and procedural ensuring the right to defense 
Ivan Krasnуtskyi, Roman Maksymovych, Nataliya Lashchuk, Vira Navrotska, Iryna Bakhmat 
 
 
 
97 
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100

LIABILITY FOR CAUSING PROPERTY LOSSES IN THE COURSE OF BUSINESS

ACTIVITIES

IURII BEDRATYI

rivne121985@gmail.com

PhD (Law Sci.), Associate Professor of the Department of Legal Environmental Protection

Disciplines Educational-Scientific Institute of Law National University of Water Management and

Natural Resources Rivne (Ukraine) https://orcid.org/0000-0001-9230-0438

TETIANA PROTSIUK

sdfm.finmon@gmail.com

PhD (Economic Sci.), Associate Professor Department of Operational Law

Educational and Scientific Institute of Military History, Law, and Social Sciences

National Defence University of Ukraine

Kyiv, (Ukraine)

https://orcid.org/0000-0003-2010-2146

OLENA NADIIENKO

o.nadienko@gmail.com

PhD (Law Sci.), Assistant Professor of the Department of Criminal, Civil and International Law

Faculty of Law National University “Zaporizhzhia Polytechnic” Zaporizhzhia (Ukraine)

https://orcid.org/0000-0001-6676-7616

OLENA PERUNOVA

snezkas79@gmail.com

PhD (Law Sci.), Docent of the Department of Accounting and Taxation

Faculty of Management and Business Kharkiv National Automobile & Highway University:

KHNADU Kharkiv (Ukraine) https://orcid.org/0000-0001-8246-8800

VOLODYMYR TSIKALO

voltsikalo@gmail.com

Doctor of Science (Law), Professor of the Department of Civil Law and Procedure, Faculty of Law

Ivan Franko National University of Lviv (Ukraine) https://orcid.org/0000-0002-6174-6928

Abstract

The relevance of the study lies in the need to improve mechanisms for compensating damages

arising from breaches of civil and commercial obligations during the full-scale armed conflict

in Ukraine. Existing legal provisions do not always ensure effective or consistent recovery of

damages, creating risks for legal certainty and economic stability. The objective is to develop

a theoretically grounded concept of a unified compensatory mechanism in Ukrainian civil and

commercial law that would enhance the efficiency of damages recovery and improve law

enforcement practice. The research is based on an interdisciplinary methodological approach

using the dialectical method to examine the relationship between contractual and tort liability;

formal legal and comparative methods to identify systemic links and conflicts in current

legislation; legal modeling to formulate a unified compensation mechanism; and structural-

functional analysis to determine problems and prospects for reform. The findings reveal key

contradictions between the Civil Code and Economic Code of Ukraine in regulating

compensation for damages. The absence of a unified approach to the correlation between

“damage” and “losses,” unclear boundaries of contractual and tort liability, and imperfect

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Liability for Causing Property Losses in the Course of Business Activities

Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

101

mechanisms for compensating moral damages and damages caused by lawful actions of public

authorities undermine the effectiveness of law enforcement. Based on structural and

functional analysis, the study proposes a comprehensive system of improvements aimed at

harmonizing civil and commercial law, unifying approaches to determining the composition of

compensation, and creating an effective mechanism for compensating business losses in

accordance with the rule of law and European standards. The proposed recommendations can

enhance the efficiency of damages compensation, ensure greater coherence in judicial

practice, and strengthen the systematic character of civil and commercial relations in Ukraine.

Keywords

Compensation for damages, regulation, compensatory mechanism, law enforcement, legal

aspects.

Resumo

A relevância do estudo reside na necessidade de melhorar os mecanismos de compensação

por danos decorrentes do incumprimento de obrigações civis e comerciais durante o conflito

armado em grande escala na Ucrânia. As disposições legais existentes nem sempre garantem

uma recuperação eficaz ou consistente dos danos, criando riscos para a segurança jurídica e

a estabilidade económica. O objetivo é desenvolver um conceito teoricamente fundamentado

de um mecanismo compensatório unificado no direito civil e comercial ucraniano que

aumentaria a eficiência da recuperação de danos e melhoraria a prática de aplicação da lei. A

investigação baseia-se numa abordagem metodológica interdisciplinar que utiliza o método

dialético para examinar a relação entre a responsabilidade contratual e a responsabilidade

civil; métodos jurídicos formais e comparativos para identificar ligações e conflitos sistémicos

na legislação atual; modelagem jurídica para formular um mecanismo de compensação

unificado; e análise estrutural-funcional para determinar problemas e perspetivas de reforma.

As conclusões revelam contradições fundamentais entre o Código Civil e o Código Económico

da Ucrânia na regulamentação da indemnização por danos. A ausência de uma abordagem

unificada à correlação entre «danos» e «perdas», os limites pouco claros da responsabilidade

contratual e extracontratual e os mecanismos imperfeitos de indemnização por danos morais

e danos causados por ações legais das autoridades públicas comprometem a eficácia da

aplicação da lei. Com base na análise estrutural e funcional, o estudo propõe um sistema

abrangente de melhorias com o objetivo de harmonizar o direito civil e comercial, unificar as

abordagens para determinar a composição da indemnização e criar um mecanismo eficaz para

indemnizar as perdas comerciais, de acordo com o Estado de direito e as normas europeias.

As recomendações propostas podem aumentar a eficiência da indemnização por danos,

garantir uma maior coerência na prática judicial e reforçar o caráter sistemático das relações

civis e comerciais na Ucrânia.

Palavras-chave

Indemnização por danos, regulamentação, mecanismo de compensação, aplicação da lei,

aspetos jurídicos.

How to cite this article

Bedratyi, Iurii Protsiuk, Tetiana, Nadiienko, Olena Perunova, Olena & Tsikalo, Volodymyr (2026).

Liability for Causing Property Losses in the Course of Business Activities. Janus.net, e-journal of

international relations. Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp.

100-121. https://doi.org/10.26619/1647-7251.DT0226.6

Article submitted on 20 November 2025 and accepted for publication on 19 December

2025.

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Liability for Causing Property Losses in the Course of Business Activities

Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

102

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Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

103

LIABILITY FOR CAUSING PROPERTY LOSSES IN THE COURSE OF

BUSINESS ACTIVITIES

IURII BEDRATYI

TETIANA PROTSIUK

OLENA NADIIENKO

OLENA PERUNOVA

VOLODYMYR TSIKALO

Introduction

In today's context of socio-economic transformations and digitalization of the legal

system of Ukraine, ensuring the efficient functioning of civil and economic relations is

becoming a key factor of economic stability. Breach of contractual and tort obligations

creates economic risks for both business entities and individuals, which necessitates the

improvement of mechanisms for compensation for losses. Therefore, effective regulation

of liability is of particular relevance in times of war, when legal certainty and speed of

compensation procedures are increasingly important.

The theoretical and practical aspects of liability for breach of obligations have been

considered by a number of domestic and foreign authors. For example, Daryaie et al.

(2024) analyzed the general principles of damages and compensation mechanisms in

civil law, emphasizing the importance of a systematic approach to establishing causal

relationships and determining the amount of damages. Modern Ukrainian scholars draw

attention to the need to integrate contractual and tort liability into a single compensatory

mechanism, which allows for more effective law enforcement and reduces the number of

litigations (Melnyk et al., 2023; Nishchymna& Andrushchenko, 2024; Prilensky, 2021;

Zhegulyn, 2021).

At the same time, the practice of applying civil and commercial law shows that there are

significant differences in determining the amount of damages, criteria for their

compensation, and recovery procedures. This is due to uneven interpretation of the rules

by courts, different approaches to damage assessment, and insufficient integration of

modern digital technologies into the processes of proof and compensation. Such

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Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

104

challenges require a comprehensive scientific study aimed at developing a unified

compensation mechanism capable of taking into account both contractual and tort

aspects of liability, ensuring a balance of interests of the parties.

The purpose of the article is toformulate a theoretically grounded concept of a single

compensation mechanism in the civil and commercial law of Ukraine, which would

increase the efficiency of damage compensation and improve law enforcement practice.

The objectives of the study include: systematization of the provisions of the Civil and

Commercial Codes of Ukraine on liability for breach of obligations; analysis of the practice

of application of these provisions by courts; identification of problematic aspects in

determining the amount of damages; and development of proposals for integrating

contractual and tort liability into a single compensation mechanism.

Literature Review

There is an urgent need for a comprehensive scientific understanding of the specifics of

the application of the new civil and commercial legislation of Ukraine within the

framework of economic legal relations, particularly in the context of a full-scale war and

deep socio-economic transformation of society, during the period of adaptation to the

European standards of private law and the acquis communautaire of the European Union

(EU). This problem has a twofold nature: on the one hand, there are significant difficulties

in interpreting the latest codifications, and on the other hand, there is an obvious lack of

case law on certain aspects of their application.

The discourse on the peculiarities of regulating liabilities for damages in the context of

business activities is becoming particularly relevant. For example, Melnyk et al. (2023)

emphasize that civil liability for damage in the field of economic activity becomes

especially relevant in times of war, when labor market transformations and increased

labor migration create additional risks for business. The authors point out that the legal

aspects of human resources management and security of economic systems should be

flexible so that businesses can maintain their viability despite material and legal changes.

Thus, their conclusions confirm the need to improve legal mechanisms for compensation,

introduce clear rules of liability and a systematic approach to regulating economic

relations in a crisis. Thus, the traditional legal understanding perceives these relations as

intra-civil, regulated by the provisions of the Civil Code of Ukraine (further – CCU).

However, part 2 of Article 9 of the Civil Code of Ukraine expressly states that

«peculiarities of regulation of property relations in the field of economic activity may be

established by law», which opens up space for specific regulatory regulation. Thus,

according to part 2 of Article 4 of the Commercial Code of Ukraine, «the peculiarities of

regulation of property relations of business entities are determined by this Code» (VRU,

2025a; 2025b). Thus, these legal provisions require law enforcement authorities to

carefully identify the institutional features of regulation laid down in the Commercial Code

in each branch of private law used in the framework of economic activity. This need is

driven by practical pragmatism: parties to commercial disputes will actively appeal to the

provisions of the Commercial Code, which may either increase the scope of compensation

for damages (for victims) or limit it (for the entities that caused the damage).

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During the period of Soviet statehood, the institute of civil liability in commercial legal

relations was not clearly distinguished in the scientific literature, but civil and commercial

law researchers identified characteristic features of the application of liability in the

context of production and economic legal relations as opposed to typical consumer

relations. For example, Berman (1947) highlighted the specifics of civil liability rules for

damage to collective farm property – in particular, he justified shortened limitation

periods for disputes between socialist organizations in the interests of strengthening

financial and planning discipline and stimulating the prompt exercise of property rights

of such organizations. Rudden (1967) and Sirianni (2020) also noted that when a socialist

organization is recognized as a victim, its freedom to choose the method of compensation

is limited: compensation must be consistent with the functional goals of the organization,

the nature of its property and planned tasks – today, this is consistent with the

requirements of the owner or his authorized body.

In the modern foreign discourse, the issue of civil liability is addressed in different ways.

For example, Van Dunné (1999) raises the complex issue of compensation for pure

economic losses arising without direct physical damage to property or a person. Based

on a comparative analysis of civil and common law, the author proves that in continental

systems liability for such losses is generally recognized, albeit with reservations, while in

common law it is traditionally rejected and allowed only in exceptional cases. The author

emphasizes the political arguments («floodgates argument») and the new use of the

classical categories of causation and negligence.

The expansion of the scope of liability in tort law was the subject of a separate study by

Priest (1991), who showed that since the 1970s in developed economies there has been

a sharp increase in the scope of liability, which has had a profound impact on the markets

for goods and services. The scholar argues that modern tort law, being based mainly on

non-economic principles, has led to significant dysfunctions in the insurance sector and

caused serious market distortions. At the same time, he critically assesses the reform

initiatives of the late twentieth century, pointing out their limited ability to eliminate the

root causes of the expansion of tort liability.

Instead, in modern Ukrainian scholarship, civil liability for damage caused in the course of

economic activity in Ukraine is viewed through the prism of a complex multi-level regulatory

array which combines both universal provisions of private law and specialized regulatory

structures focused on certain sectors of economic activity. In particular, it is noted that the

key sources are the Civil Code and the Commercial Code of Ukraine, as well as a number of

special laws that detail the procedure for compensation for damage in certain areas of

economic activity, thereby ensuring the complexity of legal regulation (Nishchymna&

Andrushchenko, 2024). This approach guarantees the protection of the rights of victims and

is also intended to formulate standards of responsible business behavior in a competitive

marketplace.

Within the doctrinal discourse, several key forms of liability are distinguished. For

example, non-contractual (tort) liability is associated with damage caused by negligence

or intentional acts, and a necessary condition for its occurrence is the presence of a

causal relationship between the act and the resulting damage (Zhegulyn, 2021).

Contractual liability, in turn, is caused by the breach of specific obligations arising under

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civil law agreements; in scientific works, it is often illustrated by examples of

transportation relations, when, for example, a passenger is liable for damage caused to

the carrier (Prilensky, 2021). The issue of compensation mechanisms is essential in this

regard. They include both voluntary and mandatory forms of compensation, in particular

by filing a civil lawsuit in criminal proceedings or using state mechanisms for financing

compensation payments, which indicates the active role of the state in ensuring the

restoration of violated rights (Lapkin et al., 2019).

The issue of the effectiveness of compensation is also considered in the context of

economic analysis of law. The study by Daryaie et al. (2024) emphasizes that the

effectiveness of compensation mechanisms largely depends on their economic rationality

and ability to minimize transaction costs. The authors conclude that it is the combination

of legal and economic criteria that allows creating an optimal model for restoring the

violated rights of victims and ensuring a balance of interests of all participants in

economic relations.

In the context of technological transformations, liability for personal data breaches

attracts special attention of scholars. Cheng (2025) argues that in the «era of big data»,

traditional principles of tort law are not able to fully ensure adequate protection of

individual rights. He proposes a model of combining the principle of guilt and the

presumption of guilt as a single system of imputation of harm, while recognizing the need

to develop the compensatory and preventive-punitive function of civil liability. This

approach allows to harmonize the doctrine of liability with new social and technological

realities.

The question of civil liability for environmental factors that cause damage is equally

important. Alwreikat and Qtaishat (2025), analyzing the experience of Jordan, Egypt,

and France, argue that in the field of e-waste management, the most effective concept

is the objective theory of liability, which eliminates the need to prove the guilt of the

person causing the damage. This approach strengthens the legal mechanisms for

environmental protection and integrates the issue of waste recycling and disposal into

the broader context of achieving sustainable development goals.

In the Ukrainian regulatory space, many economic and legal mechanisms of

compensatory liability are covered in the Explanation of the Supreme Arbitration Court

of Ukraine «On some issues of the practice of resolving disputes related to compensation

for damage» No. v_215800-94 of 29.12.2007 (VRU, 2007c), which was subsequently

clarified by the Presidium of the Supreme Economic Court of Ukraine in the

Recommendations of the Presidium of the Supreme Economic Court of Ukraine «On

Amendments and Additions to the Explanation of the Presidium of the Supreme

Arbitration Court of Ukraine dated 01.03.1994 N 02-5/215 «On Some Issues of Practice

of Dispute Resolution Related to Compensation for Damage» No. va239600-07 dated

29.12.2007) (VRU, 2007a). These documents explicitly emphasize the need to take into

account the special provisions of the Commercial Code, in particular Article 249(3), Article

39(1), Article 153(1), Article 159(1), Article 162(3), Article 178(2), Article 216(2) (as an

example), as well as the method of calculating damages under Article 225(6) of the

Commercial Code of Ukraine (VRU, 2025b).

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However, in accordance with Article 225 of the Civil Code of Ukraine as it currently exists,

as amended, it includes only the following components of damages: the cost of lost,

damaged or destroyed property; additional expenses (penalties, additional work,

materials, etc.); lost profits; and material compensation for non-pecuniary damage, if

provided for by law. It is worth noting that part 2 of this article establishes that the law

may impose restrictions on civil liability for certain types of economic obligations. The

price criteria for calculating damages are outlined in paragraphs 3–4, and they are

contingent on the date of the claim's voluntary satisfaction or the claim's filing, with the

option to consider the price on the day of the decision. Instead, paragraphs 5-7 of Article

225 of the Civil Code of Ukraine were repealed by the Law of Ukraine «On Amendments

to Certain Legislative Acts of Ukraine on the Protection of Investors' Rights» No. 289-VIII

dated January 1, 2023 (VRU, 2023).

Thus, the current legal framework of Ukraine in the field of civil liability for damage

caused in the course of economic activity, on the one hand, creates a fairly developed

and multicomponent system of protection of victims' rights, and on the other hand,

demonstrates the existence of a number of challenges in terms of practical law

enforcement, especially in the area of proper compensation and the effectiveness of

enforcement mechanisms. The evolution of economic relations, including in high-risk

sectors, highlights the need for further reforms aimed at strengthening institutional

guarantees of fair compensation and establishing the principles of good faith and legal

certainty in the business sector.

Materials and Methods

The study's methodology is founded on the fact that the issue of civil liability for damages

in the realm of economic activity is interdisciplinary. These methods were used during

the study:

- the dialectical method was used to identify internal contradictions in the relationship

between contractual and tort liability and their development in the modern private law

doctrine. This approach made it possible to reveal the evolution of the compensatory

mechanism and to outline the patterns of its transformation in the context of economic

turnover;

- the formal legal method was used to analyze the regulatory body of civil and commercial

legislation of Ukraine (the Civil Code of Ukraine, the Commercial Code of Ukraine, special

laws and regulations). It made it possible to clarify the systemic links between the norms,

determine their hierarchy, and identify gaps and conflicts in legal regulation;

- the comparative legal method was used to compare the provisions of civil and

commercial legislation on compensation for damages (in particular, Articles 22, 623,

1166-1194 of the Civil Code of Ukraine and Articles 174, 222, 224-226 of the Commercial

Code of Ukraine). This method made it possible to identify differences in the categories

of «damage» and «losses», as well as the specifics of economic tort;

- the method of legal modeling was applied to the formation of the concept of a single

compensatory mechanism of private law, within the framework of which an institutionally

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108

coordinated design integrating contractual and tort elements is proposed as the basis for

law enforcement practice;

- the method of structural-functional analysis was used to identify key issues and

prospects for their resolution in the area of compensation for damages in economic

relations. This approach allowed the author to identify internal contradictions of the

current legislation (in particular, the Civil Code and the Commercial Code of Ukraine),

classify them by type and propose targeted areas of improvement which will ensure

consistency of intercontractual and tort structures and practical implementation of the

principle of full compensation for damage.

Results

The issue of civil liability for damage caused within the framework of economic activity is

a key one in the private law doctrine, as it combines both elements of contractual

obligations and tort remedies. It is not by accident that Ukrainian court practice in the

early 1990s brought attention to the necessity of a thorough process for settling

disagreements pertaining to damages compensation. Thus, in the Explanation of the

Supreme Arbitration Court of Ukraine «On some issues of practice of resolving disputes

related to compensation for damages» No. v_215800-94 dated 29.12.2007 (VRU, 2007c)

(as further amended in the Recommendations of the Presidium of the Supreme Economic

Court of Ukraine «On Amendments and Additions to the Explanation of the Presidium of

the Supreme Arbitration Court of Ukraine dated 01.03.1994 N 02-5/215 «On some issues

of the practice of resolving disputes related to compensation for damages» No.

va239600-07 of 29.12.2007) (VRU, 2007a), it was emphasized that it is necessary to

take into account special provisions of the Commercial Code of Ukraine (part. 3, Article

249, Article 39(1), Article 153(1), Article 159(5), Article 162(3), Article 178(2), Article

216(2)), as well as the methods of determining the amount of losses in the field of

business provided for in Article 225(6) of the Commercial Code of Ukraine (VRU, 2025b).

These acts laid the foundation for further law enforcement practice, but left a number of

open questions related to the correlation between the concepts of «loss» and «damage», as

well as the limits of application of contractual and tort constructions. The modern doctrine

recognizes that the institute of damages as a result of breach of obligation and the institute

of damage as a tort phenomenon have different normative origins, but in practice their

interaction is inevitable.

The law enforcement practice has also developed an approach according to which a clear

distinction should be made between (1) the debtor's duty to pay for losses caused by

not performing or performing improperly an obligation (Article 623 of the Civil Code of

Ukraine) and (2) non-contractual damage, which is regulated in Chapter 82 of the Civil

Code of Ukraine (Articles 1166-1194) (VRU, 2025a).

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Figure 1. Comparative Characteristics of the Application of Civil Law and Commercial Law

Regulations on Liability for Damage in the Course of Business Activities

Source: compiled by the author on the basis of VRU (2025a; 2025b)

Characteristics

The Civil Code provides

general provisions, while

the Commercial Code

specifies them in the field

of economic activity,

creating a dualistic model

of liability regulation

The Civil Code has the

principle of full

compensation, while the

Commercial Code has a

pragmatic approach

Both Codes form similar

structures, but the

Commercial Code takes

into account the specifics

of business risk

The CC introduces the

«economic tort» category

In economic relations, lost

profits are considered as a

key element for

assessingeconomic

efficiency

The Commercial Code

provides more room for

taking into account economic

feasibility

The practice of commercial

courts follows the path of

complementarity of

institutions rather than

theirstrict separation

Commercial Code of

Ukraine

Also taken into

account when

determining damages

(Articles 224)

Consideration of the

principle of

proportionality,

methods and balancing

of interests (Art. 225)

Possible overlap (e.g.,

Article 224 of the Civil

Code covers both

types)

Civil Code of

Ukraine

Included in damages

(according to Article 22

of the Civil Code)

There is no direct rule,

but judicial reduction is

allowed (court practice)

Clear distinction:

contract - Art. 623, tort -

Ch. 82

Criterion

Contractual

liability

Tort liability

Amount of

compensation

Normative

basis

Lost profit

Correlation of

contractual and

non-contractual

Possibility to

reduce the

amount of

liability

Chapter 82

«Compensation for

Damage» (Articles 1166-

1194), Article 22

Art. 224, Art. 225,

Art. 249 (3), Art. 39

(1), Art. 153 (1), Art.

159 (5), Art. 162 (3),

Art. 178

In full (according to Art.

1166, Art. 1192 of the

Civil Code)

Consideration of

methods for

determining the

amount of damages

(Art. 225 of the Civil

Code)

Art. 623 of the Civil

Code: the debtor shall

compensate damages for

non-performance/

improperperformance of

obligations

Art. 224 of the

Commercial Code:

compensation for

damages for breach

of economic

obligation

Art. 224 of the

Commercial Code:

losses are possible

not only from breach

of obligations, but

also from violation of

requirements

forconducting

economic activity

General rule: damage is

subject to compensation

regardless of fault

(Article 1166 of the Civil

Code)

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The importance of this matter is substantiated by the fact that Chapter 82 of the Civil

Code of Ukraine contains only a general rule on compensation for damages «in full»

(Article 1166), but does not define in detail either the components of compensation, the

possibility of its reduction, or the procedure for compensation for lost profits. Instead,

commercial law (Articles 224, 225, 249 of the Commercial Code of Ukraine) expressly

establishes the possibility of compensation for damages both in case of breach of an

obligation and in case of non-compliance with «established requirements for conducting

business activities», which in fact covers the tort liability of business entities (VRU,

2025b).

A participant in economic relations who violates an economic obligation or established

requirements for conducting economic activity must, therefore, reimburse the entity

whose rights or legitimate interests have been violated for the losses resulting from the

violation, as per part 1 of Article 224 of the Commercial Code of Ukraine.

This provision demonstrates an organic combination of contractual and tort elements, as

damage can arise not only from the failure to fulfill a contract, but also from a violation

of general business rules (VRU, 2025b). Additionally, Article 22 of the Civil Code of

Ukraine defines «damages» as a universal category covering any violation of civil rights,

and Article 1192 of the Civil Code provides for both compensation in kind and in monetary

form (VRU, 2025a).

Therefore, the provisions of the Civil Code and the Commercial Code of Ukraine on

recovery of damages for breach of obligations may (and should) be applied to relations

for compensation for non-contractual damage in the field of business, but only to the

extent that they do not contradict the provisions of Chapter 82 of the Civil Code of Ukraine

(VRU, 2025a). This does not mean that contractual and tort liability are equated, instead,

that private law has a single compensatory mechanism that makes it possible to fill in

legal gaps and guarantees the efficient defense of business entities' rights and legitimate

interests.

One of the most problematic issues in the field ofThe challenge of reflecting their sectoral

specificity is among the most troublesome problems in the area of legal regulation of

compensation for damage in economic relations is the problem of reflecting their sectoral

specificity. The study of the The conclusions drawn from the analysis of current

legislation's provisions of current legislation leads to the conclusion that theare that some

reformers' proposals of some reformers regarding the abolition of to abolish the Economic

Code of Ukraine as an separate law independent act and complete unification of fully

unify its provisions with the provisions those of the Civil Code of Ukraine are both

methodologically incorrect flawed and practically dangerous hazardous for the business

sector community. Commercial legal relations, unlike purely civil ones, require the use

of specialized tools focused on the professional sphere of business, which makes it

impossible to identify the mechanisms of liability in civil and commercial law. Ignoring

this specificity leads to the destruction of traditions established in commercial circulation,

distortion of business loss compensation procedures and their replacement with general

civil remedies that are formally acceptable but essentially inadequate and harmful to the

business environment.

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111

Ukrainian legislation provides for a number of Several provisions that directly indicate

the special nature of Ukrainian legislation explicitly denote the unique nature of the

institution of compensation for damage in the field of business. Thus, pursuant to Part 1

of Article 174 of the Commercial Code of Ukraine, an economic obligation may arise as a

result of damage to a business entity or by the business entity itself. This indicates that

liabilities for damages in such cases fall into the category of property and economic

liabilities. At the same time, part 3 of Article 175 of the Civil Code of Ukraine explicitly

states that damage caused by an individual who does not have the status of an

entrepreneur cannot give rise to an economic obligation, which further confirms the

autonomy and specialization of economic legal mechanisms (VRU, 2025b).

Figure 2. Scheme of a single compensatory mechanism in private law

Source: compiled by the author

Elements

Peculiarity of

application

Legal and

regulatory

Object of

protection

Form of

compensation

Article 623 of the Civil

Code; Chapter 51 of

the CC; rticles 224-

225, 249 of the

Commercial Code

Violation of creditor's

rights within the

obligation

Compensation for

damages (actual

damages and lost

profits)

Arises from non-

performance /

improper

performance of the

contract

Arises from violation

of general rules of

conduct and business

Compensation for

damage (in kind or in

money)

Violated rights in

case of damage

outside the contract

Ch. 82 of the Civil

Code (Articles 1166-

1194); Articles 224-

225 of the

Commercial Code

Universality of the category of

"losses": covers contractual and

non-contractual cases

Types of liability

Tort liability

Contractual

Compensation function: restoration

of violated rights regardless of the

form of liability

Flexibility of application:

compensation both in kind and in

cash; covers lost profits

Complementarity of the provisions

of the Civil Code and the

Commercial Code: commercial law

allows for the application of

damages to tort cases as well

Common element

Protection of rights

in contractual

obligations

Protection of rights in

non-contractual

relations

Purpose: to create a unified

compensatory mechanism in

private law that integrates

contractual and tort remedies and

ensures effective restoration of

rights and interests of business

entities

The overall

result

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The content and structure of such obligations indicate the existence of a separate tort

institute of economic law, which, although it corresponds to civil law tort, is not identified

with it. It is about a set of provisions that form the specifics of the economic law approach

to determining and compensating for damage. In particular, part 1 of Article 222 of the

Civil Code of Ukraine provides for the possibility of initiating a pre-trial settlement of a

dispute over compensation for damage by the injured party, which reflects the economic

law orientation towards discretion and balance of interests (VRU, 2025b). Compensation

for non-pecuniary damage should be given special consideration. In the economic sector,

it can only be considered a business entity's business reputation being violated, as

opposed to the more general grounds outlined in Article 23 of the Civil Code of Ukraine

(VRU, 2025a).

Another important difference is the regulation of liability of public authorities. While

Article 393 of the Civil Code of Ukraine provides for compensation for damages only in

case of unlawful decisions or actions, part 5 of Article 47 of the Commercial Code of

Ukraine allows for recovery of damages even for lawful decisions that objectively led to

negative property consequences for business entities (VRU, 2025a; 2025b). This

provision clearly demonstrates the orientation of commercial legislation to protect

business stability, rather than purely to formal compliance with the principle of legality.

No less significant is the expanded list of damages enshrined in Article 225 of the

Commercial Code of Ukraine, which differs significantly from Article 22 of the Civil Code

of Ukraine. Commercial law recognizes «lost income» as an element of damages that is

calculated not in the abstract, buttaking into account economic specifics: by reducing the

gross income of a business entity by the amount of gross expenses and depreciation

(Article 142 of the Commercial Code of Ukraine) (VRU, 2025b). In contrast to the civil

law approach, which defines lost profits as income that an individual could actually

receive under normal circumstances, this sets apart the economic understanding of lost

profits (Article 22(2) of the Civil Code of Ukraine) (VRU, 2025a).

Additionally, part 3 of Article 226 of the Civil Code of Ukraine provides for a special ground

for reducing the amount of compensation: a business entity is denied the right to

compensation for losses if it was promptly informed of a potential failure to fulfill an

obligation and could have prevented the adverse consequences, but failed to do so. This

provision has no analogues in civil law, which confirms the separateness of economic

torts.

Significant peculiarities can be traced in the methods of determining damage. Instead of

the universal approach of Art. 22 of the Civil Code of Ukraine, commercial law relies on

special regulations. Thus, part 6 of Art. 225 of the Commercial Code of Ukraine provides

for the use of methods approved by the Cabinet of Ministers of Ukraine (further – CMU),

including, in particular, the Resolution of the CMU

«On Approval of the Methodology for Determining the Amount of Damage Caused by

Unauthorized Occupation of Land Plots, Use of Land Plots for Other Purposes, Removal

of Soil Cover (Fertile Soil Layer) without Special Permit» No. 963 of 25.07.2007 (VRU,

2007b); «On Taxes for Calculating the Amount of Damage Caused by Violation of the

Legislation on the Nature Reserve Fund of Ukraine» No. 287-93-p of 03.04.1995 (VRU,

1995); and «On Taxes for Calculating the Amount of Damage Caused to Green Areas

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within Cities and Other Settlements» No. 559-99-p of 29.02.2012 (VRU, 2012a). In the

absence of modern methods, the Temporary Methodology for Determining the Amount

of Damage from Breach of Economic Contracts, approved by the Order of the State

Property Fund of Ukraine «On Approval of the Methodology for Determining the Damage

and Amount of Damage Caused to Enterprises, Institutions and Organizations of All

Forms of Ownership as a Result of Destruction and Damage to Their Property in

Connection with the Armed Aggression of the Russian Federation, as well as Loss of Profit

from the Impossibility or Obstacles to Conducting Economic Activity» (No. z1522-22 of

18.10.2022), may also serve as a guide. An additional element of the specialty of

commercial law is the regime of double compensation for damage caused by violations

of competition law, enshrined in part 2 of Article 55 of the Law of Ukraine «On Protection

of Economic Competition» (VRU, 2024), which is completely alien to civil law. Thus,

commercial law forms an autonomous compensatory mechanism within which

compensation for damage acquires the characteristics of a special tort. This mechanism

is not isolated from civil law, but it is also not reduced to its provisions, which leads to

its consideration as a separate, institutionally justified form of civil liability in the field of

business.

In addition, another conceptually complex problem, which is reflected in paragraph 9 of

the Explanation of the Supreme Arbitration Court of Ukraine «On some issues of practice

of resolving disputes related to compensation for damage» No. v_215800-94 of

29.12.2007 (VRU, 2007c), is the issue of determining the legal nature of damage caused

in the field of business as a result of non-enforcement of a court decision. This issue is

of practical and methodological importance, as it affects the limits of application of both

tort and obligation constructions in commercial law. Therefore, first of all, it should be

emphasized that a court decision as a legal fact may be recognized as the basis for a new

obligation only in exceptional situations. These are, in particular, cases of restitution

under an invalid disputed contract (Article 208 of the Commercial Code of Ukraine), when

the court obliges the parties to return what they received under the contract; situations

of recognizing a contract as concluded by a court decision (Article 187, Article 219 of the

Commercial Code of Ukraine), as well as a number of other specific cases (VRU, 2025b).

In such situations, the court decision does create a new obligation that did not exist

before it was made. In most cases, however, judicial acts do not create new obligations,

but rather ensure their enforcement by giving them the form of an enforcement

document. For example, a decision to recover damages states the fact of a violation and

determines its scope and procedure for compensation, while the obligation to compensate

arises on the basis of a preliminary fact of an offense. This is further supported by the

fact that, even prior to the court's ruling, the debtor is entitled to voluntarily make up

the damages.

Based on this, it seems methodologically incorrect to define non-enforcement of a court

decision as a tort. Within the meaning of Chapter 82 of the Civil Code of Ukraine (Article

1166), tort damage results from the violation of absolute rights of a person protected by

the general prohibition of harm. In the case of non-enforcement of a court decision, it is

not a violation of an absolute right, but rather the improper fulfillment of a specific

obligation. Therefore, the legal basis for the creditor's claims in such a situation should

be sought not in tort provisions, but in the rules on liability for breach of obligations -

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Articles 623 and 625 of the Civil Code of Ukraine, as well as Chapter 25 of the Commercial

Code of Ukraine. In particular, the concept of «court decision as a source of tort damage»

negates the principle of full compensation for damage enshrined in Article 1166 of the

Civil Code of Ukraine (VRU, 2025a). After all, tort compensation provides for continuous

and systematic accounting of all losses of the injured party from the moment they occur

until the moment of actual compensation. The reclassification of this obligation as a

«judicial» obligation breaks the unity of the compensation process by introducing an

external factor - the possibility or impossibility of enforcing a court decision.

The problem is further complicated by the position reflected in paragraph 9 of the

Explanation of the Supreme Arbitration Court of Ukraine on damages (VRU, 2007c),

according to which the court must determine whether it was actually possible to enforce

the judgment at the time it was presented for enforcement. However, this provision

seems questionable given the current substantive law. Pursuant to Article 1192 of the

Civil Code of Ukraine, compensation for damages may be made in two forms - in kind or

in cash. If compensation is made in cash, then pursuant to Article 625 of the Civil Code

of Ukraine, the debtor is not released from liability for the inability to fulfill a monetary

obligation (VRU, 2025a). Thus, a court review of the «possibility of fulfillment» would be

contrary to the law.

A different situation arises when it comes to a court decision on compensation for damage

in the form of transferring a specific thing or performing a certain action. Here, of course,

the objective impossibility of performance may be relevant. However, it does not

eliminate the debtor's obligation itself, but rather affects the procedure for its realization.

In such cases, procedural rules apply, in particular, Article 33 of the Law of Ukraine «On

Enforcement Proceedings» (No. 1404-VIII of 10.08.2025), which allows the court or

enforcement body to grant a deferral or installment plan, as well as to change the method

and procedure for fulfilling the obligation (VRU, 2025c). Thus, the legal qualification of

non-enforcement of a court decision as tort damage is unacceptable from a doctrinal

point of view and contrary to the system of national legislation. The only correct approach

seems to be to qualify such legal relations as obligatory, with the appropriate application

of the provisions of the Civil Code of Ukraine, the Economic Code of Ukraine and special

laws.

It is impossible to overlook one of the most contentious topics when analyzing the

problems of damages compensation in the field of economic relations: compensation for

losses suffered by businesses as a result of illegal decisions, actions, or inaction on the

part of local self-government bodies and public authorities.Even the Clarification of the

High Commercial Court of Ukraine on compensation for damages emphasizes the

unlawful actions of state enforcement officers as a basis for imposing tort liability.

However, this issue does not exhaust the whole range of issues. Thus, in the field of land

relations, numerous offenses arise due to the adoption of unlawful decisions by local

governments, which necessitates amendments to the Law of Ukraine «On Local Self-

Government» (No. 280/97-VR of 08.08.2025) (VRU, 2025d).

The current stage of development of Ukrainian legislation is characterized by a

comprehensive regulatory framework for the institution of liability of public authorities

for damage caused to business entities. Thus, the Economic Code of Ukraine contains a

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number of provisions that directly define the grounds for such liability: Article 23(7),

Article 40(7), Article 47(4-5), Article 74(6), Article 88(8), Article 147(3), Article 249(3),

Article 255, Article 397(5-7) (VRU, 2025b). According to the Civil Code of Ukraine,

damage caused by public authorities is covered by the provisions of Article 393 and

special provisions of Articles 1173-1176, which expressly establish the liability of the

state, the Autonomous Republic of Crimea and local self-government bodies for unlawful

decisions, actions or omissions (VRU, 2025a). Additionally, Article 77 of the Law of

Ukraine «On Local Self-Government» (VRU, 2025d) and Article 13(3) of the Law of

Ukraine «On the State Tax Service» (VRU, 2012b) provide for the possibility of

compensation for damage caused by the relevant authorities in the course of exercising

their powers.

At the same time, despite the developed regulatory framework, a number of problems

remain open. First of all, it is the issue of distinguishing between lawful and unlawful

actions of officials, which is crucial for the emergence of the obligation to compensate for

damage. The issue of personification of public authorities as independent subjects of civil

liability is no less complicated, since they traditionally act on behalf of the state or a

territorial community. The issue of jurisdiction is also controversial: the division of

competence between commercial and administrative courts in disputes related to

compensation for damage caused by the actions of public authorities. The mechanism of

actual enforcement of funds from the state or local budget remains extremely

problematic, which creates a conflict between the principle of full compensation for

damage and the limitations of budget legislation.

Resolving these issues is an urgent need for the state in times of war, which also

proclaims the development of entrepreneurship as one of its key priorities. A qualitative

enhancement of the legislative framework is necessary to guarantee adequate

compensation for damage caused by unlawful actions of public authorities, as indicated

in Table 1.

Table 1. Key problems and prospects for their solution in the field of compensation for damage

in economic relations

Problem

Essence of the problem

Proposed solution

Correlation of

the concepts of

«losses» and

«damage»

In the Civil Code of Ukraine (Art.

22), damage is a universal category,

while the Commercial Code (Arts.

224, 225, 249) treats losses as

covering both contractual and tort

cases, creating uncertainty over

whether these concepts coincide or

differ.

Introduce a legislative definition clarifying

the relationship between “losses” and

“damage,” recognizing losses as a broader

category that includes damage and lost

profits, and amend Article 22 of the Civil

Code of Ukraine to harmonize it with Article

225 of the Commercial Code of Ukraine.

Limits of

application of

contractual

and tort

structures

In practice, disputes often arise

when damage is caused within

existing contractual relations but

outside the contract’s scope (e.g., a

contractor’s negligent acts).

To codify in the Civil Code (e.g., Article 623)

the presumption that the existence of a

contract does not preclude tort liability

where damage arises outside the

performance of the contractual obligation, in

line with § 280 BGB (Germany).

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Lack of detail

on the

composition of

compensation

Art. 1166 of the Civil Code contains

a general rule on «full

compensation», but does not detail

the procedure for compensation for

lost profits, the possibility of

reducing compensation, etc.

Amend Chapter 82 of the Civil Code of

Ukraine to provide for a structure of

compensation similar to Article 225 of the

Commercial Code of Ukraine: direct

damage, lost profits, lost income, additional

expenses, which will unify the practice.

Specifics of

economic tort

In the Civil Code, tort is based on

violations of absolute rights, whereas

in the Commercial Code of Ukraine it

centers on economic activity and

professional risk, and the lack of a

clear definition leads to

methodological errors.

Recognize the autonomy of economic tort as

a separate institution at the level of doctrine

and law. To enshrine in the Civil Code the

definition of «economic tort» as damage

caused in the field of professional business

activity, which differs from the tort of civil

law.

Compensation

for non-

pecuniary

damage in

commercial

law

The Civil Code of Ukraine (Article 23)

recognizes a broad range of non-

pecuniary losses, whereas

commercial law allows them only for

damage to business reputation,

creating legal conflicts.

Enshrine in the Civil Code of Ukraine (Part 1

of Article 222) a provision that clearly

defines that moral damages in economic

relations are limited to violation of business

reputation and special compensation for

loss of business image.

Compensation

for damages

by lawful

actions of

public

authorities

Article 393 of the Civil Code provides

for liability for unlawful acts, while

part 5 of Article 47 of the

Commercial Code allows for recovery

of damages even for lawful acts that

have caused negative consequences,

including a conflict of regulations.

A special institute of «compensation for

legitimate damage» should be established

at the legislative level, limiting it to cases

where an act of a public authority has

objectively caused losses for business.

Failure to

enforce court

decisions

Some scholars and courts equate the

failure to enforce a court decision

with a tort, although in fact it is an

improper fulfillment of an obligation

(Articles 623, 625 of the Civil Code;

Chapter 25 of the Commercial

Code).

Introduce in the Civil and Commercial Codes

of Ukraine the rule that failure to enforce a

court decision constitutes a breach of

obligation, not a tort, to eliminate doctrinal

contradictions and align with procedural law

(Article 33 of the Law «On Enforcement

Proceedings»).

Methods of

determining

damage

The Civil Code (Article 22) adopts a

universal approach, whereas the

Commercial Code (Article 225(6))

allows special methods approved by

the CMU (Resolutions No. 963/2007,

No. 287/1995, No. 559/2012), and

the lack of a unified standard creates

legal uncertainty.

Develop a single comprehensive

methodology for assessing damage that

combines civil and commercial approaches.

Introduce mandatory forensic examination

in cases where damage is determined by

special methods.

Lack of a clear

mechanism for

recovering

damages from

the budget

Although the Civil Code (Articles

1173–1176) and the Commercial

Code (Articles 23, 40, 47, 88, 147,

249, 255, 397) regulate state and

local government liability,

enforcement is often hindered by

budget legislation.

Introduce a special procedure for enforcing

compensation from the budget by creating a

state fund to guarantee damages from

authorities, in line with the rule of law and

ECHR practice (Article 6 of the Convention).

Source: compiled by the author based on VRU (2021; 2025a; 2025b)

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Liability for Causing Property Losses in the Course of Business Activities

Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

117

Discussion

This construction, as the analysis of legislation and its application practice shows, is not

accidental, but is driven by the needs of economic circulation, where compensation for

damage cannot be reduced to purely civil law instruments.

In this context, a paradox is revealed: attempts to unify civil and commercial regulation

(through proposals to eliminate the Civil Code of Ukraine) come into conflict with the

actual needs of economic circulation, where damage arises not only in the field of

relations of obligation but also as a result of violation of general business rules. Unlike

general civil torts, in commercial relations, the priority is to compensate for business

losses, restore business reputation and maintain commercial stability. In fact, as the

practice of other legal orders demonstrates (Van Dunné, 1999; Priest, 1991), ignoring

the specifics of the economic context leads either to an excessive expansion of tort

liability with undesirable market effects or to an excessive narrowing of compensation

opportunities (the case of pure economic loss in common law).

The results of the study confirm the conclusion that there is a «single compensatory

mechanism» in private law of Ukraine, which combines civil and commercial structures

of compensation for damage. However, unlike the universal model of the Civil Code,

commercial law instruments provide for an expanded range of damages, including lost

income and special forms of non-pecuniary damage (in the context of business

reputation), and allow for compensation even for lawful actions of public authorities. This

situation significantly brings the Ukrainian model closer to the concept of «objective

responsibility» that modern science is actively developing in the field of environmental

risks and high-tech challenges (Alwreikat&Qtaishat, 2025; Cheng, 2025).

Comparing the results with foreign approaches reveals several important patterns. First,

the effectiveness of compensation mechanisms is determined not so much by the degree

of their formal universality as by their adaptability to the specifics of the market

environment (Daryaie et al., 2024). Secondly, in the current environment, economic

activity covers high-risk areas - from the digital economy to waste management - where

the classical tort principles (fault, causation, full compensation) are insufficient. That is

why the expansion of the limits of liability, which Priest (1991) noted in Western systems,

takes on a new meaning in Ukraine: not as an «overload» of the legal order, but as a

need for an adequate response to the complication of economic processes. Thirdly, the

Ukrainian model of compensation for damages in commercial legal relations combines

traditional tort elements with commercial legal functionality, creating a unique structure

that can serve as a model for legal systems with similar socio-economic challenges. This

is also confirmed by the analysis of law enforcement: the practice clearly distinguishes

between cases of damages for failure to fulfill obligations and tort situations, but at the

same time applies the same compensatory criteria (Articles 224, 225 of the Civil Code of

Ukraine). This approach is consistent with the concept of «hybrid» obligations, which is

increasingly seen in the doctrine as an adequate response to the current challenges of

private law.

Thus, the discussion around civil liability in the field of economic activity demonstrates

that the key challenge is not so much to find the boundaries between civil and commercial

law as to develop a balanced compensation mechanism capable of ensuring legal

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Iurii Bedratyi, Tetiana Protsiuk, Olena Nadiienko, Olena Perunova, Volodymyr Tsikalo

118

certainty, economic efficiency and fairness of compensation. In this sense, Ukraine's

experience may be conceptually important for other transitional legal orders facing

similar problems – fragmented regulation, lack of established practice, and rapidly

changing economic and technological conditions.

Conclusions

This study demonstrates that the mechanisms of civil liability in Ukrainian commercial

law form a single compensatory complex that combines contractual and tort remedies

for damages. Such a system provides legal certainty, protects economic stability and is

aimed at compensating both direct damage and lost profits arising from the breach of

obligations.

In order to apply the provisions of the Ukrainian Civil and Commercial Codes, it is

necessary to further harmonize methods for calculating damages and to more clearly

regulate the relationship between contractual and tort liability, according to an analysis

of the current legislation. The study notes that there is a need to improve the procedures

for assessing damages, unify judicial practice, and adapt legal instruments to modern

socio-economic and technological challenges, including digitalization and new forms of

business activity.

The results obtained confirm that a unified compensation mechanism contributes to

improving the efficiency of legal regulation, minimizing risks for business structures and

making certain that the parties' interests are balanced. The practical significance of the

study lies in the development of scientifically based recommendations for legislative

initiatives and the development of law enforcement practice aimed at improving the

system of compensation for losses and strengthening the legal security of commercial

relations in Ukraine.

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OBSERVARE

Universidade Autónoma de Lisboa

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122

FEATURES OF THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS FOR

DESIGNATIONS ACCORDING TO THE LEGISLATION OF UKRAINE

MARK BELKIN

belkinleonid@ukr.net

PhD (Law Sci.), Lawyer Interregional. Academy of Personnel Management

Kyiv (Ukraine) https://orcid.org/0000-0003-0805-9923

LEONID BELKIN

PhD (Technical Sci.), Senior Researcher, Lawyer Attorney in private practice

Kyiv (Ukraine) https://orcid.org/0000-0001-8672-8147

JULIYA IURYNETS

Doctor of Law, Professor of the Department of Constitutional and Administrative Law National

Aviation University Kyiv (Ukraine) https://orcid.org/0000-0003-0281-3251

KOSTIANTYN NEMCHENKO

ksnemo359@gmail.com

PhD in Law, Senior Lecturer Department of International and European Law

Faculty of International Relations National Aviation University

Kyiv (Ukraine) https://orcid.org/0009-0001-0381-5964

YEVHENII KURYLO

Y.Kurylo@credocc.com.ua

PhD Student at the Department of International and European Law

Faculty of International Relations National Aviation University

Kyiv (Ukraine) https://orcid.org/0009-0002-0557-3214

Abstract

Symbols that distinguish one business entity from another – such as signs, trademarks, and

commercial or brand names – play a crucial role in ensuring fair competition and protecting

consumer rights. Their proper use guarantees the declared origin and expected quality of

goods, works, or services. The Convention Establishing the World Intellectual Property

Organization (Stockholm, July 14, 1967) introduced an important distinction between

“trademarks” and “designations.” Under current Ukrainian legislation, designations may

include words (including proper names), letters, numbers, images, colors, shapes of goods or

packaging, and sounds, provided they are capable of distinguishing the goods or services of

one person from those of another and can be represented in the Register with sufficient clarity

to determine the scope of legal protection. Given these requirements, effective use and

protection of designations necessitate a thorough understanding of how Ukrainian law

regulates intellectual property rights in this area. The purpose of this article is to clarify the

features of such protection by systematizing legislative provisions and relevant judicial

practice. The methodological basis includes the documentary method, focused on analyzing

court materials, and the formal-legal method, used to examine the legal positions of the

Supreme Court concerning the protection of designations. The study leads to several

conclusions: a designation itself is not an independent object of legal protection; it may

acquire protection only when incorporated into a registered trademark; such protection is

limited by the rules applicable to marks; and, in special cases, courts may prohibit the use of

a designation not as a trademark element but as a work of fine art.

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Features of the protection of intellectual property rights

for designations according to the legislation of Ukraine

Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn Nemchenko, Yevhenii Kurylo

123

Keywords

Intellectual property, trademarks, designations, legal protection, Law of Ukraine “On

Protection of Rights to Signs for Goods and Services”.

Resumo

Os símbolos que distinguem uma entidade empresarial de outra – tais como sinais, marcas

registadas e nomes comerciais ou de marca – desempenham um papel crucial na garantia da

concorrência leal e na proteção dos direitos dos consumidores. A sua utilização adequada

garante a origem declarada e a qualidade esperada dos produtos, obras ou serviços. A

Convenção que institui a Organização Mundial da Propriedade Intelectual (Estocolmo, 14 de

julho de 1967) introduziu uma distinção importante entre «marcas registadas» e

«designações». De acordo com a legislação ucraniana em vigor, as designações podem incluir

palavras (incluindo nomes próprios), letras, números, imagens, cores, formas de bens ou

embalagens e sons, desde que sejam capazes de distinguir os bens ou serviços de uma pessoa

dos de outra e possam ser representadas no Registo com clareza suficiente para determinar

o âmbito da proteção jurídica. Tendo em conta estes requisitos, a utilização e proteção

eficazes das designações exigem uma compreensão profunda da forma como a legislação

ucraniana regula os direitos de propriedade intelectual nesta área. O objetivo deste artigo é

esclarecer as características dessa proteção, sistematizando as disposições legislativas e a

prática judicial relevante. A base metodológica inclui o método documental, focado na análise

de materiais judiciais, e o método formal-jurídico, utilizado para examinar as posições

jurídicas do Supremo Tribunal relativamente à proteção das designações. O estudo leva a

várias conclusões: uma designação em si não é um objeto independente de proteção jurídica;

ela só pode adquirir proteção quando incorporada a uma marca registrada; tal proteção é

limitada pelas regras aplicáveis às marcas; e, em casos especiais, os tribunais podem proibir

o uso de uma designação não como elemento de marca, mas como obra de arte.

Palavras-chave

Propriedade intelectual, marcas registradas, designações, proteção jurídica, Lei da Ucrânia

“Sobre a Proteção dos Direitos a Sinais para Produtos e Serviços”.

How to cite this article

Belkin, Mark, Belkin, Leonid, Iurynets, Juliya, Nemchenko, Kostiantyn & Kurylo, Yevhenii (2026).

Features of the protection of intellectual property rights for designations according to the legislation

of Ukraine. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human

Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.

2, TD3, March 2026, pp. 122-135. https://doi.org/10.26619/1647-7251.DT0226.7

Article submitted on 30 November 2025 and accepted for publication on 22 December

2025.

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 122-135

Features of the protection of intellectual property rights

for designations according to the legislation of Ukraine

Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn Nemchenko, Yevhenii Kurylo

124

FEATURES OF THE PROTECTION OF INTELLECTUAL PROPERTY

RIGHTS FOR DESIGNATIONS ACCORDING TO THE LEGISLATION

OF UKRAINE

MARK BELKIN

LEONID BELKIN

JULIYA IURYNETS

KOSTIANTYN NEMCHENKO

YEVHENII KURYLO

Introduction

Salah Hassan Karim and Dr. Israa Khidir Khalil Alobaidy note that a well-known

trademark is a unique trade for any commodity or service. It’s usually a word, name,

phrase, logo, symbol or image, or any combination of these signals which can be

registered as a trademark. The well-known trademark is distinct from other intellectual

property rights. As the well-known brand plays a significant role in economic growth,

such has led to multiple infringements such as the forgery and imitation of the famous

trademarks, which has become widespread (Salah Hassan Karim & Israa Khidir Khalil

Alobaidy, 2024).

As G. Mykhailiuk notes, one of the main goals of marketing policy is to distinguish one's

own products from similar products of competing manufacturers (Mykhailiuk, 2014). This

becomes especially important in the conditions of the expected post-war Innovation and

Investment Development of Ukraine (Kulikov et al., 2022; Nikonenko et al., 2022). Such

differentiation may become necessary in information bases conducive to the development

of an E-Commerce platform within modern socio-economic systems, operating amidst

global digitalization and within legal constraints (Alazzam et al., 2023). Such

differentiation can be achieved in various ways, but one of the oldest and most effective

is the creation of a certain sign, name, symbol, which is depicted on the goods of this or

that manufacturer, or under which this or that business entity performs work / provides

services on the market. The above refers to the use of a commercial designation. Along

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 122-135

Features of the protection of intellectual property rights

for designations according to the legislation of Ukraine

Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn Nemchenko, Yevhenii Kurylo

125

with the convenience and effectiveness of this marketing tool, which is also an object of

intellectual property, the use of a commercial designation is associated with a group of

risks that significantly limit the right of individuals to use certain commercial designations

(Mykhailiuk, 2014).

The same article notes that the potential for separate legal protection for signs was

provided in the Stockholm in World Intellectual Property Organization Convention of

1967, paragraph 8, Article 2, where point viii) of this article states that “intellectual

property” includes rights relating to: literary, artistic and scientific works; performances

of performers, phonograms and broadcasting; inventions in all spheres of human activity;

scientific discoveries; industrial samples; trademarks, service marks, commercial names

and designations, protection against unfair competition and all other rights resulting from

intellectual activity in the fields of industry, science, literature or art (Convention, 1967).

Also there was introduced the distinction between the concepts of “trademarks” and

“designations”.

At the same time, Leonid Belkin emphasizes that the protection of intellectual property

rights to designation under the legislation of Ukraine is highly limited and has specific

features. It is indicated that the exhaustive list of objects of intellectual property rights,

which are subject to separate legal protection, is established in Part 1 of Article 420 of

the Civil Code of Ukraine, including commercial (brand) names, trademarks (marks for

goods and services). Thus, the designation is not defined as an independent object of

legal protection (Belkin, 2019). Therefore, proper protection of the rights to use the

relevant symbols (signs) is important and relevant. At the same time, a relatively small

number of works are devoted to the issue of legal protection for designations (Mykhailiuk,

2014, 2015a, 2015b; Belkin, 2019; Rozghon, 2021). In addition, since the publication of

these works, including the work of the co-author (Belkin, 2019), a number of new laws

have been adopted, as well as new case law has been formed by the reformed Supreme

Court. For example, on July 21, 2020, Law of Ukraine No. 815-IX “On Amendments to

Certain Legislative Acts of Ukraine on Strengthening Protection and Protection of Rights

to Trademarks and Industrial Designs and Combating Patent Abuse” was adopted

(entered into force on August 16, 2020). Thus, there remains a large number of disputes

in the specified area, which is connected with insufficient legal regulation of this area and

confirms the relevance of this topic.

Presenting main materials

Civil law regulation of legal protection of designations

According to Part 1 of Article 492 of the Civil Code of Ukraine, a trademark can be any

designation or any combination of designations that are suitable for distinguishing goods

(services) produced (provided) by one person from goods (services) produced (provided)

by other persons. Such designations can be, in particular, words, letters, numbers,

pictorial elements, color combinations.

According to Part 1 of Article 1116 of the Civil Code of Ukraine, the subject of a

commercial concession contract is the right to use objects of intellectual property rights

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Transformation in Times of Global and National Challenges

March 2026, pp. 122-135

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(trademarks, industrial designs, inventions, works, trade secrets, etc.), commercial

experience and business reputation.

According to paragraph 1 Article 4 of the Law of Ukraine dated June 7, 1996 No. 236/96-

VR “On Protection from Unfair Competition” it is illegal to use a name, commercial (brand

name), trademark (a mark for goods and services), advertising materials, design of

product packaging and periodicals, other designations without the permission (consent)

of the business entity that previously started using them or similar designations in

business activities, which has led or may lead to confusion with the activities of this

business entity.

Thus, in the above-mentioned Part 1 of Article 420 of the Civil Code of Ukraine, as well

as in the quoted norm of the Law of Ukraine “On protection against unfair competition”,

the concept of “trademark” was equated with the concept of “mark for goods and

services”. At the same time, trademarks are directly defined as the object of intellectual

property law, and the designation has a derived meaning from the concept of

“trademark”.

According to Article 1 of the Law of Ukraine dated December 15, 1993 No. 3689 “On

Protection of Rights to Marks for Goods and Services” (as amended until August 16,

2020), a mark is a designation by which goods and services of one person differ from

goods and services of other persons; certificate – a certificate of Ukraine for a mark for

goods and services. According to Part 2 of Article 5 of this Law, the object of a mark can

be any designation or any combination of designations. Such designations may include,

but are not limited to, words, including proper names, letters, numbers, pictorial

elements, colors and combinations of colors, and any combination of such designations.

The term “trademark” is not used in this Law. Only upon adoption of the above-

mentioned Law No. 815-IX dated July 21, 2020 in the text of the Law “On Protection of

Rights to Marks for Goods and Services” the words “marks for goods and services” in all

cases and numbers were replaced by the word “trademark” in the corresponding case

and number; the words “registered mark” in all cases and numbers are replaced by the

words “registered trademark” in the corresponding case and number; replace the word

“mark” in all cases and numbers with the word “trademark” in the corresponding case

and number. These changes entered into force on August 16, 2020. Under these

conditions, the following legal regulation was introduced after August 16, 2020.

According to Article 1 of the Law of Ukraine “On Protection of Rights to Marks for Goods

and Services” (as amended after August 16, 2020), a trademark is a designation by

which the goods and services of one person differ from the goods and services of other

persons; certificate – Ukrainian trademark certificate. According to Part 2 of Article 5 of

this Law, the object of a trademark can be any designation or any combination of

designations. Such designations can be, in particular, words, including proper names,

letters, numbers, pictorial elements, colors, shape of goods or their packaging, sounds,

provided that such designations are suitable for distinguishing the goods or services of

one person from the goods or services of others persons and suitable for their display in

the Register in such a way that it is possible to determine the clear and precise scope of

the legal protection provided.

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Features of the protection of intellectual property rights

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Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn Nemchenko, Yevhenii Kurylo

127

Therefore, with this legal regulation, the provisions of the Law of Ukraine “On the

Protection of Rights to Marks for Goods and Services” began to formally correspond to

the legal regulation under the Civil Code of Ukraine and the Law of Ukraine “On Protection

from Unfair Competition” regarding the derivative meaning of the designation from the

concept of “trademark”.

At the same time, the peculiarities of legal regulation according to the previous legal

protection have current significance, since the case law, which was compiled according

to the previous legislation, is relevant even now, taking into account the terminological

clarifications.

As noted in paragraph 59 of Resolution No. 12 of the Plenum of the Higher Economic

Court of Ukraine dated October 17, 2012, “commercial courts need to keep in mind that

the owner of the rights to a mark for goods and services has the right to prohibit other

persons from using the same or similar to the degree of confusion with this mark is used

only for those goods and services for which this mark is registered, or goods and services

related to them. Therefore, in the case of the dispute over the termination of the violation

of intellectual property rights for marks for goods and services, the commercial court

should find out the list of goods and services for which the disputed marks are registered,

and establish the actual circumstances of the use of the disputed marks by the

defendants in the cases in terms of their actual image and the list of goods and services

for which they are used”.

Paragraph 4 of Clause 63 of the specified Resolution No. 12 dated October 17, 2012

states that, in particular, the introduction into civil circulation of designations that are

identical or similar to the extent that they can be confused with marks is recognized as

a violation of trademark rights.

Therefore, these clarifications confirm that, in the general case, designations do not have

an independent status as an object of intellectual property.

In this regard, in particular, in the Resolution of November 8, 2022 in case

No. 922/1966/18 of the Supreme Court as part of the panel of judges of the Commercial

Court of Cassation, it is stated (Unified State Register of Court Decisions, 2025a).

“In itself, the “designation” is not an independent object with a status

specially provided by law, which gives rise to certain rights and obligations,

in connection with which it does not have specific (special) protection.

According to competition legislation, namely, according to Article 4 of the Law

of Ukraine “On Protection from Unfair Competition”, the designation receives

protection in competitive relations, and not as an independent object of

intellectual property.

The key, in this case, is the issue of good faith/bad faith in the use of such a

designation by economic entities.

The right to allow the use of a trademark (a sign for goods and services) and

the right to prevent its improper use (or a designation similar to it), including

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prohibiting such use, are components of exclusive property rights to a

trademark”.

In the article (Belkin, 2019) the co-author also summarized the conclusions of the higher

specialized court of the pre-reform period (2016-2017), according to which (conclusions)

the legislation in general does not grant the right to protect the intellectual property right

to designation, including the prohibition of its use. We are talking about the judicial

reform of 2016–2017 in Ukraine, within the framework of which (reforms) the Supreme

Court of Ukraine, higher specialized courts, as well as the procedure cassation review of

cases.

However, there is an exception to the prohibition on independent protection of the

designation. In accordance with Part 5 of Article 16 of the Law of Ukraine dated December

15, 1993 No. 3689 (as amended until August 16, 2020) “On Protection of Rights to Marks

for Goods and Services” (taking into account the definition of the concept of “certificate”

from Article 1 of this Law) certificate of Ukraine for a mark for goods and services gives

its owner the exclusive right to prohibit other persons from using without his consent,

unless otherwise provided by this Law:

- a registered mark for the goods and services specified in the certificate;

- a registered mark for goods and services related to those specified in the certificate, if

as a result of such use it is possible to mislead about the person who produces goods or

provides services;

- a designation similar to a registered mark in relation to the goods and services specified

in the certificate, if as a result of such use, these designations and the mark can be

confused;

- a designation similar to a registered mark in relation to goods and services related to

those specified in the certificate, if as a result of such use it is possible to confuse the

person who produces goods or provides services, or these designations and the mark can

be confused.

Thus, the Law allowed the right holder the exclusive right to prohibit others from using,

without the consent of that right holder, either a registered mark or a designation from

that registered mark.

Instead, in accordance with Part 5 of Article 16 of the Law of Ukraine dated December

15, 1993 No. 3689 (as amended after August 16, 2020) “On Protection of Rights to Marks

for Goods and Services” (taking into account the definition of the term “certificate” from

Article 1 of this Law) certificate of Ukraine for a mark for goods and services gives its

owner the exclusive right to prohibit other persons from using without his consent, unless

otherwise provided by this Law:

- a designation identical to a registered trademark in relation to the goods and services

specified in the certificate;

- a designation identical to a registered trademark, in relation to goods and services

related to those specified in the certificate, if as a result of such use, this designation and

the trademark can be confused, in particular, if an association of such a designation with

the trademark may arise;

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- a designation similar to a registered trademark in relation to the goods and services

specified in the certificate, if as a result of such use these designations can be confused,

in particular, if an association of such a designation with a trademark may arise;

- a designation similar to a registered trademark in relation to goods and services related

to those specified in the certificate, if as a result of such use these designations may be

confused, in particular, if an association of such designation with the trademark may

arise.

Therefore, in this version of the law, the emphasis is on the protection of the right to use

the designation, but on the condition that such designation is part of a registered

trademark. On the other hand, the interested person is not obliged to prove the identity

or similarity of the trademarks – it is enough to prove the identity or similarity of

individual designations.

Thus, in case No. 924/526/22, the claim was satisfied by the decision of the commercial

court of Khmelnytskyi region dated June 20, 2023. It was prohibited for “Agrain” LLC to

use similar to registered trademarks word designation “AGRAIN” on the Internet on all

web pages, in particular, at the link agrain.in.ua, facebook.com/agrain.ukraine,

youtube.com/channel/UCkrpv-Sx8CquJdjBRkf1xGg; in advertising, in business

documentation, in domain names, in particular, the domain name agrain.in.ua. The court

of first instance agreed with the plaintiff's arguments about the similarity of the

designation used by the defendant with the trademark. The plaintiff's trademarks

according to the certificate dated November 25, 2020 consist of the verbal element “A

GRAIN”, which is executed in standard capital letters of the Latin alphabet and a dot after

the first letter. The designation “AGRAIN” in all forms used by the defendant on the

Internet, advertising and business documentation also consists of the verbal element

“AGRAIN” in standard capital letters of the Latin alphabet. It is obvious that the

designation used by the defendant, as well as the registered trademarks owned by the

plaintiff, belongs to means of individualization. At the same time, the word mark

“AGRAIN” used by the defendant is similar to the registered trademarks owned by the

plaintiff to the extent that they can be confused.

Subsequently, the decision of the Economic Court of Khmelnytskyi Region was left

unchanged by the Resolution of the North-Western Appellate Economic Court dated

September 25, 2023. These court decisions are supported by the Resolution of November

30, 2023 in case No. 924/526/22 of the Supreme Court as part of the panel of judges of

the Cassation Economic Court

(Unified State Register of Court Decisions, 2025b).

Although the conclusion about the legality of the protection of the right to designation

follows from the norm of a special law – Part 5 of Article 16 of the Law of Ukraine “On

Protection of Rights to Marks for Goods and Services”, but this conclusion does not

contradict the Civil Code of Ukraine. In accordance with Part 1 of Article 495 of the Civil

Code of Ukraine, intellectual property rights to a trademark are: 1) the right to use the

trademark; 2) the exclusive right to allow the use of a trademark; 3) the exclusive right

to prevent improper use of the trademark, including prohibiting such use; 4) other

intellectual property rights established by law.

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Therefore, the protection of property rights of intellectual property for designation as part

of a trademark falls under the definition of “other property rights of intellectual property

established by law”, since these rights are established by law – Part 5 of Article 16 of the

Law of Ukraine “On Protection of Rights to Marks for Goods and Services”.

Instead, when protecting an intellectual property right for a designation as part of a mark

for goods and services, the restrictions established for the protection of an intellectual

property right for a mark for goods and services apply. In particular, according to the

above norm, part 5 of Article 16 of the Law of Ukraine “On Protection of Rights to Marks

for Goods and Services”, the right to prohibit other persons from using without his

consent, in particular, designation as part of the mark, is granted to the owner of this

mark as an exclusive right.

It is crucial to recognize that the protection of designations under Ukrainian legislation

does not operate in isolation but is fundamentally linked – or “nexused” – to the

protection afforded to trademarks. This legal nexus implies that the exclusive rights

granted under the Law of Ukraine “On Protection of Rights to Marks for Goods and

Services” apply to designations only as integral components of a registered trademark.

In other words, while a designation in itself may lack independent legal protection, its

incorporation into a trademark framework creates a binding relationship that dictates

both the scope and limitations of legal remedies against infringement.

Such an approach is supported by judicial practice, wherein courts have consistently

underscored that any dispute regarding a designation must be resolved by examining its

relationship with the corresponding trademark. For instance, in the case decided on June

20, 2023, the courts examined whether the unauthorized use of a designation

undermined the distinctiveness of the trademark as a whole. This perspective reinforces

the understanding that the legal nexus is not merely a theoretical construct but a practical

tool that shapes the enforcement of intellectual property rights. For example, in the

Resolution dated June 19, 2018 of the Commercial Court of Cassation as part of the

Supreme Court in case No. 910/17631/16

(Unified State Register of Court Decisions,

2025c), attention is absolutely rightly drawn to the illegality of the fact that the appellate

court, which supported the plaintiff regarding the protection of his right to designation,

which is used by this plaintiff, left out of consideration the basis of the claim defined by

the plaintiff, namely, that in substantiation of the stated claims, the plaintiff referred to

his right to use the mark for goods and services according to the certificate of Ukraine

dated February 17, 2003 No. 29714, the owner of which is not the plaintiff, but a Third

party. Therefore, the plaintiff did not have the authority to protect the right to the

designations, which were part of the registered trademark, while the plaintiff was not the

right owner of this trademark.

In the Resolution dated April 03, 2018 of the Commercial Court of Cassation as part of

the Supreme Court in case No. 918/560/16 (Unified State Register of Court Decisions,

2025d) it is noted that “in view of the factual circumstances established in the case and

taking into account the above legislative prescriptions, the appellate court reached the

correct conclusion that according to the Agreement, the Company received a non-

exclusive license (non-exclusive rights) to use the trademark according to the certificate

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of Ukraine dated February 10, 2012, while the right to allow the use of the trademark

and the right to prevent the improper use of the trademark, including prohibiting such

use, are components of exclusive property rights to the trademark. The appellate court

also came to the correct conclusion that under the terms of the Agreement, the Company

was granted the right to act on behalf of the licensor and seek protection of its violated

rights as the owner of a certificate for a mark for goods and services, while the Company

filed this lawsuit as a plaintiff”.

The Supreme Court specifically noted that the Company's reference to the fact that the

appellate court did not investigate the circumstances regarding the similarity of the

designation used in the production of products by the Company and the Enterprise,

although this issue belongs to the subject of evidence in the case, is subject to rejection

in view of the fact that circumstances established by the court regarding the Company's

lack of right to file this claim with the court on its own behalf are an independent and

sufficient reason for rejecting the claim regardless of other circumstances of the case.

It is also worth noting that if the right holder of a mark for goods and services believes

that the designation from his mark is illegally used in another mark, then the method of

protection in this case may not be a prohibition on the use of the mark, but the

cancellation of the certificate for another mark.

Features of the use of trademarks, service marks, commercial names

and designations that reproduce works of fine art.

A special case of the possibility of judicial prohibition of the use of designations is its

prohibition not as part of a mark for goods and services, but as a work of fine art. The

relationship between the principles of legal protection of intellectual property rights to

trademarks, service marks, commercial names and designations, on the one hand, and

the protection of rights to works of fine art, on the other hand, has not been studied at

all. In the article (Belkin, 2019) the co-author also summarized the conclusions of the

higher specialized court of the pre-reform period (2016–2017) according to which

(conclusions) a special case of the possibility of a court prohibition on the use of a

designations is such a prohibition not as part of a sign for goods and services, but as a

work of fine art. We are talking about the judicial reform of 2016–2017 in Ukraine, within

the framework of which (reforms) the Supreme Court of Ukraine, higher specialized

courts, as well as the procedure cassation review of cases. The legislative basis of this

conclusion is the norms of Part 4 of Article 6 of the Law of Ukraine “On Protection of

Rights to Marks for Goods and Services”. According to this norm (as amended until

August 16, 2020), shall not be registered as signs designations that reproduce: industrial

designs, the rights to which belong to other persons in Ukraine; names of works of

science, literature and art known in Ukraine or quotes and characters from them, works

of art and their fragments without the consent of the copyright owners or their

successors; surnames, first names, pseudonyms and their derivatives, portraits and

facsimiles of famous people in Ukraine without their consent.

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For example, in case No. 18/89-10, which was considered at the first instance by the

economic court of the Sumy region, the plaintiff demanded to prohibit the designations

from producing products, using on the packaging of such products notations borrowed

from the collection of works of fine art “Sketches and drawings of a mouse, several mice,

sketches and drawings of packages for treated and untreated sunflower seeds with the

image of a mouse”, the intellectual property right of which (assemblage) belonged to the

plaintiff. During the first consideration of the case by the court of cassation, in its

Resolution dated March 22, 2011 (Unified State Register of Court Decisions, 2025e), the

Supreme Economic Court of Ukraine found it erroneous that the courts of previous

instances did not pay attention to the fact that an image, that has received legal

protection as a trademark, can also be a work of fine art in the sense Article 1 of the Law

of Ukraine dated December 23, 1993 No. 3792 “On Copyright and Related Rights” [a

work of fine art is a sculpture, painting, drawing, engraving, lithograph, work of artistic

(including stage) design, etc.]; in this regard, they did not analyze the provisions of the

Civil Code of Ukraine, in accordance with Articles 440, 441, 443 of which the use of works

must be carried out only with the consent of the owners of the relevant property rights,

except for cases of lawful use of the work without such consent, established by this Code

and other laws, and Law No. 3792 “On Copyright and Related Rights”, in accordance with

Article 15 of which the exclusive right to use the work by the author (or another person

holding the copyright) allows him to use the work in any form and in any way; the

exclusive right of the author (or other person who holds the copyright) to permit or

prohibit the use of the work by others gives him the right to permit or prohibit, in

particular, the reproduction of the works.

The Supreme Economic Court of Ukraine sent the case for reconsideration. During the

re-examination of the case, the Supreme Economic Court of Ukraine in its Resolution

dated January 13, 2015 recognized (Unified State Register of Court Decisions, 2025f)

that the courts of previous instances did not fully comply with the instructions of the

Resolution of the Higher Economic Court of Ukraine dated March 22, 2011. As a result,

the Higher Economic Court of Ukraine independently made a decision to prohibit the

defendant from using the mark for goods and services according to the certificate of

Ukraine for a sign for goods and services as infringing the plaintiff's intellectual rights to

works of fine art.

According to Part 4 of Article 6 of the Law of Ukraine “On the Protection of Rights to

Marks for Goods and Services” (as amended after August 16, 2020), designations that

reproduce: industrial designs, the rights to which belong in Ukraine to other persons, are

not registered as trademarks; names of works of science, literature and art known in

Ukraine or quotes and characters from them, works of art and their fragments without

the consent of the copyright owners or their successors; surnames, first names,

pseudonyms and their derivatives, portraits and facsimiles of famous people in Ukraine

without their consent.

Thus, in the Resolution dated September 27, 2023 in case No. 757/16255/20-ts,

proceeding No. 61-2441sv23, of the Supreme Court as part of the panel of judges of the

First Judicial Chamber of the Civil Court of Cassation, it is stated (Unified State Register

of Court Decisions, 2025g):

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“According to paragraph 2 of the sixth part of Article 6 of the Law of Ukraine

“On the Protection of Rights to Marks for Goods and Services”, reproducing

the names of works of science, literature and art known in Ukraine or

quotations and characters from them, works of art are not registered as

marks and their fragments without the consent of the copyright holders or

their successors.

In accordance with paragraph 5 of the second part of Article 6 of the specified

Law, designations that are misleading or may mislead regarding a product,

service or a person who produces a product or provides a service cannot

receive legal protection either...

Violation of copyright and (or) related rights, which gives basis for the

protection of such rights, including judicial rights, is the commission by any

person of actions that violate the personal non-property rights of the subjects

of copyright and (or) related rights, defined in articles 14 and 38 of the Law

of Ukraine “On Copyright and Related Rights” and their property rights,

defined in Articles 15, 17, 27, 39-41 of this Law, taking into account the

conditions of use of objects of copyright and (or) related rights, provided for

by Articles 21–25, 42, 43 of the Law...

Given that there is a presumption of authorship in copyright, it must be

rebutted by the defendant, that is, the person who, according to the author,

violated his copyright, and such a person should not prove the presumption

of authorship, since the said is presumed...

However, the presumption of authorship of the plaintiff in this case was not

refuted by the defendant. Therefore, the courts of previous instances came

to a well-founded conclusion that the plaintiff has exclusive property rights

to the work, including the exclusive right to grant permissions for use,

processing and any other reproduction, and she did not grant the defendant

PERSON_2 the right to use the name of the work, including the right to

process and use it for registration as a mark for goods and services”.

The Supreme Court came to a similar conclusion in the Resolution (Unified State Register

of Court Decisions, 2025h) dated March 4, 2020 in case No. 520/15449/16, proceeding

No. 61-42206sv18, of the Supreme Court as part of the panel of judges of the First

Judicial Chamber of the Cassation Civil Court.

Conclusion

Thus, regarding the features of the protection of intellectual property rights for

designations according to the legislation of Ukraine the following conclusions can be

reached:

- the designation is not an independent object of legal protection as an object of

intellectual property;

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- the designation may be the object of legal protection as an object of intellectual property

if this designation is part of a registered mark for goods and services (trademark);

- such protection is provided with restrictions that apply to signs, namely: protection

regarding the mark for goods and services (trademark) of use is granted to the right

holders of this designation, in case of violation of the rights of the owner of this sign to

fair economic activity and in relation to alternative objects of intellectual property that

have not received proper legal protection;

- a special case of the possibility of a court prohibition on the use of a sign is such a

prohibition not as part of a mark for goods and services (trademark), but as a work of

fine art: if the designation and/or trademark reproduces the work of fine arts, the right

to protection based on the Law of Ukraine dated December 15, 1993 No. 3689 “On the

Protection of Rights to Marks for Goods and Services” is granted to the author of the work

or to a person to whom the intellectual property right to such a work has been assigned,

as a priority before the protection of a mark, even a registered one.

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for designations according to the legislation of Ukraine

Mark Belkin, Leonid Belkin, Juliya Iurynets, Kostiantyn Nemchenko, Yevhenii Kurylo

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OBSERVARE

Universidade Autónoma de Lisboa

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136

INTERNATIONAL STANDARDS FOR THE USE OF FORENSIC PSYCHOLOGICAL

EXAMINATIONS IN STUDYING THE MOTIVATIONAL STRUCTURE OF

CRIMINALS: IMPORTANCE FOR COOPERATION BETWEEN LAW ENFORCEMENT

AGENCIES

LARYSA ARKUSHA

larisa7arkusha@gmail.com

Doctor of Law, Professor. Head of the Department of Criminalistics, Forensic Science, and

Polygraphology National University “Odesa Law Academy” Odesa (Ukraine)

https://orcid.org/0000-0002-0422-6416

VALERII TISHCHENKO

valeriy.tishenko1@gmail.com

Doctor of Legal Sciences, Professor of the Department of Criminalistics, Forensic Science, and

Polygraphology National University “Odesa Law Academy” Odesa (Ukraine)

https://orcid.org/0000-0002-2441-7535

YULIІA HRES

julia.bayderina@gmail.com

PhD (Law Sci.), Associate Professor of the Department of Criminalistics, Forensic Science, and

Polygraphology National University “Odesa Law Academy” Odesa (Ukraine)

https://orcid.org/0000-0002-8670-9779

OLEKSANDR CHERNOV

sanjehan.14@gmail.com

PhD, Associate Professor of the Department of Criminalistics, Forensic Science and

Polygraphology Faculty of Prosecution and Investigation (Criminal Justice) National University

“Odesa Law Academy” Odesa (Ukraine) https://orcid.org/0009-0002-6038-9479

VLADLENA VOLOSHYNA

vkvoloshyna@gmail.com

PhD (Law Sci.), Associate Professor of the Department of Criminal Procedure

Faculty of Prosecution and Investigation National University “Odesa Law Academy” Odesa

(Ukraine) https://orcid.org/0000-0001-8772-4172

IRYNA KISLITSYNA

kislitsyna.ira@gmail.com

PhD (Law Sci.), Associate Professor of the Department of Judicial, Law Enforcement Authorities

and Advocacy Faculty of Advocacy and Anti-Corruption Activity National University “Odessa Law

Academy” Odesa (Ukraine) https://orcid.org/0000-0002-7215-0791

Abstract

Currently, no unified array of globally applicable standards for forensic psychological tests

exist, in particular aimed at evaluation of criminal motivations, which determines the necessity

for harmonization. International and national-scale professional organizations are making

evident efforts in this domain, but still major obstacles exist due to disparities in legal systems,

cultural contexts, and evaluation techniques. The research examines international standards

directing forensic psychological assessment to reveal criminals’ motivation and investigates

expert systems that are applied inside law enforcement organizations and court institutions.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

137

Comparative method and integrative review were employed to understand how international

approaches merge with nation-states' expert practices. The authors presented evidence on

the detrimental effect of ‘scattered’ standards in forensic psychological assessment

demonstrated that forensic psychological examination procedures which follow international

standards produce more reliable evidence and contribute to the improvement of international

legal system cooperation. Ultimately, it has been demonstrated that a balance between

mental health knowledge and legal integrity is necessary for the successful application of

psychological testing in international justice. This balance can only be reached by openness,

moral consistency, and interdisciplinary collaboration, guaranteeing that mental health

knowledge positively advances justice, accountability, and human dignity. The research

results contribute to further development of international protocols for expert collaboration in

forensic psychological assessment, as well as improving appropriate experts’ professional

training and establishing evidence-based standards for criminal justice functioning.

Keywords

Psychological diagnosis; forensic psychological examination; motivation; psychology;

international cooperation.

Resumo

Atualmente, não existe um conjunto unificado de normas aplicáveis globalmente para testes

psicológicos forenses, em particular destinados à avaliação das motivações criminais, o que

determina a necessidade de harmonização. Organizações profissionais internacionais e

nacionais estão a envidar esforços evidentes neste domínio, mas ainda existem grandes

obstáculos devido às disparidades nos sistemas jurídicos, contextos culturais e técnicas de

avaliação. A investigação examina as normas internacionais que orientam a avaliação

psicológica forense para revelar a motivação dos criminosos e investiga os sistemas

especializados que são aplicados dentro das organizações policiais e instituições judiciais.

Foram utilizados métodos comparativos e revisões integrativas para compreender como as

abordagens internacionais se fundem com as práticas especializadas dos Estados-nação. Os

autores apresentaram evidências sobre o efeito prejudicial de padrões «dispersos» na

avaliação psicológica forense, demonstrando que os procedimentos de exame psicológico

forense que seguem padrões internacionais produzem evidências mais confiáveis e

contribuem para a melhoria da cooperação do sistema jurídico internacional. Em última

análise, ficou demonstrado que é necessário um equilíbrio entre o conhecimento sobre saúde

mental e a integridade jurídica para a aplicação bem-sucedida de testes psicológicos na justiça

internacional. Este equilíbrio só pode ser alcançado através da abertura, da consistência moral

e da colaboração interdisciplinar, garantindo que o conhecimento sobre saúde mental

promova positivamente a justiça, a responsabilização e a dignidade humana. Os resultados

da investigação contribuem para o desenvolvimento de protocolos internacionais para a

colaboração de especialistas na avaliação psicológica forense, bem como para a melhoria da

formação profissional de especialistas adequados e para o estabelecimento de normas

baseadas em evidências para o funcionamento da justiça criminal.

Palavras-chave

Diagnóstico psicológico; exame psicológico forense; motivação; psicologia; cooperação

internacional.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

138

How to cite this article

Arkusha, Larysa, Tishchenko, Valerii, Hres, Yuliіa, Chernov, Oleksandr, Voloshyna, Vladlena

Voloshyna & Kislitsyna, Iryna (2026). International Standards for the Use of Forensic Psychological

Examinations in Studying the Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies. Janus.net, e-journal of international relations. Thematic

Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times of Global and

National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 136-164.

https://doi.org/10.26619/1647-7251.DT0226.8

Article submitted on 24 November 2025 and accepted for publication on 23 December

2025.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

139

INTERNATIONAL STANDARDS FOR THE USE OF FORENSIC

PSYCHOLOGICAL EXAMINATIONS IN STUDYING THE

MOTIVATIONAL STRUCTURE OF CRIMINALS: IMPORTANCE FOR

COOPERATION BETWEEN LAW ENFORCEMENT AGENCIES

LARYSA ARKUSHA

VALERII TISHCHENKO

YULIІA HRES

OLEKSANDR CHERNOV

VLADLENA VOLOSHYNA

IRYNA KISLITSYNA

Introduction

Today, trends observed in criminal justice landscape show increasing interest in

interdisciplinary research on criminal’ personality traits through motivational factor

analysis. The results from forensic psychological examination serve as vital evidence that

enables experts to understand criminal psychological processes and evaluate offenders'

mental states, emotional control, and social development. The absence of a logical and

scientifically justified process might result in misconceptions, rights violations, or even

unfair sentencing the need to address psychological assessment standards becomes even

more evident. Meanwhile, the practice of using forensic psychological examinations faces

challenges because different countries lack standardized methods and their procedures

do not coordinate well, which hinders international law enforcement cooperation.

According to the widely adopted definition, “a psychological evaluation implies an

assessment conducted by a qualified mental health professional to understand

individual’s mental health, cognitive function, and behavioral patterns, which can

influence legal proceedings and sentencing outcomes” (Trenoweth & Moone, 2017).

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

140

These assessments have broad implications. They may influence choices about the

appropriateness of rehabilitation programs, the severity of the sentence, or the necessity

of specific interventions. For instance, a psychological assessment may identify

underlying mental health conditions like anxiety, depression, or trauma that may have

influenced the person’s behavior. When crafting a sentence that not only punishes the

offender but also aids in their rehabilitation, this information might be crucial. Moreover,

in cases involving adolescents, the knowledge gathered from psychological assessments

might assist in striking a balance between protection and punishment (Malvaso et al.,

2024).

Organizations like the United Nations (UNODC), the American Psychological Association

(APA), and the International Association of Forensic Psychology (IAFP) conceptually

established some procedures for carrying out psychological testing during the criminal

sentencing process on a global scale. These evaluations consistently stress how crucial it

is to observe the values of justice and human rights. The application and function of

forensic psychologists and psychiatrists vary, despite the underlying principles being

similar, according to a comparative analysis of the legal systems of various nation-states.

For instance, forensic psychologists in the U.S. evaluate criminal risk and culpability using

standard tests like MMPI2, PCL-R, and HCR-20, whereas psychiatrists play a bigger role

in France. This field is still in its early stages in Iran, calling for the creation of local

psychometric tests, specialized training, and standards (Chaimowitz et al., 2025).

In the meantime, it has become evident in recent years that expert opinion can be

prejudiced, as Rassin (2021) correctly points out, and it has been suggested that forensic

psychologists might also be biased. In his research, the susceptibility of forensic

psychological assessment of the suspect’s mental state to the context effect – that is,

the impact of unrelated material on expert opinion – was examined. Forensic psychology

master’s students were instructed to analyze a suspect’s test results in a made-up double

murder case. A version of the case with a neutral account of the murders was given to

some attendees. A more explicit version was given to others. Participants in the latter

condition appeared to be more concerned about the suspect’s mental health than those

in the former, even though the explicitness should not have had an impact on the forensic

psychological examination. The author came to the conclusion that bias should be a focus

of forensic psychological evaluation training programs. However, these studies also

demonstrate the need for forensic psychological assessment frameworks to be unified,

creating a canvas that would reduce the possibility of biases and enable accurate and

efficient psychological testing as well as the assessment of criminals’ motivations in

international trials.

Fundamentally, the goal of forensic psychiatric evaluation is to offer impartial,

scientifically sound information to support judicial decisions. Law enforcement officials

and forensic psychologists are collaborating to use psychological science in criminal

profiling. The goal of profiling is to determine the primary personality traits and

behavioral traits of criminals based on their interactions during the crime. Based on

analyzing trends and evidence, criminal profiling aims to develop broad profiles of

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

141

offenders, while forensic psychology, in turn, focuses its attention on diagnosing

psychological problems, assessing risks, and determining competency through

customized evaluations of individuals involved in judicial cases. Although forensic

psychology and profiling have different goals and approaches, both are crucial for

investigations and legal proceedings.

Three primary methods of reasoning are used for developing profiles: induction,

abduction, and deduction. Rather than thinking of these as distinct forms of logic, it is

preferable to think of them as distinct places along the logical continuum. To arrive at

the best explanation (abduction) or only one that is based on universal laws or principles

and cannot be refuted (deduction), we begin with various hypotheses about what might

have happened or that might be true (induction) and use the scientific method to falsify

each conclusion. Abduction is sometimes the best explanation for the evidence seen due

to human behavior, evidential dynamics, or deliberate attempts to obstruct the

investigation (known as staging, among other things). An inductive argument determines

whether the conclusion is likely or an issue of probability by using supporting premises,

such as empirical data or research. Although a strong inductive argument offers strong

evidence for the conclusion, it is not perfect. In their study on behavioral consistency,

Bateman and Salfati (2007) discovered that burying the body occurred 67.8% of the

time, while transferring the body after the homicide occurred 61.1% of the time. While

listed as high-frequency behaviors, these findings indicate that each will only be

encountered about two-thirds of the time. As a result, investigators utilizing a profile that

reports such statistical judgments may mistake probability for certainty. These

tendencies do, however, occur in certain situations but not in others, which raises

questions about the usefulness of this data as well as where criminal activity is consistent

and inconsistent with studies. This might be particularly true when the degree of certainty

is expressed ambiguously or generically, such as “the body will be hidden most of the

time” (Petherick & Brooks, 2020). Although this argument is actually correct technically,

it does not convey the precise degree of assurance. Thus, analyzing the motivations of

criminals is of crucial nature for profiling process, and standardizing the framework and

procedures for the examination represents the first step towards optimization of profiling

accuracy. Expert evaluation of offender motivations enables successful identification of

crime pattern and provides a foundation for developing prevention strategy in the field

of violent and organized criminal offenses.

With this in mind, the research relevance grounds on the need to align domestic expert

methods, applied in nation-states’ practice, with international standards in the field. The

scientific problem stems from the fact that there is no established system connecting

forensic psychological examination theory with international criminal procedure

standards, which impedes enhancing law enforcement capabilities and prevents

strengthening international criminal justice partnerships.

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

142

Literature Review

Jadidi (2025) correctly points out that criminal justice in the contemporary societies is

not merely dependent on crime and punishment, but the type and severity of punishment

are also significantly influenced by the defendant’s psychological, social, and personality

traits. The court, police, attorneys, and other organizations focused on justice have direct

contact with forensic psychology. To better understand the accused’s mental condition

and impose a more equitable punishment, the forensic psychologist provides the judge

with specialized assessments.

At the same time, a range of scholars point out the phenomena of cognitive biases in

forensic psychological assessment. According to Buongiorno et al. (2025), cognitive

biases are a result of forensic psychiatry’s intrinsic limitations. In particular, psychiatric

evaluations, including forensic assessments, are particularly vulnerable to cognitive

biases since they primarily rely on patients’ subjective interpretations of their symptoms

and self-reports. Additionally, a “cascade” effect that gradually modifies the judgment

process can be produced by cognitive biases at many levels (Scarpazza & Ghidini, 2023).

A thorough evaluation of the literature on forensic mental health expert (FMHE)

testimony and court decision-making was carried out by van Es et al. (2020). This review

contains a total of 27 studies. Most of the research was done on fictitious jurors in the

United States. The majority of research concentrated on sentencing guidelines or criminal

liability. Research on criminal responsibility consistently revealed that psychotic

defendants of violent, major crimes were more frequently found not guilty by reason of

insanity than defendants with psychopathic disorders. The length and kind of

punishments had less consistent results, and they were frequently influenced by

perceived behavioral control, recidivism risk, and treatability. There are hardly any

studies on the potential negative consequences of FMHE.

The opinions of mental health professionals can have a significant impact on legal

processes. In the meantime, Grossi and Green (2017) stress that because legal criteria,

operationalization, and classification of mental illness vary throughout countries, it is

challenging to compare the usage and impact of forensic mental health expert testimony

on judicial decisions across jurisdictions. Regarding these distinctions, it seemed feasible

to identify the components that are pertinent in the majority of legal systems and, where

needed, to explain key distinctions. Table 1 shows this structure.

Table 1. Effects of forensic mental health expertise on judicial decisions

A court ruling

Forensic mental health expertise

1. Guilt

a. Mens rea

b. Actus reus

√

2. Sentencing

√

Source: van Es et al. (2020)

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

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Vladlena Voloshyna, Iryna Kislitsyna

143

Neal et al. (2019) presented the findings of a two-part study on psychological

assessments performed by psychologists in legal circumstances. The first section

included a thorough examination of the 364 psychological assessment tools that

psychologists reported using in court cases in 22 surveys of experienced forensic mental

health practitioners, with an emphasis on legal norms as well as scientific and

psychometric theories. The second section included a legal analysis of admissibility issues

in psychological assessments. The first part’s findings show that, consistent with their

roots in psychology science, almost all of the evaluation methods employed by

psychologists and given as expert testimony in legal situations have been empirically

tested (90%). However, the authors were able to clearly identify approximately 67% as

generally acknowledged in the field, with only around 40% receiving generally positive

appraisals of their psychometric and technical qualities from authorities such as the

Mental Measurements Yearbook. Furthermore, there is little correlation between

widespread acceptance and the favorability of tools’ psychometric qualities. The second

section’s findings demonstrate the rarity of legal challenges to this evidence’s admission:

Just 5.1% of the sample’s instances contained legal objections to the evaluation evidence

for any reason; slightly more than half of these featured validity concerns. Only roughly

one-third of the time did they succeed when challenges were posed. There are hardly

any challenges to the most dubious scientific instruments. Psychological expert

evaluation testimony is rarely contested by attorneys, and when it is, judges frequently

neglect to apply the legal scrutiny.

According to de Roo et al. (2022), behavioral science and forensics are frequently viewed

as distinct fields. The need for more integration between the two fields is becoming

increasingly apparent, though. Forensic science may be able to solve investigation issues,

particularly at the crime scene, by using psychological theories about human behavior.

The authors of the study investigate the following: (1) investigative psychologists are

better at identifying deviant behavioral cues than forensic examiners when examining a

crime scene; (2) forensic examiners can identify pertinent traces that may be linked to

this behavior; and (3) the availability of a psychological report that highlights these

behavioral cues aids forensic examiners in identifying more pertinent traces. In order to

do this, a virtual 3D fake crime scene was examined by 40 forensic examiners and 14

investigative psychologists. The study’s findings demonstrate that forensic examiners

who receive a psychological report on these cues identify and gather significantly more

traces that can be connected to deviant behavior and have a high evidential value than

examiners who do not receive this information, and that investigative psychologists

observe significantly more deviant behavioral cues than forensic examiners. But the

study also shows that when behavioral information challenges preexisting views, it is

likely to be disregarded.

Criminals’ motivation, on the other hand, plays a critical part in forensic investigations

by offering context for a crime, supporting suspect profiling, and connecting instances

through behavioral patterns. Although motive is not a legal prerequisite for conviction,

knowing it aids in case linking, helps investigators formulate hypotheses, and helps them

grasp purpose, particularly in recurrent crimes. Armeanu (2018) highlights the

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Motivational Structure of Criminals: Importance for Cooperation

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Vladlena Voloshyna, Iryna Kislitsyna

144

importance of motivation in forensic analysis from a variety of perspectives. Table 2

provides summary of these insights.

Table 2. The role of motivation in forensic examination

Role

Description

Gives context and

purpose

Determining the motivation behind a crime’s commission

provides vital background information that aids detectives in

comprehending the perpetrator’s objective. Motive, for

example, is crucial when the offender disputes their

involvement since it can be used in conjunction with other

evidence to establish their guilt

Provides information for

criminal profiling

Forensic psychologists employ motivation to develop profiles of

criminals by evaluating their behavior, psychological traits, and

reasons for committing crimes. This helps narrow the search for

suspects and serves as a starting point for investigations

Helps with case linking

Forensic psychologists can connect crimes to the same criminal

by evaluating behavioral patterns and motivations across

several crimes, which is especially beneficial for serial

offenders. This is predicated on the premise that offenders

frequently repeat specific actions or patterns across offenses

Aids in the examination of

crime scenes

Behavioral indicators at a crime scene, impacted by motive,

might provide important information about the perpetrator’s

psychology and personality. Investigators can utilize this data

to better understand how the crime was perpetrated

Guides investigative

strategy

Understanding the motive influences the whole investigative

strategy. For example, understanding the reason might help

law enforcement focus on certain sorts of suspects or areas,

such as geographic profiling, which combines location data with

behavioral patterns to anticipate future crimes.

Supports courtroom

presentations

Motive can play a significant role in a trial, even though it is not

a requirement for conviction. Comprehending motive is

essential for both making a strong case for the prosecution and

disproving the defense’s evidence

Enhances forensic work’

quality

A more thorough and accurate image of the crime scene and

the people involved can be obtained by combining behavioral

data, including motive, with conventional forensic evidence. In

order to enhance the initial response, some future perspectives

propose that crime scene investigators themselves may receive

training in assessing behavioral elements

Source: Armeanu (2018)

Baidya (2022) studies criminal reasons by looking at conventional theories of motivation.

Using actual criminal cases from India, McClelland's needs, Murray's psychogenic

requirements, Maslow’s need hierarchy, Alderfer's ERG model, and Optimal Level Theory

are all examined. These theories bridge the gap between motivational psychology and

the forensic-criminal environment by incorporating ideas from Sutherland's postulates,

Kohlberg’s moral growth, and the Frustration-Aggression hypothesis. Lastly, the author

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

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Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

145

shows how the drive for non-criminal behavior and the motivation for unlawful activity

have similar foundations.

In order to assess the significance of individual motives for juvenile and adult crimes, as

well as across a variety of offending categories, Koegl and Farringtron (2021) compiled

a list of offender motivations for criminal offending. The applicability of each of the 17

reasons to official conviction records and other clinical-risk variables was evaluated by

adult male convicts (N = 136). According to the findings, the majority of prisoners

committed crimes in order to escape reality, feel pleasure, or pursue sensations. While

non-sex offenders supported substance abuse, social influence, and utilitarian incentives,

adult sex offenders cited sexual motives. The results are examined in relation to

evidence-based correctional practice and research.

Reddy (2025) uses psychological theories and techniques to comprehend the

complexities of criminal behavior by drawing on a wide range of instances from the US,

UK, Belgium, Columbia, Germany, and India, such as financial deceit, maternal

psychosis, and serial murder. These ideas cover everything from behavioral analysis and

criminal profiling to the dynamics of influence and the psychology of dishonesty.

According to Combalbert et al. (2014), there has been an increasing worry about the

quality of forensic mental health assessment in a number of nations on both sides of the

Atlantic. However, legal systems are not necessarily comparable, and many parts of

forensic assessment are unique to a particular nation. The authors examine forensic

mental health evaluation in France and provide suggestions for raising standards. The

study outlines the benefits and drawbacks of forensic psychological evaluation in France

(i.e., the pre-trial investigative phase assigned to a judge, with mental health evaluation

carried out by preselected professionals referred to as “experts” in French). According to

the authors, a lack of agreement on a number of fundamental concepts, including mental

health diagnosis or assessment techniques, unfavorable working conditions, a lack of

specialized training, and a lack of familiarity with the Code of Ethics, appear to be the

primary causes of the heterogeneity of expert practices in France. The quality and

dependability of forensic mental health reports have come under increasing scrutiny from

the public and the judiciary due to the alleged involvement of psychiatric and

psychological reports in a number of high-profile mismanaged criminal cases (such as

the Outreau trial in 2005). According to Combalbert et al. (2014), there has been an

increasing worry about the quality of forensic mental health assessment in a number of

nations on both sides of the Atlantic. However, legal systems are not necessarily

comparable, and many parts of forensic assessment are unique to a particular nation.

The authors examine forensic mental health evaluation in France and provide suggestions

for raising standards. The study outlines the benefits and drawbacks of forensic

psychological evaluation in France (i.e., the pre-trial investigative phase assigned to a

judge, with mental health evaluation carried out by preselected professionals referred to

as “experts” in French). According to the authors, a lack of agreement on several

fundamental concepts, including mental health diagnosis or assessment techniques,

unfavorable working conditions, a lack of specialized training, and a lack of familiarity

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

146

with the Code of Ethics, appears to be the primary cause of the heterogeneity of expert

practices in France. The quality and dependability of forensic mental health reports have

come under increasing scrutiny from the public and the judiciary due to the alleged

involvement of psychiatric and psychological reports in several high-profile mismanaged

criminal cases (such as the Outreau trial in 2005). According to Combalbert et al. (2014),

a psychological or psychiatric report that is mainly meant to inform the court on the

personalities of accused criminals and victims should be written in a way that is

understandable to both the prosecution and the defense. Technical terminology should

be used sparingly. Additionally, experts should provide thorough answers to every query.

Their findings should be supported by strong reasons, and they should be clear and

succinct. Additionally, the authors emphasize the abundance of structured instruments

for both actuarial evaluation (which yields the best rates of predictive validity) and clinical

assessment of antisocial, violent, and sexual risk, as well as the practicality of taking

their use into consideration.

Research by Neal et al. (2022) discusses the potential future of forensic psychology and

gives a summary of its past. The authors claim that best practices of a psychological

evaluation using the standards, principles, and respect of science to guide legal

proceedings, should be followed. Accordingly, eight important factors are formulated: (i)

assessment’ foundational validity; (ii) assessment’s validity as used; (iii) control and

mitigation of bias; (iv) paying attention to quality control; (v) communicating data,

findings, and opinions suitably; (vi) taking assumptions and limits into account in a clear

manner; (vii) evaluating opposing viewpoints or arguments; and (viii) strict adhering to

professional standards, codes of conduct, rules of evidence, and ethical duties.

Ukrainian scientist Martynenko (2024) focus her research attention on creating uniform

protocols for professional forensic psychology work in the Ukrainian setting. In order to

establish standardized procedures, improve forensic psychological outcomes, and

expedite international cooperation, the study looks into finding the ways how

international standards might be applied in Ukrainian practice. The author highlights that

the universality of international standards, that is, their ability to be applied in any

forensic institution, independent of the nation, departmental affiliation, or organizational

structure is what makes them valuable in the field of forensic examination. The article’s

conclusion states that in order to support adherence to the principles of interdependence,

consistency, and continuity in standardization, national standards in the field of forensic

examination should take into consideration the provisions of the ISO/TC 272 standards.

The author claims that, for enhancing the quality of forensic examination activities,

cooperation between Ukrainian forensic institutions and international organizations on

standardization issues should be developed and strengthened. This can be achieved by

working together on ISO/TC 272 and by participating in the various communication

formats provided by regional networks of operational forensic examination laboratories.

A group of Ukrainian scholars – Tkachenko et al. (2024) – made an effort to evaluate

global experience in the area of expert assistance of justice and to examine strategies

for incorporating contemporary international standards into domestic forensic expert

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 136-164

International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

147

practice. It was highlighted that forensic expert activity in Ukraine is organized using a

hybrid approach. Harmonization of forensic examinations, standardization of expert

methodologies, certification of forensic facilities, and publishing of the register of forensic

experts are some benefits of such an approach. The author emphasized the importance

of integrating the Ukrainian system of expert support for justice into the worldwide

framework, as well as the participation of Ukrainian forensic institutions in international

organizations that bring together foreign experts. The author recommended establishing

a single body, the National Service for the Provision of Forensic Expertise, which would

be subordinated to Ukraine’s Ministry of Justice.

Makarova (2024) underlined the importance of studying a personality’s psychological

features and their impact on forensic psychiatric examination strategies in order to

improve examination quality. According to the author, recognizing these characteristics

enables the expert to analyze the defendant’s mental state in a more objective and

reliable manner. Nestor et al. (2024) investigate ethical norms in Ukraine and English-

speaking countries, demonstrating the importance of established guidelines that

minimize expert prejudice and ensure public trust in their conclusions.

Nevertheless, at the international level, there are very few studies in the field of

harmonization of international standards in forensic psychological expertise, in particular,

in analyzing criminals’ motivation. Many publications describe the theoretical concepts of

motive and goal, but do not develop a unified methodology that would allow for a

standardized assessment of the motivational structure of criminals in different countries.

Practical research often focuses on general personality characteristics or

psychopathology rather than on a detailed analysis of motivational processes

(awareness, conflict of motives, role of context). This evidently necessitates further

research in this field, implying departure from vague conceptualization and moving

towards design of practical solutions.

Methods

The research was carried out within a qualitative paradigm, with the use of an integrative

review methodology. Preliminary search for sources to be included in the sample was

carried out within the scientometric libraries databases ScienceDirect, ResearchGate,

Wiley, MDPI, PubMed, as well as through direct search on the Google platform. The

inquiry for search included two domains: 1) international standards of forensic

psychological assessment”; and 2) criminals’ motivation evaluation. Only peer-reviewed

or monographic English-language publications were considered. Screening was based on

the topic and abstract. This preliminary search allowed identifying 97 sources. Among

them, 30 publications appeared not openly available in full text. In the next stage of

research, the found publications were evaluated based on their methodology and

findings, which enabled deeper analysis of their scope and, thus, relevance for current

research. This procedure allowed selecting 41 entries for inclusion in the sample for

integrative review.

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Transformation in Times of Global and National Challenges

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

148

Results and Discussion

Typically, the validity, dependability, and consistency of the fundamental scientific

techniques for examining tangible evidence, such as DNA, fingerprints, and digital

evidence, are the main goals of harmonization initiatives within forensic science. General

standards are created and promoted by organizations like the International Organization

for Standardization (ISO), the National Institute of Standards and Technology (NIST),

and ASTM International (e.g., ISO/IEC 17025 for testing and calibration laboratories, and

the ISO 21043 series for forensic sciences). By reducing the influence of cognitive and

motivational biases in examiners’ decisions, these guidelines seek to enhance the quality

of data collection, analysis, and reporting. Meanwhile, within the domain of psychological

forensic examination, harmonization process is much more ‘modest’. At the same time,

to speed up the efforts in this field, there is the need of uniting expertise of psychology,

social psychology, forensic science, and ethics.

It should be noted that understanding the basic ideas of psychology is crucial to

comprehending the nature of criminal behavior and the influence of mental state on it.

According to Bartol and Bartol (2016), the most significant of these theories are:

1 According to Bandura’s Social Learning Theory, criminal behavior is picked up by

watching and copying others, particularly strong role models like family members or peer

groups. This viewpoint emphasizes the importance of both positive and negative

reinforcement, the social context, and the incapacity to understand the detrimental

effects of conduct.

2. Hirschi’s Social Control Theory: This theory highlights how social connections with

family, school, the law, and society can help to prevent deviation. Crimes are more likely

to be committed by those individuals who were actually cut off from these connections.

Mental illnesses potentially can erode social bonds and serve as a criminal activity’

catalyst.

3. Psychodynamic theory (Freud and his followers): The theory implies that unresolved

childhood concerns (traumas) and a weak Superego may represent the cause of criminal

behavior. Within this approach, psychological evaluation examines personality structure

of individual, his/her unresolved complexes, and unconscious motivations.

4. According to Eysenck’s trait theory, criminal behavior is strongly associated with traits

such as neuroticism, severe extraversion, and psychopathy. Individuals with high

impulsivity, low empathy, and antisocial characteristics are more likely to violate the law.

Motivation is a key component of the criminal psychology analysis system because it

helps researchers comprehend how criminal intentions develop, how criminals make

decisions, and what motivates their criminal behavior. In-depth research on criminal

behavior helps scientists create evidence-based theories about criminal offenders, which

improves crime prevention, tailored punishment, and rehabilitation initiatives. Studying

criminal motivating patterns is crucial in the contemporary globalized legal context

because correct forensic psychology evaluations for international criminal justice rely on

appropriate interpretation.

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

149

In recent decades, an important point of cooperation in international criminal justice was

set in the phenomenon of profiling.

Criminal profiling, according to European police forces, was an effort to create a

description of the offender based on the findings of an examination of the crime scene

data and traits associated with the offender’s past (Eze et al., 2025). The UK’s Association

of Chief Police Officers Behavioral Science Investigative Support Subcommittee later

approved and endorsed this description. Criminal profiling was viewed by the definition

as a preferred approach to crime solving rather than a specific technique, and it was

generally unable to identify the actual criminals. In actuality, it can only imply some of

the personality traits and demographics that a criminal would probably have. Because a

criminal profile is simply one method of detecting real criminals, it was improper for the

police to totally exclude anyone who did not match the aforementioned traits.

In his book, Kocsis (2006) defined criminal profiling as the practice of examining and

interpreting the behavior or activity that was obviously evident in a crime. The traits that

the offender most likely had were predicted by this research. In contrast to psychological

profiling, criminal profiling did not involve the examination of new patients. Instead, it

involved analyzing the crime to understand key behaviors at the time of the crime so

that the investigator could create an image of the perpetrator (Kocsis, 2006).

Compared to the earlier definitions, this one appeared to be more expansive and general.

When creating a criminal profile, Kocsis (2006) considered every facet of criminality. This

meant that his definition was more flexible in terms of the strategies and techniques that

profilers may employ throughout investigations in order to accomplish the primary

objective of creating a criminal profile of the offender in question.

From the standpoint of criminology, criminal profiling identified the precise circumstances

that could have led to a crime. It concentrated more on creating the chronology of the

incident than on developing the character of the offender. In the meantime, criminal

profiles were created by the psychiatric section in order to determine the perpetrator’s

demographics, mental health, and motivations for committing such acts. Instead of

emphasizing how a crime was actually committed, it focused more on the background

and history of the offender. From a forensics perspective, a criminal profile was

constructed using the evidence found at a crime scene and focused more on the

techniques and consequences of the crime.

In the end, criminal profiling was one of the techniques that law enforcement could

employ to determine the predominant traits of an offender in a specific case by

considering the traits, demographics, method of operation, and evidence in comparable

cases that have been documented, looked into, or tried in court. Only prior case studies

and scientific knowledge from fields like criminal psychology, forensics, geography, and

statistics may be used to construct this strategy. These components were crucial in

raising the accuracy percentage for any profiles that were generated. However, because

the three branches of knowledge that served as the foundation for creating crime profiles

did not have the same goals, it was still very difficult to implement an integrated

definition of criminal profiling (Mustaffa et al., 2022).

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

150

In fact, just two studies have looked at adult prison samples’ reasons for committing

crimes thus far. In a sample of 196 male inmates, Gudjonsson et al. (2011) investigated

the connection between four OMQ-derived motivations, Axis I and II illnesses, and

childhood ADHD symptoms. Generally speaking, many connections were not significant

when other personality characteristics were taken into account, even though different

DSM illnesses had strong univariate links with each of the four motivation categories. The

most compelling result was that drug dependence was closely linked to financial

incentive. The second study (Ohlsson & Ireland, 2011) examined the connection between

aggression and incentives in a sample of 206 adult male inmates in the United Kingdom.

The OMQ, an aggression motivation questionnaire, and other tests were completed by

study participants. Four primary motivations for aggressiveness were identified:

enjoyment, social recognition, protection, and perceived benefits. The findings showed

that the reasons behind hostility varied across violent and nonviolent criminals. Positive

outcomes and pleasure-related motives were more frequently endorsed by those with a

violent conviction, and both of these motives were strongly correlated with a standardized

measure of rage (Ohlsson & Ireland, 2011).

Unquestionably, variations in the process employed to create a criminal profile may alter

the profile’s veracity and admissibility as the foundation for a suspect’s arrest and

conviction. Finding the ideal methods to do so was a challenging task. In addition to

drawing on prior case studies and pertinent scientific knowledge, the community’s

demographics should also be considered. The majority of research on criminal profiling

methodology was predicated on the demographic appropriateness of western civilization.

Although international criminal tribunals deal with a variety of people, Western cultures

are frequently the source of psychological tools and diagnostic frameworks. This raises

moral questions regarding (Mihaela, 2025):

- Cultural misreading of symptoms or behaviors (e.g., culturally normal manifestations

of grief or trauma misunderstood as psychopathology);

- Language obstacles, reliance on interpreters, and translation mistakes that distort

meaning;

- Ethnocentrism in diagnosis can undermine local narratives or resilience methods.

According to Mustaffa et al. (2022), the absence of a defined framework for forensic

psychiatric examination has a negative impact on the legal system and law enforcement.

The author thought that one of the primary sources for creating a crime profile in Malaysia

may be the customs and culture of a particular national or ethnic group. This was because

the demographics and customs of the local community where the crime was perpetrated

were intimately linked to the prominent traits of the offenders.

Numerous initiatives have already been put into place that could aid in the advancement

of criminal profiling techniques in Malaysia. The creation of the Penang State Crime

Mapping Application (Polgis-Pen) 2012 (Police Online Geographical Information System

for Penang) was one of them. The app was created to track the locations and specifics of

crimes for when a police complaint was filed, as well as to analyze crime and eSector

data. Additionally, it made it easier to create Penang’s crime statistics. The app alerted

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Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

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Vladlena Voloshyna, Iryna Kislitsyna

151

users to two types of crimes: property crimes and violent crimes. The app’s

geographically based data has helped to facilitate and expedite the crime profiling process

(Simposium Maklumat Geospatial Kebangsaan (NGIS) ke 5, 2012). In addition to nations

like Sweden and Canada, Malaysia also employed criminal profiling as a crucial

investigative technique, according to a 2008 Skeptic Magazine article titled “Criminal

Profiling”. The application of this method can be found in Part V, Chapter 13 of the

Criminal Procedure Code, which covers information to the police and investigative

authority from section 107 to section 120. Moreover, Part VIII, Chapter 33, Section 329

of the same Code, which addressed the police’s obligation to investigate deaths, also

included reference to criminal profiling.

The inquiry process outlined in Chapter 13 of the Code, meanwhile, has be an object of

criticism for being overly broad and harsh. It also focuses more on physical evidence,

even though psychological evidence must also be considered. The investigation analysis

and evidence from the incident – whether from witnesses, the crime scene, or criminal

remnants – were used in Malaysia’s crime profiling process. However, the author also

believed that the Code’s rules regarding the authority and methods of inquiry failed to

provide a clear and comprehensive explanation of the criminal profiling technique

employed by local police officers. Mustaffa et al. (2022) came to the conclusion that

variations in backgrounds and methods employed by investigating officers during a

criminal profile can lead to an incorrect crime profile, which could result in erroneous

arrests.

Part IV, Chapter 13 and Part VIII, Chapter 33 of the Criminal Procedure Code in Malaysia

both mention the use of criminal profiling; the latter relates to information provided to

police and their investigative authority. Sections 109 and 329 were the precise provisions

in question. Only police or officers in charge of stations with a level of Sergeant or higher

were qualified to conduct an investigation for a significant case, according to Section 109.

These officers were also prohibited from being questioned at any point during the

process. In the meantime, Section 329 (1)(a) of the Criminal Procedure Code established

a police officer’s obligation to look into deaths caused by unknown causes. Section 329(2)

made it clear that the criminal profiling method could be applied utilizing evidence from

the crime scene and traces of the crime approach. In addition to conducting

investigations based on the crime sites and issues pertaining to the death, District Police

Officers and police officers ranking Sergeant and higher were required to submit an initial

determination on the crime’s method of operation. However, the “investigation” offered

in this instance was overly broad and condensed, focusing more on physical evidence

whereas psychological evidence should also be prioritized (Mustaffa et al., 2022).

There was no minimal benchmark or yardstick to gauge their effectiveness because being

a profiler did not require any particular training or accreditation. It was impossible to

discipline or punish careless or inept profilers due to the lack of realistic criteria.

Aggravating effects like unlawful detention and, worse, the possibility of misconvictions

were exacerbated by the lack of a “peer-reviewed system” practice and uniformity over

the necessary profile-making process and methodology.

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

Larysa Arkusha, Valerii Tishchenko, Yuliіa Hres, Oleksandr Chernov,

Vladlena Voloshyna, Iryna Kislitsyna

152

Rather than being a “forensic examination” in the conventional sense of physical evidence

analysis, the assessment of motivation is typically a component of a mental health

evaluation or competency assessment. There is a lack of agreement on particular

evaluation techniques and reporting across various contexts and judicial systems because

these evaluations heavily rely on clinical data, mental history, interviews, and the

defendant’s account of the accused offense. Although experts in these fields frequently

offer their opinions to the court, there is a continuous discussion in the legal and scientific

communities over the necessity of stricter, scientifically grounded standards to guarantee

the validity and admissibility of such expert testimony. Current international standards

emphasize tangible, empirical data. Due to inherent differences in legal frameworks and

the subjective nature of psychological assessment, motivation assessment is still a

difficult, qualitative area of forensic psychology that is not governed by a single,

harmonized forensic standard.

The International Association of Forensic Psychology (IAFP), the American Psychological

Association (APA), as well as United Nations documents, unanimously claim that

psychological evaluation standards should have a number of key ideas in their

foundation:

1. Professional competence of assessor. The forensic psychologist should possess

expertise in forensic psychology, proficiency in application of psychometric instruments,

adequate experience in judicial assessment, and be familiar with current legal

frameworks.

2. Employing scientifically justified and standardized instruments: It is crucial to use

assessments protocols with established validity and reliability, such as MMPI-2, PCL-R,

and SCL-90-R. Any informal or local tools should be considered with caution and be

assessed based on strong scientific argumentation.

3. Respecting the principles of independence and impartiality: During the evaluation

process, an expert is obliged to express an opinion based solely on objective observations

and scientific evidence, regardless of the demands of the parties involved or political and

personal factors.

4. Respecting confidentiality and informed consent: The expert should be made aware of

the evaluation’s goal, methodology, and implications. Personal information should not be

shared unless there are specific circumstances, including a court order or a threat to

other persons.

5. Transparent and intelligible reporting for the court: In order for the judge or jury to

understand psychological reports, they must be given in straightforward, logical language

that makes reference to the instruments employed and is devoid of technical or

judgmental terminology.

Table 3 provides structure of international standards for psychological evaluation.

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

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Vladlena Voloshyna, Iryna Kislitsyna

153

Table 3. International guidelines for forensic psychological assessment structure

APA standards

IAFP guidelines

Recommendations of

the United Nations

and the Office on

Drugs and Crime

(UNODC)

The assessor should be

completely knowledgeable of

the legal conditions and the

type of case

Selecting scientifically valid

psychometric instruments

Conducting systematic and

documented clinical

interviews

Preserving professional

objectivity and independence

Respecting confidentiality

and clients’ rights

Reports for the court that

are credentialed, accurate,

and transparent

Recognizing the

assessment’s limits and

refraining from incorrectly

extrapolating the findings

Necessity of specialized

training for psychologists in

the legal and ethical field

Focus on multi-source

evaluation (interview,

psychometric testing, case

review, witness accounts)

Considering linguistic, social,

and cultural factors when

analyzing data

The necessity of preserving

independence from political or

judicial pressure

The necessity of constantly

updating one’s knowledge and

abilities

Safeguarding the

accused’s rights during

evaluations

Preventing prejudice

and discrimination

based on race, sexual

orientation, and culture

Educating criminal

justice staff on how to

communicate with

psychologists

Stress the use of

evaluation to lessen the

negative effects of

punishment

Source: Liell et al. (2022)

Despite the importance of all these concepts, they do not offer a workable framework

that can be modified for the global forensic environment. The discipline of forensic mental

health evaluation is delicate, challenging, and have implicit dangers. It necessitates a

deep understanding of symptomatology, substantial assessment experience, cautious

interpretation, and rigorous observance of ethical code. Forensic work is complicated and

can have major repercussions for both defendants and plaintiffs, thus ethics is a crucial

component. Many nations, most notably the Netherlands (Duits et al., 2012), have

demanded improvements in mental health forensic reports during the past 20 years and

have offered models that incorporate structural changes. Certain European nations may

not be able to use these models since judicial processes vary depending on whether their

legal systems are founded on Roman law or Common law. At the international level, the

‘disperse’ in standards for forensic psychological assessment is still very significant, which

impedes international criminal justice cooperation.

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

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Vladlena Voloshyna, Iryna Kislitsyna

154

Psychologists may have to choose between their ethical duty to the person being

evaluated and their duty to the court. The prosecution, defense, or judges frequently

request psychiatric examinations under international criminal law; nonetheless, the

person being assessed may not have given completely informed or willing consent,

particularly in detention situations. Confidentiality violations, the possibility of coercion

or lack of agency in participation, and the compromise of therapeutic neutrality due to

the use of evaluations for legal rather than clinical goals are some of the issues that arise

from this dual role.

There is no a global code of ethics created especially for psychologists working in

international criminal courts. As a result:

- The expert’s training and country of origin determine different ethical norms;

- Ethical wrongdoing is not well monitored or enforced;

- Fairness is undermined by cross-jurisdictional inconsistencies that result in unequal use

of psychological expertise.

Let us remind that the study of motivation as a psychological phenomenon started during

the early 20th century when scientists began to examine human behavior through

systematic analysis. The initial understanding of behavior focused on biological and

stimulus-based explanations but Heckhausen (1977) and other scientists later

established motivation as a complex system which combines needs with goals and

emotions and social factors. The criminal-psychological framework shows that criminal

conduct emerges from a complete system of personal and environmental elements which

affect how people make choices.

A person commits a crime through deliberate action which fulfills their needs by using

dangerous social behaviors. The structure of criminal motivation contains three elements

which include cognitive processes and emotional responses and volitional actions that

function together based on personal mental state and life experiences and social

surroundings (Ha et al., 2024). The forensic psychological examination requires complete

understanding of this structure because it enables experts to determine the extent of

criminal awareness and control and pathological motivation elements for creating expert

opinions.

The distinction between internal and external motives receives special focus because it

enables researchers to understand crime psychology better. People develop internal

motivation through their personal needs to achieve self-affirmation and compensate for

frustration but external motivation stems from social rewards and pressures and benefits

(Franco & Svensgaard, 2011). The classification system serves an essential purpose for

international expert work because multiple countries need experts to determine the

extent of personal control over motives and their impact on decision-making processes.

The scientific validity, dependability, and quality control of test results and evidence

handling are the main goals of harmonization efforts in forensic science (e.g., through

the ISO 21043 series and ISO/IEC 17025 standards). In particular, for evidence that can

be objectively verified, such as DNA or digital evidence, these criteria guarantee that

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International Standards for the Use of Forensic Psychological Examinations in Studying the

Motivational Structure of Criminals: Importance for Cooperation

Between Law Enforcement Agencies

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forensic procedures are scientifically sound and that the outcomes are dependable,

reproducible, and globally acceptable.

However, behavioral analysis, psychological profiling, and investigative procedures – all

of which are intrinsically more subjective and reliant on national legal frameworks,

cultural contexts, and investigative traditions – are primarily responsible for the forensic

investigation of a criminal’s motivation.

Among the main obstacles to harmonizing forensic investigation of motivation are

(Bouzin et al., 2023):

- Subjectivity: The interpretation and behavioral theories involved in motivation

analysis are less subject to the empirical testing and validation criteria used for tangible

evidence

- Legal Differences: The weight and admissibility of such evidence varied greatly amongst

legal systems (e.g., common law vs. civil law states)

- Lack of Consensus: Harmonization of intricate, non-physical studies is challenging since

there is still a lack of a wide, shared international understanding of the foundational ideas

and boundaries of forensic science itself.

A number of professional associations, including the International Association for

Correctional and Forensic Psychology (IACFP), the American Psychological Association,

and the American Academy of Forensic Psychology (AAFP), create and disseminate their

own best practices and specialist recommendations. By improving service quality and

providing guidance for accreditation and certification procedures, these

recommendations help members and associated areas achieve de facto harmonization.

Global information exchange and the promotion of best practices are facilitated by

organizations such as the International Association of Forensic Sciences (IAFS), which

offer forums for international discussion and cooperation.

The necessity of using culturally sensitive methods in forensic mental health evaluations

to guarantee validity and reliability across a range of demographics is becoming more

widely acknowledged and the subject of increased research. When used in different

cultural contexts, assessment tools and techniques created in one may not have cross-

cultural validity and reliability. As was already established, evaluators who are not

familiar with local norms may misunderstand the impact of culture.

The use of classic psychological tests in various forensic contexts has been the subject

of numerous survey studies, all of which have consistently shown that psychological tests

are crucial to the majority of forensic assessments. However, its use has both benefits

and drawbacks. When choosing, administering, and interpreting psychological tests for

forensic evaluation, the forensic evaluator should consider a set of standards.

El-Shenawy (2017) correctly points out that there are differences between the standards

employed in therapeutic and forensic assessment. While forensic assessment

incorporates both clinical and legal standards, therapeutic assessment standards aid in

diagnosis and treatment and serve organizing, condensing, and orienting purposes. For

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instance, when the evaluator is expected to take into account the relationship between

the underlying mental, emotional, and cognitive deficiencies and various legal difficulties,

such criminal responsibility, skills, or sentencing considerations.

The sources of information used in each of the two types of assessments differ

significantly from one another. They both use behavioral assessment, psychological

testing, and self-report measures to gather clinical and psychosocial data. These sources

are insufficient for forensic evaluation, in contrast to therapeutic evaluation. To evaluate

the accuracy and consistency of data obtained from self-reports, additional information

is required through the use of collateral material (such as document examination and

interviews). There are numerous reasons why someone undergoing forensic evaluation

might provide false information. For instance, some persons may exaggerate mental

health issues to avoid criminal culpability or to seek financial advantage in personal injury

claims, while others may overestimate their parenting abilities to get custody of their

children. The likelihood that the person being assessed will purposefully (by exaggerating

or minimizing) falsify the nature of symptoms or experiences is typically low in the

majority of therapeutic evaluation cases.

Additionally, in light of verbal communication regarding the evaluation outcomes, there

is a significant difference between the two types of assessments. It is uncommon for the

therapist evaluator to testify as an expert witness in court. The theory that provides the

context and framework for the tests used in the evaluation must be clearly explained to

the trier of fact (typically a jury, sometimes the judge), even though the forensic

evaluator should always testify as an expert witness and that testimony would be

connected to the assessment. In order to prevent the lawyer from proving that the expert

is not an expert in this field and has misinterpreted, misused, or misstated the workings

and results of the tests, it should be explained how the tests were developed, how they

are used, how the results are interpreted, and how the test results at hand can be used

validly and reliably.

Lees-Haley et al. (1996) carried out an early survey study to determine the prevalence

of several psychological tests used in forensic assessments. Information gathered from

reports of 100 neuropsychologists’ assessments of adult personal injuries. The findings

showed that between one and thirty-two tests were used in one hundred forensic

neuropsychological assessments. The most popular scale was the Wechsler Adult

Intelligence Scale-Revised (WAIS-R), followed by the MMPI/MMPI-2 and the Wechsler

Memory Scale (WMS)/Wechsler Memory Scale-Revised (WMS-R).

Quinnell and Bow surveyed 198 psychologists about the use of psychological tests in child

custody assessments (Liell et al., 2022). According to the results, half of the participants

said that IQ tests were used to assess custody of both adults and children. The Millon

Clinical Multiaxial Inventory II or III (MCMI) was the second most popular objective test

for adults, followed by the MMPI/MMPI-2. Other assessments, such as the California

Personality Inventory and the 16-Personality Factors, were also utilized, but sparingly.

The Millon Adolescent Clinical Inventory (MACI) and the Minnesota Multiphasic

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Personality Inventory–Adolescent Version (MMPI-A) were frequently used for testing

adolescents.

Another survey was carried out in Australia by Martin et al. (2001) to evaluate the usage

of psychological tests and their application among 79 Australian psychologists employed

in government agencies, private practices, or organizations that offer court evaluations.

The MMPI and Wechsler Intelligence Scales are recognized as highly used tests, according

to the results. The MCMI was placed third, while the PAI was the second most popular

personality test.

Members of the American Psychology-Law Society Division of APA and American Board

of Forensic Psychology evaluated the psychological tests used in forensic examinations

(Archer et al., 2006). Participants were asked to describe how they used the exams in

specific areas, such as ability to stand trial, custody evaluations, and sex offender risk

assessments. Additionally, survey data was gathered for specific testing categories, such

as cognitive/intellectual tests, neuropsychological tests, multiscale inventories, and

single-scale evaluations. The results demonstrated that the most widely used clinical

assessment instruments in forensic examinations were the MMPI-2 and the Wechsler IQ

scores. The results also demonstrated the use of other assessment instruments in the

field of minors evaluation, such as the Personality Assessment Inventory (PAI) and parent

self-report measures like the Parenting Stress Index (PSI), in addition to more well-

known instruments like the Child Behavior Checklist (CBCL) and the Personality Inventory

for Children (PIC).

McLaughlin and Kan (2014) provided an update on the usage of assessment tools by 102

forensic examiners to assess nonsexual violence risk, reaction style/malingering,

competency to stand trial (CST), and mental state at the time of alleged offense (MSO).

The findings demonstrated that the type of assessment tool and forensic mental health

assessment had an impact on test usage. While multiscale inventory like MMPI-2, MMPI-

2, MCMI, and PAI were more frequently used in MSO assessments, FAIs/FRIs were most

frequently utilized in evaluations of reaction style/malingering, CST, and risk for

nonsexual violence. Evaluators used projective techniques the least across all four

forensic concerns (such as the Thematic Apperception Test and the Rorschach inkblot

Test).

The other key consideration for using psychological tests in forensic settings is how the

test results are interpreted. In general, all psychological test findings should be

interpreted in light of the standards group, which may limit their applicability in forensic

evaluation. Groth-Marnat (2003) asserts that a well-designed test incorporates both

fundamental standardized group norms and particular subgroup norms. A more

appropriate and significant interpretation of scores is made possible by an understanding

of each of these subgroup norms. Sadly, not all psychological tests are covered by this,

especially those used in forensic assessments. The MMPI-2-RF is an unusual since it is a

thorough assessment of psychopathology with fundamental criteria for healthy people

and a variety of comparison groups to support its application in populations of inmates,

personal injury claims, and custody evaluation litigants.

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Berger (2025) provides a well-structured and internationally agreed-upon framework,

the importance of which extends beyond traditional quality management. The ISO

21043-4 Interpretation standard, guided by principles such as rationality, transparency,

and relevance, includes standards and suggestions, as well as a common vocabulary and

support for both evaluative and investigative interpretations. According to the author,

the standard was developed with the goal of establishing uniformity and accountability

while allowing for the necessary flexibility across varied areas of expertise. Above all, he

believes that ISO 21043 represents a rare chance to integrate and enhance the discipline

of forensic science, as well as to strengthen the reliability of expert judgments and faith

in the justice system.

Indeed, ISO 21043-4 Interpretation focuses on the case’s issues and possible solutions

in the form of opinions. The standard recognizes that there are multiple ways to do

something correctly and provides the flexibility to accommodate it. At the same time,

this flexibility does not include doing things incorrectly in order to ensure the quality of

the forensic process.

The Interpretation ISO standard is based on the understanding that forensic science is

about asking questions and using science to assist answer those questions. Interpretation

explains what our observations signify in relation to the case’s central question. As a

result, some of the most important requirements are logical: what answers are possible,

and what information is needed? The standard’s fundamental structure is based on the

different types of inquiries and replies or opinions. All essential task information must be

considered, and all data, observations, and interpretation methods must be documented.

Any known limits or potential sources of mistake in the analysis and interpretation

processes must be documented and factored into the interpretation.

In our opinion, namely this ISO standard can become a foundation for approaching

national standards for forensic psychological examination in studying the motivational

structure of criminals, since it provides clear directions, necessary flexibility, and at the

same time implies obligatory nature of potential limitations, which could eliminate, for

example, cultural specifics to the maximum extent.

In recent years, several documents containing evaluative comments have been

published. The European Network of Forensic Science Institutes (ENFSI) issued the

“ENFSI Guideline for Evaluative Reporting in Forensic Science” in 2015. The Australia

New Zealand Policing Advisory Agency (ANZPAA) released “An introductory guide to

evaluative reporting” in 2017. In 2021, the UK Forensic Science Regulator will publish

“Development of evaluative opinions: codes of practice and conduct for forensic service

providers”.

While these documents were important to varied degrees, none of them met international

standards or incorporated investigative opinion. The ISO 21043-4 Interpretation

standard is a truly global standard that covers both evaluative and investigative questions

and judgments. This is the initial two-way division in types of opinions: evaluative or

inquisitive.

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According to Mihaela (2025), the psychiatric evaluation of people charged with

international crimes such war crimes, crimes against humanity, and genocide has grown

to be an important yet challenging part of international criminal justice. In procedures

before international tribunals and courts, such as the International Criminal Court (ICC)

and ad hoc tribunals, this study investigates the function, extent, and constraints of

psychological evaluations. Psychological evaluations are frequently used to ascertain the

accused’s mental competence, their eligibility for trial, or the existence of personality

problems that would have affected their behavior. However, there are important ethical

and legal issues when psychological competence is incorporated into international legal

contexts. According to the author, obstacles include the potential of “pathologizing”

political or ideological motives, cultural and linguistic biases, as well as the absence of

standardized templates for assessment across different jurisdictions. Moreover,

assessments by forensic expert can also affect punishment, criminal responsibility, or

views of regret and rehabilitation, and this fact actually creates ethical dilemmas.

The above-mentioned ISO 21043-4 Interpretation can serve as a point of intersection of

approaching nation-states’ legal system peculiarities within forensic psychological

expertise, eliminating the effect of biases, adjusting cultural concerns, providing broader

perspective for criminals’ motivation analysis, impact of political landscape, etc.

Moreover, there is an evident need for a multidisciplinary strategy, in order to close the

gap between legal frameworks and psychological forensic science. It is needed to create

integrated systems that guarantee the uniform application of forensic techniques and

their conformity with legal requirements; policymakers, legal experts, and forensic

scientists must collaborate. This endeavor necessitates investments in infrastructure,

technology, and training in addition to the development of open procedures for gathering,

analyzing, and presenting evidence. In order for the legal and forensic communities to

comprehend one another and recognize the subtleties of each other’s fields, appropriate

education is essential. Collaborative research, interdisciplinary workshops, and

cooperative training programs are examples of initiatives that could improve criminal

justice systems’ efficacy.

Integrated approach has numerous potential advantages. Justice systems can increase

their accuracy, effectiveness, and trustworthiness by promoting a more harmonious

interaction between forensic science and legal frameworks. A system that maintains both

responsibility and fairness serves society as a whole, and both defendants and victims

can have more faith in the impartiality of court decisions. Furthermore, integration fosters

innovation since the cooperation of the legal and scientific sectors promotes the creation

of innovative approaches and instruments for addressing complicated crimes.

A coordinated, context-sensitive, and rights-based strategy is necessary to develop

interdisciplinary standards and ethical principles for psychological evaluations in

international criminal justice. Such criteria must draw from law, psychology, human

rights, ethics, and cross-cultural studies due to the complexity of international crimes

and the variety of cultural, legal, and psychological concerns involved. The development

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of strong, equitable, and human rights-compliant frameworks can be guided by the

following essential components:

1. Creation of a multidisciplinary working group comprised of legal experts from

international criminal law institutions (ICC, ICTY, and ICTR), cross-culturally competent

clinical and forensic psychologists; human rights specialists; representatives of

vulnerable groups and civil society; and experts in medical law and ethics. In addition to

verifying compliance with international legal documents like the Rome Statute, the UN

Principles of Medical Ethics, and the Universal Declaration of Human Rights, this

committee would be in charge of creating fundamental principles and harmonizing

current national standards.

2. Defining minimum ethical and procedural requirements (neutrality and independence

from political and prosecutorial influence; clear limitations of interpretation:

psychological findings must not be pushed to serve punitive or ideological aims).

3. Standard operating procedures (SOPs) for conducting interviews, gathering data, and

writing reports; triangulation of data (clinical observation, collateral information, and

self-report) to minimize bias and error; and the development of standardized

methodologies and tools (culturally adapted instruments that are validated for use across

diverse populations). Before being recognized as evidence, psychological instruments

should, if feasible, go through peer review and international validation procedures.

4. Forensic experts training and accreditation.

5. Establishing procedures for oversight and review (an impartial review board ought to

have the authority to keep an eye on the application of psychological evidence,

particularly in international cases).

Conclusion

International experience and evidence, revealed in the process of integrative review,

demonstrates that integrating psychological knowledge into law enforcement activities

significantly increases the effectiveness of investigations, contributes to the

humanization of criminal proceedings and the development of preventive strategies; at

the same time, the use of forensic psychological examinations in combination with

criminalistic, medical, and sociological methods allows for a deeper understanding of the

nature of criminal behavior, the formation of an objective picture of motives and the

creation of conditions for crime prevention at the institutional level.

Meanwhile, large gaps still exist in this integration within the criminal justice system,

despite the evident success in forensic psychology science evolution and the strong

structures of legal frameworks. These deficiencies manifest themselves as institutional,

procedural, instructional, and technical difficulties that compromise the effectiveness and

equity of court decisions. In order to have a coherent system where forensic evidence

and legal procedures coexist together and guarantee justice is done, it is imperative that

these gaps be filled.

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The study showed that although forensic psychological evaluations are crucial in

international trials, their use is inherent with serious methodological issues that can

compromise their validity, usefulness, and even applicability in court.

The absence of uniformity among international legal systems is a major challenge.

Psychological evaluations are neither consistently carried out nor consistently interpreted

because different courts may function under different procedural rules, definitions, and

evidentiary standards. Efforts to guarantee consistency and comparability of

assessments across instances and jurisdictions are complicated by this diversity.

Furthermore, psychological evaluations are extremely vulnerable to linguistic and cultural

biases, which can substantially undermine their validity, particularly in such a

complicated field as the motivations of criminals. Many evaluation instruments may not

fairly represent psychological functioning in people from diverse cultural backgrounds

since they were created and standardized in particular cultural contexts, frequently

Western ones.

Designing culturally sensitive techniques, enhancing interdisciplinary communication

between legal and mental health professionals, as well as establishing more precise

standards for psychological evaluations in international justice contexts are necessary

condition to address current problems.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

165

GENERATION OF HUMAN RIGHTS AND THEIR ROLE IN THE FORMATION OF

THE CONCEPT OF "CONSTITUTIONAL MAN": IN THE DIMENSION OF NATIONAL

AND INTERNATIONAL DOCTRINES

RUSLAN HVAN

hvanryslan@ukr.net

PhD (Legal Sci.) National Tax Service of Ukraine in the Odesa Region

Odesa (Ukraine) 0000-0002-5053-6343

MIKHAILO BAIMURATOV

baymuratov@ukr.net

Doctor Habilitat of Legal Sciences, Professor of the Department of Political Sciences and Law

Socio-legal Faculty South Ukrainian National Pedagogical University named after K.D. Ushinsky

Odesa (Ukraine) 0000-0002-4131-1070

BORIS KOFMAN

kofmanboris@ukr.net

Doctor of Legal Sciences, Professor of the Department of Political Sciences and Law

South Ukrainian National Pedagogical University named after K. D. Ushinsky

Odesa (Ukraine) 0000-0003-0599-9143

NATALIA YEFREMOVA

efremova_natalia1970@ukr.net

PhD (Legal Sci.), Associate Professor of the Department of History of State and Law of National

University "Odessa Law Academy" Odesa (Ukraine) 0000-0003-0497-2619

DENYS BOBROVNYK

bobrovnykfehys@ukr.net

PhD (Economic Sci.) Department of Constitutional and Administrative Law

Faculty of Law, National Aviation University Kyiv (Ukraine)

Baimuratov and Partners Lawyer Alliance Odesa Ukraine 0000-0002-1142-6926

Abstract

The relevance of the study arises from the growing importance of the concept of the

“constitutional person” in the context of globalization, digitalization, and socio-political

transformations. As legal systems adapt to modern challenges, the need to harmonize national

and international standards and to develop effective institutional mechanisms for protecting

human rights becomes increasingly urgent. The research aims to systematize the evolution of

this concept, reveal the patterns of its transformation in legal thought, and outline prospects

for modernizing the legal system amid global and digital changes. The study employs

historical-legal, comparative, systemic, and analytical methods, enabling a comprehensive

examination of the development of the idea of the “constitutional person,” the impact of

historical and cultural contexts on legal institutions, and the identification of key trends in its

contemporary reinterpretation. The findings demonstrate the gradual formation of the

normative and institutional foundations of the concept, the integration of international

standards into national legal frameworks, and the influence of digital and social

transformations on the realization of individual rights and freedoms. The results confirm the

need to adapt legal mechanisms to modern challenges, enhance the effectiveness of human

rights protection, and strengthen institutional guarantees. The concept of the “constitutional

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 165-190

Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

166

person” emerges as a fundamental element of the legal architecture that ensures a balance

between state interests and individual rights. The study proposes recommendations for

legislative modernization and for developing strategies in legal education and institutional

human-rights protection.

Keywords

Constitutional man, human rights, evolution of the concept, bioethics, globalization.

Resumo

A relevância do estudo decorre da crescente importância do conceito de «pessoa

constitucional» no contexto da globalização, digitalização e transformações sociopolíticas. À

medida que os sistemas jurídicos se adaptam aos desafios modernos, torna-se cada vez mais

urgente a necessidade de harmonizar as normas nacionais e internacionais e desenvolver

mecanismos institucionais eficazes para a proteção dos direitos humanos. A pesquisa visa

sistematizar a evolução desse conceito, revelar os padrões de sua transformação no

pensamento jurídico e delinear perspectivas para a modernização do sistema jurídico em meio

às mudanças globais e digitais. O estudo emprega métodos histórico-jurídicos, comparativos,

sistêmicos e analíticos, permitindo uma análise abrangente do desenvolvimento da ideia de

“pessoa constitucional”, do impacto dos contextos históricos e culturais nas instituições

jurídicas e da identificação das principais tendências em sua reinterpretação contemporânea.

As conclusões demonstram a formação gradual dos fundamentos normativos e institucionais

do conceito, a integração de normas internacionais nos quadros jurídicos nacionais e a

influência das transformações digitais e sociais na realização dos direitos e liberdades

individuais. Os resultados confirmam a necessidade de adaptar os mecanismos jurídicos aos

desafios modernos, aumentar a eficácia da proteção dos direitos humanos e reforçar as

garantias institucionais. O conceito de «pessoa constitucional» surge como um elemento

fundamental da arquitetura jurídica que assegura um equilíbrio entre os interesses do Estado

e os direitos individuais. O estudo propõe recomendações para a modernização legislativa e

para o desenvolvimento de estratégias na educação jurídica e na proteção institucional dos

direitos humanos.

Palavras-chave

Homem constitucional, direitos humanos, evolução do conceito, bioética, globalização.

How to cite this article

Hvan, Ruslan, Baimuratov, Mikhailo, Kofman, Boris, Yefremova, Natalia & Bobrovnyk, Denys

(2026). Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines. Janus.net, e-journal of international

relations. Thematic Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times

of Global and National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 165-190.

https://doi.org/10.26619/1647-7251.DT0226.9

Article submitted on 24 November 2025 and accepted for publication on 14 January

2026.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 165-190

Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

167

GENERATION OF HUMAN RIGHTS AND THEIR ROLE IN THE

FORMATION OF THE CONCEPT OF "CONSTITUTIONAL MAN":

IN THE DIMENSION OF NATIONAL AND INTERNATIONAL

DOCTRINES

RUSLAN HVAN

MIKHAILO BAIMURATOV

BORIS KOFMAN

NATALIA YEFREMOVA

DENYS BOBROVNYK

Introduction

In the current conditions of globalization and digital transformations, legal thinking is at

a stage of intensive evolution, which necessitates a rethinking of traditional approaches

to the concept of human rights. The concept of "constitutional person" is particularly

relevant, which integrates historical and legal traditions, moral and ethical norms and

modern social standards into a single model of the legal status of an individual. The

importance of this concept is due to its ability to serve as a normative basis for the

protection of rights and freedoms and a mechanism for reconciling the interests of the

state and the individual in the context of sustainable development and democratization

of social processes.

The relevance of the study is enhanced by modern challenges, in particular the

digitalization of social relations, the spread of artificial intelligence, the transformation of

labor and educational practices, as well as the need to ensure human rights in conditions

of emergency situations and social instability. These factors determine the need for a

systematic understanding of the "constitutional person" as a key element of the legal

architecture of society, integrating international standards and national practices.

Studying the evolution of the concept of "constitutional person" allows us to determine

the patterns of development of legal norms, the influence of historical and cultural

contexts on their institutionalization, and outline the prospects for modernization of the

legal system, taking into account global and local trends. In this context, the study has

theoretical and practical significance, since the results can be used to improve national

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 165-190

Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

168

legislation, formulate legal education policies, and develop institutional protection of

human rights.

Therefore, the subject of the study is the historical and legal evolution of the concept of

"constitutional person", and the object is the modern mechanisms for the implementation

of individual rights and freedoms in the context of globalization and digital

transformations. Achieving the goal of the study requires the comprehensive application

of methods of historical and legal, comparative and systemic analysis, which provides a

comprehensive assessment of the dynamics of the development of the concept and the

identification of key trends in its transformation.

The purpose of writing a scientific article is a comprehensive analysis of the evolution of

the concept of "constitutional person" in the context of the development of legal thinking,

as well as the determination of the patterns of formation of individual rights and freedoms

within national and international legal systems. The research is aimed at identifying the

relationship between historical and legal approaches, generations of rights and modern

challenges of globalization, digitalization and bioethical transformations, which allows

developing a holistic model of the integrated legal status of a person as a subject of law

and morality.

Literature Review

The genesis of the concept of "constitutional man" should be viewed as a

multidimensional intellectual and legal process that combines the historical and

philosophical foundations of constitutionalism with the dynamics of international legal

transformations and the national reception of universal human rights standards. Three

interrelated paradigms were decisive in the trajectory of this process: (1) the classical

natural-law universalism of the mid-20th century, which found its codified expression in

the Universal Declaration of Human Rights as a normative matrix of dignity and equality;

(2) the treaty-institutional era of the 1960s–1980s, represented by the International

Covenants of 1966 (ICCPR and ICESCR), which translated moral imperatives into

systemic obligations of states and control mechanisms; (3) a contemporary postmodern

interpretation that transforms legal personality into a complex construct category that

includes moral and value autonomy, social responsibility, and technological

accountability. These stages are confirmed by key international texts that continue to

perform a normative function in the process of constitutionalization of human rights

(UNTC, 1976; United Nations, 1948)

The thesis that the "constitutional person" is not so much a new legal actant as a

conceptual repositioning of the individual as the ontological center of the constitutional

order currently dominates the scientific discourse. Khwan (2025) proposes a

phenomenologically-oriented approach in which the local level of self-government acts

as a key space for filling constitutional subjectivity with practical content; thus,

municipalism acts not only as an instrument for the implementation of rights, but also as

a source of forming the legal consciousness of territorial communities. Thus, the

"constitutional person" appears as a subject of two orders – normative (the bearer of

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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March 2026, pp. 165-190

Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

169

rights guaranteed by the constitution) and effective (the subject of socio-political life at

the local level), which emphasizes the need for institutional decomposition of legal

guarantees.

Work by Deiak (2024), devoted to the phenomenon of "constitutionalization", emphasize

the processes of integration of constitutional principles into domestic legal systems as a

key mechanism for the protection of the individual: constitutionalization acts as a method

of systemic legitimation of rights, which ensures their priority in the legal hierarchy and

standardizes the procedures for their protection. This approach allows to connect

theoretical constructions with practical tools – from the direct effect of constitutional

norms to judicial mechanisms of interpretation. International and regional instruments

(European Convention on Human Rights; EU Charter of Fundamental Rights) additionally

produce a precedent normative fabric, which complicates a simple distinction between

«international» and "national" levels of protection and stimulates a coherent reception of

the concepts of dignity and autonomy (Council of Europe, 1950; European Union, 2012).

In the theoretical discussion of the status of the individual, contemporary constitutional

law increasingly contrasts the categories of "citizen" with the category of "person".

Bosniak (2010) emphasizes that personhood frees the individual from the framework of

nationality and orients the legal system towards the universalism of protection; however,

this also creates a tension between the rights that flow from citizenship and the universal

norms that can be applied to individuals without national status. Mailey (2022) in turn

draws attention to the paradox of the protective role of law: constitutional mechanisms

designed to protect the individual sometimes insufficiently analyze or do not adequately

respond to the harm caused by the state itself – a phenomenon that requires the theory

of new tools for criticism and accountability of state power. These positions outline the

theoretical field in which the "constitutional person" unfolds as a complex legal and social

category.

The analytical perspective on the generations of human rights confirms that each

subsequent generation does not annul the previous one, but rather incorporates and

transforms its emphases: the first generation established individual freedoms, the second

– social guarantees, the third – collective rights of solidarity, the fourth and fifth –

informational, ecological and bioethical norms that require new mechanisms of

implementation and control (Britannica, 2025; Khoo, 2015; López Baroni, 2020;

Schabas, 2021a, 2021b; Turyanytsia, 2022). This is empirically and normatively reflected

in international acts and recommendations, which translate the concept of dignity into

the plane of technological and environmental responsibility (Humanium, 1966; UNESCO,

2005; 2021; United Nations, 1948; UNTC, 1976). Thus, the "constitutional person"

acquires moral and value autonomy, which entails for the state not only negative (non-

interference) obligations, but also positive obligations to create conditions for the

implementation of autonomy (education, access to information, environmental safety,

regulation of technologies).

Critical works, in particular Golia and Teubner (2021), add a historical and methodological

dimension to this discourse, showing that constitutionalism as an intellectual tradition

evolves in response to socio-economic challenges and technological change, and its

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

170

theoretical framework must be constantly revised. The contemporary scholarly palette

also includes works that draw attention to the jurisprudential transformation of the

concepts of "person" and "people" (Slaughter, 2014; Ciepley, 2024), which correlates

with the multi-level reception of rights at the national and supranational levels. Taken

together, these sources outline the empirical and conceptual basis for further research,

in which the scientific novelty lies in the formulation of a theoretical and practical model

of the "constitutional person" that synthesizes the rights of generations with the

requirements of technological ethics and ecological sustainability.

Modern scientific discourse indicates that the "constitutional person" is a dynamic concept

that is constantly being filled through the processes of constitutionalization and reception

of international standards (Deiak, 2024; Khwan, 2025); in addition, the transformation

of legal personality towards moral and value autonomy requires new methodologies from

legal science – interdisciplinary, combining law, ethics, technological studies and ecology.

The implementation of this concept in national systems (in particular in Ukraine) is a

matter of normative editing, as well as institutional restructuring, aimed at ensuring that

the constitution becomes a vital mechanism for the protection and development of human

autonomy in the conditions of the 21st century (Council of Europe, 1950; European

Union, 2012).

Methods

The following methods were used in the research process:

- Historical and legal analysis was used to track the evolution of legal concepts, the

development of generations of rights, and their implementation in national and

international legal acts;

- the comparative method was applied to compare constitutional models and practices of

human rights protection in different jurisdictions, including the EU, international treaties

and national constitutions;

- systems analysis was applied to integrate multi-level legal norms, institutional

mechanisms, and moral and ethical aspects into a single model of a "constitutional

person";

- method was used to formulate conclusions about the current state of the concept of

human rights and predict its transformations in digital, environmental, and global

contexts;

- the method of systematization used is the study of legal acts, international treaties,

scientific sources and statistical materials that confirm the trends in the development of

legal norms and practices.

Research Results

The evolution of human rights ideas should be viewed as a dynamic process in which

different "generations" of rights were gradually formed, responding to historical, socio-

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

171

economic and technological challenges. Based on the classical classification proposed by

Vasak in the late 1970s (liberté – égalité – fraternité) and according to which the first

generation includes civil and political rights, the second – socio-economic and cultural,

and the third – solidarity or collective rights, it is worth noting that this scheme also

becomes the basis for understanding the formation of the concept of "constitutional man"

(Domaradzki et al., 2019). The evolutionary and doctrinal characteristics of the

generations of human rights and their role in the formation of the concept of

"Constitutional Man" are given in Table 1.

Table 1. Evolutionary and doctrinal characteristics of generations of human rights and their role

in the formation of the concept of "Constitutional Man"

Human

Rights

Generation

Historical and

legal evolution

Contents and key

regulatory sources

Implementation

features

The role in the

formation of the

concept of

"Constitutional

Man"

1st

generation:

Civil and

political

rights

It was formed

during the Age of

Enlightenment, as

a result of the

bourgeois

revolutions of the

17th–18th

centuries (England,

USA, France). It

affirmed the ideas

of natural law,

individual freedom,

and the rule of law.

Major acts include Bill of

Rights (1689); Declaration

des rights from the man

and du citizen (1789);

Universal Declaration of

Human Rights (1948);

International Covenant on

Civil and Political Rights

(1966); and provide for the

right to life, liberty,

personal integrity, freedom

of thought, speech,

religion, and participation in

political life.

Mostly "negative"

rights require non-

interference by the

state. Mechanisms:

judicial review,

constitutional

guarantees,

independence of

the court.

Challenges include

abuse of power,

inequality of access

to justice.

They form the legal

foundation of the

constitutional

subjectivity of a

person. A

"constitutional

person" is a free

citizen, guaranteed

against the

arbitrariness of the

state.

2nd

generation:

Socio-

economic

and cultural

rights

Origin in the 19th

century,

development after

the First and

Second World

Wars; influence of

socialist ideas,

concept of a

welfare state.

Main acts: International

Covenant on Economic,

Social and Cultural Rights

(1966); Constitutions of the

20th century (Germany,

Italy, Spain, etc.). Content:

the right to work,

education, social

protection, housing,

healthcare, participation in

cultural life.

"Positive" type of

rights: the state

must create

conditions and

resources for their

implementation.

progressive

implementation

realization ").

Expand the meaning

of the constitutional

status of a person:

from freedom to

dignity and well-

being.

"Constitutional

person" is a socially

secure subject, a

bearer of dignity and

solidarity.

3rd

generation:

Collective

(solidarity)

rights

They arose after

the processes of

decolonization and

the development of

international law in

the 1960s and

1970s (ideas of

fraternité).

Main acts: African Charter

on Human and Peoples '

Rights (1981); Rio

Declaration on Environment

and Development (1992).

Content: the right of

peoples to self-

determination, peace,

development, a healthy

environment.

Implementation

requires

cooperation

between states and

international

institutions.

Challenges include

sovereignty,

inequality between

the global North

and South, and the

lack of

enforcement

mechanisms.

They are forming the

image of a "global

constitutional man"

who acts not only

within national

jurisdiction, but as a

member of the

international

community.

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

172

Generation

IV:

Bioethical

and digital

rights

Associated with the

scientific and

technological

revolution,

biotechnology,

artificial

intelligence,

digitalization of

society (late 20th –

early 21st

centuries).

Key documents: GDPR

(2016); UNESCO Universal

Declaration on Bioethics

and Human Rights (2005).

Content: right to digital

identity, protection of

personal data, bioethical

autonomy, access to the

Internet.

Challenges include

algorithmic

discrimination,

cyber threats,

unequal access to

technology, and

the need for global

regulation and an

interdisciplinary

approach.

It affirms the

"technological

person" as a subject

of the digital space,

for whom the state

must guarantee the

latest rights and

data security.

Fifth

generation:

Environment

al and future

generations'

rights

Formed in the 21st

century against the

backdrop of climate

change, the

biodiversity crisis,

and sustainable

development

concepts.

Main documents: Paris

Agreement (2015); UN

Resolution 76/300 (2022) –

the right to a healthy

environment.

Content: rights of nature,

rights of future

generations, environmental

justice.

Requires global,

transnational

mechanisms;

institutionalization

of “ecological

constitutionality.”

Challenges include

economic interests,

weakness of

international

control.

"Constitutional Man"

– environmentally a

responsible subject

who is aware of

solidarity with nature

and future

generations.

Source: compiled by the author based on (Britannica, 2025; Humanium, 1966; Khoo, 2015;

López Baroni, 2020; Rights Recall, 2025; Schabas, 2021a, 2021b; Turyanytsia, 2022)

Within the first generation – civil and political rights – the basic legal status of the

individual as a subject of law in a constitutional state was established. The ideas of the

Enlightenment, the French Revolution and early constitutionalism formed a legal tradition

according to which a person has fundamental rights: the right to life, liberty, personal

integrity, freedom of thought, religion, speech, the right to participate in political life and

legal protection. In the international legal field this began to be embodied after 1948

through the Universal Declaration of Human Rights and later through International

Covenant on Civil and Political Rights (UNTC, 1976; United Nations, 1948).

Understanding the first generation as "negative" rights (i.e. those that impose on the

state the obligation to refrain from interference) provides the basis for the model of the

"constitutional person", who acts as an active carrier of legal protection and participation.

National doctrinal approaches to the rule of law are closely connected with the

implementation of these rights: it is through these guarantees that the state ceases to

be absolute and acquires the features of a legal order in which the person acts as a

subject, not an object.

The second generation, socio-economic and cultural rights, opens up a new dimension of

the legal status of the human being, focused not only on freedom from interference, but

on the ability to realize one's dignity and secure one's living conditions. According to

international law, this was crystallized in the International Covenant on Economic, Social

and Cultural Rights (1966, in force since 1976) (Humanium, 1966). This area includes

the right to work, fair remuneration, social protection, health care, education,

participation in cultural life, housing, etc. (Schabas, 2021a). In the context of the

implementation of such rights, the state must take positive action, provide resources,

policies and legal mechanisms that create opportunities for action by subjects – the idea

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Generation of human rights and their role in the formation of the concept of "Constitutional

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173

of \u200b\u200b "expanding" the legal status of a person by adding social aspects. At

the same time, in practice it is recognized that these rights are often implemented

gradually ("progressive realisation") and depend on public resources. (Saul et al., 2014)

For the concept of "constitutional person" this means that the legal status of a person

constitutes not only participation and freedom, but also the provision of opportunities for

the use of these freedoms; a person becomes a full-fledged citizen in the social space.

The third generation or solidarity (collective) rights form the global dimension of human

rights, going beyond the national individual and heading towards groups, peoples,

humanity as a whole. Among such rights are the right to development, the right to peace,

the right to a healthy environment, the right of peoples to self-determination (Khoo,

2015). As Schabas (2021b) notes, although the status of these rights in international law

remains debatable, they are collective in nature and often require the cooperation of

many actors (states, international organizations, civil society). In national doctrine, the

integration of these rights at the constitutional or legislative level is a difficult task;

however, they contribute to the interpretation of a person as a participant in the global

community, and not exclusively a national citizen. Thus, the "constitutional person"

acquires the features of a subject capable of acting in global processes – through the

challenges of ecology, development, peace, solidarity.

Recently, against the backdrop of rapid technological, bioethical, and digital

development, as well as environmental challenges, a discourse about the fourth and even

fifth generation of human rights has been taking shape. In the article "Fourth Generation

Human Rights in View of the Fourth Industrial Revolution" emphasizes that the current

three-generation scheme is insufficient to respond to the challenges of biotechnology,

information technology, artificial intelligence. (López Baroni, 2020). Scientific research

emphasizes that the concepts of "digital rights", "epistemic rights" in the digital world,

"biomaterial" or "somatic rights", the rights of future generations and the rights of nature

are gaining popularity (Sepúlveda et al., 2004). In the context of implementation, such

rights pose new challenges: protection of personal data, digital identity, autonomy of

biotechnological interventions, the right to a healthy and sustainable environment, the

right to technological identity. For the model of "constitutional man" this means that the

individual becomes a subject not only of political and social relations, but also of the

digital, biotechnological and ecological space; the legal status of "constitutional man"

must take into account the technological, ecological, transhuman challenges of the 21st

century.

There is not just a chronological, but a functional-systemic connection between all

generations of human rights. The rights of the first generation create the legal basis of

individual subjectivity; the rights of the second generation provide the possibility of

realizing this subjectivity in the social space; the rights of the third generation expand

the field to groups, peoples and the international community; the rights of the fourth and

fifth generations open up new horizons for the subject in the digital, bioethical, ecological

dimensions. Scientific doctrine emphasizes that rights cannot be considered in isolation;

that is, they are universal, inalienable, interdependent and mutually reinforcing (Risse,

2021). It is through such a consistent integration of different generations of rights that

a holistic image of a "constitutional person" is formed, that is, a legal subject who is

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guaranteed freedoms and participation, social security, the ability to act in global

solidarity and adapt to the latest technological and environmental conditions.

Thus, the idea of a "constitutional person" in national and international doctrine implies

that the status of a person is not limited to the framework of citizenship or one category

of rights. On the contrary, it includes a set of legal guarantees and opportunities, starting

with civil and political freedom, continuing with socio-economic security, expanding with

a solidary and global role, and ending with the ability to function in a digital, bioethical

and ecological environment. Such a holistic approach contributes to the formation of a

person as a subject of a constitutional order, capable of exercising his or her own law-

making, participating in the life of the state and society, while meeting the challenges of

globalization, technologization and sustainable development.

The formation of international law in the second half of the 20th and early 21st centuries

demonstrates the gradual transformation of human rights from abstract universals of

natural law origin into a codified, institutionalized system of norms with multi-level

implementation. The first "generation" (civil and political rights) was formalized in the

fundamental documents of the post-war period, mainly in the Universal Declaration of

Human Rights, which served as a semantic and normative source for the construction of

subsequent treaty mechanisms. The Universal Declaration created the axiological and

formal-legal foundation on which binding international legal instruments were

subsequently built (United Nations, 1948).

The second step of codification – the introduction of two fundamental International

Covenants of 1966 (International Covenant on Civil and Political Rights and International

Covenant on Economic, Social and Cultural Rights) – marked the demarcation of

"generations" in the format of the contractual responsibility of states. These covenants

not only consolidated the list of rights, but also established institutional mechanisms for

implementation and reporting, which radically changed the legal status of human rights:

from an intangible moral requirement to an obligation subject to international control. In

this sense, the 1966 covenants should be seen as the core of the classical (first and

second) generational paradigm of rights, combining individual freedoms with socio-

economic guarantees (UNTC, 1976).

The Council of Europe and the European Convention on Human Rights were the first

regional mechanism to transform declaratory provisions into practical judicial due

diligence through the work of the European Court of Human Rights (ECHR), which

provided a precedent-setting development of the interpretation of rights (interpretation)

– from the formal grammar of the text to the substantive standards of protection

(margin). of appreciation, proportionality, etc.) – which had a dual result: strengthening

individual-oriented protection and at the same time creating a catalyst for the

transformation of ideas about the constitutional role of the individual in public law. In

parallel, the Council of Europe developed the social dimension through the European

Social Charter, which reflected the desire to integrate the "second generation" of rights

into the sphere of regional law (Council of Europe, 1950; European Court of Human

Rights, 1953).

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175

The European Union (EU), in its normative evolution, incorporated human rights

principles into its own legal system through the Charter of Fundamental Rights (2000;

confirmed by the Treaty of Lisbon in 2009), which led to a synthesis of constitutional and

supranational levels of rights protection. The Charter not only codified rights, but also

integrated the principles of social solidarity, non-discrimination and dignity into the

supranational legal space, thereby reinforcing the idea of the “constitutional person" as

a subject whose dignity and rights are both the normative basis and the criterion of

legitimacy of state power (European Union, 2009).

Regionalism in Africa and Latin America has demonstrated its own trajectories of

generational development. The African Charter on Human and Peoples’ Rights introduces

a synthetic approach, combining individual rights with collective (people’s) rights and

responsibilities, which opens up space for a different spectacle of "generations" – where

legal constructions respond to specific historical-cultural and postcolonial challenges.

Latin American instruments (the American Convention on Human Rights and the Special

Protocols) have simultaneously served as a model of active jurisprudence and socio-legal

innovation (particularly in the area of economic and social rights), emphasizing that

regional systems can formulate autonomous notions of generational shifts (African Union,

1981).

Thus, international legal acts act not only as repositories of rights, but also as dynamic

instruments that "materialize" the next generations of rights through: (1) the

formalization of new categories (environmental, digital, bioethical rights); (2) the

creation of mechanisms of responsibility and accountability; (3) regional modifications

that interpret universal norms in the light of local values and challenges. This process of

institutional and doctrinal articulation of human rights – both at the universal and regional

levels – is key to understanding the emergence of the "constitutional person" as a legally

protected, axiologically defined and socially responsible subject of modern

constitutionalism. The key provisions and meanings for the formation of the concept of

"Constitutional Person" are listed in Table 2.

Table 2. The formation of international law as a representation of human rights generations

International

regulations

Year of

adoption

/ entry

into

force

Institutional

jurisdiction

Represented

generation of

human rights

Key provisions and

meanings for the formation

of the concept of

"Constitutional Man"

Universal Declaration of

Human Rights (UDHR)

1948

United Nations

(UN)

Generation I

(civil and

political rights)

For the first time, universal

standards of dignity, freedom,

and equality were codified; the

axiological basis for the legal

subjectivity of the individual on

a global scale was laid.

International Covenant on

Civil and Political Rights

(ICCPR)

1966 -

1976

UN (Human

Rights

Committee)

Generation I

Defines the obligations of states

to guarantee freedom, life,

inviolability, and participation in

public affairs; establishes the

legal binding nature of rights.

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International Covenant on

Economic, Social and

Cultural Rights (ICESCR)

1966 -

1976

(Committee

on Economic,

Social and

Cultural

Rights)

Generation II

Institutionalizes social

guarantees, the right to work,

education, and healthcare;

forms the paradigm of a socially

responsible state.

European Convention on

Human Rights (ECHR)

1950 -

1953

Council of

Europe /

European

Court of

Human Rights

Generation I

It created a judicial mechanism

for individual protection; it

established the doctrine of the

"living instrument" and the

principle of proportionality as a

manifestation of constitutional

humanism.

European Social Charter

(European Social Charter,

Revised 1996)

1961-

1996

Council of

Europe

Generation II

Deepens the socio-economic

aspect of rights, recognizing

them as an integral part of

human dignity; contributes to

the formation of a social state

as a constitutional ideal.

Charter of Fundamental

Rights of the European

Union (Charter of

Fundamental Rights of the

EU)

2000 -

2009

(Lisbon

Treaty)

European

Union

Generation I–

III

(comprehensive

integration)

It unites civil, social,

environmental and digital

rights; it establishes the

principle of dignity as the basis

of the EU constitutional order; it

strengthens the supranational

dimension of the "constitutional

person".

African Charter on Human

and Peoples' Rights

(African Charter on Human

and People 's Rights,

Banjul Charter)

1981 -

1986

African

Union/African

Commission

on Human and

Peoples'

Rights

2nd–3rd

generation

For the first time, it integrates

individual and collective

(people's) rights and

responsibilities; it reflects the

African concept of

communitarianism and human

responsibility to the community.

American Declaration of

the Rights and Duties of

Man (American Declaration

of the Rights and Duties of

Man)

1948

Organization

of American

States (OAS)

Generation I

The first regional act of the UN

that combined rights and

duties; a precursor to the Latin

American approach to the

"moral autonomy" of the

individual.

American Convention on

Human Rights (Pact of San

Jose, Costa Rica)

1969 -

1978

OAS / Inter-

American

Court of

Human Rights

I–II generation

Defines the legal framework for

the integration of civil and

social rights; establishes judicial

jurisdiction on a regional scale.

Additional Protocol to the

American Convention on

Economic, Social and

Cultural Rights (San

Salvador Protocol)

1988 -

1999

OAD

Generation II

Develops socio-economic rights

as an imperative for sustainable

development; emphasizes the

ethical responsibility of states

for social equality.

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UN Millennium Declaration

/ Sustainable Development

Goals (SDGs)

2000 -

2015

Generation IV–

V (right to

development,

environmental,

digital, gender

rights)

Forms the normative basis of

global solidarity, digital and

environmental justice; expands

the boundaries of legal

subjectivity in a posthumanistic

dimension.

Source: compiled by the author based on (African Union, 1981; Council of Europe, 1950;

European Court of Human Rights, 1953; European Union, 2009; United Nations, 1948; UNTC,

1976)

The above-mentioned norms, which have been transformed in the internal constitutional

systems of European states, are a direct factor in the formation of the doctrine of

anthropocentrism as the highest manifestation of the concept of "constitutional man".

Thus, if universal documents have created a normative space in which human rights are

a universal legal language, then at the national level it is the constitutions that have

determined the way in which these rights are institutionalized, hierarchized and acquire

legal ontological status – from declaration to legal reality. A comparison of the three

leading legal systems – Germany, France and Italy – allows us to identify a common

European trend: from a formal declaration of rights to the constitutional affirmation of

human dignity as the highest principle of law.

I. In the German constitutional model, anthropocentrism appears not only as a normative

fundamentality, but also as a metaphysical category of state existence. The Basic Law of

the Federal Republic of Germany of 1949 (Grundgesetz for die Federal Republic

Deutschland) already in the first article establishes: "Die Dignity des People ist

unantastbar" – "Human dignity is inviolable" (Art. 1 GG) (Tomuschat et al., 2025). This

provision has acquired a precedent interpretation by the Federal Constitutional Court,

which in Lüth Case defined dignity as "a central constitutional principle that permeates

the entire legal system" (Jaggi, 2016). Thus, human rights are seen not only as an object

of legal protection, but as a source of legitimacy for public authority – a hallmark of the

classical paradigm of the "constitutional man".

II. The French model, in turn, demonstrates the transition from historical individualism

to modern social humanism. The Constitution of the French Republic of 1958 integrates

the Déclaration des Rights from The Man and du Citoyen of 1789 and Préambule from

the Constitution de 1946, establishing the doctrine of the "social republic", where the

individual is considered not only as a bearer of rights, but also as a participant in the

collective well-being (Conseil Constitutionnel, 1958). The Constitutional Council, in a

series of decisions, in particular in case No. 71-44 DC (1971), gave direct legal effect to

the principles of the 1946 preamble, recognizing them as "norms with constitutional

value". Thus, French constitutional law combines the natural law heritage with the

concept of a social state in which dignity, freedom and equality mutually reinforce each

other.

III. In Italy, the anthropocentrism of the constitutional model has a distinctly ethical and

social character. The Constitution of the Italian Republic of 1948 defines the person as

the "central element of democratic coexistence" and proclaims work as not only the

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economic but also the moral foundation of the state (Art. 1, Art. 3, Art. 4, Art. 32) (Corte

Costituzionale, 1948). The Italian Constitutional Court has repeatedly developed the

provision on "dignity as the basis of all fundamental rights" in its practice, for example

in decisions No. 141/2019 and No. 242/2019, emphasizing the need to interpret rights

in the context of "human autonomy, social solidarity and moral responsibility".

The above constitutional systems reflect three forms of implementation of the European

doctrine of anthropocentrism: axiological (dignity as a meta-legal principle in Germany),

socio-institutional (equality and collective solidarity in France) and ethical-humanistic

(integration of freedom, work and responsibility in Italy). What they have in common is

the tendency towards constitutional "humanization" of the state, in which legal systems

recognize a person not only as a subject of legal relations, but as the source, content

and purpose of the legal order. At the same time, at the level of the European Union, this

tendency is confirmed through the Charter of Fundamental Rights of the EU, legally

binding after the Treaty of Lisbon, which in Articles 1–6 reproduces the content of

constitutional anthropology – dignity, freedom, equality, solidarity, citizenship and justice

– as systemic components of European legal identity (European Union, 2009). Thus, the

formation of the concept of "constitutional man" in the European doctrine is the result of

multi-level interaction: universal standards (UN), regional mechanisms (Council of

Europe, EU) and national constitutions, which transform human rights from a norm of

international law into the living tissue of constitutional statehood. Thus, modern

European anthropocentrism has gone beyond the formal and legal recognition of rights

and transformed into a meta-theoretical concept, where "constitutional man" is

considered as an ontological basis, an axiological reference point and a teleological goal

of law. It is this trinity – dignity, freedom, responsibility – that determines the vector of

evolution of the constitutional law of the European Union in the 21st century.

The process of transformation of the concept of "constitutional person" in international

legal doctrine has progressed from the formal recognition of legal personality to the

construction of moral and value autonomy, and is also based on the study of the ways in

which new, "fifth" generations of rights (digital, bioethical, environmental, related to

artificial intelligence) test the universal principles of constitutional humanism. In

particular, modern interpretations of the phenomenon of "constitutional person"

demonstrate the transition from a narrowly legal construct – a person as a bearer of legal

rights and obligations – to a multidimensional category in which legal personality is

combined with axiological and ethical autonomy. Three conceptual shifts play a key role

in this transformation:

- The constitutional person ceases to be only the "addressee" of positive norms and is

increasingly seen as a source of legitimacy of the state: his dignity and self-identification

become the criterion for assessing the constitutionality of power. This position is reflected

in the classical guidelines on human dignity and personified subjectivity contained in

national constitutions and supported by court practice (Klein – the standard of dignity in

German law);

- Constitutional man is increasingly viewed through the prism of normative autonomy –

the ability of a person to form and realize his own value identity within the framework of

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the legal order, which imposes on states not only negative, but also positive obligations

to create conditions for the implementation of this autonomy;

- International and regional acts and guidelines concerning new technologies and

bioethics embed the content of moral and value autonomy in the legal matrix: they

declare not just protection from interference, but an active guarantee of the conditions

for autonomous self-affirmation (the right to informed consent in biomedicine; principles

of transparency and accountability in the use of algorithms).

These practical and normative transformations are recorded in intergovernmental

recommendations and documents, in particular, in the UNESCO (2021), which directly

emphasizes the need to protect human dignity and rights in the context of algorithmic

decisions, and in the Universal Declaration on Bioethics and Human Rights (UNESCO,

2005), which constructs bioethical principles as an element of legal assurance of human

autonomy (Council of Europe, 2001; Council of Europe, 2023).

From an international legal perspective, this means that "constitutional person" acquires

a dual status: it is simultaneously (a) a recognized legal entity with an established set of

rights and protection mechanisms and (b) a bearer of moral and value autonomy, which

requires states and supranational actors to form active guarantees – educational,

informational, environmental and regulatory – to strengthen this autonomy. Such a

complication is increasingly reflected in interstate resolutions and regional conventions

that combine contractual and non-contractual instruments of law enforcement. At the

same time, the implementation of the fifth generation of rights creates systemic

challenges for classical constitutional humanism, since digital, bioethical, environmental

and artificial intelligence aspects of rights simultaneously expand the subject area of

rights and violate traditional assumptions about the boundaries of state responsibility.

The first set of challenges is related to privacy and autonomy in the digital space: mass

data collection and processing, profiling and automated decision-making undermine the

possibility of effective individual autonomy and create new forms of discrimination; in

response, the Office of the UN High Commissioner for Human Rights has developed

numerous reports and guidance on the "right to privacy in the digital age", focusing on

the principles of proportionality, accountability and non-interference (United Nations,

2014). At the same time, the radical criminalization of certain digital practices (e.g.

excessive state control) is opposed by international instruments such as the Council of

Europe Convention on Cybercrime (Budapest Convention), which regulates the criminal

law side but raises the question of the balance between security and rights (Council of

Europe, 2001).

A second set of challenges arises in the bioethical sphere: the development of genetic

technologies, genome editing, neurotechnology and related issues of informed consent,

privacy of mental data and protection of the integrity of the person require international

bodies to reformulate legal guarantees. UNESCO (2005) data emphasize that classical

mechanisms of individual protection must be complemented by ethical imperatives that

guarantee autonomy without compromising dignity.

The third and perhaps most complex set of challenges is related to artificial intelligence:

algorithmic systems can transform public decision-making, increase the opacity of

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government, generate algorithmic discrimination and undermine legal accountability.

Frameworks for responding to these risks are being developed at the regional and global

levels: the EU adopts regulatory texts (in particular, the AI Act), and the Council of

Europe develops standards and a model "framework convention" at the intersection of

human rights, democracy and the rule of law; UNESCO proposes an ethical matrix for

national policies (UNESCO, 2005; 2021). These initiatives aim to ensure the compatibility

of innovations with fundamental constitutional values and to convert technical

requirements (security, transparency, accountability) into legally binding standards.

Furthermore, environmental rights – recognized at the intergovernmental level (UNGA

Resolution 2022 on the right to a clean, healthy and sustainable environment) –

transform "constitutional person" into a subject whose rights entail collective and

intergenerational obligations, thereby changing the horizon of responsibility of the

constitutional state (United Nations General Assembly, 2022). The recognition of the right

to a healthy environment creates a normative platform for environmental guarantees to

become part of constitutional anthropology, with corresponding imperatives for

sustainable development policies and interstate cooperation.

Thus, international doctrine is in the process of a double transformation: on the one

hand, "constitutional person" is enriched through the incorporation of moral and value

autonomy into legal identity; on the other hand, technological, bioethical and

environmental challenges require lawmakers and judicial practice to rethink traditional

protection mechanisms and create comprehensive, cross-sectoral regulatory solutions.

The sustainability of the concept of "constitutional person" in the 21st century will depend

on the ability of international law to combine treaty mechanisms, regional standards and

ethical guidelines into a coherent system capable of protecting and developing the

autonomy of the individual in a rapidly changing technological and environmental

context.

However, it should be noted that the set of challenges of the fifth generation of human

rights (Table 3) forms a qualitatively new stage in the development of international

constitutionalism, which requires the integration of digital, environmental and bioethical

values in the system of legal personality of the person. As stated in the UNESCO

Recommendation on the Ethics of Artificial Intelligence (from 2021), human dignity

should remain a central criterion for technological progress, while UN General Assembly

Resolution A / RES /76/300 (from 2022) emphasizes that environmental sustainability is

an inalienable human right. Thus, the doctrine of "constitutional humanism" is

transformed into "universal constitutional personhood", which combines legal, ethical and

existential autonomy of a person.

If talk about the Ukrainian national dimension of the formation of the concept of

"constitutional person", then it is necessary to record both the legal reception of

international generations of human rights and the process of transformation of the

constitutional anthropology of Ukraine – from the text of the Constitution to the practice

of state institutions and judicial jurisprudence, capable of producing a legally effective

phenomenon of "constitutional person". In Ukraine, this process has a multi-level nature:

(1) constitutionally enshrined value-anthropological guidelines, (2) regulatory and legal

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infrastructure that regulates social, digital, bioethical and environmental aspects of

rights, (3) institutional protection mechanisms (Constitutional Court, Verkhovna Rada

Commissioner for Human Rights, administrative and criminal jurisprudence), (4)

strategic policy in the direction of adapting national law to regional (EU, Council of

Europe) and global standards. These components form an architecture within which the

"constitutional person" must be constitutionalized as simultaneously a bearer of

guarantees of dignity, will, and social support, and as a subject of active autonomy and

responsibility.

The 1996 Constitution of Ukraine lays the axiological basis of modern Ukrainian

constitutionalism: the proclamation of a person, his life and health as the highest social

value, the set of civil, political and socio-economic rights (Chapter II), as well as special

environmental guarantees (Article 50) – all this forms a normative framework for the

development of a "constitutional person" as a legal and moral ideal. Constitutional norms

have direct application and create the basis for the imperative reception of international

standards (in particular, the European Convention on Human Rights). That is, the

Ukrainian constitutional text combines a natural-law orientation (dignity, universal

freedoms) and a social state imperative (ensuring social and environmental rights) (VRU,

1996).

Table 3. Global challenges to the implementation of fifth generation rights and doctrinal and

normative ways to overcome them

Call type

Characteristic

International legal

acts/doctrines

Possible solutions (within

the concept of

constitutional humanism)

Digital calls

Violation of digital

privacy,

algorithmic

discrimination,

data manipulation,

violation of cyber

sovereignty.

- Council of Europe Convention No.

108+ for the Protection of

Individuals with regard to

Automatic Processing of Personal

Data (from 2018);

- EU General Data Protection

Regulation;

- UN General Assembly Resolution

A/RES/75/176 (from 2020) "The

Right to Privacy in the Digital Age".

- Formation of "digital legal

constitutions" (Digital

Constitutionalism);

- Implementation of

international AI governance

standards ;

- Strengthening control over

algorithmic transparency and

corporate accountability.

Bioethical

challenges

Genomic

interventions,

cloning,

bioengineering,

violation of the

principle of human

dignity in the

context of

biomedicine.

- Council of Europe Convention on

Human Rights and Biomedicine;

- UNESCO Declaration on the

Human Genome and Human Rights

(from 1997);

- WHO Declaration on Genetic

Ethics (from 2019).

- Recognition of bioethical

principles as a component of

constitutional law;

- Ensuring international

control over biotechnology;

- Introduction of the category

of " bioethical responsibility

of states".

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Environmental

challenges

Deepening climate

crisis, degradation

of ecosystems,

threats to the right

to life and health.

- Paris Climate Agreement (from

2015);

- UN Resolution A/RES/76/300

(from 2022) on the recognition of

the right to a healthy environment;

- The European Green Deal (EU

Green Dea).

- Constitutional enshrining of

the right to environmental

safety;

- Introduction of an

environmental ombudsman;

- Formation of the doctrine of

"eco-humanism" as a

component of constitutional

identity.

AI-related

challenges

Autonomous

decisions without

human

participation,

violation of the

principles of

justice,

discrimination and

threat to legal

personality.

- UNESCO Recommendation on the

Ethics of Artificial Intelligence

(from 2021);

- Draft EU Regulation on Artificial

Intelligence (AI Act);

- Council of Europe Resolution CM/

Res (2020)1 on the impact of

algorithms on human rights.

- Recognition of human

digital autonomy as a new

constitutional value;

- Introduction of a global AI

accountability mechanism ;

- Institutionalization of the

principle of "human

oversight" in legal systems.

Source: compiled by the author based on Conseil Constitutionnel (1958); Council of Europe

(2001; 2023); European Union (2009); UNESCO (2005; 2021); United Nations (2014).

At the doctrinal level, Ukrainian law has evolved towards synthesis: classical natural law

values (dignity, freedom) have been incorporated into a positive normative system

(constitution, laws) and supplemented by protection mechanisms (national institutions,

international treaties). The practical implementation of this synthesis is carried out

through the instruments of parliamentary and executive legislation (in particular,

legislation on the protection of personal data, environmental laws, regulations in the field

of health care) and through the repertoire of constitutional and interstate jurisprudence.

This synthesis creates a legal basis for the “constitutional person” to act simultaneously

as an object of legal protection and as a bearer of positive public rights (access to

information, environmental protection, the right to social guarantees). In this context, a

special role belongs to the Commissioner for Human Rights of the Verkhovna Rada of

Ukraine as a national mechanism for preventing violations and monitoring human rights

standards (Ombudsman of Ukraine, 2023; VRU, 1997).

Constitutional and national judicial practice in Ukraine demonstrates a gradual increase

in the reception of international human rights standards: the ratification and internal

recognition of the ECHR (1997) created the basis for judicial cooperation and

participatory integration of European precedents into the national doctrine of the

protection of dignity and freedom. The Constitutional Court of Ukraine in its practice

formulates the interpretation of human dignity as a constitutional value, which becomes

a criterion for assessing the balance of rights and obligations of the state (see the

thematic developments of the Constitutional Court of Ukraine on the right to dignity). At

the same time, the challenges of the fifth generation constitute unprecedented demands

on jurisprudence: courts and law enforcement agencies are forced to interpret old norms

in the light of new technological and environmental realities, which requires a

comprehensive approach (synthesis of law, ethics, technological regulation)

(Constitutional Court of Ukraine, 2021; European Court of Human Rights, 2010).

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March 2026, pp. 165-190

Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

183

The prospects for strengthening the role of the "constitutional person" in the national law

of Ukraine are closely related to the European integration course and the transformation

program, recorded in the Association Agreement with the EU and in the process of

preparing the Action Plan for Approximation to the Acquis (NPAA). Specific steps: (1)

updating the regulatory framework in the field of personal data protection and digital

rights (adopting a GDPR-compatible law and creating an independent regulator – the

National Commission for the Protection of Personal Data and Access to Information); (2)

ratification and implementation of international bioethical instruments (in particular, the

final ratification of the Oviedo Convention and bringing medical legislation into line with

its standards); (3) integration of environmental law into the constitutional-paradigmatic

space (strengthening the implementation of Article 50 of the Constitution, incorporating

international obligations of the Paris Agreement into national energy and environmental

legislation); (4) development of a national strategy on AI with the implementation of the

principles of " human oversight and accountability, with the creation of sectoral support

(expert councils under the Cabinet of Ministers/Ministry of Digital Transformation) and

mechanisms for controlling algorithmic discrimination. All these steps should be

implemented within the framework of the NPAA and at the national level, taking into

account the recommendations of the European Commission (Cabinet of Ministers of

Ukraine, 2014; European Commission, 2024).

Given the above-described national aspects of the implementation of the concept of

"constitutional person" in Ukraine, the formation of a "constitutional person" requires a

targeted strategy that combines: (1) a constitutional interpretation of human dignity and

social rights; (2) the imperative of European harmonization of legislation (especially in

the field of data, bioethics, ecology, and AI); (3) the creation and strengthening of

independent national institutions for the protection of rights; (4) the adaptation of judicial

practice and state policy to the standards of algorithmic accountability and environmental

justice. Such a comprehensive policy will transform the "constitutional person" from an

academic construct into a real, institutionally protected subject in the modern Ukrainian

legal system.

Table 4. Systemic and institutional matrix of national aspects of the implementation of the

concept of "Constitutional Man" in Ukraine in the context of human rights generations

Generation

of rights

Key challenges

for Ukraine

Roadmap (stages

of transformation)

Scientific and

practical guidelines

Regulatory

and legal

framework

I generation –

civil and

political rights

The gap between

constitutional

guarantees and

the real

effectiveness of

their

implementation;

formalism in the

interpretation of

Article 3 of the

Constitution

1) Strengthening

parliamentary

control over the

observance of rights.

2) Institutional

strengthening of the

Ombudsman.

3) Improving legal

education.

- Improving

constitutional complaint

mechanisms.

- Formation of the

practice of a "living

constitution".

- Increasing the

autonomy of the

individual as a subject

of the constitutional

order.

Constitution of

Ukraine,

Decision of the

Constitutional

Court of Ukraine

No. 1-r/2020,

Law“On the

Commissioner

for Human

Rights of the

Verkhovna Rada

of Ukraine".

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

184

regarding

anthropocentrism.

Generation II

– socio-

economic

rights

Low level of

implementation of

social rights under

martial law and

financial

decentralization.

1) Adaptation of the

principles of social

justice to the market

economy.

2) Review of social

protection policy.

- Introduction of

people-centered

budgeting.

- Digitalization of social

services ("Action").

- Institutionalization of

the principle of dignity

in economic policy.

Human

Development

Strategy of

Ukraine until

2030, Budget

Code

(amendments of

2021).

Generation III

– collective

(solidarity)

rights

Lack of a legal

culture of

participation; weak

implementation of

environmental and

cultural rights of

communities.

1) Development of

participatory

institutions (e-

democracy).

2) Raising the level

of legal awareness.

- Strengthening

mechanisms for public

participation in

environmental policy.

- Recognition of cultural

heritage as part of

national identity.

- Implementation of the

principle of "ecological

man".

Aarhus

Convention

(1998), Law "On

Public

Consultations",

National

Environmental

Policy 2030.

Generation IV

–

informational,

genetic, digital

rights

The threat of

excessive state

interference in

privacy; lack of

legal regulation of

artificial

intelligence.

1) Development of a

code of ethics for

digital platforms.

2) Harmonization of

legislation with the

EU in the field of AI

and data.

- Enshrining the right to

digital autonomy.

- Improving the

regulation of bioethical

issues.

- Implementation of "

digital"

constitutionalism » into

legal politics.

Law "On

Personal Data",

Digital

Transformation

Strategy

(2021), EU

Regulation on

Artificial

Intelligence (AI

Act 2024).

Generation V

– rights of

future

generations,

bioethics,

ecohumanism

Insufficient

constitutional

mechanism to

protect the rights

of future

generations;

environmental

vulnerability due to

war.

1) Integration of

sustainable

development

principles into

constitutional law.

2) Development of a

doctrine of

intergenerational

justice.

- Inclusion of the

concept of "ecological

man" in the

constitutional doctrine.

- Establishing a

constitutional obligation

for sustainable

environmental

restoration.

- Development of a

national system of

bioethical control.

Green Deal of

Ukraine (2023),

Presidential

Decree No.

722/2023,

Decision of the

Constitutional

Court of Ukraine

in the

environmental

case (2021).

Source: compiled by the author based on Cabinet of Ministers of Ukraine (2014); Constitutional

Court of Ukraine (2021); European Court of Human Rights (2010); European Commission

(2024); Ombudsman of Ukraine (2023); VRU (1996, 1997).

Discussion

The obtained results of the study confirm and at the same time expand the modern

scientific discourse on the evolution of human rights generations and their role in the

formation of the concept of "constitutional man". As the comparative analysis shows, in

most scientific approaches (Bosniak, 2010; Schabas, 2021a, 2021b; López Baroni, 2020;

Khwan, 2025) an attempt can be traced to explain the "constitutional person" as a

product of the gradual constitutionalization of legal ideas – from natural law universalism

to the post-institutional humanism of the digital age. Our results are consistent with this

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

185

logic, but show its deeper structural conditioning – not only historical and evolutionary,

but also systemic and functional, within which each generation of rights does not simply

inherit the previous one, but creates a new level of autonomy and responsibility of the

subject of the constitutional order.

Comparing the results of the study with the theoretical approaches of Khwan (2025) and

Deiak (2024), it should be noted that the authors confirm the thesis of the two-layer

subjectivity of the "constitutional person" – normative (based on the text of the

constitution) and effective (manifested in the ability to act in the public space). However,

unlike Khwan, who interprets the constitutional person mainly through the prism of local

self-government, our study showed that his legal subjectivity is formed through the

holistic integration of generations of rights – from individual freedom to digital-ecological

responsibility; which allows us to consider the "constitutional person" not as a static

phenomenon of democratic participation, but as a dynamic form of ethical and legal

evolution of humanity. In turn, the conclusions of Deiak (2024) emphasize the process

of "constitutionalization" as a mechanism for integrating legal principles into national

systems. In this context, the results of our study develop the author's position,

demonstrating that constitutionalization is not just a procedure of legal hierarchization,

but a process of anthropological transformation – the formation of a person as a bearer

of dignity, capable of being a source of law. That is, a constitutional person in our

understanding is not an object of the constitutional order, but its substantial center,

which ensures the internal legitimacy of the system.

Compared to the classical vision of Bosniak (2010), which separates the concepts of

"citizenship" and "personhood", the results of our analysis confirm that modern

constitutional subjectivity is increasingly oriented towards a universal concept of the

person, regardless of nationality. However, the authors find that such universalization

does not abolish the need for state responsibility – on the contrary, it creates a new

format of positive obligations of the state to provide space for the realization of

autonomy, education, digital security, environmental well-being; which echoes the

approaches of Schabas (2021b) and Turyanytsia (2022), who interpret new generations

of rights as a tool for expanding human subjectivity to the level of a global community.

Our results also confirm the concept of Mailey (2022) about the ambivalence of the

protective role of law, when legal instruments sometimes reproduce systemic forms of

state coercion. However, unlike Miley's critical approach, our study shows that a way out

of this dilemma is possible through an institutional rethinking of the constitution as a

"vital mechanism" – a system not only limiting, but also nourishing the autonomy of the

subject. Thus, the authors propose a positive model of the constitutional person as a

factor of balance between state coercion and freedom.

The study's analysis of human rights generations confirms López's Baroni (2020) and

Sepúlveda et al. (2004) findings on the need to expand the three-generation paradigm.

The authors have shown that the fourth and fifth generations of rights are not "additional"

categories, but constitute a qualitatively new dimension of human subjectivity, which

requires a rethinking of the very concept of constitutional dignity; which confirms the

view of Golia and Teubner (2021) about the historical and methodological evolution of

constitutionalism as a living tradition that responds to the challenges of civilizational

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Generation of human rights and their role in the formation of the concept of "Constitutional

Man": in the dimension of national and international doctrines

Ruslan Hvan, Mikhailo Baimuratov, Boris Kofman, Natalia Yefremova, Denys Bobrovnyk

186

development. Our results complement this approach, specifying that the response of

modern law lies in the development of new norms of responsibility for artificial

intelligence, biotechnology, ecological sustainability and the preservation of human

autonomy in the digital environment.

Considering the international and regional reception of the concept, our results are

consistent with the conclusions of Slaughter (2014) and Ciepley (2024), who emphasize

the changing relationship between the concepts of "person" and "people". The authors

found that the constitutional person is an intermediate link between these two categories

– he personifies the will of the people, but does not dissolve in it; his rights become the

basis of the legitimacy of power, and not a derivative element of statehood. This approach

is also in line with current trends in the case law of the European Court of Human Rights,

where human dignity is increasingly recognized as a constitutional principle of the

supranational level (Council of Europe, 1950; European Union, 2012).

Thus, the results of the study allow us to assert that, unlike the traditional generational

model, in which human rights are considered as a sequence of historical stages, the

concept of "constitutional man" reveals them as a single dynamic system of moral and

legal evolution. It combines the universalism of dignity, social justice, collective solidarity

and technological accountability into a holistic constitutional order. In this aspect, our

study not only confirms the main theoretical provisions of modern science, but also

suggests their systemic integration – as a model in which human rights act not as an

external reference point, but as an internal mechanism for the self-development of a

constitutional man and a legal state of the 21st century.

Conclusions

The evolution of human rights reflects a multidimensional process of forming the concept

of "constitutional man", in which the integration of generations of rights into national and

international doctrines plays a key role. The results of the study confirm the conceptual

thesis put forward in the scientific discourse that "constitutional man" is a complex

category that combines normative subjectivity with effective participation in socio-

political and global space. National and regional practices – from European constitutions

to the EU Charter of Fundamental Rights and regional treaties – demonstrate that

universal human rights standards are implemented through a multi-level institutional and

legal system that provides simultaneously protection, participation and positive support

for autonomy.

Thus, the concept of a "constitutional person" in the 21st century takes on the character

of an integrated model in which the rights of generations become interdependent and

reinforce each other, forming a holistic image of a legal entity. This approach opens up

new horizons for legal science and practice: it implies the need for interdisciplinary

methods that combine constitutional law, international regulation, ethics, technological

security and environmental sustainability, and also stimulates the development of legal

mechanisms capable of responding to the challenges of the digital, bioethical and global

environment. Thus, the results of the study confirm that the evolutionary generational

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187

perspective of human rights is a key tool for the constitutionalization of the dignity and

autonomy of the individual, which allows transforming the legal status of a person into

an active, multidimensional subject of law, capable of forming the legitimacy of the state

and participating in global social processes.

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https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-

%D0%B2%D1%80?lang=en#Text

VRU. (1997). Law of Ukraine on the Commissioner for Human Rights of the Verkhovna

Rada of Ukraine (No. 776/97-ВР). Verkhovna Rada of Ukraine.

https://zakon.rada.gov.ua/laws/anot/en/776/97-%D0%B2%D1%80

OBSERVARE

Universidade Autónoma de Lisboa

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191

THE ALGORITHMIC RULE OF LAW: INSTITUTIONALIZING ACCOUNTABILITY

AND HUMAN OVERSIGHT IN AI-DRIVEN LEGAL SYSTEMS

KOSTIANTYN KLYMOV

tauren.05@ukr.net

PhD Student at the Department of Private Law and Social Security Faculty of Law, Sumy National

Agrarian University Sumy (Ukraine) https://orcid.org/0009-0007-5668-0569

LESIA PRON

lesja.pron@gmail.com

PhD, Chief Specialist of the Department for Receipt, Registration, Execution, and Issuance of

Court Documents (Clerk's Office) of the District Court of Horodenka Ivano-Frankivsk Region

(Ukraine) https://orcid.org/0000-0001-8701-4779

KOSTIANTYN OROBETS

k.m.orobec@nlu.edu

PhD (Law Sci.), Associate Professor Department of Criminal Law Policy, Yaroslav Mudryi National

Law University Kharkiv (Ukraine) https://orcid.org/0000-0001-8783-3950

RUSLANA LIASHENKO

ruslyashenko13@gmail.com

PhD (Law Sci.), Associate Professor of the Department of Law, Faculty of Law, Public

Administration and National Security Polissia National University Zhytomyr (Ukraine)

https://orcid.org/0000-0002-6129-7907

LESIA VASYLENKO

lesyavasilenko@ukr.net

PhD (Law Sci.), Associate Professor of the Department of Law, Faculty of Law, Public

Administration and National Security Polissia National University Zhytomyr (Ukraine)

https://orcid.org/0000-0001-8333-8573

Abstract

The article examines the integration of artificial intelligence (AI) technologies into justice,

public administration, and private law, highlighting the need to rethink traditional notions of

legal personality, liability, and procedural guarantees. The study employs an integrative

review of literature, comparative legal analysis of supranational and national regulations,

formal-dogmatic analysis of AI legal personality and delictual capacity, content analysis of

ethical codes, case studies on algorithmic systems in judicial and administrative processes,

and scenario modeling of the “human–algorithm–state” partnership. The dual nature of AI in

the legal system is identified: while interpretation dominates as a tool with increased

autonomy, space is emerging for functional legal personality within delegated responsibility.

Key interaction points are highlighted, including algorithmic rule of law, the right to non-

automated decisions, audit and impact assessment, and explainability, alongside a lack of

operational mechanisms for appeals and causal reasoning in AI-related cases. A three-level

partnership framework is proposed, covering normative, ethical, and institutional dimensions,

with a phased recognition model ranging from functional to limited civil and conditional

subjectivity. The study demonstrates that effective AI integration requires simultaneous

reinforcement of procedural guarantees and adaptation of liability regimes. Optimal

implementation involves a cooperative model in which algorithms remain accountable,

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March 2026, pp. 191-209

The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

in AI-Driven Legal Systems

Kostiantyn Klymov, Lesia Pron, Kostiantyn Orobets, Ruslana Liashenko, Lesia Vasylenko

192

explainable, and human-controllable. Recommendations include adopting a national charter

on AI and law, establishing a register of high-risk systems, and creating independent centers

for assessing AI’s impact on national legal systems.

Keywords

Artificial intelligence, cybersecurity, law enforcement, legal regulation, legal relations.

Resumo

O artigo examina a integração das tecnologias de inteligência artificial (IA) na justiça, na

administração pública e no direito privado, destacando a necessidade de repensar as noções

tradicionais de personalidade jurídica, responsabilidade e garantias processuais. O estudo

emprega uma revisão integrativa da literatura, análise jurídica comparativa de regulamentos

supranacionais e nacionais, análise formal-dogmática da personalidade jurídica e capacidade

delitual da IA, análise de conteúdo de códigos éticos, estudos de caso sobre sistemas

algorítmicos em processos judiciais e administrativos e modelagem de cenários da parceria

“humano-algoritmo-Estado”. A natureza dual da IA no sistema jurídico é identificada:

enquanto a interpretação domina como uma ferramenta com maior autonomia, está a surgir

espaço para a personalidade jurídica funcional dentro da responsabilidade delegada. São

destacados pontos-chave de interação, incluindo o Estado de direito algorítmico, o direito a

decisões não automatizadas, auditoria e avaliação de impacto e explicabilidade, juntamente

com a falta de mecanismos operacionais para recursos e raciocínio causal em casos

relacionados com IA. É proposta uma estrutura de parceria de três níveis, abrangendo

dimensões normativas, éticas e institucionais, com um modelo de reconhecimento faseado

que vai da subjetividade funcional à subjetividade civil limitada e condicional. O estudo

demonstra que a integração eficaz da IA requer o reforço simultâneo das garantias

processuais e a adaptação dos regimes de responsabilidade. A implementação ideal envolve

um modelo cooperativo no qual os algoritmos permanecem responsáveis, explicáveis e

controláveis pelo ser humano. As recomendações incluem a adoção de uma carta nacional

sobre IA e direito, o estabelecimento de um registo de sistemas de alto risco e a criação de

centros independentes para avaliar o impacto da IA nos sistemas jurídicos nacionais.

Palavras-chave

Inteligência artificial, cibersegurança, aplicação da lei, regulamentação jurídica, relações

jurídicas.

How to cite this article

Klymov, Kostiantyn, Pron, Lesia, Orobets, Kostiantyn, Liashenko, Ruslana & Vasylenko, Lesia

(2026). The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight in AI-

Driven Legal Systems. Janus.net, e-journal of international relations. Thematic Dossier - Rule of

Law, Human Rights, and Institutional Transformation in Times of Global and National Challenges,

VOL. 16, Nº. 2, TD3, March 2026, pp. 191-209. https://doi.org/10.26619/1647-7251.DT0226.10

Article submitted on 01 December 2025 and accepted for publication on 14 January

2026.

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e-ISSN: 1647-7251

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

in AI-Driven Legal Systems

Kostiantyn Klymov, Lesia Pron, Kostiantyn Orobets, Ruslana Liashenko, Lesia Vasylenko

193

THE ALGORITHMIC RULE OF LAW: INSTITUTIONALIZING

ACCOUNTABILITY AND HUMAN OVERSIGHT IN AI-DRIVEN LEGAL

SYSTEMS

KOSTIANTYN KLYMOV

LESIA PRON

KOSTIANTYN OROBETS

RUSLANA LIASHENKO

LESIA VASYLENKO

Introduction

The relevance of the study is due to the exponential growth of the significance of artificial

intelligence (AI) in the functioning of the legal system, which determines the

transformation of established concepts of subjectivity, legal responsibility and

mechanisms for the implementation of law. Machine learning technologies, automated

decision-making and processing of large data sets are increasingly being implemented in

the field of justice, public administration, forensics and contractual legal relations, which

actualizes the need for conceptual rethinking of the fundamental categories of legal

science (Rafanelli, 2022). At the same time, the legal doctrine of the vast majority of

states demonstrates insufficient readiness for the systemic incorporation of such

technologies: current regulatory legal acts do not regulate the legal responsibility of

autonomous systems, and the concept of electronic legal personality continues to remain

a subject of scientific discussion. The formulation of the research problem consists in

determining the optimal ratio between the interpretation of AI as a tool that will assist a

person in law-making and law-enforcement activities, and the potential possibility of

granting it a limited status of a subject of legal relations within the framework of

delegated responsibility.

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in AI-Driven Legal Systems

Kostiantyn Klymov, Lesia Pron, Kostiantyn Orobets, Ruslana Liashenko, Lesia Vasylenko

194

Literature Review

In the scientific space, the issue of the legal nature of AI occupies a priority place in the

context of the digital transformation of legal systems. Researchers Çami and Skënderi

(2023). Getman et al. (2022), Orobets et al. (2025), argue for the need for proactive

legal regulation of innovative technologies in relation to the pace of technological

progress, since it is the legal system that acts as a guarantor of preserving the

fundamental principles of justice, protection of human rights and the rule of law.

Scientists emphasize that at the present stage, the dominant part of the world's legal

systems treats AI as a tool, that is, an object of legal relations used by a person to

achieve certain goals, and not as a subject of law. At the same time, the issue of

distributing legal consequences for the damage caused by the actions of the algorithm

remains uncertain.

Scientific research states the fragmentation and lack of systematicity of regulatory and

legal support in the field of AI. In a number of works Rafanelli (2022) and Tavolzhanskyi

et al. (2025), discusses a risk-based regulatory methodology, classifying AI systems by

the level of potential danger to the legal sector. At the same time, the question of the

sufficiency of such a risk-based approach to resolve conflicts between algorithmic

decisions and fundamental human rights remains debatable. In particular, in cases where

an autonomous system makes decisions with legal consequences (judicial,

administrative, financial), control and appeal mechanisms remain insufficiently

developed.

Researchers Beruashvili (2025), Ghannadi (2025), Petrovskyi et al. (2025) draw

attention to the problem of legislation lagging behind technological development, which

is typical for most countries. They state that the legal system traditionally operates

according to a reactive model, responding to already formed phenomena, while the

development of AI requires preventive, adaptive and dynamic regulation. Scientists

justify the need to create a flexible legal architecture that would ensure the updating of

norms without a radical change in legislation, but through subordinate regulatory acts,

standards and ethical codes. However, the lack of a coordinated approach to the

application of these regulatory documents in the context of ethical standards and legal

practice is problematic.

A great deal of attention in the studies of Masoudi and Yarahmadi (2024), Poorhashemi

(2024), Sarra (2025) is paid to the issue of legal personality of AI, which acquires both

theoretical and practical significance. Scientists are discussing the possibility of

recognizing an autonomous system as a bearer of rights and obligations, that is, granting

it the status of an “electronic person”. However, the fundamental question of the criterion

of legal personality remains unresolved: the presence of will, consciousness and the

ability to act with intention. Algorithms, even the most autonomous, do not have an

internal intention, therefore, their subjectivity can only be fictitious, that is, constitute a

legal construct necessary for the distribution of responsibility, and not for the recognition

of an independent legal status.

Scientists Moretti and Zuffo (2025), Zhaltyrbayeva et al. (2025), indicate the possibility

of considering AI as a new form of delegated responsibility, which involves expanding the

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The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

in AI-Driven Legal Systems

Kostiantyn Klymov, Lesia Pron, Kostiantyn Orobets, Ruslana Liashenko, Lesia Vasylenko

195

concept of agency, i.e. treating AI as a legal instrument acting on behalf of the subject.

The question of the legal distinction between “algorithmic error” and “offense” remains

unclear, as well as the possibility of applying the norms of tort or criminal law to the

actions of autonomous systems.

In a report from IBA (2024), Gilani et al. (2023), there is a trend towards an

interdisciplinary analysis of the legal status of AI. Research indicates that it is impossible

to isolate legal systems from ethical and technological contexts. A model of “shared

responsibility” is proposed, according to which the state, developers, users and

independent supervisory bodies jointly ensure that algorithms comply with legal and

moral standards. However, the model itself remains at the conceptual level, since there

are no mechanisms for its implementation, especially within national legal systems,

where there is a lack of independent structures for verifying algorithmic decisions.

To summarize, the authors can state that scientific research undoubtedly confirms the

relevance of the researched issues and recognizes the integration of AI into the legal

system as an objective process, but also forms the problem of the dichotomy of the

status of AI in interaction with the law and legal regulations of the country.

The aim of the article is to substantiate the formats of interaction between AI and the

legal system, in order to determine the principles of its transition to the status of a

potential subject of legal relations.

Research Methodology

The methodological foundation of the study is based on an integrative approach that

synthesizes general scientific, special legal and comparative methods for a

comprehensive analysis of the phenomenon of AI integration into the legal system. The

leading methodological principle is a systemic approach, based on the interpretation of

AI as a component of a digital legal ecosystem in which a person, an algorithm, the state

and legal institutions function and interact.

The dialectical method was applied, which made it possible to identify the evolutionary

dynamics of the legal status of AI – from the object of technical regulation to the potential

subject of delegated legal relations. The comparative legal method was used to study

international regulatory acts: European Parliament & Council of the European Union

(2024), OECD (2019), UNESCO (2021), European Commission (2022). This step provided

the opportunity to expound on the differences between regulatory models.

The formal-dogmatic method provided an analysis of the categorical apparatus of “legal

personality”, “legal responsibility”, “autonomy”, which function in scientific discourse and

legislative practice to determine the legal status of AI. The content analysis method was

implemented during the processing of scientific publications and international documents,

in particular reports of the European Parliament (Mayer & Boni, 2017) and the Council of

Europe (Committee of Ministers, 2020). Additionally, the study applied a predictive

method to model scenarios of the evolution of legal regulation of AI in Ukraine, taking

into account global trends in the field of digital law. The overall methodological

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The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

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configuration made it possible to analyze the state of the regulatory framework, but also

to formulate the author's scientific and practical recommendations.

Results

Part 1. Algorithms and practices of combining and interacting AI, law

and legal relations

On the threshold of the third decade of the 21st century, humanity found itself in a state

of profound transformation of legal thinking, caused by the expansion of AI into the

sphere of public administration, communications, economic interaction and judicial

process. Algorithmization, which was initially considered only as a technological tool for

optimizing routine operations, has turned into a complex system that forms new types

of legal relations, modifies the traditional categories of the subject and object of law,

changes the structure of legal responsibility and the principles of the rule of law. Modern

law, reacting to the emergence of intellectual systems, is forced to expand its ontology,

recognizing that AI algorithms not only implement human intentions, but also

independently produce decisions that affect legal reality and social justice Getman et al.

(2023).

The problem of combining artificial intelligence and law is inevitably related to the

renewal of fundamental legal principles. Thus, the principle of the rule of law, in the

classical sense, is enshrined in the CM/Rec(2020)1, states that any decision that affects

human rights should be taken by a legitimate and accountable authority. In the context

of AI, this principle takes on a new form, algorithmic rule of law, i.e. requirements that

algorithms operate under supervision, comply with the principle of transparency and can

be checked for bias or discrimination (Committee of Ministers, 2020).

According to the European Parliament & Council of the European Union (2016), citizens

of the European Union have the right not to be subject to solely automated decision-

making that has legal consequences (Article 22). This regulatory provision is one of the

first regulatory recognitions of algorithmic autonomy as a potential source of human

rights violations, and therefore requires the creation of human-in-the-loop mechanisms,

namely human control over each critical stage of the functioning of AI. The authors also

point to the Recommendation on the Ethics of Artificial Intelligence (UNESCO, 2021),

which establishes four key principles for the ethical interaction between law and AI:

1) promoting human well-being;

2) ensuring transparency of algorithms;

3) guarantee of justice;

4) developer accountability.

Thus, AI ceases to be just a technical phenomenon, and it becomes a legal event that

creates obligations, rights and legal consequences. Algorithmic norms do not replace

legal ones, but form a new level of legal practice, through operational normativity, in

which the legal requirement is implemented not through a declaration, but through the

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structuring of data and behavioral models in the digital space. Practical models of

interaction between law and AI are already enshrined in a number of international

documents. For example, OECD Principles on Artificial Intelligence sets out five basic

guidelines: inclusive growth, safety and fairness of systems, transparency and

explainability, accountability and sustainability. These principles serve as a global ethical

framework for countries developing their own AI legislation. They outline a clear approach

according to which algorithmic activities should then be not only effective, but also

socially acceptable (OECD, 2019).

Table 1. Critical points of interaction between AI and law

Critical point

Characteristics

Legal document

Implications

Application

recommendation

Algorithmic

rule of law

Require algorithms

to operate under

oversight,

transparency, and

bias checks

CM/Rec(2020)1

Ensures protection

of human rights

from automated

decisions

Implement regular AI

audits in government

agencies

Protection

against

automated

solutions

The right not to be

subject solely to

algorithmic

decisions with legal

consequences

GDPR (Art. 22)

-in-the-loop control

to avoid

discrimination

Develop appeal

mechanisms against AI

decisions

Ethical

principles of

Promoting well-

being,

transparency,

fairness and

accountability

UNESCO

Forms operational

norms where AI

becomes part of

legal practice

Integrate ethical codes

into the development of

AI systems

Assessment of

high-risk

systems

Ethical risk

screening,

discrimination

testing and impact

analysis

AI Act (EU)

Shifts the paradigm

to the interaction of

law and technology,

with a focus on

responsibility

Create national AI impact

assessment centers

Source: compiled by the authors based on Committee of Ministers (2020), European Parliament

& Council of the European Union (2016; 2024), UNESCO (2021)

In the format of legal relations, this means that the traditional paradigm “law – regulates

technology” is changing to “law ↔ interaction with technology”. “AI-based” technologies

are emerging in the law enforcement system. legal analytics systems”, or algorithms that

can predict court decisions, classify precedents, analyze legal risks. These processes have

formed a completely new class of legal relations – algorithmic trust relations, in which

the state delegates part of its legal powers to the AI system, but retains responsibility

for the consequences of its actions. Special legal mechanisms are being developed for

such situations: algorithmic audit, impact assessment, compliance-by-design. Within the

framework of the AI Act, each high-risk system must undergo a compliance assessment,

which includes ethical risk assessment, discrimination testing, and social impact analysis

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(Popa & Pascariu, 2024). This means that the algorithm is included in the legal cycle as

a “regulated sub-process”, not as an independent actor, but as a structural part of the

legal decision (Table 1).

However, the integration of algorithms into the legal system cannot take place without

updating the institution of legal liability. International practice is gradually moving from

the principle of “fault” to the principle of foreseeable risk, which implies that the operator

or developer of an AI system is obliged to foresee the potential consequences of its

activities and is liable even for indirect errors. This approach is reflected in the EU Liability

project for Artificial Intelligence Directive, which proposes to introduce a simplified

presumption of liability for suppliers of high-risk systems (European Commission, 2022;

Bertolini, 2025). In theoretical terms, this means that law becomes a self-learning

system, and a legal norm becomes a separate dynamic code that is constantly updated

under the influence of information flows.

Part 2. Artificial Intelligence as a Subject of Law: Comparative Analysis

and Prospects

The issue of the legal personality of AI is one of the most relevant in the legal theory of

the 21st century. It reveals the limits of the anthropocentrism of law and raises the

question of whether a human-created intellectual entity can be not only a tool, but also

an independent participant in legal relations. In the article by Guitton et al. (2025), it is

argued that modern discussions about the legal personality of AI go beyond the

theoretical plane and are included in the political agenda of many states, primarily the

EU and North America. These facts indicate a tendency towards a global legal revision of

the concept of a legal subject, which was traditionally limited to a person and the legal

entities created by him.

Legal personality in the classical sense includes legal capacity, capacity to act and tortious

capacity. It is based on the ability of a subject to be aware of their own actions, to have

will, interests and moral responsibility. Traditional law is based on anthropocentric logic,

which was formed on the basis of human characteristics: emotionality, intentions, ability

to understand consequences. That is why the main argument against recognizing AI as

a subject of law is the “absence of something”: consciousness, intentions, feelings.

However, this does not exclude the possibility of legal recognition of AI based on analogy

with the legal personality of legal entities or animals. The idea of a “fictitious subject”

has long been used in law: a company or a state are considered persons in the legal

sense, although they have neither a body nor consciousness (Barichella, 2023). This kind

of formal mechanism has created the possibility of assigning rights and obligations to

collective or non-physical entities, which opens the prospect of its application to

autonomous artificial intelligence systems (Makedon et al., 2024; Bernaziuk, 2025).

In the report of the European Parliament's Committee on Legal Affairs, “Draft Report on

Civil Law Rules on Robotics” states that the development of autonomous robots raises

the question of creating a “new category of electronic persons” to grant legal status to

the most complex systems. Although this document is not binding, it has set the

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framework for further discussions in the EU, in particular within the framework of

directives on the ethics of artificial intelligence and training (Mayer & Boni, 2017).

Hallevy (2010), who developed a model of criminal liability for AI, similar to the liability

of legal entities. The EU Regulation on Artificial Intelligence (AI Act), approved by the

European Parliament in 2024, enshrines the principle of “human accountability” and

establishes a clear distinction: AI is an object of regulation, but not a subject of law.

However, the law recognizes a high level of autonomy in decision-making for certain

autonomous systems, which potentially creates the basis for a gradual conceptual

evolution towards legal subjectivity (European Parliament & Council of the European

Union, 2024).

In the document Law of War The US Department of Defense Manual emphasizes that the

law of war applies only to individuals, not to weapons, even if they have the ability to

make “legally significant decisions,” such as selecting a target. This suggests that at the

level of international humanitarian law, recognizing AI as a subject is currently

impossible. At the same time, the document does not exclude the future evolution of

interpretation if technologies reach the level of autonomous moral judgment (Office of

General Counsel, 2015).

In 2017, Saudi Arabia granted symbolic citizenship to the robotic system Sophia, marking

the first time a machine has been legally recognized as a subject. While the move was

largely a publicity stunt, it demonstrates the potential of soft law to legitimize new forms

of subjectivity. In China, where Artificial Intelligence Industry Development Plan (2017)

and a set of norms within Cybersecurity Law and Personal Information Protection Law,

the state recognizes AI as an object of administrative responsibility of the developer, but

not as an autonomous participant in the law (Webster et al., 2017). At the same time,

the concept of a “responsible algorithm” in Chinese doctrine is increasingly seen as a

potential form of limited legal personality (Hakimi et al., 2025).

International law does not contain a universal category of “electronic person”, however,

discussions are underway within the UN to create a Global Digital Compact, a separate

document that can regulate the interaction of humans and artificial intelligence in the

legal field. Thus, as soon as society recognizes the feasibility of granting AI rights and

responsibilities, this will become legally possible. An important precedent is also CM/Rec

(2020)1 on the human rights impacts of algorithmic systems, where the principle of

“shared” is defined “accountability” – or practices of collective responsibility of

developers, users and the state for the behavior of algorithms (Committee of Ministers,

2020).

The authors propose to give legal recognition to AI as an entity through a series of the

following levels:

1) Functional subjectivity – consolidation of limited legal capacity in the field of civil rights

(conclusion of contracts, copyright on the results of AI’s creative activity). Example: in

the USA, the US Copyright Office confirmed in 2023 that works created by AI without

human input are not protected, but the law allows for “co-authorship”, which actually

recognizes the agent role of the algorithm;

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2) Autonomous legal personality – a hypothetical model in which AI can be a party to a

contract or bear civil liability (similar to corporations). This would require the creation of

a new category in national codes, possibly in the form of an electronic person;

3) Moral and legal subjectivity, as the highest level, is possible only if AI is endowed with

elements of self-awareness or social ethics. At this stage, issues of “digital rights” of AI

may arise, for example, the prohibition of its unjustified destruction or modification;

However, there are serious risks: first, it is the problem of liability, or who will bear the

punishment in case of unlawful actions of AI; second, the threat of undermining the

principle of human control, enshrined in many international norms; third, the issue of

moral equality between man and machine, which can change the value foundations of

law. Comparative analysis has shown that modern world law is gradually moving from

categorical denial to cautious functional recognition of artificial intelligence as a

participant in legal relations. Mechanisms similar to the legal personality of legal entities

already create a legal basis for granting AI a limited status (Makedon et al., 2025).

However, the lack of moral awareness and autonomous will makes AI an object of

regulation rather than a subject in the classical sense. The future of the legal personality

of AI depends on the development of cognitive technologies, public consent and political

will of states.

Part 3. Ways of interaction, ensuring partnership and tolerance between

AI and the country's legal system

AI is not the enemy of law, but rather its test, tool and co-creator. Today, there is a shift

from the “law against technology” model to the “law in cooperation with technology”

paradigm, where tolerance does not mean passive consent to the existence of digital

autonomy, but a conscious recognition of its usefulness within a clearly defined regulatory

framework. (Sasko et al., 2025).

The question of partnership between artificial intelligence and law is inextricably linked

to understanding the very nature of law as a living, self-regulating system. Misch et al.

(2025), indicate that the digital environment transforms law from a set of textual norms

into a system of dynamic codes, in which algorithms become tools of legal practice, and

not only objects of regulation. In this sense, law and AI enter into a relationship of

functional symmetry: the first sets ethical boundaries, the second ensures the

effectiveness of their implementation. According to the AI Act (Regulation (EU)

2024/1689), algorithmic systems can be integrated into the processes of legal

proceedings, management or provision of administrative services, provided that the

principles of transparency, accountability, explainability and human control (human-in-

the-loop) are observed. This is embedded in a deep legal idea – AI should not replace a

person as a moral subject, but should support his rationality, ensuring equality,

impartiality and speed of legal processes (European Parliament & Council of the European

Union, 2024).

Tolerance between AI and the legal system lies in the mutual recognition of boundaries:

law recognizes the technical autonomy of the algorithm as a source of efficiency, and AI

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in AI-Driven Legal Systems

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201

recognizes the rule of law as the basis for the legitimacy of its actions. It is on this basis

that the concept of cognitive partnership arises, in a model of cooperation between the

human mind, which determines values, and machine intelligence, which ensures their

implementation through analytical procedures (Organization for Economic Co-operation

and Development, 2025).

International legal documents adopted over the past five years demonstrate that leading

states and organizations are not limited to declarations on the safety of AI, but are

creating the basis for its institutional inclusion in the legal ecosystem. Thus,

Recommendation on the Ethics of Artificial Intelligence (UNESCO, 2021) declares that

the purpose of regulation is to ensure the human-centered development of technologies,

in which the autonomy of systems does not contradict human dignity and freedom. The

document has already laid the foundations for tolerant interaction, but not through

control or restrictions, but through trust, co-responsibility and adherence to ethical

norms.

OECD (2019) identify five basic directions of development: (1) inclusive growth; (2)

sustainable development; (3) transparency; (4) accountability; (5) orientation to human

well-being. This vision forms the model of a “partnership algorithm” – a system that does

not replace the law, but strengthens its ability to ensure justice (OECD, 2019). At the

same time, CM/ Rec (2020)1 introduces the concept of “algorithmic accountability”,

according to which the state must provide mechanisms for verifying and appealing

decisions made on the basis of artificial intelligence (Committee of Ministers, 2020). Thus,

a dual system of protection is created: on the one hand, these are certain technological

barriers that prevent abuse, and on the other, legal instruments that guarantee access

to justice. Based on these documents, a general trend emerges: the interaction of AI and

law should evolve from strict regulation to a partnership based on trust, predictability,

and humanistic control.

In the context of the interaction of law and artificial intelligence, the concept of

“tolerance” takes on a meaning different from the traditional understanding of

interpersonal tolerance. Here the authors are talking about institutional tolerance, or the

ability of the legal system to adapt to new forms of rationality, to recognize the existence

of another, non-thinking subjectivity that operates according to the rules of calculation,

not intuition (Meyers, 2025).

Tolerance does not mean compliance, but rather the intellectual maturity of the law,

which allows it to accept algorithms as partners while maintaining moral guidelines. For

example, when introducing predictive justice systems (Predictive Justice) in some EU

countries, the state does not abandon the principle of judicial independence, but uses

analytical models to reduce subjectivity in the interpretation of norms. This is a

manifestation not of subordination of law to the machine, but of tolerant integration, in

which the human factor corrects algorithmic logic.

In such a context, it is appropriate to mention Article 22 of the General Data Protection

Regulation (GDPR), which guarantees a person the right not to be the subject of an

exclusively automated decision that has legal consequences (European Parliament &

Council of the European Union, 2016). Such a norm is a manifestation of institutional

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The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

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202

tolerance: it recognizes the potential of AI, but at the same time ensures the possibility

of appeal, supervision and human judgment. The law does not reject the algorithm, it

coexists with it on the basis of control and respect for dignity (Adams Bhatti, 2025). The

authors believe that the interaction between law and artificial intelligence should not

occur in the plane of subordination, but in the form of cooperative regulation, where

technology and law perform complementary functions. Such a model can be defined as

integrative-tolerant, which should contain three levels:

1. Regulatory level – building a legal framework that recognizes the autonomy of AI, but

sets limits on its use. This means adapting legislation (for example, within the AI Act or

GDPR) to new forms of decision-making made with the help of machine learning, with

the guarantee of human oversight.

2. Ethical level, through the development of codes of algorithmic conduct that establish

moral principles for developers and users. This approach proposes to expand the concept

of professional responsibility of lawyers and programmers, turning it into a form of shared

ethical accountability.

3. Institutional level – creation of state and supranational structures that ensure

monitoring and auditing of algorithms. This includes the formation of centers for

assessing the impact of AI on human rights (AI Impact Assessment Centers), which carry

out independent examination of the social risks of technologies (Figure 1).

The authors propose that every country integrating AI into its legal system develop a

National Charter on Artificial Intelligence and the Law, which would include: partnership

principles (human – algorithm – state); standards of ethical interaction; criteria for

assessing algorithmic fairness; procedures for legal liability for the actions of autonomous

systems.

To truly establish a partnership between AI and the legal system, it is necessary to

implement a number of practical steps that will ensure a balance between innovation and

legitimacy. The author identifies several key areas:

1. Algorithmic rule of law. Mechanisms should be established to verify algorithms that

perform legal actions (for example, in the field of e-justice, customs control or public

services). This would include independent certification of software, the creation of public

registers of high-risk algorithms and the introduction of a mandatory “ethical license” for

systems that affect citizens’ rights.

2. Human-centric justice. The justice of the future must combine the analytical

capabilities of AI with human moral judgment. The use of algorithms to analyze evidence

or predict decisions is possible only if the model is fully transparent. The judge must see

not only the conclusion of the algorithm, but also its logic, which implements the principle

of the “right to be explained” enshrined in the GDPR.

3. Education and legal culture in the algorithmic era. In the training of lawyers, disciplines

dedicated to digital law, ethics of technologies and regulation of AI should be introduced.

This will allow to form a generation of lawyers who are able not only to interpret the law,

but also to evaluate algorithms as social norms.

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The Algorithmic Rule of Law: Institutionalizing Accountability and Human Oversight

in AI-Driven Legal Systems

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203

4. International cooperation. No country is capable of independently creating a universal

model of partnership with AI, therefore, participation in intergovernmental structures is

necessary, for example, in the Global Council on the Ethics of Artificial Intelligence (Global

Partnership on AI), created at the initiative of the OECD. Such cooperation will allow

harmonizing standards, sharing audit results, and creating a single legal infrastructure

for accountability (Office of General Counsel, 2025; OECD, 2025).

Figure 1. Stages of convergence and ensuring interaction between artificial intelligence and the

legal system of the state

Source: developed by the authors

Tolerance and partnership between law and artificial intelligence is not a short-term

response to a technological challenge, but a new vector of evolution of legal civilization.

In this process, legislators would do well to stop considering technology as a threat and

start perceiving it as a co-creator of the rule of law, capable of ensuring accuracy,

efficiency, and objectivity of law enforcement (Table 2).

I. Defining the research objective – assessing the level of legal integration of artificial

intelligence (AI) systems into the national legal environment, taking into account the balance

between technological autonomy, legal responsibility, and ethical standards

II. Selection of areas and institutions for analysis of AI practices in lawmaking, judicial

proceedings, public administration, and adherence to the principle

of the rule of law

IV. Assessment of the legal, ethical, and social aspects of the partnership between AI and the

country's legal system

A) Selection of indicators characterizing the legal, ethical, and institutional dimensions of

AI integration (legality, accountability, transparency, safety, ethical responsibility)

III. Collection and accumulation of information on legal acts, regulatory models, codes of

ethics, international documents (AI Act, GDPR, OECD Principles, UNESCO Recommendation) to

assess the level of legal tolerance towards AI

V. Overall assessment of the level of partnership and tolerance between AI and the legal

system and the formation of a generalized index of legal tolerance towards AI, which reflects

the balance between technological efficiency, legal legitimacy, and humanistic values of the

digital state

B) Calculation of qualitative and quantitative indicators reflecting compliance with the

principles of algorithmic transparency, human oversight, fairness, and non-discrimination

in the law enforcement process

C) Determination of effective values of indicators of legal and ethical interaction –

indicators of trust, risks of human rights violations, degree of human control, and

effectiveness of algorithmic management

D) Comprehensive assessment of the levels of partnership between AI and law –

normative, ethical, and institutional – as the basis for the formation of a national model

of cognitive legal order

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in AI-Driven Legal Systems

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Table 2. Directions for synchronization and development of interaction between AI and the

country's legal system

Direction

Working principle

A decisive

advantage

Challenges

Recommendations

Algorithmic

rule of law

Verification and

certification of

algorithms for legal

actions, including

registers of high-risk

systems

Ensures

transparency and

legitimacy of AI

decisions

The difficulty of

auditing

complex

models

Implement a

mandatory ethical

license for AI in public

services

Human-

centered

justice

Integration of AI into

judicial proceedings

with mandatory

human control and

the right to

explanation

Increasing efficiency

and reducing

subjectivity

Risk of bias in

the data

Develop standards

“right” this explanation

" at the national level

Education and

legal culture

Training lawyers in

digital law and AI

ethics

Formation of

competent

specialists for the

algorithmic era

Insufficient

infrastructure

for education

Integrate AI disciplines

into legal higher

education institutions

International

cooperation

Participation in global

initiatives like Global

Partnership on AI

Harmonization of

standards and

exchange of

experience

Various

national

regulations

Join international AI

ethics councils

Ethical

integration

Developing codes for

AI developers and

users

Strengthening moral

principles in

technology

Defining

universal

ethical norms

Create a national

charter on AI and

rights

Source: developed by the authors

The author concludes that legal tolerance for AI is not a relaxation of norms, but their

flexible expansion, taking into account the multiplicity of forms of mind and intelligence.

The partnership between a person and an algorithm will expand the practice of creating

a legal culture of co-responsibility, in which technology operates within the ethical code

of law, and law in the rhythm of technological progress.

Discussion

The results of the study are generally consistent with the modern scientific concepts of

Beruashvili (2025), Popa and Pascariu (2024), Sarra (2025), which focused on the need

to implement AI in the legal sphere while adhering to the principles of anthropogenic

control, accountability, transparency, and ethical responsibility of developers. Our study

develops this concept, demonstrating that the incorporation of AI into the legal system

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in AI-Driven Legal Systems

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is not only a technological challenge, but also an ontological process within which law is

transformed from a textual institution into a cognitive system capable of self-learning

and predicting socio-legal risks.

At the same time, the concept of “institutional tolerance” proposed by us partially argues

with the methodological approaches of Moretti and Zuffo (2025) and Rafanelli (2022),

which interpret AI regulation mainly through the prism of ethical principles and risk-

based supervision. Our position is that ethical principles should be operationalized

through legal mechanisms – algorithmic audit, impact assessment, a certification system

for high-risk systems, which concretizes the provisions of the OECD (2019) and

Recommendation on the Ethics of Artificial Intelligence (UNESCO, 2021). In contrast to

most scholars who limit themselves to declarative approaches to ethical regulation, our

model enables the formalization of responsibility through algorithmic mechanisms.

accountability and compliance-by-design, which ensured a transition from declarative

principles to practical implementation.

Regarding the issue of AI legal personality, the results obtained partially correlate with

the conclusions of Hallevy (2010), Barichella (2023) and Guitton et al. (2025), which

assume the existence of intermediate forms of subjectivity with a variable degree of

autonomy. In contrast to radical concepts of granting AI the status of an “electronic

person”, the authors propose the concept of functional legal personality or limited legal

status, which allows us to determine the scope of legal powers and delegated

responsibilities without violating the principle of anthropogenic accountability. Our

position corresponds to the norms of the European Parliament & Council of the European

Union (2024), which stipulates that only a person can act as the ultimate bearer of legal

responsibility, while AI is treated as a regulated sub-process within the legal system.

Thus, our study not only agrees with the leading trends of scientific discourse, but also

expands the theoretical field, moving the interaction of AI and law from the plane of

declarative principles to the plane of institutionally established procedures and legal

responsibility.

Conclusion

The results of the scientific research show that the algorithmization of legal processes

has determined the formation of a new paradigm of legal regulation, in which artificial

intelligence functions as an integral component of the legal system, but does not

eliminate its anthropocentric nature. It has been established that modern law is

characterized by a gradual transformation from a normative to an operational form –

“algorithmic governance”, within which legal norms are implemented through information

arrays, models and digital procedures. It was found that international regulatory acts

form a legal field where algorithmic decisions are considered as a component of a

regulated cycle of law-making activity. At the same time, the problems of determining

the boundaries of responsibility for the autonomous functioning of AI, procedural audit

of algorithmic systems and legal legitimacy of operational decisions made by systems

without human participation remain insufficiently resolved.

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The results of the comparative analysis show that modern law demonstrates an

evolutionary trajectory from categorical denial to limited functional recognition of artificial

intelligence as a participant in legal relations. It was found that the vast majority of states

adhere to the concept of “human accountability”, while creating space for legal

experiments, in particular in the field of the institute of “electronic person”. Analysis of

national legislative initiatives confirmed that the functional legal personality of AI is

implemented within the delegated responsibility of developers and users. The issues of

the moral and legal status of AI, the parameters of its autonomy in the decision-making

process, and the lack of a unified international model of legal personality capable of

determining the optimal ratio between technical independence and legal accountability

remain debatable.

The study demonstrated that effective interaction between the legal system and artificial

intelligence is possible only on the basis of partnership, based on the principles of trust,

transparency, explainability and anthropogenic control. An integrative-tolerant model is

proposed, covering three levels: normative (adaptation of legislation to algorithmic

processes), ethical (codes of responsible development) and institutional (audit and

monitoring of AI decisions). The feasibility of creating a National Charter of Artificial

Intelligence and Law, which would regulate the standards of ethical interaction and legal

liability, is argued. The conclusion is formulated that legal tolerance of AI does not imply

a weakening of control mechanisms, but means a flexible expansion of the legal space,

which recognizes technological rationality as an element of a new humanistic digital legal

order.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier

Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026

210

PERSONAL DATA SOVEREIGNTY IN THE DIGITAL AGE: A COMPARATIVE

ANALYSIS OF GLOBAL AND DOMESTIC REGULATORY FRAMEWORKS

LIDIIA МOSKVYCH

moskvichlida@gmail.com

Doctor of Law, Associate Professor of the Department of Criminal Procedure

Faculty of Prosecutor's Office Yaroslav Mudryi National Law University

Kharkiv (Ukraine) https://orcid.org/0000-0001-7339-3982

KHRYSTYNA KMETYK-PODUBINSKA

khrystyna.kmetyk@lnu.edu.ua

PhD (Juridical Sci.), Associate Professor on Intellectual Property, Information and Corporate Law

Department Faculty of Law, Ivan Franko National University of Lviv

Lviv (Ukraine) https://orcid.org/0000-0002-6572-7134

OLEKSANDR DYAKOVSKIY

o.dyakovskiy@gmail.com

PhD (Legal Sci.), Lecturer of the Department of Information, Economic and Administrative Law

National Technical University of Ukraine “Ihor Sikorsky Kyiv Polytechnic Institute”

Kyiv (Ukraine) https://orcid.org/0000-0003-3412-9278

MAKSYM TERELA

academy_knowledge@meta.ua

PhD Student at the Department of Constitutional and Administrative Law

Zaporizhzhia National University Zaporizhzhia (Ukraine) https://orcid.org/0000-0002-7033-4765

VIKTORIIA SYDORENKO

lawnanu@gmail.com

PhD (Juridical Sci.), Associate Professor of the Department of Information, Economic and

Administrative Law Faculty of Sociology and Law National Technical University of Ukraine “Igor

Sikorsky Kyiv Polytechnic Institute” Kyiv Ukraine https://orcid.org/0000-0002-2787-9102

Abstract

In today's society, the number of companies collecting and processing personal data is

growing, which poses a threat to the security of confidentiality and the security of the human

right to privacy. That is why the role of legislative regulation of data privacy protection is

growing. The study aimed to compare domestic legislative documents with European and

American norms in personal data protection and to identify trends in the country's legal

regulation of data privacy. It used bibliographic, induction-deduction, quantitative-

comparative, trend, comparative-logical and graphical methods to achieve this goal. The

results revealed the need to improve regulatory documents on personal data protection,

especially for users of Internet resources. The problem of regulations exists in both Ukrainian

and international law. The study has revealed similarities between the basic principles of the

Law of Ukraine and the GDPR, but the liability in Ukraine is less than in Europe. A growing

trend has been identified: in recent years, the number of court decisions on violations of

personal data protection has increased significantly, and according to statistical forecasts, it

will continue to grow. At the same time, the structure of court decisions showed that

administrative, civil and criminal decisions predominate among the decisions. Hence, most

cases relate to disseminating and processing data by public services.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

211

Keywords

Law of Ukraine, personal data, confidentiality, privacy protection, consumer privacy, trends,

court decisions.

Resumo

Na sociedade atual, o número de empresas que recolhem e processam dados pessoais está a

crescer, o que representa uma ameaça à segurança da confidencialidade e ao direito humano

à privacidade. É por isso que o papel da regulamentação legislativa da proteção da privacidade

de dados está a crescer. O estudo teve como objetivo comparar documentos legislativos

nacionais com normas europeias e americanas em matéria de proteção de dados pessoais e

identificar tendências na regulamentação legal do país em matéria de privacidade de dados.

Para atingir esse objetivo, foram utilizados métodos bibliográficos, de indução-dedução,

quantitativos-comparativos, de tendências, comparativos-lógicos e gráficos. Os resultados

revelaram a necessidade de melhorar os documentos regulamentares sobre a proteção de

dados pessoais, especialmente para os utilizadores de recursos da Internet. O problema da

regulamentação existe tanto no direito ucraniano como no direito internacional. O estudo

revelou semelhanças entre os princípios básicos da Lei da Ucrânia e o RGPD, mas a

responsabilidade na Ucrânia é menor do que na Europa. Foi identificada uma tendência

crescente: nos últimos anos, o número de decisões judiciais sobre violações da proteção de

dados pessoais aumentou significativamente e, de acordo com as previsões estatísticas,

continuará a crescer. Ao mesmo tempo, a estrutura das decisões judiciais mostrou que as

decisões administrativas, civis e criminais predominam entre as decisões. Portanto, a maioria

dos casos está relacionada com a divulgação e o processamento de dados por serviços

públicos.

Palavras-chave

Lei da Ucrânia, dados pessoais, confidencialidade, proteção da privacidade, privacidade do

consumidor, tendências, decisões judiciais.

How to cite this article

Мoskvych, Lidiia, Kmetyk-Podubinska, Khrystyna, Dyakovskiy, Oleksandr, Terela, Maksym &

Sydorenko, Viktoriia (2026). Personal Data Sovereignty in the Digital Age: A Comparative Analysis

of Global and Domestic Regulatory Frameworks. Janus.net, e-journal of international relations.

Thematic Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times of Global

and National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 210-225.

https://doi.org/10.26619/1647-7251.DT0226.11

Article submitted on 25 November 2025 and accepted for publication on 23 December

2025.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

212

PERSONAL DATA SOVEREIGNTY IN THE DIGITAL AGE: A

COMPARATIVE ANALYSIS OF GLOBAL AND DOMESTIC

REGULATORY FRAMEWORKS

LIDIIA МOSKVYCH

KHRYSTYNA KMETYK-PODUBINSKA

OLEKSANDR DYAKOVSKIY

MAKSYM TERELA

VIKTORIIA SYDORENKO

Introduction

In the era of technological progress, when digitalisation is being introduced into all

industries and areas of activity, the issue of personal data protection deserves special

attention. As personal data is used for various processes, every citizen has the right to

protect personal data that may be misused. Today, the data that needs to be protected

includes the confidentiality of consumer information, financial transactions, biometric

data, health, education, and employment (Solove & Schwartz, 2020). Personal data

protection legislation varies from country to country, but it is important because it can

even threaten national security.

Despite the regulatory documents in the field of personal data privacy, there is a problem

with their protection and confidentiality. Moreover, the threat of violating citizens' rights

to their data security has been growing in recent years. This is due to technological

progress and the increasing data distribution in the digital space among various

industries. As a result, the cybersecurity system cannot fully control the protection of

personal data, which individuals or companies mainly use.

Aim

The work aimed to compare domestic legislative documents with European and American

standards in personal data protection and to identify trends in the legal regulation of data

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

213

privacy in Ukraine. To achieve this goal, the study set the following objectives: to

compare the Law of Ukraine on Personal Data Protection with the European Union's

General Data Protection Regulation (GDPR) and the US California Consumer Privacy Act

(CCPA); to assess the effectiveness of the application of the Law of Ukraine in practice

by analysing the number of court decisions of the Unified State Register of Court

Decisions; to forecast changes for the next 5 years based on the analysis of trends in the

number of court decisions from 2010 to 2024 with the query "personal data protection";

to study the structure of court decisions on violation of the CCPA.

Literature review

Today, people actively use information technologies, such as social networks and online

shopping sites, in their daily lives. At the same time, the growing digitalisation of the

economy has led to low personal data protection and privacy (Aljeraisy et al., 2021).

Social media and e-commerce site developers deal with sensitive data that needs to be

protected from a human rights perspective. Thus, information technology legislation aims

to protect data privacy while being linked to substantive and criminal justice (Lloyd,

2020; Baranovska, 2024). A threatening area of digitalisation is digital identification

through face recognition. Although this step towards creating a digital ecosystem

increases the possibilities of electronic services for the population in the country, it brings

new challenges to protecting information privacy (Bulgakova & Bulgakova, 2023).

One of the challenges to data privacy protection is using artificial intelligence, which can

carry risks of information leakage (Zhukevych, 2024). Makedon et al., 2020) highlights

the risk of big data leakage of patients' health information from healthcare facilities. AI

programmes are in the hands of individuals who cannot ensure high personal data

protection. The leakage of such information can pose a threat related to de-identification

and anonymisation, which, when applied to certain AI algorithms and techniques, can

pose risks, especially for patients under private care. Concerns about the security of

medical data have also increased with the widespread use of mHealth applications by

people with various diseases, as the applications contain different software and may carry

risks of data leakage (Nurgalieva et al., 2020).

In general, the issue of health data privacy is regulated in the United States by the Food

and Drug Administration (FDA) and the Health Insurance Portability and Accountability

Act (HIPAA), which emphasises the confidentiality of health data. However, recent studies

have criticised these documents for excessive access to data (Arora, 2019). Instead, the

European Union's General Data Protection Regulation (GDPR) adopted in 2018 in Europe

and the California Consumer Privacy Act (CCPA) adopted in 2020 in the United States

have become new regulatory documents that regulate the activities of online services

and healthcare organisations. These documents protect the right of consumers to know

how and where their information is collected, to whom it is shared, and by whom it may

be used (Zuraw & Sklar, 2020). However, these two regulations differ in their approaches

to personal data protection. The European model focuses on data protection in all areas

by default, i.e., when collecting, processing and transmitting data of any kind, obtaining

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

214

permission to use personal data is necessary (Hrytsak et al., 2025; Yermachenko et al.,

2023).

The California model is based on a sectoral approach, meaning that it is regulated

differently depending on the area of activity - medical, financial, educational, or

commercial. Moreover, in the California model, data can be used at the discretion of the

data collector unless prohibited by the personal data owner and other rules (Chander et

al., 2020). From this point of view, citizens should be aware of their data protection

issues. For this purpose, the authors recommend simplifying control over the circulation

of consumers' data by creating icons and links in applications that would allow consumers

to quickly refuse to sell or transfer their data to companies (Habib et al., 2021).

The privacy violation of medical data obtained from fitness bracelets and various

applications for monitoring patient health remotely in outpatient settings has prompted

the creation of legislative documents in various states. For example, in 2023, the

Washington My Health My Data Act, New York State Assembly Bill 2023-A3007C, and

other federal laws, such as Nevada's Consumer Health Data Privacy Act, Connecticut

Data Privacy Act, California Confidentiality of Medical Information Act, came into force,

which prohibit geofencing within 1,750 feet of any healthcare facility, that may be of

interest to the consumer and prohibiting the use of any data from medical devices about

a person's health status by third parties for marketing products or facilities that meet the

health needs of users (Steffen, 2024).

That is why important aspects of legal regulation of artificial intelligence in cybersecurity

are transparency and clarity of algorithms, protection of data privacy, and avoidance of

injustice and bias (Rodrigues, 2020). The authors also emphasise the need for continuous

improvement of artificial intelligence technologies, and to strengthen the legal context,

they recommend improving accountability and liability for the possibility of harmful

impact. After all, more companies are using personal data, even though only one was

granted access. This indicates that users are unaware of the possibility of their data being

sold, hacked or leaked to third parties that may pose a real threat. Moreover, various

modern devices, from thermostats to fitness bracelets and social media to dating apps,

pose a danger (Klosowski, 2021).

The issue of protecting consumers' data has become increasingly important as a result

of the growing use of digital technologies. Accordingly, companies collect consumer data

to identify business weaknesses, personalise advertising, and improve the quality of

services. Companies can request customers' locations and receive personal data about

consumers, which must be protected from hacking, information leaks, and privacy

violations. Thus, businesses face a new challenge of increasing responsibility for

consumer data security. As for consumers, surveys indicate that users have low

confidence in the ability of companies to store their data, so they try to provide minimal

information about themselves. Moreover, consumers are more likely to choose

companies with a good reputation for protecting their personal data and customer base

(Anant et al., 2024). Another aspect is the database of big data collected by artificial

intelligence from comments, transactions, and physical movements, which should ensure

privacy based on guarantees of compliance with data privacy laws, anonymisation, and

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

215

pseudonymisation. Such an approach will not improve data protection in general but will

only reduce risks based on compliance with the GDPR as the gold standard for

cybersecurity (Andrew & Baker, 2021).

Another aspect is regulating data collection from vulnerable populations, namely children

who actively use digital technologies and are unaware of the risks of providing personal

data. In order to protect the data of children under 13, the Children's Online Privacy

Protection Act (COPPA) was developed, which requires mandatory parental or guardian

permission to collect data from children under 13. At the same time, there is little

research on children's media literacy and the harms associated with data privacy

violations on the Internet (Stoilova et al., 2021).

The issue of data privacy has become more acute with the onset of the COVID-2019

pandemic, which has increased the level of digital unfreedom in the interests of public

health. After the pandemic, the appropriateness of such restrictions was rejected, so the

focus was on initiating digital freedom, which includes control over personal information,

protection from surveillance, respectful treatment of personal data and the right to bodily

autonomy (Małagocka, 2024; Makedon et al., 2024). The pandemic has also led to a

significant increase in remote economic activity, resulting in a growing amount of data in

the digital environment. The industry has appreciated the benefits of changing the

activity vector according to demand based on behavioural analysis and personal

preferences. Thus, the industry's desire to acquire more data has led to risks of misuse,

which violates the principles of democracy and hurts the emotional health of the

population (Hartzog & Richards, 2020).

After analysing the literature, it was found that personal data protection is relevant due

to the growing level of digitalisation in society (Petrovich, 2025; Rosales, 2025; Ilychok

et al., 2023). This has led to the search for new legal documents and the improvement

of existing ones to ensure the protection of privacy and confidentiality of information.

Nevertheless, the existing regulatory laws and acts do not show significant effectiveness,

encouraging a detailed analysis of the existing legal documents on personal data

protection.

Methodology

To achieve the objectives, the study used the bibliographic, induction-deduction, and

logical comparison methods to reveal the main provisions of the legislative documents of

the Law of Ukraine on Personal Data Protection, the European Union's General Data

Protection Regulation (GDPR), and the California Consumer Privacy Act (CCPA). A

graphical method to visualise the results of the analysis of the Unified State Register of

Court Decisions for the query "personal data protection" from 2010 to 2024 was applied.

The trend analysis is used to identify trends in court decisions in personal data protection

and forecast them. The research analyses the structure of court decisions in personal

data protection cases from 01.01.2024 to 05.12.2024 by the form of proceedings.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

216

Results

In Ukraine, personal data protection is regulated by the Law of Ukraine On Personal Data

Protection No. 2297-VI dated 01.06.2010. The law regulates the processing of personal

data in automatic and non-automatic modes, which is aimed at preserving the rights and

freedoms of individuals to privacy. Comparing the main provisions of the Ukrainian law

and the GDPR, we found standard features of the universality of the law, which applies

to all industries. At the same time, the CCPA is concerned with protecting the personal

data of buyers and users of websites. The main differences between the Law of Ukraine

on Personal Data Protection, the GDPR and the CCPA are presented in the table below.

As can be seen from the table, the Law of Ukraine has many similarities with the GDPR,

is universal and has many restrictions. Nevertheless, the law does not contain any

provisions for the processing of data of vulnerable citizens, such as children and people

with disabilities. The European and Ukrainian regulations apply to companies and do not

consider the threats of online data collection. At the same time, the California document

focuses on data collection in the online space, which requires increased attention in the

current environment. California's law is more concise and easier to understand for

consumers, with the primary goal of making consumers aware of the dangers of the

misuse of personal data and the ability to influence the dissemination and use of data

through a simplified procedure. The laws also differ in terms of their scope. The Ukrainian

law applies to companies operating in Ukraine and using citizens' data, while the GDPR

applies in the EU and beyond if companies operate within the EU. The GDPR is universal

and binding for EU member states, but in addition to the provisions of this regulatory

document, the internal laws of EU member states are taken into account. The data

protected by law differs. Ukrainian legislation, for example, has a longer list of data that

is publicly available due to the operation of laws on corruption and tax violations.

Ukrainian and European legislation provides for restrictions on biometric, ethnic,

religious, and socio-cultural data, while the California Act has no such restrictions. The

degree of liability also differs, which is more straightforward and transparent in the

California document. At the same time, the European and Ukrainian laws require lengthy

proceedings and the possibility of hefty fines. In general, these three documents have a

common goal of preserving the human right to privacy, but they need to be improved,

as they do not provide adequate protection (Makedon et al., 2025).

In this study, we analysed the status of court cases requesting "personal data" and

determined their dynamics and structure. To achieve the goals, we reviewed cases in the

Unified State Register of Court Decisions, which is publicly available. Figures 1 and 2

present the dynamics and trend of the number of court decisions for the period 2010-

2024.

As can be seen from the figures, since adopting the Law on Personal Data Protection,

the number of court decisions requesting "personal data protection" has increased

yearly, indicating a positive experience of applying the law. We analysed the trend of

changes in the number of court decisions for 2010-2024 with the request for "personal

data protection". We found an increase in a polynomial relationship with a probability of

further growth of R=0.9388 for the next 5 years.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

217

Table 1. Key features of the Law of Ukraine on Personal Data Protection, GDPR and CCPA

Character

istics

The Law of Ukraine on

Personal Data Protection

General Data Protection

Regulation

California Consumer Privacy

Act

The

document

applies to

Companies that collect and

process personal data, including

the owner, manager of personal

data and a third party. The law

does not apply to individuals

acting for personal, journalistic,

or creative purposes that do not

violate the rights to respect for

privacy and freedom of opinion.

All companies and

institutions operating

within the European Union,

except those that process

data for criminal,

administrative liability and

public order protection.

It does not apply to an

individual who carries out

activities to meet personal

or household needs.

Social networks, brokerages, and

large companies collect the

personal data of Californian

residents.

Companies that collect

information from at least 50,000

California residents or businesses

Companies with annual gross

revenue exceeding $25 million

Companies that receive

50% of annual revenue comes

from the sale of personal data of

Californian residents.

California residents, even if they

are located in other states.

Persons who are temporarily or

transiently in the state.

Legally

regulated

and

restricted

data

Data containing information

with confidential content. The

data specified in the declaration

of a person performing the

functions of state administration

and local self-government,

including the receipt of state

funds and official property, are

not included. The data of

persons with tax debts are also

excluded. The data on religion,

race, ethnicity, biometric,

genetic, and ideological data

are subject to restrictions.

Name

Identification number

Location.

Economic, social, political,

cognitive, behavioural, and

physiological factors can

directly or indirectly

identify a person.

Data is subject to

restriction:

Religion

Ethnicity

Sexual preferences

Biometric data

Genetic characteristics

Names, pseudonyms

Postal addresses

Accounts

Social insurance policy

Passport details

Driving licence

Biometric data

Geolocation

Purchase history

Information on education that is

not public

Information about employment

Consent to

the

processing

and sale of

personal

data

It is mandatory to indicate the

purposes of data collection and

processing. If the purposes

change, the subject's consent is

required. Without consent, data

may be processed for the

purposes of national security,

economic well-being, and

human rights.

Required by default.

Consent must be in a

separate document written

in clear language. The

subject has the right to

withdraw consent at any

time. Children under the

age of 16 must provide

permission from a parent

or guardian.

It is not required except for

minors over 13 years of age.

Parental or guardian permission is

required for children under 13.

Special

features

The law provides for the right to

request information on the

processing of personal data

within 30 days, to request the

destruction or modification of

one's data, and to withdraw

consent to data processing.

Processing security is

provided, which includes

data encryption, the use of

pseudonyms, the ability to

recover data after

technical errors, and

periodic checks of

technical equipment.

Ability to prohibit the sale of

personal data in one click

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 210-225

Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

218

Responsibil

ity

The Ukrainian Parliament

Commissioner for Human Rights

and the courts control the law's

implementation. Based on

complaints or notifications, the

Commissioner has the right to

inspect personal data owners or

managers, with the possibility

of prohibiting the processing of

personal data or imposing

administrative liability in case of

violations.

The severity, specificity,

level of damage and

duration of the damage

impose the amount of the

administrative fine. In

case of violation of the

duties of a controller,

operator, monitoring or

certification body, the fine

may not exceed EUR 10

million or 2% of the

company's annual

revenue. For other

violations, including

consent violations, subject

rights, and data transfers

to a third party or country

outside the EU, a fine of

up to EUR 20 million or

4% of the firm's annual

revenue is provided.

From $100 to $750 per consumer

for a data breach that caused

damage. USD 2,500 for an

unintentional breach.

7500 USD fine for intentional

violation

Source: compiled by the author based on the Law of Ukraine on Personal Data Protection, GDPR,

CCPA.

This trend emphasises, on the one hand, the importance of the law and its effectiveness

and, on the other hand, the growing demand of citizens for the protection of their data

and awareness of their rights. Additional analysis of court practice in the field of personal

data protection indicates the need not only for quantitative measurement, but also for

in-depth qualitative interpretation of the decisions adopted, since it is the content of the

courts' legal positions that allows assessing the real effectiveness of legislative norms

and identifying existing gaps. In particular, a number of administrative cases have

revealed a tendency toward broad interpretation of the powers of state bodies in

accessing personal data, which sometimes leads to restrictions on an individual's right to

privacy. In civil disputes, there is often a low level of public awareness of protection

mechanisms, which indicates a need to improve digital literacy. In criminal proceedings,

a key problem is the lack of established practice in applying sanctions for the illegal

dissemination of personal information.

In order to determine which articles of the Law on Personal Data Protection appear in

court decisions most often, we analysed the structure of court decisions depending on

the form of proceedings in 2024. The structure is shown in Figure 3. As can be seen from

the graph, the most frequent decisions concerned administrative, civil and criminal

proceedings. Civil and administrative rulings mainly concerned the request for personal

data by public authorities, including social services and border services. There were also

lawsuits against the migration service regarding the change of personal data. Criminal

cases also concerned law enforcement agencies' requests for personal data under Articles

14 and 16.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

219

Figure 1. Court cases with a request for the Law on Personal Data Protection

Figure 2. Dynamics of court cases with a request for the Law on Personal Data Protection

A systematic review of the impact of new technologies on the legal regulation of personal

data protection highlights a number of fundamental challenges. The use of artificial

intelligence in the processing of large amounts of information creates the risk of

automated decision-making without proper control and transparency of algorithms, which

can lead to discriminatory practices and violations of the principles of fairness. Biometric

technologies, in particular facial and fingerprint recognition, pose a new level of threat,

as unlike passwords or codes, such data cannot be changed in the event of a leak. The

Internet of Things complicates legal regulation, as billions of devices collect sensitive

information about users' behavior and health, which goes beyond the traditional approach

to personal data.

12500

25000

37500

50000

2024 2022 2020 2018 2016 2014 2012 2010

Number of cases

Court cases

y = 175,29x

- 704373x + 7,076E+8

R² = 0,9388

12500

25000

37500

50000

2003 2010 2018 2025

Court cases

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Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

220

Figure 3. Structure of court cases by form of proceedings

The research has revealed the need to improve regulatory documents on personal data

protection. The number of companies collecting personal data is growing. The problem

of legislation in this area concerns both Ukrainian and international law. Analysing the

Law of Ukraine and modern European and American regulatory documents revealed more

remarkable similarities with European norms. However, the responsibility in Ukraine is

less than in Europe. Nevertheless, the number of court decisions on personal data

protection violations has increased significantly in recent years, and according to

statistical forecasts, it will continue to grow. Most cases relate to the dissemination and

processing of data by public services, which still indicates low public confidence in the

law. However, the threats to citizens are increasing in online information collection.

It should also be emphasized that qualitative analysis of judicial practice in the field of

personal data protection is no less important than quantitative tracking of trends, as it

allows for the identification of underlying problems in law enforcement and contradictions

in the interpretation of norms. A study of specific legal positions of courts demonstrates

a low level of unification of approaches, which necessitates the harmonization of national

legislation with European standards. Such an approach will contribute to improving the

effectiveness of law enforcement practices and lay the foundation for Ukraine's full

integration into the digital legal space of the European Union.

Discussions

This research has revealed similarities between the personal data protection laws of

Ukraine and the EU, but in the digital age, the legal innovations of the California Act are

relevant. As the risks for users of social networks and websites are increasing. Balai and

Horlopolov (2024) emphasised the increase in the amount of data processed due to the

growing role of digitalisation in the economy. The authors also emphasised the

importance of digital analytics, namely Privacy-Centred Analytics, for securely processing

users' data in compliance with legal regulations. Padden and Öjehag-Pettersson (2024)

12787

3698

10664

15154

1031

4000

8000

12000

16000

Administrative Economic Criminal Civilian Data on

administrative

offences

Number of court cases

Structure of court cases

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Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

221

identified three threats of digitalisation to personal data: threats to elections through

manipulation, discrimination through automated decision-making, and threats to

democracy through pervasive surveillance. The authors emphasised the imperfections of

the GDPR in regulating profiling and the anti-democratic digitalisation model. Numerous

studies have focused on the threats to data processing, online transactions, the risk of

data breaches, and inadequate privacy policies (Mannan, 2024).

Having analysed the number of court decisions requesting personal data protection, we

found a progressive increase in cases that testify to applying this law and its active

implementation in public life. Docksey and Hijmans (2019) emphasised the importance

of court decisions as a factor of influence on society, which stimulates action within the

framework of this law, using the example of three high-profile cases of violations of

personal data protection: Digital Rights Ireland, Google Spain and Schrems. Having

determined the structure of decisions by the form of proceedings, we found that the Law

of Ukraine “On the Personal Data Protection” is used mainly by state authorities to ensure

public order, justice, and social standards is used mainly by state authorities to ensure

public order, justice, and social standards (Varenia, 2024). At the same time, they found

a low number of decisions on violating individuals' data, including on social networks and

the Internet. In the literature, the authors also emphasise the low level of coverage of

personal data rights violations on the Internet, namely the lack of mechanisms to

influence the Internet of Things (Karale, 2021). The authors also emphasise the lack of

effectiveness of existing legislative initiatives, namely the Electronic Communication

Privacy Act, the Health Insurance Portability and Accountability Act, and the Fair

Information Practice Principles, and recommend the creation of new laws to implement

the protection of personal data of Internet users. Another aspect of the imperfection of

privacy laws is the requirement to prove harm in court, which reduces liability for

violations of rights (Citron & Solove, 2022).

Conclusions

This research has revealed the relevance of personal data protection and the need to

improve legislation. When comparing the Ukrainian Law on Personal Data Protection, we

found similarities with the European GDPR, which consisted of the universality of the law,

the requirement of consent to the processing of personal data by default, the data to be

protected and the approach to liability. Instead, the study found a low level of

effectiveness of personal data protection on the Internet, which could be improved by

applying some provisions of the CCPA. The article reveals an increase in the number of

court decisions on personal data protection requests in Ukraine in recent years. However,

the structure of court decisions is dominated by criminal, administrative and civil cases,

which mostly request personal data in the interests of public authorities.

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Personal Data Sovereignty in the Digital Age: A Comparative Analysis of Global and Domestic

Regulatory Frameworks

Lidiia Мoskvych, Khrystyna Kmetyk-Podubinska, Oleksandr Dyakovskiy, Maksym Terela,

Viktoriia Sydorenko

222

Funding

This research received no external funding.

Conflicts of Interests

The authors declare no conflict of interest.

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OBSERVARE

Universidade Autónoma de Lisboa

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226

INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS DURING THE

WAR IN UKRAINE

OLEKSII VOLOKHOV

volokhov.oleksii@gmail.com

Doctoral Student of the Department of Theory of State and Law

Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine

Kyiv (Ukraine) https://orcid.org/0009-0007-7559-3567

OLEKSANDR KHOMENKO

academiq@ukr.net

PhD student V.M. Koretsky Institute of State and Law

Kyiv (Ukraine) https://orcid.org/0009-0005-0984-1951

OLEKSANDR SAVKA

savka30@ukr.net

PhD (Legal Sci.), Associate Professor Department of Law Enforcement and Anti-Corruption

Activities Volodymyr the Great Educational and Scientific Institute of Law

PJSC "Higher Education Institution "Interregional Academy of Personnel Management"

Kyiv (Ukraine) https://orcid.org/0000-0002-1723-3412

ANATOLII KUZMENKO

konfucij4@gmail.com

Candidate of Law, Doctoral Student at the Legal Department of Civil, Labor and Commercial Law

Oles Honchar Dnipro National University

Dnipro (Ukraine) http://orcid.org/0009-0008-6322-5799

DIANA DMYTRENKO

dmytrenkodiana@gmail.com

Ph.D (Law Sci.) Department of Criminal Law and Justice

Chernihiv Polytechnic National University

Chernihiv (Ukraine) https://orcid.org/0000-0002-1320-4008

Abstract

Russia’s full-scale war against Ukraine has become an unprecedented challenge for the

international community and international humanitarian law, clearly demonstrating the limits

of its effectiveness in a hybrid armed conflict. The relevance of the topic is due to the need

for a legal assessment of the massive human rights violations recorded in Ukraine, as well as

the search for international mechanisms to bring the perpetrators to justice. The purpose of

the study is to analyze violations of international humanitarian law during the war in Ukraine.

The theoretical basis of the study is the provisions of public international law, the Geneva

Conventions, the Additional Protocols, the Rome Statute and the latest initiatives to establish

a Special Tribunal. The study analyzed the facts of violations of the laws and customs of war,

systematized the most resonant crimes against civilians and critical infrastructure, and

identified signs of genocide, sexual violence, illegal deportation of children, torture and nuclear

blackmail. The author substantiates the need to update international humanitarian law to take

into account the methods of hybrid warfare. The key barriers to bringing to justice the top

military and political leadership of the Russian Federation are identified. The importance of

establishing a Special Tribunal for the crime of aggression and the International Commission

on Claims as instruments for restoring justice is systematically outlined. The practical

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International Humanitarian Law and Human Rights During the War in Ukraine

Oleksii Volokhov, Oleksandr Khomenko, Oleksandr Savka, Anatolii Kuzmenko,

Diana Dmytrenko

227

significance of the results obtained is to develop recommendations for improving the legal

regulation of hybrid warfare, as well as to formulate an international strategy of accountability

for the crime of aggression.

Keywords

Administrative and legal protection of rights, administrative proceedings, international

humanitarian law, crime of aggression, special tribunal.

Resumo

A guerra em grande escala da Rússia contra a Ucrânia tornou-se um desafio sem precedentes

para a comunidade internacional e o direito internacional humanitário, demonstrando

claramente os limites da sua eficácia num conflito armado híbrido. A relevância do tema deve-

se à necessidade de uma avaliação jurídica das violações maciças dos direitos humanos

registadas na Ucrânia, bem como à procura de mecanismos internacionais para levar os

perpetradores à justiça. O objetivo do estudo é analisar as violações do direito internacional

humanitário durante a guerra na Ucrânia. A base teórica do estudo são as disposições do

direito internacional público, as Convenções de Genebra, os Protocolos Adicionais, o Estatuto

de Roma e as últimas iniciativas para estabelecer um Tribunal Especial. O estudo analisou os

factos das violações das leis e costumes da guerra, sistematizou os crimes mais ressonantes

contra civis e infraestruturas críticas e identificou sinais de genocídio, violência sexual,

deportação ilegal de crianças, tortura e chantagem nuclear. O autor fundamenta a

necessidade de atualizar o direito internacional humanitário para ter em conta os métodos da

guerra híbrida. São identificadas as principais barreiras para levar à justiça os principais

líderes militares e políticos da Federação Russa. A importância de estabelecer um Tribunal

Especial para o crime de agressão e a Comissão Internacional de Reclamações como

instrumentos para restaurar a justiça é sistematicamente descrita. O significado prático dos

resultados obtidos é desenvolver recomendações para melhorar a regulamentação jurídica da

guerra híbrida, bem como formular uma estratégia internacional de responsabilização pelo

crime de agressão.

Palavras-chave

Proteção administrativa e jurídica dos direitos, processos administrativos, direito internacional

humanitário, crime de agressão, tribunal especial.

How to cite this article

Volokhov, Oleksii, Khomenko, Oleksandr, Savka, Oleksandr, Kuzmenko, Anatolii & Dmytrenko,

Diana (2026). International Humanitarian Law and Human Rights During the War in Ukraine.

Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human Rights, and

Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº. 2, TD3, March

2026, pp. 226-240. https://doi.org/10.26619/1647-7251.DT0226.12

Article submitted on 28 November 2025 and accepted for publication on 24 December

2025.

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 226-240

International Humanitarian Law and Human Rights During the War in Ukraine

Oleksii Volokhov, Oleksandr Khomenko, Oleksandr Savka, Anatolii Kuzmenko,

Diana Dmytrenko

228

INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS

DURING THE WAR IN UKRAINE

OLEKSII VOLOKHOV

OLEKSANDR KHOMENKO

OLEKSANDR SAVKA

ANATOLII KUZMENKO

DIANA DMYTRENKO

Introduction

In the 21st century, international humanitarian law faces many challenges due to the

transformation of the nature of armed conflicts, the emergence of new types of weapons,

unmanned systems, cyberwarfare and the growing number of conflicts in which it is

difficult to identify clear parties and front lines. In such circumstances, the effective use

of IHL principles requires not only proper legal interpretation but also practical

implementation at the level of military command (Berdnik & Pylypenko, 2024; Sotula &

Piątkowski, 2024).

Researchers note that in hybrid warfare, traditional mechanisms for protecting civilians

are insufficient (Antouly, 2019; Crawford et al., 2017; Winaldi & Setiyono, 2022).

Russia’s full-scale invasion of Ukraine has become not only a military but also a deep

legal crisis for the entire international community. Violations of international

humanitarian and human rights law, which were previously perceived as exceptions, have

become systemic (United Nations, 2024).

The relevance of the topic is due to the need for a legal assessment of the massive human

rights violations recorded in Ukraine, as well as the search for international mechanisms

to bring the perpetrators to justice. There is a problem not only of legal qualification of

crimes, but also of an effective mechanism for bringing perpetrators to justice at both

the political and military levels. In this context, international humanitarian law faces the

challenge of adapting to a new form of warfare – hybrid aggression.

JANUS.NET, e-journal of International Relations

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International Humanitarian Law and Human Rights During the War in Ukraine

Oleksii Volokhov, Oleksandr Khomenko, Oleksandr Savka, Anatolii Kuzmenko,

Diana Dmytrenko

229

The purpose of the study is to analyze violations of international humanitarian law during

the war in Ukraine.

Literature review

The current views of scholars indicate a growing attention to IHL in the context of the

war in Ukraine and in the retrospective of previous conflicts. A significant part of the

literature is devoted to the analysis of IHL violations during the wars in the Balkans, Iraq,

and the current conflict between Israel and Hamas.

Bartolini (2005) in his study compares the application of IHL during the US operation in

Iraq in 1991 and 2003. The author notes violations of the principles of proportionality

and distinction. Similar attention is paid by Dinstein (2002), who emphasizes the difficulty

of determining the military expediency of air strikes. Byron (2010) notes that the absence

of the criterion of “ excessive civilian casualties” causes difficulties in law enforcement.

The application of IHL in the war between Israel and Hamas was studied by Schmitt

(2022), who emphasized the problems of target verification and the need to assess the

impact on civilians in an asymmetric conflict.

In the context of the war in Ukraine, the work of Sotula and Piątkowski (2024) deserves

special attention, in which the authors analyze Russia’s use of strikes against Ukrainian

infrastructure through the prism of proportionality and necessity.

Hayashi (2023) draws attention to the criterion of a “ smart commander” in the context

of mistakes in combat decision-making. Kreß (2024), in turn, focuses on the crime of

aggression as a legal basis for bringing the Russian leadership to justice. However,

Kovalchuk (2024) points out that practical implementation is impossible due to political

barriers.

Particularly noteworthy is the work of Collins et al. (2023), in which the authors examined

in detail the fighting in Gostomel as a key episode in the outbreak of a full-scale war.

Additional legal depth is brought by Marcinko (2019), who analyzes the normative

approach to the conduct of hostilities.

In the Ukrainian discourse, the studies by Zamryga (2022) and Vasyliev (2025), which

analyze the challenges of IHL in the context of hybrid warfare, are important. In general,

a number of sources (Boogaard, 2023; Berdnik & Pylypenko, 2024; Jovanovski, 2021;

Mauri, 2022) raise the problems of weapons technology development and the need to

adapt IHL to modern realities: autonomous systems, drones and mixed civil-military

zones.

Research methods

The study uses a combination of general scientific and special legal methods. The method

of analysis was used to study the provisions of IHL and the legal acts regulating war

crimes. The method of systematization was used to classify the recorded human rights

violations by the elements of international crimes. The method of generalization was used

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to draw conclusions about the need to update legal mechanisms. The empirical analysis

was applied to the registered facts of violations of IHL in Ukraine, as well as to the data

from official reports of Ukrainian and international organizations.

Results and Discussion

It is worth starting with what international humanitarian law is and what it means in

modern international conflicts. International humanitarian law is a system of international

legal norms that regulates the rules of armed conflict by striking a balance between

military necessity and humanity, with the aim of limiting the means and methods of war

and protecting persons who are not or have ceased to be involved in hostilities. By its

very nature, IHL in general and each of its rules in particular is a compromise between

two opposites – humanity and military necessity. IHL is possible to the extent that a

balance between them is achieved (Kozorog et al., 2024). The main purpose of IHL is to

limit the means and methods of warfare that can be used by parties to a conflict, as well

as to ensure the humane treatment of persons who are not or have ceased to be involved

in hostilities.

International humanitarian law applies only to armed conflicts; it does not apply to

internal tensions or disturbances, such as individual acts of violence. The law applies only

after the outbreak of a conflict, and then equally to all parties, regardless of who started

the hostilities (ICRC, 2004).

In general, IHL encompasses all norms of international law that establish minimum

standards of humanity and must be observed in any situation of armed conflict. It is

important to clarify that international humanitarian law is one of the most effective tools

that the international community has in its so-called “arsenal” to ensure security and

respect for honor and dignity during war. Everything has its limitations, and war is no

exception, so IHL seeks to ensure that humanity is preserved even during war and armed

conflict.

A distinctive feature of IHL among other fields is that it does not regulate the legality of

the fact of warfare itself, as this is the responsibility of international law on the use of

force. Instead, IHL focuses specifically on the rules of conduct during existing armed

conflicts. The key goal here is not to end the war, but to mitigate its consequences,

including humanitarian ones. Therefore, one can often hear IHL referred to as “the law

of armed conflict” or “the law of war”.

In the current context of international armed conflicts, especially given the full-scale

invasion of Ukraine by Russia, international humanitarian law pays considerable attention

to the protection of civilians. Civilians are increasingly becoming the targets of armed

attacks, which directly contradicts the basic principles of IHL, as enshrined in the Geneva

Convention and its Additional Protocol. The norms of these documents establish that the

civilian population cannot be the object of attack, and the parties to an armed conflict

are obliged to take all possible measures to protect such persons (Articles 51 and 57 of

the Additional Protocol) (Verkhovna Rada of Ukraine, 1977).

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However, the realities of the war in Ukraine show us numerous examples of these norms

being ignored. In 2022–2023 alone, more than 120,000 criminal offenses related to

violations of the laws and customs of war were registered in Ukraine (Ukraїner, 2023).

Most often, this happens in the form of deliberate attacks on civilians. In national

legislation, such actions are qualified under Article 438 of the Criminal Code of Ukraine

as war crimes, and their specific composition is determined by reference to international

treaties that are part of national legislation (Botnarenko & Kryzhna, 2024).

The peculiarity in the qualification of such crimes is that there is a need to establish direct

intent to harm the civilian population specifically, and, accordingly, the presence of

consequences in the form of death, serious bodily injury or harm to health. Such

provisions are based on Article 85(3)(a) of the Additional Protocol, which states that

targeting the civilian population or individual civilians as an object of attack constitutes

a grave breach of IHL (Verkhovna Rada of Ukraine, 1977).

Accountability for war crimes is regulated by a number of international treaties and

domestic laws. The sources of international humanitarian law that guarantee punishment

for war crimes include the Geneva Convention relative to the Protection of Civilian

Persons in Time of War of August 12, 1949 (Verkhovna Rada of Ukraine, 1949) and its

Additional Protocols of 1977 (Verkhovna Rada of Ukraine, 1977), which define serious

violations as war crimes and require states parties to criminalize them in national

legislation, affecting, in particular, even administrative and legal protection of rights, as

well as administrative proceedings. An important document is also the 1974 Statute of

the International Criminal Court (Verkhovna Rada of Ukraine, 1998), which grants the

International Criminal Court jurisdiction over war crimes and defines their composition.

Another important document is the 1974 UN Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes against Humanity (Verkhovna Rada of

Ukraine, 1974).

An important principle is the universal jurisdiction over war crimes, meaning that any

state has the right to prosecute the perpetrators, as well as the absence of immunity for

military and civilian leaders (Kovalchuk, 2024).

The authors point out that Russia’s war against Ukraine is a double violation of

international humanitarian law. Firstly, it violates the rules governing the legality of the

use of force (jus ad bellim), and secondly, the rules of warfare (jus in bello). Russia’s

attack on Ukraine is contrary to Article 2(4) of the UN Charter and cannot be justified by

self-defense, as there is no evidence of armed aggression by Ukraine or direct threats to

Russian citizens (Kreß, 2024).

Russia’s rhetoric about “protecting” Donbas in collective self-defense is also groundless,

as these regions do not have the status of sovereign states. At the same time, gross

violations of the principles of jus in bello are manifested in the shelling of civilian objects,

the use of prohibited weapons, such as cluster or thermobaric weapons, as well as in the

direct ill-treatment of prisoners (Bukar, 2023).

T4P research indicates that Russia shells civilian objects in Ukraine an average of 75

times a day. (T4P, 2023) A total of more than 1,500 cultural institutions and 600

monuments have been damaged. As of 2023, according to the Kyiv School of Economics,

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153,900 residential buildings, 3,170 educational institutions (almost 1,500 schools, 909

kindergartens, 528 higher education institutions), 1,216 healthcare facilities, and 1,800

cultural institutions were destroyed or damaged as a result of the hostilities (EU

NEIGHBOURS East, 2024).

The documented cases of gross violations of international humanitarian law by the

Russian military are not only systemic, but also targeted. For example, massive attacks

on civilian objects, residential buildings, train stations, and shopping centers are not

isolated tragedies, but part of a large-scale terror against civilians (EU NEIGHBOURS

East, 2024).

International law qualifies such actions as having signs of systematic violations of the

principle of distinction between civilian and military objectives, which is a fundamental

standard of the Geneva Conventions and Protocol I (ICRC, n.d.; Verkhovna Rada of

Ukraine, 1977). The targeting of residential buildings, hospitals, and schools without

demonstrable military necessity violates Articles 51(4)-(5) and 57(2)(a) of Protocol I,

which explicitly prohibit indiscriminate attacks (Boogaard, 2023).

In the first five months of the full-scale invasion alone, Russia carried out a number of

high-profile attacks that resulted in the deaths of hundreds of civilians. For example, in

July 2022, a strike on a five-story building in Chasovyi Yar killed at least 48 people,

including a 9-year-old child. Similar consequences were caused by the destruction of the

Amstor shopping center in Kremenchuk, which was hit by a missile on June 27. One of

the most tragic attacks was the rocket attack on the train station in Kramatorsk, when

61 people were killed, including many children, on April 8, 2022 (BBC News Ukraine,

2022). All of these attacks were accompanied by the use of heavy weapons, including

Iskander ballistic missiles and Tochka-U guided missiles, as well as the deliberate spread

of disinformation by the Russian authorities, who are trying to justify their actions with

false claims of military installations in civilian buildings. Such actions require a

comprehensive investigation, proper legal assessment, and bringing the perpetrators to

justice in the framework of international justice.

Bombings that have signs of discriminatory attacks can be regarded as a war crime,

which is confirmed by the current doctrine and practice of the ICC (Berdnik & Pylypenko,

2024; Bukar, 2023).

According to the analysis of Hayashi (2023), the application of the “reasonable

commander” standard requires parties to the conflict to actively verify targets and assess

possible harm to civilians; in this case, since such verifications are not carried out, attacks

lose their legitimacy under IHL.

The most terrible pages of the war are written in history with such tragedies as the

atrocities in Bucha, where mass killings, torture, rape, and executions of civilians were

recorded after the liberation. According to local authorities, more than 420 people were

killed in Bucha, many of them with signs of torture and rape. All of these war crimes

under the Geneva Conventions and the Rome Statute constitute serious violations of

international humanitarian law that have no statute of limitations and require mandatory

judicial review.

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Another horrific page of the war was the mass grave in Izyum, where more than 450

graves were discovered after the de-occupation in September 2022. Most of the bodies

were civilians with signs of violent death, gunshot wounds, tied hands, and traces of

torture and abuse. It is also worth mentioning the deliberate killing of Ukrainian prisoners

in the colony in Olenivka. On the night of July 28-29, 2022, 53 prisoners of war were

killed in explosions, and more than 130 others were injured. Despite the statements of

the Russian side about the alleged Ukrainian attack, all the facts indicate a staged

provocation to conceal the facts of torture and inhuman treatment of detainees. Such

actions once again confirm the deliberate nature of the crimes committed by the Russian

military and the gross disregard for international humanitarian law (Novynarnya, 2023).

Particular attention should be paid to the documented facts of sexual violence, which the

Russian military systematically used as a tool of humiliation, terror and demoralization

of the civilian population in the occupied territories. One of the most egregious cases is

the rape of a woman by Russian soldiers in front of her child in the Brovary district of

Kyiv region. Human rights activists emphasize that the actual number of such cases may

be hundreds of times higher than the statistics due to fear, shame or distrust of the

investigation system on the part of the victims.

We should not forget about the crime of abduction and forced transfer of Ukrainian

children to Russia. In many cases, children were evacuated under the guise of

rehabilitation, and then their citizenship was changed and they were completely isolated

from their relatives. Such actions can be qualified not only as a direct violation of the

articles of the Geneva Convention, but also as an act of genocide - an attempt to destroy

the national identity of Ukrainian children through forced assimilation.

And of course, no less dangerous is the tactic of nuclear blackmail used by Russia during

the shelling of areas near Ukrainian nuclear power plants. In particular, the Zaporizhzhya

NPP has been repeatedly shelled, creating serious risks of a nuclear disaster on the level

of Chernobyl or Fukushima. In addition, the Kremlin propaganda systematically threatens

the world with strikes on nuclear infrastructure, which is a direct violation of the Geneva

Convention, which prohibits attacks on objects that could lead to a dangerous release of

forces and serious civilian casualties.

It is worth noting that Russia, having not ratified the Rome Statute, actually avoids the

jurisdiction of the International Criminal Court in this regard, but this does not relieve it

of responsibility for its actions before the international community, which, in turn, given

the scale and unprecedented nature of the crime of aggression, is increasingly raising

the issue of establishing a separate special tribunal to bring to justice the top military

and political leadership of the Russian Federation (Zamryga, 2022).

International humanitarian law also obliges parties to an armed conflict to facilitate

unimpeded access to humanitarian aid for the affected population. In this regard, it is

also worth noting that Russia systematically blocks the work of international

humanitarian organizations in the occupied territories. According to IHL, assistance

should be provided impartially, without discrimination, solely to reduce human suffering.

However, the Russian side often denies access to the affected settlements, does not allow

representatives of such reputable organizations as the International Committee of the

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Red Cross, Doctors Without Borders, or UN humanitarian missions. Such actions of the

aggressor create additional threats to the lives of civilians, depriving them of the

opportunity to receive basic medical and food assistance, psychological support or

evacuation. At the same time, restricting the access of such organizations makes it

impossible to effectively document human rights violations and war crimes in the

temporarily occupied territories, which is the purpose of the aggressor’s prohibitions and

concealments and further complicates the work of international human rights institutions

(Kurilyuk et al., 2024).

Thus, the Russian invasion of Ukraine has actually actualized the problem of the crime of

aggression as a central challenge to the international legal order. However, despite the

historical importance of this crime, which was the foundation of the Nuremberg and Tokyo

trials, today the International Criminal Court is limited in its ability to prosecute Russia

due to the imperfect jurisdictional regime (Kreß, 2024).

In this context, the idea of creating a special international ad hoc tribunal, which is

increasingly being discussed by the international community, deserves special attention.

Since the Rome Statute limits the possibilities of holding states that are not parties to it

accountable, the need for an alternative mechanism is becoming more urgent. Such a

tribunal could be established on the basis of a multilateral international treaty or under

the auspices of the UN General Assembly, which would circumvent Russia’s blocking of

the Security Council. It is worth noting that this idea is supported by more than 40 states,

including most EU countries, Canada, the United States, and Japan.

However, regardless of the format, the key condition for the effective functioning of any

international tribunal is political will, coordinated efforts of the international community

and the availability of sufficient evidence collected in accordance with procedural

standards. In this aspect, it is necessary to develop the practice of digital technologies

and open sources of OSINT for verification of facts, as this is especially relevant in the

context of limited access to the temporarily occupied territories.

The war waged by the Russian Federation is hybrid, as it is a conflict that combines

classical military operations with information warfare, cyberattacks, terrorist methods,

economic pressure and the participation of irregular armed groups (Zamryga, 2022). As

this war is waged without an official declaration, with the involvement of mercenaries

and the use of civilians as human shields, it makes it difficult to identify the aggressor,

blurs the line between war and peace, making effective application of existing IHL norms

that do not cover such non-standard forms of conflict virtually impossible.

Therefore, the absence of the term “hybrid warfare” in international legal documents is

a major problem that complicates the qualification of the aggressor’s actions and the

determination of legal consequences. It can be argued that the current system of

international humanitarian law is unsuitable for responding to hybrid threats, which was

manifested during the Russian-Ukrainian war, in particular, cyberattacks, information

aggression, disinformation and actions of proxy forces create legal vacuums that make

it impossible for the international community to respond. Humanitarian law needs to be

updated to take into account the context of asymmetric and irregular forms of warfare,

including situations where the enemy refuses to be openly identified, as was the case in

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Crimea and Donbas. Both domestic and international transformation of legal norms is

needed, with the use of innovative technologies, digital platforms, new forms of

monitoring and expanded jurisdictional tools (Vasyliev, 2025).

As of today, there are several problems that prevent the military and political leadership

of the Russian Federation from being brought to justice, even if there is evidence. For

example, Russia, as a permanent member of the UN Security Council, can block the

creation of international justice mechanisms based on the UN; the absence of an

international obligation to extradite citizens to Russia makes it unlikely that arrest

decisions will be enforced even if they are made; states allied to Russia, such as Iran,

Syria, and North Korea, may not recognize such tribunals, and countries that remain

politically neutral may avoid participating in sanctions or legal procedures.

In view of this, an important step is institutional support for Ukraine at the level of the

EU, NATO and the UN, as well as the consolidation of universal jurisdiction of states that

are ready to consider cases of international crimes outside the country of their

commission. For example, courts in Germany, Poland, Lithuania, and Estonia have

already opened proceedings over Russian crimes committed in Ukraine.

In addition, the information and legal front is extremely relevant today. Russia is the

“queen of propaganda” and invests significant resources in creating a parallel reality,

justifying its actions by “protecting Russian speakers” and “ fighting Nazism” and so on

(VoxUkraine, 2023).

Therefore, we believe that an important task of the international community is to

systematically counter disinformation, introduce mechanisms of reputational

responsibility, such as isolating Russia in international cultural, sports, and academic

spaces; depriving Russian cultural heritage sites of UNESCO World Heritage status; and

imposing bans on Russian politicians and propagandists from participating in international

forums and conferences.

In our opinion, ensuring Russia’s responsibility for international crimes requires a

multilevel strategy that would combine legal, informational, political and diplomatic

dimensions. Systematic evidence gathering, international solidarity, and recording of

violations are the key prerequisites for bringing Russia to justice, which can take place

in both the medium and long term, as has already happened in international practice

with regard to the former leaders of Yugoslavia.

In the case of the former Yugoslavia, the establishment of the International Criminal

Tribunal for the Former Yugoslavia (ICTY, 2001) allowed for the prosecution of political

and military leaders, including Slobodan Milosevic, the President of Serbia. Despite the

fact that he died before he was sentenced, the precedent of bringing a sitting head of

state to trial had a significant impact on the development of international criminal law.

In its decision in Prosecutor v. Krstić (IT-98-33), the ICTY recognized the massacre in

Srebrenica as an act of genocide, which was one of the first judicial qualifications of such

a crime in Europe after World War II (United Nations, 2004).

Thus, it should be noted that on February 4, 2025, the European Commission and the EU

High Representative for Foreign Affairs and Security Policy, Kaja Kallas, officially

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announced a decisive step - the establishment of the legal basis for the Special Tribunal

for the Crime of Aggression against Ukraine. This tribunal is to become the first ever

modern international justice mechanism aimed at bringing the highest military and

political leadership of the aggressor state to justice for the crime of aggression – a

violation of the UN Charter and the foundations of international law and order (European

Commission, 2025).

The Special Tribunal will be established on the basis of an agreement between the

Government of Ukraine and the Council of Europe. It will have jurisdiction based on

Ukrainian national law with the integration of international standards. This should help

overcome a key obstacle – Russia’s non-recognition of the jurisdiction of the International

Criminal Court, which remains a serious barrier to justice.

As part of this initiative, the first major legal document, the so-called “Draft Schuman

Statute”, has already been prepared, which will define the structure, powers and

procedures of the tribunal.

In addition to punishment, there is the issue of compensation for victims. Thus, the EU

has already decided to start negotiations on the establishment of an International Claims

Commission, which will be authorized to determine the amount of compensation for

damage caused by Russia. This commission will rely on the Register of Damage, which

has been operating in The Hague since 2023 and documents evidence of destruction,

losses and deaths caused by the aggression. Starting in 2024, Ukrainian citizens who

have lost their homes will be able to apply to the Register, and starting in 2025, relatives

of deceased civilians will be able to apply. This commission should be a logical step

towards restoring justice not only through punishment, but also through compensation

for war victims.

This was indeed a breakthrough in the restoration of justice, because all previous practice

of international law, such as the Nuremberg Tribunal or Rwanda, shows that the most

effective international justice is achieved when a legal initiative is supported by a

significant number of states, a special tribunal is created that is not limited by existing

institutions, and a parallel compensation process is ensured.

Under conditions where Russia blocks the work of humanitarian organizations, destroys

evidence and does not allow international observers, an external international

investigation, tribunal and compensation system are the only realistic way to restore

justice.

International cooperation in the field of wartime forensics is a critical tool for effectively

documenting Russian crimes, upholding the rule of international law and implementing

international standards in the Ukrainian forensic system (Tsarenko et al., 2023).

Ukraine has already begun to implement a special mechanism of justice in the de-

occupied territories, in particular through the joint work of national and foreign experts,

investigators and prosecutors to collect evidence of IHL violations. Kyiv Scientific

Research Institute of Forensic Expertise (Kyiv Scientific Research Institute of Forensic

Expertise) actively cooperates with European institutions such as ENFSI, CEPOL and the

TAIEX program. Through participation in international projects, such as EU-ACT and ICE

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(UNODC), Ukrainian experts gain access to the latest techniques, which allows them to

improve the quality of war crimes documentation and adapt domestic practice to

international standards (Negrebetskyi, 2023).

It is worth noting that some in the international community still equate the aggressor

and the victim and demand diplomatic efforts from both sides as if both sides are guilty,

which is quite inappropriate, as stated by Tsuji Kyoto, State Minister for Foreign Affairs

of Japan, at a meeting with representatives of OSCE member states.

The findings confirm the systematic and purposeful nature of Russia’s violations of IHL.

The literature emphasizes the lack of an adequate regulatory framework for an adequate

response to Russia’s challenges, which is confirmed by the study.

It is worth noting that the idea of establishing a Special Tribunal is not new, but in the

case of Ukraine, it has tremendous support from more than 40 countries. The

establishment of such a tribunal is an important practical step in bridging the

jurisdictional gaps of the Rome Statute. Compared to international practice, it should be

noted that the concept of establishing an International Claims Commission is innovative.

Although there are compensation programs after the wars in Iraq or Libya, the creation

of a universal register of losses is unprecedented.

Conclusion

The study proves that IHL in its current form is not able to fully respond to the challenges

posed by Russia’s hybrid aggression against Ukraine. The findings demonstrate the scale

of war crimes, genocide, sexual violence, human trafficking, nuclear blackmail and

violations of the right to humanitarian assistance.

The novelty of the study lies in the systematic justification of the need to establish a

Special Tribunal for the Crime of Aggression, as well as a compensation mechanism that

should become part of a global strategy for restoring justice.

The practical significance of the study lies in identifying the shortcomings of the current

international humanitarian law in the context of hybrid conflicts and justifying the need

for its adaptation to this form of warfare.

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OBSERVARE

Universidade Autónoma de Lisboa

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241

ADMINISTRATIVE LIABILITY FOR ENVIRONMENTAL OFFENCES: PROBLEMS

AND PROSPECTS FOR LEGISLATIVE CHANGES

VIKTOR KLID

viktor.klid@pnu.edu.ua

PhD (Biological Sci.) Head of the Department of Forestry and Agrarian Management

Faculty of Natural Sciences Vasyl Stefanyk Carpathian National University

Ivano-Frankivsk (Ukraine) https://orcid.org/0009-0007-8310-433X

MYKHAILO ZORIA

mykhailo.zoria@tsatu.edu.ua

PhD (Engineering Sci.), Associate Professor Head of the Department of Civil Security

Faculty of Agricultural Technology and Ecology Dmytro Motornyi Tavria State Agrotechnological

University Zaporizhzhia (Ukraine) https://orcid.org/0000-0003-4461-4066

ARTEM POPSUI

artem.ol.popsui@gmail.com

PhD Student Department of Ecology Faculty of Forestry and Ecology Polissia

National University Zhytomyr (Ukraine) https://orcid.org/0009-0005-0898-5873

RUSLAN HERASYMCHUK

gerasymchuk_rv@ukr.net

Doctor of Philosophy, Associate Professor Department of Constitutional, Administrative and

Financial Law Faculty of Law Leonid Yuzkov Khmelnytskyi, University of Management and Law

Khmelnitskyi (Ukraine) https://orcid.org/0009-0007-9220-800X

YEVHENII KOLOMIIETS

kol.0880kolomiets@gmail.com

PhD (Public Administration), Associate Professor Department of Public Administration

Interregional Academy of Personnel Management, Kyiv (Ukraine)

https://orcid.org/0000-0003-0093-6733

Abstract

Environmental problems have increased in the context of economic globalization and

consumer behavior. This has led to the emergence of the green economy paradigm, which

requires the creation of legislative initiatives to achieve the stated environmental goals. The

purpose of the study was to identify the weaknesses and strengths of environmental

legislation in the leading countries of the world in achieving the goals of the green economy.

The study used the following methods of induction, deduction, analysis, synthesis,

systematization, logical comparison and statistical analysis. Authors identified trends in the

dynamics of carbon dioxide emissions and plastic waste in the United States, China, and the

EU for the period 1990-2022. Authors determined the probability of further changes based on

the trend line equations for carbon dioxide and plastic waste emissions. Among the problems

is the lack of strict and binding legal regulation of environmental issues, which demonstrates

the low effectiveness of environmental initiatives even in the United States and China. The

author demonstrated the feasibility of creating administrative responsibility for end users and

distributors to improve waste management efficiency and increase demand for green

products.

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Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

242

Keywords

Green economy, environmental pollution, legal regulation, waste management, harmful

emissions.

Resumo

Os problemas ambientais têm aumentado no contexto da globalização económica e do

comportamento do consumidor. Isso levou ao surgimento do paradigma da economia verde,

que exige a criação de iniciativas legislativas para alcançar as metas ambientais estabelecidas.

O objetivo do estudo foi identificar os pontos fracos e fortes da legislação ambiental nos

principais países do mundo no que diz respeito ao cumprimento das metas da economia verde.

O estudo utilizou os seguintes métodos de indução, dedução, análise, síntese, sistematização,

comparação lógica e análise estatística. Os autores identificaram tendências na dinâmica das

emissões de dióxido de carbono e resíduos plásticos nos Estados Unidos, China e UE para o

período de 1990 a 2022. Os autores determinaram a probabilidade de novas mudanças com

base nas equações da linha de tendência para as emissões de dióxido de carbono e resíduos

plásticos. Entre os problemas está a falta de regulamentação legal rigorosa e vinculativa das

questões ambientais, o que demonstra a baixa eficácia das iniciativas ambientais, mesmo nos

Estados Unidos e na China. O autor demonstrou a viabilidade de criar responsabilidade

administrativa para os utilizadores finais e distribuidores, a fim de melhorar a eficiência da

gestão de resíduos e aumentar a procura por produtos verdes.

Palavras-chave

Economia verde, poluição ambiental, regulamentação legal, gestão de resíduos, emissões

nocivas.

How to cite this article

Klid, Viktor, Zoria, Mykhailo, Popsui, Artem, Herasymchuk, Ruslan & Kolomiiets, Yevhenii (2026).

Administrative Liability for Environmental Offences: Problems and Prospects for Legislative

Changes. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human

Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.

2, TD3, March 2026, pp. 241-257. https://doi.org/10.26619/1647-7251.DT0226.13

Article submitted on 02 December 2025 and accepted for publication on 03 January

2026.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 241-257

Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

243

ADMINISTRATIVE LIABILITY FOR ENVIRONMENTAL OFFENCES:

PROBLEMS AND PROSPECTS FOR LEGISLATIVE CHANGES

VIKTOR KLID

MYKHAILO ZORIA

ARTEM POPSUI

RUSLAN HERASYMCHUK

YEVHENII KOLOMIIETS

Introduction

In the modern world, there is a constant negative impact of humans on the environment,

which is caused by the consumer model of their behavior. This results in the depletion of

natural resources and environmental pollution, which requires an immediate search for

ways to protect the environment. After all, the negative impact on the environment is

manifested by changes in climate, air, water, and soil conditions, which in turn affects

the health and quality of life of the population. Therefore, the issue of environmental

protection is at the heart of political and legal discourse, given the scale of the cascade

of environmental problems and their consequences for society (Mikhno et al., 2021).

The issue of combating environmental pollution is being discussed at the global level,

through the creation of international communities and institutions to develop

mechanisms for protecting nature. Moreover, economic development is planned with due

regard for environmental impact. However, despite the obviousness of environmental

problems, a large percentage of entrepreneurs and consumers avoid the adopted

environmental protection rules due to the increased financial costs associated with them

(Merino-Saum et al., 2020). That is why educational and incentive-based conservation

initiatives have proven ineffective, leading to the need to engage legal mechanisms to

counteract environmental violations by citizens and entrepreneurs, which are expected

to be effective in the long run, but there is uncertainty about their actual effectiveness.

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Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

244

Literature Review

Growing environmental problems associated with the development of production have

led to the emergence of the terms green economy and sustainable development, which

include strategic planning of economic processes in terms of their impact on the

environment and human well-being. The United Nations Environment Program, the

Global Green Growth Institute, the Green Economy Initiative, the Green Growth

Declaration, the Sustainable Development Strategy, and other documents that provide

for steps to preserve the environment were created to help countries cooperate in

addressing environmental issues (Merino-Saum et al., 2020; Sumets et al., 2022). These

programs include combating global warming by reducing greenhouse gas emissions by

42% to 52% by 2030, reducing fossil fuel production, reducing nitrogen oxide emissions

that deplete the ozone layer, preserving biodiversity and wildlife, combating land

degradation, plastic pollution, preserving freshwater ecosystems, and dealing with the

effects of natural disasters and armed conflicts (Abbasi et al., 2024).

In addition to economic cooperation, international associations of large enterprises also

have environmental goals, namely, they act within the framework of accepted

recommendations for conserving resources and reducing greenhouse gas emissions, and

create a competitive environment based on environmental friendliness. The effectiveness

of such market relations is explained by their scale, as according to the Organization for

Economic Cooperation and Development (OECD), 39% of greenhouse gas emissions are

produced by its members. Since the recommendations are mostly voluntary and focus

on the integrity of entrepreneurs and reputational risks, their effectiveness is limited, and

regulation is carried out in accordance with the laws of the country of origin (Tam et al.,

2021).

Although the modern paradigm of economic development has changed the vector from

financial prosperity to creating favorable natural and social conditions, conserving

resources, energy, and combating climate change, the problems of legal regulation of

environmental impacts are becoming an obstacle to achieving the stated goals (Tomaselli

et al., 2021). Fostering an environmentally friendly society involves many factors, but

the most effective are environmental projects that are adequately funded and

accompanied by effective regulation, governance, energy-saving technologies, and pro-

environmental policies (Huang et al., 2021).

Despite the creation of joint international environmental initiatives, researchers believe

that their success in practice varies significantly from country to country, depending on

economic capacity, financial and technological capabilities, as well as national

characteristics of population behavior (Wang et al., 2021). That is why these

environmental directives are rather a guideline that is implemented in different countries

in different ways. Moreover, even within the same country, the same initiative can have

different consequences, depending on the location, size, and ownership of the company.

For example, the introduction of green finance in China, although it helps to reduce

environmental pollution, has a different impact on the investment capacity of companies.

Namely, it has a negative impact on the investment behavior of privately owned medium

and small businesses, but a positive impact on state-owned large enterprises in the

western and eastern regions of the country (Zhang et al., 2021).

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Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

245

Another equally favorable legal system for environmental protection is that of the

European Union, which actively implements environmental legislation in member states

where more than 50% of laws are based on EU law. Moreover, the EU has an

Environmental Enforcement Commission that has access to companies and can file a

complaint against violations of environmental rules with the European Court of Justice.

In this way, the Commission can bring to administrative responsibility enterprises that

violate environmental legislation bypassing national courts (Oncioiu & Neacsu, 2023).

Thanks to strict regulation, the EU plans to reduce greenhouse gas emissions by 20%,

increase the use of renewable energy by 20%, and increase energy efficiency by 20% by

2030.

However, environmental legislation has faced new challenges due to the change in

economic models of businesses from local transactional markets to open international

relations involving e-commerce and social media to launch and promote products

(Kyriakopoulos, 2021). Thus, the globalization of the economy has led to a decrease in

the effectiveness of administrative regulation of environmental offenses due to changes

in logistics chains, expansion of production geography, and the use of digital

technologies. This is due to the lack of unified environmental standards that differ from

country to country in relation to different industries, which creates problems for both

regulators and businesses, as well as the rapid development of technologies that, in the

context of globalized market relations, cannot be effectively regulated by environmental

laws without constant changes. On the one hand, technologies can be favorable for the

development of a green economy by optimizing production and logistics routes, but they

have a number of problems, including high energy consumption, cybersecurity, and

significant financial costs, which requires consideration of the feasibility of using certain

types of technologies (Luo, 2022; Castro et al., 2021; Bielai et al., 2024).

On the other hand, the requirements for the economic model have changed from a linear

to a circular one, which allows reducing the use of resources and energy for waste

disposal in order to ensure the reuse or recycling of products. At the same time, the

classification of waste is also constantly changing, and in addition to administrative

liability for violating waste disposal rules, a tax on landfills and packaging is being

introduced (Pouikli, 2020). The problem of waste is of great importance, as the consumer

model of the economy has led to a large amount of waste that requires energy-intensive

disposal processes and leads to environmental pollution.

No less important is climate change due to increased greenhouse gas emissions. Although

195 countries have agreed to act within the stated goals of reducing greenhouse gas

emissions, these changes are not noticeable in the short term and there is a risk that this

initiative will not produce the stated results in the long term as well (Oncioiu & Neacsu,

2023). Moreover, economic legislation is national, and adopted international

recommendations are often ignored due to the high costs of achieving green economy

goals and the peculiarities of changes in the legal framework in different regions (Abbasi

et al., 2024). That is why it is important to study administrative liability for violation of

environmental norms and identify the weaknesses and strengths of environmental

legislation in the world's leading countries.

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Transformation in Times of Global and National Challenges

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Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

246

Aim. The purpose of the study was to identify the weaknesses and strengths of the

environmental legislation of the leading countries of the world in achieving the goals of

the green economy.

Materials and Methods

The study used the methods of induction, deduction, analysis, synthesis, systematization,

logical comparison and statistical analysis. The author analyzed legislative initiatives from

around the world, including the EU, the US, and China. The weaknesses and strengths of

the EU environmental directives and responsible entities are identified, and promising

areas for legislative change on the way to achieving the stated environmental goals are

identified. Authors analyze the peculiarities of environmental legislation in the world, in

particular in the leading economies of the United States, China, and the EU, and

determine their effectiveness by comparing the levels of harmful carbon dioxide

emissions and plastic waste for the period 1990-2022. Authors identified trends in the

dynamics of carbon dioxide emissions and plastic waste based on the identification of

trend lines with the probability of further changes. Based on the analysis, authors

proposed ways to overcome the weaknesses of environmental legislation.

Results

To determine the effectiveness of legislative initiatives to protect nature, authors

analyzed the main EU directives, since the environment plays a significant role in the

political, legal, social and economic activities of the community. There were systematized

existing legislative documents according to environmental areas and principles for

achieving environmental goals in Table 1. Also there were identified the entities that

monitor and manage environmental issues and the entities that bear administrative and

civil liability for violations of environmental requirements. Based on the analysis, authors

identified the weaknesses and strengths of the existing EU environmental legislation and

suggested possible ways to address the problematic issues.

Table 1. Legal regulation of environmental issues in the EU

Environmental

area

Principle

Legal regulation

Objects, subjects and

types of liability

Environmental

pollution

Control over

the

company's

impact on

the environ-

ment and

the

possibility

of air,

water, soil

pollution.

Directive 96/61 - provides for control

over production technology, technical

characteristics of equipment at the

stage of design, use, maintenance and

decommissioning

Directive 85/337; 2001/42; 2014/52 -

control over possible negative impact

on the environment before the start of

business activities.

It provides for obtaining a

permit to conduct

economic activity at the

stage of production

design. Regulation is

entrusted to national

authorities, which are

responsible for issuing

permits and monitoring

ongoing activities for

environmental pollution.

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247

Waste

Disposal,

reuse or

recycling of

the product

produced

Article 14, Article 8 of the 2008 EU

Framework Directive – the costs

associated with the disposal, recycling

or determination of the product's

suitability for reuse are borne by the

manufacturer and partially by the

distributor of the product.

Administrative

responsibility lies with the

manufacturer, while

waste management is

carried out by local

municipalities; the

manufacturer has the

right to choose the type

of responsibility: partial

operational responsibility

(the manufacturer is

partially involved in the

processes of waste

collection, processing and

disposal) and

full operational

responsibility (the

producer has full control

over the processes of

waste collection,

processing and disposal).

Disposal,

reuse or

recycling of

packaging

EU Directive 94/62 provides for

collection from end users or reuse of

packaging by users.

Disposal of

end-of-life

vehicles

EU Directive 2000/53 provides for the

transfer of the costs of vehicle disposal

to the manufacturer rather than the

last owner, in order to reduce the use

of hazardous substances and to

provide for simple recycling at the

design stage of the vehicle by the

manufacturer.

Disposal of

waste

electrical

and

electronic

equipment

EU Directive 2012/19 encourages

producers to use alternative

technologies to facilitate the

dismantling, reuse and recovery of

electrical and electronic equipment.

Recycling of

batteries

and

accumula-

tors

EU Directive 2006/66 obliges Member

States to establish collection points for

batteries and accumulators for

consumers in accessible locations

without charge and without the

obligation to purchase a new battery or

accumulator. Manufacturers must

ensure safe conditions for the recycling

of this waste.

Plastic

Ensuring

the

availability

and

sustainable

manage-

ment of

water and

sanitation

EU Regulation 1907/2006, which

provides for the improvement of the

quality of plastic products in order to

extend their service life, reuse and

reduce plastic waste.

The manufacturer

compensates for the cost

of plastic utilization and

recycling.

Protection of

water resources

Manage-

ment of

surface and

deep water

resources,

natural and

artificial

water

bodies

Water Framework Directive 2000/60,

Article 13, Annex VII provides for the

control of water quality in 5 categories,

determination of physical, chemical,

hydrological and morphological

characteristics, protection of aquatic

ecosystems.

Article 14 provides for informing and

involving the public and users in the

balanced use of water.

Quality control is carried

out by national

authorities. The

responsibility is collective

and applies to both

entrepreneurs and

consumers who

compensate for the costs

of water supply services

on an ongoing basis.

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248

Clean air

Air quality

manage-

ment.

The Clean Air Directive for Europe

(CAFE) 2008/50 provides for the

reduction of harmful substances in the

air: acidifying substances (SO(2),

NO(x),

NH(3)), emissions that deplete

the ozone

layer, dust precursors (PM(10),

PM(23)), emissions that affect

airquality in

urban agglomerations.

Directive 2001/81 on the reduction of

national emission ceilings.

The Convention on Long-Range

Transboundary Air Pollution (LRTAP)

obliges countries to control emissions

from their own enterprises.

Directive 2010/75 provides for the

control of industrial emissions.

Directive 2001/80 controls emissions

from large combustion plants.

Member states control

emissions from industrial

facilities and cities and

notify the EU Commission

of the permissible levels

and an action plan for

their possible reduction.

Producers are required to

comply with emission

limits and use

technologies that reduce

emissions. In case of

violations, industrial

facilities are subject to

administrative sanctions,

as well as possible closure

of the facility. The public's

responsibility is to restrict

the use of certain types of

vehicles in urban areas

with high levels of air

pollution.

Preventing

climate change

Reducing

global

warming

to 2

(0) C

The Paris Agreement was adopted by

195 states at the UN Convention and

provides for the reduction of

greenhouse gas emissions, creation of

a green economy, creation of adaptive

mechanisms to climate change,

measures to combat climate change-

related emergencies, counteracting

deforestation and forest degradation,

creation of giant biomass plants that

absorb carbon dioxide, reduction of

fossil fuel use in favor of renewable

energy sources, and development of

energy efficiency.

Signatories to the

agreement are obliged to

monitor climate change

and submit reports on the

state of the environment.

Economically developed

countries are obliged to

provide financial and

technological assistance

to developing countries in

achieving the goals of the

Paris Agreement.

Source:сreated by the author on the basis of (Pouikli, 2020; Oncioiu & Neacsu, 2023; Council

Directive 96/61/EC; Directive 2000/60/EC; Directive 2008/1/EC; Directive 2010/75/EU; Directive

2012/19/EU)

As can be seen from Table 1, achieving the goals of environmental legislation is not an

easy task and requires the efforts of central authorities to constantly improve legislative

mechanisms in line with changes in the economic model. Nevertheless, administrative

liability for violations of environmental initiatives mainly falls on the manufacturer, with

distributors and third parties representing the product sharing this role. The EU is

committed to preventive actions in its environmental initiatives, so the specially created

Commission for the Protection of Nature monitors production processes at the planning

stage of business activities. That is, without the Commission's approval, a company

cannot obtain a permit to start production in the EU member states in accordance with

EU Directive 85/337. Another effective mechanism of influence of EU legislation is the

ability of the Commission to monitor the environmental impact of member states'

enterprises without the approval of national central authorities and in accordance with

Article 169 of the EU Treaty. The Commission has the power to take legal action against

an individual company or a Member State for violating environmental rules. Another

important achievement is the ability of the public to participate in the detection of

environmental violations. Citizens have the right to freely receive information about the

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Administrative Liability for Environmental Offences:

Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

249

type of activity of enterprises and the environmental risks associated with them. Citizens

can also file a complaint against companies if they detect actions that harm the

environment or request an inspection of companies whose activities are suspicious.

Environmental legislation in the EU is constantly monitored and changed to simplify

regulatory mechanisms. This approach implies a more flexible regulatory principle that

encourages businesses to comply with the law and protect nature. Thus, on the way to

change, new directives change the previous ones, creating simpler and clearer rules that

are easy to follow. An example of such changes is the repeal of Directives 91/689 on

hazardous waste and its disposal, as well as 75/439 on the disposal of used oils.

Directive 2004/35 on environmental liability was adopted to determine the type of liability

that applies to environmental pollution, which contains both preventive measures and

legal mechanisms for civil and administrative liability (Directive 2000/60/EC). Producers

and consumers can be held liable by public authorities for damage to protected species,

their natural habitats, water bodies, and soils. The Directive provides for liability for

significant damage, but does not define criteria for assessing damage and thresholds for

the significance of violations. Moreover, Annex III of the Directive establishes

administrative liability for high-risk enterprises without the need to prove guilt. Moreover,

administrative fines are not fixed, but fully cover ecosystem restoration measures and

compensation for damages. Instead, offenses not listed in Annex III and committed by

a citizen or low-risk enterprises, including those engaged in agricultural activities, require

proof of guilt and may be subject to administrative liability for negligent conduct of

activities or intentional damage to the biodiversity of natural resources.

Although the EU environmental legislation has made significant progress in recent years

and is constantly being improved, and the Commission's powers to protect nature are

being expanded, the effectiveness of these measures is controversial, as actual pollution

rates change only slightly. In addition, the global trend is also not positive, which

encourages us to identify the advantages and disadvantages of the environmental

protection measures implemented and to find effective solutions. Table 2 analyzes and

systematizes the main global environmental initiatives, identifying weaknesses and

strengths that can be used to improve the national legal framework in the field of

environment. Figure 1 demonstrates the dynamics of carbon dioxide emissions in the

United States, China and the EU over the period from 1990-2022 and identifies trends

and forecasts for the next 4 years. Figure 2 shows the trends in plastic waste dynamics

in the United States and forecasts trends for the next 5 years.

Table 2. Strengths and weaknesses of major global environmental legislative initiatives

Environmental

issue

Legislative

initiatives

(strengths)

Weaknesses

Plastic pollution

EU Regulation

1907/2006;

Conducting audits on

plastic pollution

(more than 1500

events in more than

Difficulty in monitoring to bring the manufacturer to

administrative responsibility, as more than 50% of the

detected plastic is unbranded, which causes a shortfall

of 50% of the funds for plastic waste disposal.

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Problems and Prospects for Legislative Changes

Viktor Klid, Mykhailo Zoria, Artem Popsui, Ruslan Herasymchuk, Yevhenii Kolomiiets

250

100 countries in 6

years), imposing a

tax on the use of

plastic bags, banning

the use of plastic

bags, China's ban on

imports of plastic

waste.

The low efficiency is confirmed by the increase in plastic

production from 200 million tons in 2000 to more than

400 million tons in 2019.

The lack of mandatory audits for all countries, as a

result of which the United States and Indonesia have

conducted more than 100 audits in 6 years, while 84

countries have conducted only 1.

The problem of corruption in some countries, which

causes unreliable audit results and thus a lack of funds

for plastic recycling.

Lack of effective mechanisms to encourage end-users to

reduce the use of plastic and to dispose of used plastic

at special collection points.

Low awareness of the environmental damage caused by

plastic and lack of information about plastic collection

points in developing countries.

Reducing

greenhouse gas

emissions

The Paris Convention,

Sustainable

Development Goals

for 2030 and 2050,

Article 7 of the

Sustainable

Development Goals

on the use of clean

energy, Article 13 on

urgent measures to

combat climate

change, national

initiatives under

international

agreements

Despite the adopted goals, even such successful

countries as the United States do not demonstrate a

stable positive result, so in 2020 the level of carbon

dioxide emissions in the United States amounted to 4.7

billion cubic meters, and in 2022 5.6 billion, which

exceeds even the level of 2016 (5.01 billion). And

China, which ranks first in the world in terms of

greenhouse gas emissions, despite its stated goal of

reaching a zero carbon footprint in 2060 at the 26th

Conference of the Parties in Glasgow, has retreated

from the goal of phasing out coal to gradually reducing

coal consumption. Although the Chinese authorities

hope to improve their forecasts by developing

renewable energy and digital technologies.

Lack of mandatory unified legislative initiatives,

resulting in different national and regional legislative

acts and low efficiency.

High cost of implementing energy efficient technologies.

Poor quality of reports on greenhouse gas emissions

and fossil fuel use. Low rates of forest restoration and

continued deforestation in developing countries.

Increasing number of armed conflicts that increase

greenhouse gas emissions and contradict the goals of

sustainable development.

Waste

management

and recycling

EU Regulation

1907/2006, Initiating

the establishment of

waste management

organizations in

organizations,

governments and

academia.

Administrative

responsibility of

producers for the

disposal and recycling

of various types of

waste. Use of

technologies to

predict customer

behavior and optimize

wholesale purchases.

Lack of collective responsibility for violating waste

disposal rules, especially among end users. Low

effectiveness of educational work on the overuse of

goods and, as a result, excessive waste production. The

reasons for failures in food waste management are low

consumer culture regarding the use of food products

and low optimization of bulk purchases of food products

with limited shelf life, especially in developing countries.

Corruption in some countries, which leads to producers

avoiding administrative responsibility for environmental

pollution. Due to lack of funding, developing countries

have a low number of waste recycling plants and waste

sorting facilities, which leads to the creation of natural

dumps. As a result, about 40% of waste ends up in

landfills, which leads to methane emissions into the

atmosphere.

Source: сreated by the author on the basis of Cowger et al., 2024; Regulation (EC) No

1907/2006; Geyer et al., 2020; Wang et al. 2019; Zavidna et al., 2025; Bistline et al., 2022; Ma

et al., 2022; Anuardo et al. 2022; Voronina et al., 2024).

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251

Figure 1. Trends in carbon dioxide emissions in the US, China, and the EU

Source: created by the author based on (Tiseo, 2025; Worldometer, 2025; EEA greenhouse

gases – data viewer, 2025)

As can be seen from the table, the effectiveness of these environmental initiatives at the

global level is extremely low, due to a number of factors. Namely, the lack of unified

environmental rules with mandatory enforcement. After all, developing countries cannot

quickly switch to renewable energy, abandon the use of polluting equipment, or develop

technologies that promote waste management and optimize resource use, as this

requires large financial outlays. Moreover, our research has shown that even the

economic giants of the United States and China cannot achieve their stated

environmental goals in practice. Namely, the determination of the trend line of carbon

dioxide emissions in China showed a tendency to increase carbon dioxide emissions

according to an exponential relationship with a probability R(2)=0.8566 for further

growth (Figure 1). Also, the determination of the trend line for the dynamics of plastic

waste in the United States showed an upward trend in both the total amount of plastic

waste with a probability of R(2)=0.9846 and the amount of plastic waste in landfills with

a probability of R(2)=0.9745 (Fig. 2). This trend indicates the need for more stringent

methods. The EU countries are more successful in strictly regulating environmental

issues, as they plan to reduce greenhouse gas emissions by 20%, increase the use of

renewable energy sources and improve energy efficiency by 20% in 2030. The tendency

to reduce carbon dioxide emissions with a probability of further reduction R(2)=0.9111

is in favor of achieving the above stated EU goals. The positive dynamics of carbon

dioxide emissions reduction was also demonstrated by the analysis of the trend line in

the United States with the projected probability of further reduction of carbon dioxide

emissions R(2)= 0.9061.

y(USA) = -0.0519x

+ 0.5016x + 4.6664

R²(USA) = 0.9061

y(China) = 1.8944e

0.2349x

R²(China) = 0.9374

y(EU) = -0.0075x

- 0.0848x + 4.5883

R² (EU)= 0.9111

1990 1994 1998 2002 2006 2010 2014 2018 2022

Billion tons

Year

USA

China

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Figure 2. Dynamics of plastic waste and the amount of plastic in landfills in the United States

Source: сreated by the author based on (EPA, 2024)

Y1, R1 – trends in the total amount of plastic waste. Y2, R2 – trends in the amount of plastic

waste in landfills

Instead, to increase the efficiency of waste management, it is advisable to create

mechanisms for administrative liability of the end user for excessive use of plastic,

improper waste disposal, use of vehicles with a high carbon footprint, etc. Responsibility

for the negative impact should be shared between distributors, manufacturers, and end

users, which would encourage manufacturers to produce goods in an environmentally

friendly manner with a long service life and recyclability. With administrative

responsibility shared, distributors would be able to choose more environmentally friendly

products and avoid excessive bulk purchases. Consumers, on the other hand, would be

more interested in choosing environmentally friendly products due to the lower price of

the goods. In practice, however, consumers are less likely to choose green goods because

their price is usually higher, which is explained by the financial burden on the producer

alone and the low level of adoption of green technologies.

Discussion

Our research has revealed the limitations of international environmental laws that give

states the right to choose whether to introduce certain norms and impose penalties in

relation to them. The globalization of the economy, financial transactions, and the

absence of borders in environmental pollution are the reasons for the transition from

recommended environmental legislation to mandatory compliance with basic

requirements. In this regard, the EU is the most effective, acting within its member states

with the possibility of bringing producers or distributors of goods to administrative

responsibility for violating environmental legislation directly in EU courts, bypassing

y1= 9.7066ln(x) + 18.04

R1² = 0.9846

y2 = 6.8578ln(x) + 14.675

R2² = 0.9745

1990 2000 2005 2010 2015 2017 2018

Billion tons

Year

The amount of plastic waste

Amount of plastic waste in

landfills

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national courts (Oncioiu & Neacsu, 2023). The importance of transnational environmental

standards is demonstrated by the transboundary release of polluted water that flows

from one country to another, causing environmental damage, while the lack of clear

regulatory mechanisms for one country to influence another does not allow to overcome

this problem (Li & Lu, 2022). Thus, as can be seen from the study, individual national

laws are adopted primarily based on economic indicators and political vectors, which

explains the regression in the development of the green economy in China and the United

States, which are leaders in terms of negative environmental impact. That is why the

creation of unified laws would avoid speculation in environmental legislation, the

possibility of substituting concepts, environmental reports, and the use of corruption

schemes to avoid environmental production.

In our opinion, stricter regulation would have contributed to better results in the

development of a green and circular economy. Instead, Lee et al. (2022) emphasized

that strict regulation combined with low financial support has a negative impact on

achieving green economy goals, while more flexible regulation combined with technology

development allows achieving environmental well-being goals. Rainisio et al. (2022)

argued that individuality, long-term planning, uncertainty avoidance, national culture,

and local customs also have a positive impact on the effectiveness of environmental

management. This study demonstrates that an individual approach to the formation of

effective environmental models can be applied at both the family and community levels.

Ul Haq et al. (2020) emphasized the development of production efficiency on the example

of optimizing fertilizer use, which leads to a significant reduction in greenhouse gas

emissions without compromising yields. That is why production efficiency should be

encouraged at the level of government agencies, which ultimately receive less harmful

waste from the excessive use of non-environmentally friendly fertilizers, which

determines the financial efficiency of such a step.

As can be seen from the results of our study, administrative liability for violations of

environmental rules is mostly imposed on producers and partially on distributors of

goods, while mechanisms of administrative liability of the end user are mostly not applied

and are of an educational nature. This leads to the lack of effectiveness of environmental

initiatives at the national and international levels, as the consumer is the last link in the

use of products before disposal or recycling, and their participation is key to scaling up

waste management. Kyriakopoulos' (2021) study also demonstrated the need for

collective responsibility of producers, consumers, and central governments for the

environmental impact of products and identified the low effectiveness of legislative

initiatives in facilitating or encouraging consumers to choose green products. Poor

regulation of consumer environmental behavior was also described by Mak and Terryn

(2020) and Ballardini et al. (2021).

Conclusions

Having analyzed the legal regulation of environmental offenses, auhtors have determined

that EU countries pay much attention to the environmental friendliness of the economy,

and the main administrative burden is placed on producers. This approach has proven

effective in terms of reducing waste at the stage of planning the production of goods.

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254

However, the existing mechanisms do not effectively regulate the behavior of the end

user, which offsets the mechanisms implemented by the manufacturer and the local

municipality. An analysis of the effectiveness of global environmental pollution indicators

has revealed a mismatch with the stated goals of sustainable development, which calls

into question the effectiveness of environmental legislative initiatives in the long run.

Therefore, it is advisable to place administrative responsibility also on the consumer and,

to a greater extent, on distributors, which will encourage distributors and users to choose

green products and control their quantity according to demand. Another aspect is the

transition from individual and recommendatory legislative initiatives to mandatory and

more stringent ones, which will encourage countries to avoid speculation and comply with

environmental regulations.

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OBSERVARE

Universidade Autónoma de Lisboa

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Thematic Dossier

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Transformation in Times of Global and National Challenges

March 2026

258

INSTITUTIONAL AND LEGAL SUPPORT FOR STATE MANAGEMENT OF THE

BIOENERGY SECTOR’S DEVELOPMENT IN THE CONTEXT OF GLOBAL

TRANSFORMATIONS

IAROSLAV IANUSHEVYCH

iaroslav070278@gmail.com

PhD (Economic Sci.), Doctor of Juridical Sciences, Associate Professor of the Department of

Finance, Banking and Insurance Educational and Scientific Institute of Management, Economics

and Finance Private Joint-Stock Company "Higher Education Institution "Interregional Academy of

Personnel Management" Kyiv (Ukraine) https://orcid.org/0000-0002-0798-7114

OLEG HUBANOV

gubanof@ukr.net

Doctor of Juridical Sciences, Associate Professor of the Department of Service and Medical Law

Educational and Scientific Institute of Law Taras Shevchenko National University of Kyiv

Kyiv (Ukraine) https://orcid.org/0000-0002-5427-1821

Abstract

The relevance of the study is due to the need to transform Ukraine’s energy policy in the

context of war, global climate challenges and the need for integration into the European

energy space. Bioenergy is emerging as a strategic direction for ensuring energy

independence, decarbonization of the economy and sustainable development of regions. The

purpose of the study is to identify the institutional and regulatory features of public

administration in the field of bioenergy in Ukraine in the context of globalization processes.

The study uses a systematic, institutional, comparative, analytical and content analysis of

legal acts and scientific sources, which ensures a comprehensive approach to assessing the

state and trends of the industry. The study found that the Ukrainian model of public

administration in the field of bioenergy is in the process of transition from fragmented

regulatory support to a systemic policy based on EU standards. The main aspects of legislation

harmonization with Directives (EU) 2018/2001 (RED II) and (EU) 2023/2413 (RED III) are

defined, the effectiveness of the management process enhancement through decentralization

and intersectoral collaboration is described. It is justified that the creation of the multi-level

system of the public administration needs a complex of regulatory incentives, support and

digitalization of the management. The practical value of the results is in the fact that the

proposed conclusions could be adopted to revise the state strategies, form energy clusters,

enhance the regulatory framework and increase the institutional capacity of Ukraine in the

sphere of renewable energy.

Keywords

Bioenergy, public administration, renewable energy, institutional policy, regulatory

framework.

Resumo

A relevância do estudo deve-se à necessidade de transformar a política energética da Ucrânia

no contexto da guerra, dos desafios climáticos globais e da necessidade de integração no

espaço energético europeu. A bioenergia está a emergir como uma direção estratégica para

garantir a independência energética, a descarbonização da economia e o desenvolvimento

sustentável das regiões. O objetivo do estudo é identificar as características institucionais e

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

259

regulatórias da administração pública no campo da bioenergia na Ucrânia no contexto dos

processos de globalização. O estudo utiliza uma análise sistemática, institucional,

comparativa, analítica e de conteúdo de atos jurídicos e fontes científicas, o que garante uma

abordagem abrangente para avaliar o estado e as tendências da indústria. O estudo constatou

que o modelo ucraniano de administração pública no domínio da bioenergia está em processo

de transição de um apoio regulamentar fragmentado para uma política sistémica baseada nas

normas da UE. São definidos os principais aspetos da harmonização da legislação com as

Diretivas (UE) 2018/2001 (RED II) e (UE) 2023/2413 (RED III) e descrita a eficácia da

melhoria do processo de gestão através da descentralização e da colaboração intersetorial.

Justifica-se que a criação do sistema multinível da administração pública necessite de um

conjunto de incentivos regulamentares, apoio e digitalização da gestão. O valor prático dos

resultados reside no facto de as conclusões propostas poderem ser adotadas para rever as

estratégias estatais, formar clusters energéticos, melhorar o quadro regulamentar e aumentar

a capacidade institucional da Ucrânia no domínio das energias renováveis.

Palavras-chave

Bioenergia, administração pública, energias renováveis, política institucional, quadro

regulamentar.

How to cite this article

Ianushevych, Iaroslav & Hubanov, Oleg (2026). Institutional and Legal Support for State

Management of the Bioenergy Sector’s Development in the Context of Global Transformations.

Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human Rights, and

Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº. 2, TD3, March

2026, pp. 258-276. https://doi.org/10.26619/1647-7251.DT0226.14

Article submitted on 05 December 2025 and accepted for publication on 04 January

2026.

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

260

INSTITUTIONAL AND LEGAL SUPPORT FOR STATE MANAGEMENT

OF THE BIOENERGY SECTOR’S DEVELOPMENT IN THE CONTEXT

OF GLOBAL TRANSFORMATIONS

IAROSLAV IANUSHEVYCH

OLEG HUBANOV

Introduction

The problem of energy security has become one of the most significant problems of the

era due to global climate change, energy crisis and geopolitical instability. In this sense,

bioenergy does not simply represent an alternative to fossil fuels in terms of technology,

but a perspective of state policy that is both ecological, economical and social regarding

sustainability. Specifically, bioenergy development is one of the primary components of

the European Green Deal in the European Union that is intended to reach climate

neutrality by 2050 (European Commission, 2023; Taylor et al., 2024). In the case of

Ukraine, where the country is at war, and energy restructuring is in its deep stage,

bioenergy has become a strategic instrument of energy independence strengthening,

diversification of energy supply, and development of the region (Kurbatova et al., 2023;

Pimenow et al., 2025). It is in this connection that the topicality of the issue is explained

by the fact that the current energy policy of Ukraine needs not only to be improved in

terms of technology, but a profound institutional reorganization of the public

administration. In spite of the fact that there are some strategic documents, including

the Energy Strategy of Ukraine up to 2035 and the Concept of Renewable Energy

Development, the gap between the regulations and the practice of their fulfillment exists.

European researchers note that the effectiveness of the energy transition is based on the

quality of the governance mechanisms, the degree of coordination between the state and

non-state actors, and the capability of the state to provide transparency and

sustainability in the policies (Christou et al., 2024; Proskurina & Vakkilainen, 2024;

Buzogány et al., 2023).

The scientific value of this study lies in the combination of European experience in

bioenergy management with the Ukrainian context of military and post-war development,

which allows us to identify the patterns of formation of a new model of public

administration in the field of renewable energy. The theoretical significance is determined

by the generalization of institutional and regulatory aspects of energy policy, while the

practical importance lies in the possibility of using the results obtained to improve

legislation, develop regional energy sustainability programs, and increase the efficiency

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

261

of public administration. Despite the significant volume of scientific publications, a

number of issues remain underdeveloped. In particular, mechanisms for harmonizing

Ukrainian legislation with Directives (EU) 2018/2001 (RED II) and (EU) 2023/2413 (RED

III), institutional aspects of interaction between central and regional authorities, and

assessment of the effectiveness of management decisions in the context of

decentralization require a deeper analysis. The issues of biomass sustainability

certification, digitalization of management processes, and integration of scientific

developments into the public administration system also remain insufficiently researched

(Vasyliev, 2024; Kramar, 2025; Filippova & Stelmashenko, 2024).

The purpose of the study is to identify the peculiarities of institutional and regulatory

support for public administration in the field of bioenergy in Ukraine in the context of

modern globalization challenges, as well as to characterize the main directions of

adaptation of national policy to the standards of the European Union. To achieve this

goal, the following tasks have been defined: to systematize key legal acts, analyze the

institutional architecture of bioenergy management, assess the level of coherence of

Ukraine’s state policy, and recommend recommendations for improving the public

administration system in the field of bioenergy. To achieve these objectives, a structural

and functional analysis of institutional governance mechanisms, a comparative study of

the regulatory frameworks of Ukraine and the EU, as well as a generalization of statistical

and analytical materials of international organizations such as the European Commission,

the European Environment Agency (EEA) and the Energy Community Secretariat were

conducted.

Thus, the study aims to fill in the existing gaps in the national scientific debate on the

integration of bioenergy development policy into the broader context of public

administration. The scientific novelty of the work is an attempt to form a holistic concept

of public administration of bioenergy as a multilevel system that combines regulatory,

investment, and socio-environmental components. The achieved results can not only

increase the knowledge of the institutional relations in energy reforms, but also can

provide the practical principles of how to modernize the social policy on sustainable

development. Such an analytical framework could be used in the future to build on the

basis of an interdisciplinary research that would yield the models of successful public

administration in the context of energy transition and post-war recovery of Ukraine.

Literature review

The available scientific literature demonstrates increased importance of bioenergy as the

material component of the energy transition that guarantees decarbonization, energy

security and development of the region. European scientists focus on the connection

between the sustainability policy, bioeconomy, and the regulation of the bioenergy

management (Feindt et al., 2020; Buzogány et al., 2023; Proskurina & Vakkilainen,

2024; Taylor et al., 2024). They highlight the necessity to unite environmental

requirements and market tools to provide the successful elaboration of the sector within

the framework of the European Green Deal. The regulatory and institutional aspects of

governance are the subject of recent studies on alignment of national policies to EU

Directives (Vasyliev, 2024; Kramar, 2025; Christou et al., 2024; Dadi et al., 2025). Much

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

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Iaroslav Ianushevych, Oleg Hubanov

262

effort is devoted to the influence of the war in Ukraine on changing the energy policy and

shifting towards renewable sources of energy (Kurbatova et al., 2023; Ciot & Butișcă,

2025; Pimenow et al., 2025; Winkler et al., 2024). The articles have highlighted that

bioenergy is not only a part of environmental security, but also in economic recovery and

decentralization of energy provision. The connection between sustainable development

principles and environmental risk management is also critical to the governance of

bioenergy because the state policy development should address the ecological safety

principles in the context of large agricultural farms (Sumets et al., 2022). Another

important detail that researchers point to is the fact that the institutional basis of

sustainability-oriented energy management is the integration of economic and

environmental elements into the practicum of the public administration (Voronina et al.,

2024). Simultaneously, the emergence of bioenergy digital governance is also burdened

with a specific legal and informational security system that is a precondition of successful

coordination of actors of the state and the private sphere (Bondarenko et al., 2022).

Some of the authors examine the potential of biomass, biogas, and biofuels as

instruments of attaining sustainable development. The researchers add that the

effectiveness of the utilization of bioresources is conditional upon the combination of the

governance systems, technological advances, and financial opportunities (Guo et al.,

2025; Mensah et al., 2025; Sulis et al., 2025; Millinger et al., 2025). Comparative

evaluations on the EU level and the Ukrainian level indicate that the application of

European standards in the national policy needs more institutional coordination and

greater transparency of the sustainability certification processes (Filippova &

Stelmashenko, 2024; Vaskina et al., 2025; Strelkowski, 2025; Thomas, 2024). Scientists

are also interested in the international tendencies of bioenergy development involving

the integration of digitalization, efficiency in logistics, and intelligent governance.

Specifically, Baasch (2021), Balanay and Halog (2024), Daneshmandi et al. (2022)

incorporate bioenergy supply chain management models in the context of environmental

hazards, whereas Reid et al. (2020), Wu and Pfenninger (2022) examine the barriers in

introducing bioenergy to the country energy policy. Ukrainian research reveals that the

industry has a great potential to guarantee energy independence and minimize CO

emission under the conditions of regulatory stability and establishment of public-

corporate collaborations (Pryshliak et al., 2022; Kuzior et al., 2021; Filippova &

Stelmashenko, 2024; Pimenow et al., 2025).

More of the scientific literature discloses the significance of interdisciplinary approach to

the development of bioenergy that relies upon economic, environmental and social

management factors. Baasch (2021), Feindt et al. (2020), and Reid et al. (2020) highlight

that the development of bioenergy must be premised on the government regulation and

market incentives in the same proportion. The specific focus is given to the land use

conflicts and biomass in the climate policy context, which needs the creation of more

adaptable regulatory tools (Balanay and Halog, 2024; Wu & Pfenninger, 2022;

Daneshmandi et al., 2022; Sulis et al., 2025).

The necessity to introduce the digital technologies into the system of the bioenergy

industry public administration is also highlighted by the modern international analytical

reports. This will enable the optimization of the certification, emission control and

reporting processes on biomass sustainability (European Commission, 2023, 2025; EEA,

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

263

2025; Taylor et al., 2024). According to Thomas (2024), Strelkowski (2025), and

Kurbatova et al. (2023), digitalization helps in enhancing the efficiency of energy flow

management, development of transparent monitoring mechanisms, and investment

based on innovative financial instruments.

The articles by Vasyliev (2024), Filippo and Stelmashenko (2024), and Pimenow et al.

(2025) refer to the details of the legislative regulation and the impact of the state support

on the establishment of the sustainable bioenergy policy in Ukraine. The authors point

out that it is necessary to establish one coordinating body that would make sure that

there is a coherence between the national strategies and the local programs and the

European directives. Rather, Kramar (2025) and Vaskina et al. (2025) concentrate on

the technical and environmental features of biomethane and biogas development and

note the necessity to invest in the technologies of emission reduction and enhance the

performance of the agricultural raw materials processing. The issues of regional energy

security and decentralization of governance are addressed in Ciot and Butișcă (2025),

Kuzior et al. (2021), and Pryshliak et al. (2022), who emphasize the role of local

communities in the development of energy clusters and cooperatives. At the same time,

researchers Dadi et al. (2025), Mensah et al. (2025), and Millinger et al. (2025)

emphasize the global challenges of energy transformation, in particular the need to

harmonize international sustainability standards and to develop green justice policies for

developing countries.

Thus, the literature review confirms the high level of theoretical and practical

development of the topic, but a number of issues remain open. In particular, the

mechanisms for integrating digital tools into the public administration of bioenergy and

the issue of assessing the socio-economic efficiency of energy clusters in the context of

Ukraine’s post-war recovery remain underdeveloped.

Methods

The study was based on the analysis of statistical data obtained from publicly available

official international sources, including reports of the European Commission, European

Environment Agency (EEA), Eurostat, and analytical materials of EERA Bioenergy. To

achieve the study’s objective, the methods of comparative, analytical, economic and

statistical analysis were used to assess the dynamics of bioenergy development in

Ukraine and the European Union. Based on official statistics on the share of biomass in

the structure of renewable energy, growth rates of biofuel production, solid biomass

supply and agricultural biogas potential, generalized tables were constructed for further

interpretation of trends. A systematization method was used to compare national and

European indicators of bioenergy development, as well as a logical and analytical method

to identify patterns and managerial conclusions. Data were selected based on existing

open international reports and databases and this ensures that such data is reliable and

reproducible.

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

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Results

The existing situation in the development of bioenergy in Ukraine and the European Union

can be described as highly dynamic because of the increased interest of the world

community to the decarbonization of the economy, energy security, and the shift towards

alternative energy sources. In the EU, bioenergy is not considered to be one of the

components of energy transformation; however, its part in a wider bioeconomic approach

is that which combines industrial, agricultural, and environmental policies. Directive (EU)

2018/2001 on Renewable Energy Sources (RED II) provides strict requirements to the

growth of the biomass, biogas, and biofuels respectively in the consumption pattern,

predetermining the principles of sustainability and traceability of raw materials.

Specifically, mechanisms of institutional governance, specializing agencies, platforms and

alliances in the area of bioenergy, making scientific, business and popular policy converge

are actively being adjusted by European countries (Christou et al., 2024; Proskurina &

Vakkilainen, 2024).

The recent war in Ukraine also highlighted the relevance of bioenergy development after

the war, which caused massive losses to the energy infrastructure in Ukraine. Bioenergy

has emerged as a significant field in the realization of energy self-sufficiency particularly

in the rural population and areas that show biomass availability. Bioenergy is one of the

major carriers of decarbonization mentioned by the State Strategy of the Renewable

Energy Development till 2035, but the regulatory framework is in pieces. Several

governmental programs are oriented at the alignment of laws with the EU Directive,

however, the efficiency of the measures to promote the creation of the investment

climate by the government and investment is not high yet (Filippova & Stelmashenko,

2024; Vasyliev, 2024). The role of the international programs and donor organizations

in the development of the modern architecture of the public administration in this field is

important, as they provide financial support to the projects that are aimed at modernizing

the bioenergy facilities, implementing monitoring systems, and training the personnel.

Specifically, institutional cooperation between the state, local population, and companies

that enable the development of energy cooperatives and bioenergy clusters are of

significance. This practice creates a multi-level type of governance where coordination of

policy, accountability of decision-making and transparency of decision-making are central

elements (Kurbatova et al., 2023; Pimenow et al., 2025).

Ukraine is slowly being integrated into the common energy market in the European

dimension, where it is necessary to harmonize the structure of governance to the EU

standards and introduce the system of data-driven strategic planning and performance

indicators. The bureaucratic ability of the government in the bioenergy sector is an

important precondition of realizing long-term energy transformation schemes. The

quality of the public administration in the sector depends on the interaction of the

regulatory frameworks, incentives on investments and participation of the people.

According to contemporary researchers, it is only through a systematic approach, which

integrates a political will, scientific justification, and a transparent procedures bioenergy

will be a true driver of sustainable development (Buzogány et al., 2023; Dadi et al.,

2025). Consequently, the analysis indicates that Ukraine is at the phase of shaping its

model of the public administration in bioenergy sphere geared towards the European

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

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Iaroslav Ianushevych, Oleg Hubanov

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standards though it requires a greater support of the regulatory coherence, institutional

coordination and provision of resources to reach the strategic targets of the energy

transition.

The emergence of the state policy in the area of energy transition on the basis of

bioresources indicates the wishes of Ukraine to gain energy independence, but, at the

same time, to follow the principles of sustainable development and integration into the

European energy space. In the current context, the key guidelines for the development

of such a policy are the provisions of Directive (EU) 2018/2001 (RED II) and the updated

Directive (EU) 2023/2413 (RED III), which set higher targets for the share of renewable

energy sources, strengthen the requirements for the sustainability of biomass and

stimulate decentralized energy production from bioresources. The Ukrainian regulatory

framework is currently undergoing the process of harmonization with European norms,

but requires further systematization of state regulatory instruments that ensure the

balanced development of bioenergy (Vasyliev, 2024; Kramar, 2025; Proskurina &

Vakkilainen, 2024).

The essence of public policy is a combination of strategic planning, regulatory incentives,

financial support, and institutional coordination. It is important that the key areas are

formed taking into account the European experience, where the approach of “smart

governance” prevails – flexible and multi-level governance aimed at achieving

decarbonization goals and socio-economic effects for communities (Taylor et al., 2024;

Christou et al., 2024). In Ukraine, the emphasis is on creating legal conditions for the

development of biofuels, biogas, biomethane, and solid bioresources, but there are

barriers to investment, access to finance, and unregulated mechanisms for certifying the

sustainability of raw materials. To systematize the main directions of the state policy in

the field of energy transition based on bioresources, a generalized table has been

prepared (Table 1).

The systematization shows that Ukraine’s bioenergy policy is generally in line with

European directives in terms of strategic priorities, but retains a number of structural

gaps. The greatest efforts are required in the areas of sustainability certification,

emissions monitoring, and the development of effective investment incentives. At the

same time, there is a positive trend in regulatory adaptation in the area of biomethane,

decentralized governance, and community participation in local energy projects. This

shows that gradual institutionalization of public administration according to the standards

of EU is being carried out, which preconditions the inclusion of Ukraine into the single

energy space in Europe.

The development of bioenergy in Ukraine is conditioned by the institutional environment

determined by the multi-level system of the public administration which comprises of

government agencies, regional institutions, scientific institutions, business structures,

and public organizations.

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Table 1. Main directions of Ukraine’s state policy in the field of bioenergy and their coherence

with EU Directives

No.

State policy

direction

Main regulatory legal

acts of Ukraine

Relevant provisions

of EU Directives and

international

standards

Level of

consistency

Strategic planning of

bioenergy

development

Energy Strategy of Ukraine

until 2035; Concept of

Renewable Energy

Development (2020)

RED II, RED III –

Strategic goals to

increase the share of

bioenergy in the overall

energy balance

High

Regulatory and legal

framework for

biomass

sustainability

CMU Resolution No. 1002

(2021) “On Approval of the

Procedure for Determining

the Sustainability of

Biofuels”; Law “On

Alternative Energy

Sources”

RED II – biomass

sustainability criteria;

ISO 14064, 14067 –

carbon footprint

standards

Average

Financial

mechanisms and

investment support

Law “On the Electricity

Market”; State Strategy for

Attracting Investments in

RES (2022)

European Green Deal;

REPowerEU – incentives

for RES investors

Medium

Development of

biomethane

technologies

Law of Ukraine “On

Amendments to the

Development of

Biomethane Production”

(2023)

RED III – stimulation of

biomethane production

for gas networks

High

Institutional

coordination and

decentralization of

governance

Law on Local Self-

Government; ESCO

projects, regional energy

programs

RED II – support for

local energy initiatives

and energy

cooperatives

Medium

Sustainability

certification and

emissions

monitoring

CMU Resolution No. 227

(2022) on verification of

greenhouse gas emissions

RED III, ISO 14065,

LCA approaches –

mandatory

environmental reporting

Low

Scientific and

technical innovation

support for the

sector

State Strategy for

Innovative Development

(2021-2030); Horizon

Europe programs

EERA Bioenergy; SET-

Plan – R&D in the field

of bioenergy

Medium

Integration into the

European energy

area

EU-Ukraine Association

Agreement; National

Energy and Climate Plan

(NECP, under

development)

RED III, Fit for 55 –

integration of RES

markets,

decarbonization

commitments

High

Source: created by the author on the basis of (Vasyliev, 2024; Kramar, 2025; Christou et al.,

2024; Taylor et al., 2024; Proskurina & Vakkilainen, 2024; Pimenow et al., 2025)

The success of such environment is determined by the degree of interaction between the

two, openness in decisions making and mutualization of power and functions according

to the principles of energy security and sustainable development. European approach to

energy governance focuses on network coordination among the institutions, participation

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March 2026, pp. 258-276

Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

267

of local actors, and establishing cross-sectoral partnerships to provide the opportunity to

implement the overall bioenergy transition policy (Christou et al., 2024; Kurbatova et al.,

2023).

The institutional framework of bioenergy in Ukraine is undergoing some changes. The

main decision-making centers remain the Ministry of Energy, the Ministry of

Environmental Protection and Natural Resources, and the National Energy and Utilities

Regulatory Commission (NEURC). However, regional authorities, sustainable

development agencies, biofuel producers’ associations, public environmental

associations, and scientific institutions are also becoming increasingly important as

communication intermediaries between the state, business, and society. To visualize the

institutional environment and the interaction of key actors in bioenergy development, a

generalized structure is presented below (Table 2).

The interaction of public administration entities in the field of bioenergy has horizontal

and vertical dimensions. Horizontal interaction is realized through partnerships between

the state, business and civil society, which contributes to the formation of “energy

ecosystems” focused on local self-sufficiency and the development of innovative

technologies. Vertical interaction ensures coordination between central and regional

levels of government, directing efforts to achieve energy security, reduce dependence on

imported energy and create conditions for sustainable economic growth.

To conclude, the institutional environment of the bioenergy sector in Ukraine is in the

gradual process of transforming the administrative command setting to the networked

management one, which addresses the requirements of European good governance and

offers the principles of openness, responsibility, as well as cross-sectoral cooperation.

This preconditions the enhancement of the energy security of the country and its entry

into the European energy space.

Within the framework of the contemporary globalization issues – mainly war, energy

instability and climate crises, the emergence of bioenergy technologies is a strategic

move towards the economic sustainability and energy security. Bioenergy is not only an

alternative form of energy, it is also a systemic determinant of socio-economic

development because it can provide new labor markets, promote innovation in renewable

technologies, as well as ensure the decarbonization of industry and the agricultural

sector. Simultaneously, the level of the management decision efficiency in this respect is

considerably predetermined by the degree to which the public administration can find a

compromise between economic feasibility, environmental protection, and social equity

(Dadi et al., 2025; Mensah et al., 2025; Wu & Pfenninger, 2022).

The Ukrainian war has become a significant trigger of reviewing the energy policies: the

devastation of infrastructure, increased costs of standard resources, and the necessity of

a quick shift to the model of decentralized energy supply has become a reality that proves

the role of bioenergy as a survival tool, rather than a long-term modernization (Pimenow

et al., 2025; Kurbatova et al., 2023). Meanwhile, the obstacles are increasing, namely,

insufficient investment and inadequate logistics infrastructure. Under these conditions,

the evaluation of the economic, environmental and social impact of bioenergy

technologies acquires a systemic significance since it will be possible to modify the

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

in the Context of Global Transformations

Iaroslav Ianushevych, Oleg Hubanov

268

policies to the new realities of post-war recovery and the tendencies in the world

environment. Table 3 summarizes the relevant aspects.

Table 2. Main public administration entities in the field of bioenergy in Ukraine and areas of their

interaction

No.

Group of

institutions

Key actors

Main functions and

powers

Nature of

interaction with

other entities

Central executive

authorities

Ministry of Energy;

Ministry of

Environmental

Protection and Natural

Resources; Ministry of

Economy

Formation of the state

policy in the field of

bioenergy; development

of strategies, legislative

acts and support

programs

Coordination and

regulation of the

industry; interaction

with international

partners

Regulatory bodies

NEURC; State Agency

on Energy Efficiency

and Energy Saving of

Ukraine (SAEE)

Licensing of energy

production from

bioresources; tariff

policy; supervision of

compliance with technical

requirements and

standards

Cooperation with

producers, local

authorities, investors

Regional

authorities and

local governments

Regional and city

councils; regional

energy agencies

Development of local RES

programs, creation of

energy clusters, project

management at the

community level

Decentralized

coordination with

central authorities;

participation in EU

grant programs

Business and

private sector

Energy companies;

agricultural enterprises;

investors in biogas

plants and biomethane

projects

Implementation of

production facilities;

participation in public-

private partnerships;

technological innovations

Interaction with

regulators, financial

institutions, and

communities

Research and

educational

institutions

Institute of Renewable

Energy of the National

Academy of Sciences of

Ukraine; specialized

universities

Conducting research;

training of personnel;

development of biomass

processing technologies

Cooperation with

government, business

and international

research networks

Public and

international

organizations

Bioenergy Association

of Ukraine; Energy

Community Secretariat;

UNDP, USAID, GIZ

projects

Expert support,

popularization, policy

monitoring; attracting

international funding

Partnership in

strategy development

and preparation of

recommendations

Financial

institutions

EBRD, World Bank,

Energy Efficiency Fund

Provision of loans and

grants for the

development of bioenergy

facilities; support for

innovation

Cooperation with

government and

business through

sustainable financial

instruments

Source: created by the author based on (Filippova & Stelmashenko, 2024; Kurbatova et al.,

2023; Pimenow et al., 2025; Ciot & Butișcă, 2025; Christou et al., 2024)

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269

Table 3. Economic, environmental and social effects of bioenergy technologies implementation in

Ukraine in the context of global challenges

No.

Category of

effects

Main

manifestations

Potential

benefits

Main risks /

limitations

Management

implications

Economic

Increase in

production of

biofuels, biogas,

biomethane;

development of

local energy

enterprises

Reduction of

energy

imports;

creation of

jobs; increase

in tax

revenues

High initial

investment costs;

market instability;

currency risks

Need to stimulate

the private sector,

attract international

financing

Environmental

Reduction of CO₂

emissions;

utilization of

agricultural and

household waste;

reclamation of

degraded land

Reducing the

greenhouse

effect;

improving the

environment;

replacing fossil

fuels

High costs of

sustainability

certification; risk

of monocultures;

need to control

the balance of

ecosystems

Development of an

eco-audit system,

harmonization with

RED II / RED III, ISO

14064

Social

Creation of new

jobs in rural areas;

formation of

“green”

competencies;

increase of energy

autonomy of

communities

Development

of local

communities;

strengthening

of social

cohesion;

improvement

of quality of

life

Low level of public

awareness;

uneven access to

resources

Development of

training programs

and educational

initiatives

Impact of war

and energy

crises

Destruction of

infrastructure;

rising energy costs;

decreased energy

sustainability

Intensification

of energy

supply

decentralizatio

n processes;

attraction of

donor

reconstruction

programs

Supply chain

disruption;

equipment

shortages

Development of

crisis strategies;

state coordination of

energy recovery

Decarbonization

trends and

interna-tional

commitments

Harmonization with

the Paris

Agreement,

European Green

Deal, UN SDGs

Strengthening

international

cooperation;

access to

green financial

instruments

Mismatch between

ambitions and

available

resources

Need to integrate

energy,

environmental and

social policies

Source: created by the author on the basis of (Dadi et al., 2025; Mensah et al., 2025; Kurbatova

et al., 2023; Pimenow et al., 2025; Wu & Pfenninger, 2022; Guo et al., 2025)

The discussion of the above data indicates that the implementation of bioenergy

technologies is a multidimensional impact which transcends the energy policy. The

economic gains are reflected in the development of new market segments, the energy

balance diversification, and region competitiveness. The environmental impact is to

mitigate the anthropogenic impact, and this is aligned with global decarbonization

objectives, whereas the social impact is to generate more job opportunities and enhance

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

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Iaroslav Ianushevych, Oleg Hubanov

270

social resilience of the local communities. Nevertheless, these advantages can be

achieved only under the condition of the presence of a stable regulatory regime, efficient

financialization, and the all-encompassing administration of citizens. The bioenergy in

Ukraine, in this case, can be seen not only as a field of energy, but also as a significant

element of national security and national economic restoration after the war.

As Table 4 reveals, the proportion of bioenergy in the renewable energy of the EU and

biogas potential in Ukraine indicate the particular size of the sector.

Table 4. Key statistics on bioenergy in the EU and Ukraine

No.

Parameter

Year/period

Value

Share of biomass in renewable energy

(EU)

2021

59.00%

Share of renewable energy sources in

final energy consumption (EU)

2023

24.50%

Increase in primary supply of solid

biomass (EU) 2008 → 2021

2008: 3 336 811 TJ

→ 2021: 4 454 768

growth by +33.50

Agricultural biogas potential of Ukraine

estimate of ~ 15

438.75 million m³ of

biogas per year

equivalent to ~ 8,800.00

million m³ of biomethane

Source: created by the author on the basis of (European Commission, 2025; EEA, 2025; Vaskina

et al., 2025) according to the list of references

The table presents some of the most important statistical indicators that present how

bioenergy is important in the European Union as well as the future of biogas development

in Ukraine. The proportion of biomass in the renewable energy system of the EU is

approximately 59 percent that accentuates that it prevails over the other technologies.

In the EU, the overall renewable energy has reached 24.5% in 2023, which means the

slow shift of the energy mix towards renewable sources (EEA, 2025). During the period

2008–2021, the volume of primary supply of solid biomass in the EU increased from

3,336,811 TJ to 4,454,768 TJ, i.e. by 33.5%, which demonstrates a steady increase in

demand for bioenergy resources (European Commission, 2023).

In the case of Ukraine, the potential of agricultural biogas is estimated at approximately

15,438.75 million m 3/per year, which corresponds to approximately 8,800.00 million m

3/per year of biomethane. Such numbers suggest that the industry has big reserves to

be developed and that it can somewhat cover the energy import requirements of the

country (Vaskina et al., 2025). Considering such statistical data during the study will only

make it possible not only to quantify dynamics of bioenergy, but also to justify the

decisions taken by the management based on real indicators. On the one hand, it is

possible to specify the scale and structure of the market, and, on the other hand,

ambitions and restrictions on the situation in the national perspective.

In this way, the analytical component of the study is reinforced by the statistical

information of international sources proving that the concept of the public administration

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271

of the sphere of bioenergy must be founded on the combination of objective quantitative

characteristics and the strategic forecasting. In this way, the balanced policy of energy

transition can be considered, considering the objective trends in the development of

bioenergy in the EU and the internal potential of Ukraine (European Commission, 2023;

EEA, 2025; Vaskina et al., 2025).

The evolution of the bioenergy sector in Ukraine needs the complex model of the

population administration on the foundation of the combination of the regulatory,

institutional, and economic elements. The initial one ought to establish a consistent legal

environment that would bring predictability to the decision-making of the investors and

form a foundation of energy policy over the long run. The provisions of Directives (EU)

2018/2001 (RED II) and (EU) 2023/2413 (RED III) emphasizing the specifications of

biofuel certification protocols, bio-mass sustainability, and emission reduction

requirements should be recommended as the changes to the national regulatory

framework are necessary. The implementation of the integrated environmental

monitoring and reporting system according to ISO 14064 and ISO 14067 standards, that

will enhance the clarity of the regulatory process and make both national and European

control mechanisms harmonized, should also be mentioned (Kramar, 2025; Vasyliev,

2024). The condition behind the success of the reform is to enhance the institutional

ability of the government agencies, specifically the State Agency on Energy Efficiency

and the Ministry of Energy, through creating interagency coordination councils,

enhancing the digitalization of the management process and providing clear information

exchange between the state, business, and communities (Christou et al., 2024).

The second aspect that should be enhanced in the public administration is the

establishment of a desirable investment climate that can bring in the private capital and

foreign financial resources to execute the bio energy projects. It is already recommended

to establish a national program “Green Transition Investment Framework” which would

integrate a mix of public, as well as, private financial tools to develop the infrastructure

of biomethane, biogas and bio fuel. They should also pay special attention to the support

of the local communities with the help of soft loans, grants, and tax breaks on

decentralized energy initiatives that will add to the energy independence of the region

(Taylor et al., 2024; Pimenow et al., 2025). Ukraine needs to implement the mechanisms

of involvement in the Horizon Europe and the EERA Bioenergy programs as the part of

its integration into the European energy area to conduct the joint research, technological

advancement, and experience sharing. This coherence of regulations, institutional

coordination, and attractiveness to investment, such an integrated approach would be

able to guarantee not only the sustainable development of bioenergy, but also the

integration of Ukraine into a single energy architecture of the future in the entire

European space.

Discussion

The results indicate that the public administration in bioenergy sector in Ukraine is slowly

adopting a fragmented regulatory model towards a systemic policy that is geared towards

European standards of sustainable development. This corresponds to the results of

Christou et al. (2024), Proskurina and Vakkilainen (2024), and Taylor et al. (2024), who

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Institutional and Legal Support for State Management of the Bioenergy Sector’s Development

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Iaroslav Ianushevych, Oleg Hubanov

272

argue that institutional coherence and strategic planning can be considered as primary

factors of a well-developed energy system. Meanwhile, other authors, including Feindt et

al. (2020) and Baasch (2021), are of the opinion that over centralization of regulatory

processes may lower the flexibility of the energy policy, particularly during the crisis, as

they are in need of more involvement of the regional actors and a community in the

energy governance processes.

The outcomes of the current research prove that the Ukrainian model of governance is

being shifted towards decentralization, which supports the views of Kurbatova et al.

(2023) and Pimenow et al. (2025) regarding the significance of horizontal connection

between the state, business, and communities. Nonetheless, unlike Wu and Pfenninger

(2022), who claim that an institutional stability is a key factor in drawing investments,

the Ukrainian situation demonstrates that even during the period of regulatory instability,

projects have the opportunity to evolve in the form of versatile partnership and foreign

assistance. This implies that legal consistency is not the primary success factor per se,

but the degree of adaptive ability of management structures.

The problem of focusing on financial rewards instead of regulation is disputable. Dadi et

al. (2025) and Mensah et al. (2025) opine that bioenergy is developed as a result of

financial support and the investment mechanisms. But Vasyliev (2024), Filippova and

Stelmashenko (2024) point to the fact that, in the Ukrainian situation, the financial

incentive is not enough to guarantee the sustainability of the industry in the long term

without the regulatory stability. The findings of the given research prove that the synergy

of the two strategies – regulatory and investment – is a prerequisite of the sustainable

development of the bioenergy industry.

There are also considerable disparities in the ways of evaluating the impact of bioenergy

on the environment. Guo et al. (2025) and Sulis et al. (2025) argue that bioenergy

definitely contributes to CO₂ emission reductions, while Millinger et al. (2025), Balanay

and Halog (2024) draw attention to the risks of monoculture production and carbon

offsets that may reduce the real environmental effect. The results of the analysis in this

article show that the environmental efficiency of bioenergy in Ukraine depends on the

regional specificity of resources and the level of control over supply chains, which is

consistent with the findings of Kramar (2025) and Vaskina et al. (2025).

Thus, despite the diversity of approaches, most researchers agree that the future of

bioenergy will be determined by the quality of public administration, the effectiveness of

regulatory adaptation, and the involvement of civil society. To summarize, the results of

this study confirm the need for further research aimed at quantifying the effectiveness

of bioenergy projects in the post-war period and developing digital mechanisms for

monitoring sustainability within the public administration system.

Conclusions

The study has shown that the development of bioenergy in Ukraine is not only a

technological but also an institutional and political process that determines the directions

of energy security and post-war recovery of the state. The novelty of the obtained results

lies in the systematic substantiation of the relationship between regulatory

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Iaroslav Ianushevych, Oleg Hubanov

273

harmonization, institutional capacity and public administration in the field of bioenergy.

In contrast to previous approaches, the study proves that the effectiveness of reforms

depends not so much on the number of legislative acts as on the level of coordination

between government agencies, business, and local communities. The practical

significance is that the proposed analytical model can be used to formulate a policy of

“smart governance” and Ukraine’s integration into the European energy space. It has

been found that the main challenges remain the low level of digitalization of management

processes, the lack of investment mechanisms, and the inefficiency of the biomass

sustainability certification system. The weakness of this research is that it does not

provide an in-depth empirical data on the areas of Ukraine and this aspect makes it

impossible to compare regions in detail. It is recommended in the future to devise

quantitative models to determine the energy, environmental and social performance of

bioenergy projects, increase the database on the analysis of regional practices and

consider digital sustainability monitoring tools that can promote transparency and

accountability in energy management.

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OBSERVARE

Universidade Autónoma de Lisboa

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277

СONSTITUTIONAL EVOLUTION OF DEMOCRACY: A COMPARATIVE ANALYSIS

OF EUROPEAN AND UKRAINIAN LEGAL FRAMEWORKS

(18TH–20TH CENTURIES)

LESIA KHUDOIAR

hudoyar@ukr.net

PhD (Juridical Sci.), Senior Research Officer, Department of Historical and Legal Research

Koretsky Institute of State and Law of NAS of Ukraine Kyiv (Ukraine)

https://orcid.org/0000-0003-2386-1869

DENYS CHYZHOV

denys_chyzhov@ukr.net

Doctor of Law, Associate Professor of the Department of Constitutional Law Educational and

Scientific Institute of Law and Psychology of the National Academy of Internal Affairs Kyivz

(Ukraine) Leading Research Fellow of the Institute of State Building and Local Self Government of

the National Academy of Legal Sciences of Ukraine Kharkiv (Ukraine)

https://orcid.org/0000-0002-4843-0670

LARYSA POLIAKOVA

poliakovalarysa@mspu.edu.ua

PhD (Historical Sci.), Associate Professor of the Department of History and Archeology

Faculty of Social and Humanities and Law Bogdan Khmelnitsky Melitopol State Pedagogical

University Zaporizhia (Ukraine) https://orcid.org/0000-0002-8579-4377

HALYNA SENKIVSKA

galya_senk@ukr.net

PhD (Historical Sci.), Lecturer of the Department of History and Teaching Method

Faculty of Preschool and Elementary Education, History and Arts Kremenets Taras Shevchenko

Regional Academy of Humanities and Pedagogy Kremenets (Ukraine)

https://orcid.org/0000-0001-6360-9807

VIRA YAVIR

zhabchyk@gmail.com

Dr. (Pol. Sci.), Leading Researcher V.M. Koretsky Institute of State and Law of National Academy

of Sciences of Ukraine Kyiv, (Ukraine)

https://orcid.org/0000-0002-1854-5012

Abstract

The study of the development of democratic principles in the European constitutions of the

eighteenth century and their impact on the formation of Ukrainian constitutionalism is relevant

in analysing the historical and legal foundations of democracy. The Constitution of Pylyp Orlyk

deserves special attention as a unique document that integrates democratic ideas in the

context of the national liberation struggle. The aim of the study is to examine the impact of

European democratic principles on the formation of the legal culture of Ukraine. The research

methodology is based on historical, comparative, systematic, content analysis and

chronological methods. The study identifies the critical democratic principles enshrined in the

European constitutions of the eighteenth century, such as popular sovereignty, separation of

powers and guarantees of human rights, and their impact on Ukrainian legislation. The

analysis of the Constitution of Pylyp Orlyk shows its uniqueness as a document that combines

democratic ideas with traditional customary law. It is established that European constitutions

have influenced the formation of modern Ukrainian constitutionalism by integrating

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

Legal Frameworks (18th–20th Centuries)

Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

278

fundamental democratic values. The practical importance of the study lies in its potential to

inform and enhance the ongoing reform of the Ukrainian legal system, aligning it with

European standards and reinforcing the processes of democratic society in the present era.

Keywords

Democratic principles, European constitutions, the Constitution of Pylyp Orlyk,

constitutionalism, popular sovereignty.

Resumo

O estudo do desenvolvimento dos princípios democráticos nas constituições europeias do

século XVIII e o seu impacto na formação do constitucionalismo ucraniano é relevante para a

análise dos fundamentos históricos e jurídicos da democracia. A Constituição de Pylyp Orlyk

merece especial atenção como um documento único que integra ideias democráticas no

contexto da luta pela libertação nacional. O objetivo do estudo é examinar o impacto dos

princípios democráticos europeus na formação da cultura jurídica da Ucrânia. A metodologia

de investigação baseia-se em métodos históricos, comparativos, sistemáticos, de análise de

conteúdo e cronológicos. O estudo identifica os princípios democráticos críticos consagrados

nas constituições europeias do século XVIII, tais como a soberania popular, a separação de

poderes e as garantias dos direitos humanos, e o seu impacto na legislação ucraniana. A

análise da Constituição de Pylyp Orlyk mostra a sua singularidade como um documento que

combina ideias democráticas com o direito consuetudinário tradicional. Fica estabelecido que

as constituições europeias influenciaram a formação do constitucionalismo ucraniano

moderno, integrando valores democráticos fundamentais. A importância prática do estudo

reside no seu potencial para informar e melhorar a reforma em curso do sistema jurídico

ucraniano, alinhando-o com as normas europeias e reforçando os processos da sociedade

democrática na era atual.

Palavras-chave

Princípios democráticos, constituições europeias, Constituição de Pylyp Orlyk,

constitucionalismo, soberania popular.

How to cite this article

Khudoiar,Lesia, Chyzhov, Denys, Poliakova, Larysa, Senkivska, Halyna & Yavir, Vira (2026).

Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian Legal

Frameworks (18th–20th Centuries). Janus.net, e-journal of international relations. Thematic

Dossier - Rule of Law, Human Rights, and Institutional Transformation in Times of Global and

National Challenges, VOL. 16, Nº. 2, TD3, March 2026, pp. 277-297.

https://doi.org/10.26619/1647-7251.DT0226.15

Article submitted on 03 December 2025 and accepted for publication on 06 January

2026.

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

Legal Frameworks (18th–20th Centuries)

Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

279

CONSTITUTIONAL EVOLUTION OF DEMOCRACY: A COMPARATIVE

ANALYSIS OF EUROPEAN AND UKRAINIAN LEGAL FRAMEWORKS

(18TH–20TH CENTURIES)

LESIA KHUDOIAR

DENYS CHYZHOV

LARYSA POLIAKOVA

HALYNA SENKIVSKA

VIRA YAVIR

Introduction

One of the most serious problems of modern science that needs to be solved is the

problem of democratic development and the democratic embodiment of the principles in

the legal systems, particularly in historical approach. Modern democratic systems are

formed upon the basis of the European constitutions of the 18th century privying in

popular sovereignty, separation of powers and human rights (Bondarenko et al., 2022).

However, more detailed study is required of the impact of these constitutions in the

context of the national liberation struggle of Ukraine and specifically in the development

of democratic traditions in the country. A literature review reveals a lot of interest in this

area. Boyko (2020) stresses the uniqueness of Pylyp Orlyk’s Constitution and Berman

(2021) surveys the evolution of democracy in Western Europe. The role of functional

democracy in the interwar period in the work of Couperus (2019) and the historical

democratic traditions in Ukraine in Stechyshyn (2024) are highlighted. However, at the

same time, despite substantive work on the subject in Europe, there is not enough public

discussion or evidential work on the impact of European constitutions on the formation

of Ukraine’s legal culture, which nevertheless should be decisive. Several of these “spots”

have yet to be studied in detail. In particular, such analysis as a systematic one of the

adaptation of European democratic principles to Ukrainian realities and of their role in

shaping modern Ukrainian constitutionalism is absent. It is also necessary to take the

interdisciplinary approach to the problem, i.e. to unite historical, legal and socio-cultural

aspects of the problem.

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

Legal Frameworks (18th–20th Centuries)

Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

280

What follows is a study of the impact of eighteenth century European constitutions on

the development of democratic principles in Ukraine and their adaptation in the context

of the national liberation struggle, and the shaping of the modern legal system generally.

The tasks of the study are as follows:

· to explain what were the fundamental democratic principles of the European

constitutions of the eighteenth century; assess the influence of these principles

on the development of Ukrainian constitutionalism. eighteenth century;

· to study the impact of these principles on the formation of Ukrainian

constitutionalism;

· to identify the uniqueness of the adaptation of democratic values in Ukraine;

· to analyse the current challenges of implementing democratic norms in the legal

system of Ukraine.

The aim of this study is to deepen our knowledge of the historical and constitutional legal

bases of democracy and its application to the contemporary constitutionalisation of

Ukraine.

Analysis of the latest research and publications

Modern research focuses on the evolution of democratic principles in the constitutions of

Europe and Ukraine. Boiko (2020), Krysachenko (2023), Couperus (2019), Nazarov and

Derkach (2023) cover various aspects of the development of democracy and its

legislative support. Buhaienko (2024), Berman (2021), Stechyshyn (2024), and

Kyrychenko and Kyrychenko (2021) provide a comparative analysis of constitutional

development and its social impact. Khaustova (2022), Gouvea and Branco (2023), and

Simons (2024) analyse the latest challenges to democracy, including the role of e-

governance, international organisations and the impact of the pandemic. Sanford (2002),

Martyn et al. (2016), and Dauchy et al. (2016) examine the historical impact of legal

texts and constitutional traditions on the formation of modern democratic systems.

Christensen et al. (2024) focus on conceptualising democracy in different socio-cultural

contexts, including Ukraine, Norway, and Palestine. Medvedska (2020) and Yakovlev et

al. (2022) analyse the development of deliberative democracy and economic democracy,

emphasising the role of the middle class. Kyrychenko and Kyrychenko (2021),

Kobyletskyi and Paslavska (2023), and Gorenko et al. (2023) examine the historical and

legal aspects of equal rights and the impact of Ukrainians on the cultural and educational

space of Europe. Markhgeym et al. (2019) highlight the humanitarian context of the

principles of justice in the constitutions of Eastern Europe.

Van der Straaten (2022) examines legal identity in the context of democracy in Northern

Europe, while Novák (2024) analyses Aristotle's theoretical ideas on democracy and

oligarchy. Gouvêa and Castelo Branco (2023) discuss constitutional processes involving

the UN, highlighting their contribution to democracy. Simons (2024) examines the

politicisation of law and science in Europe during the pandemic, while Stechyshyn (2024)

focuses on the historical traditions of democracy in Ukraine. Studies by authors such as

Berman (2021) and Couperus (2019) trace the transition to democracy in different

regions of Europe. In general, the analysis of sources shows that modern research covers

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

Legal Frameworks (18th–20th Centuries)

Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

281

both historical and contemporary aspects of democracy development, demonstrating the

complexity and multifaceted nature of this process. This approach allows for a deeper

understanding of the evolution of democratic principles and their adaptation in modern

Ukraine.

Previous studies have insufficiently covered the practical mechanisms for implementing

the democratic principles enshrined in the European constitutions of the eighteenth

century in Ukraine's modern legal system. There is also a lack of analysis of the impact

of these constitutions on the formation of Ukrainian identity in the context of the national

liberation struggle.

Research Methods

In the course of the study, a set of methods providing an objective and systematic

analysis of the development of democracy principles in the constitutions of Europe and

Ukraine of the XVIII-XX centuries was used:

1. Historical and comparative method was applied to analyse the evolution of democratic

principles in European constitutions and their impact on the formation of Ukrainian

constitutionalism. This method allowed to identify common features and differences

between European and Ukrainian constitutional traditions.

2. Constitutions were studied as holistic legal documents integrating political, social and

economic aspects of democracy using systemic approach.

3. The method of analysis and synthesis was utilied to summarise historical data, identify

the key principles of democracy and their impact on the formation of the legal system of

Ukraine.

4. Comparative method of law was used in analysing the constitutions of European

countries of various epochs with the Constitution of Ukraine, and thus identifying

originalities of the Ukrainian attitude towards integration of democratic values.

5. The chronological method was used to assume the structuring of the material

depending on the history stages of democracy in its implementation and the

constitutional norms during given historical periods.

6. To identify the main democratic values contained in constitutions, legislative acts and

scientific publications, we have used content analysis.

7. The data were obtained and the conclusions were formulated according to the method

of logical generalisation based on them and to interpret in the context of the research

problem.

Application of these methods allowed to undertake a comprehensive analysis of the

influence of European constitutional traditions in the formation of democratic principles

in Ukraine in the historical, legal and socio-political context.

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

Legal Frameworks (18th–20th Centuries)

Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

282

Research Results

The eighteenth century was a period of significant transformation in the political

structures of numerous European nations. Traditional monarchical forms of governance

gave way to a new conceptualisation of the role of citizens in public administration.

However, the modern democracy, whose formation was based on Enlightenment ideas

which encouraged respect for reason and freedom, equality and justice for all men, was

created in the course of this century. The concepts of popular sovereignty, the separation

of powers and the protection of human rights were introduced into the political culture of

the European states, thereby influencing the way in which public administration was

understood. These models were employed to delineate the principles that were emerging,

as evidenced by the US Constitution of 1787 and the French Constitution of 1791. In

addition, these documents have served as a primary source of inspiration for the

establishment of legal systems that are founded upon the principles of the rule of law

and citizen involvement in governance processes.

The constitutions of the eighteenth century in Europe laid the foundation for democratic

transformations by introducing the principles of popular sovereignty, separation of

powers and guarantees of civil rights. They became a key benchmark for further

developing democratic systems in the nineteenth and twentieth centuries, including the

formation of the Ukrainian constitutional tradition.

The Constitution of Pylyp Orlyk, adopted in 1710, is one of the world's first written acts

that systematically enshrined democratic values and principles of government. This

document became an important milestone in the history of Ukrainian state-building and

entered the treasury of world constitutional thought. The Constitution was written in the

circumstances of the Ukrainian Cossacks’ fight for their autonomy within the Polish

Lithuanian Commonwealth and Muscovite states. In exile Hetman Pylyp Orlyk tried to

outline road map to restore Ukrainian state independence and its democratic

development (Boiko, 2020).

Orlyk's constitution envisaged the following critical democratic values:

• Separation of powers. For that time, the document gave a clear separation of

hetman, legislative and judicial branches of government. This principle was a form of the

modern principle of separation of powers.

• People's sovereignty. Power within the state consisted in the power of the people,

and the hetman was obliged to do that which did him no displeasure, by consent of the

officers and representatives. The way it was done was progressive, just ahead of its time.

• Rights and freedoms that are guaranteed. The Constitution guaranteed the rights

of the Cossacks and the population of Hetmanate and condemned any forms of

arbitrariness of Hetman, or other representatives.

Unlike European eighteenth century constitutions, Orlyk's Constitution was based on

national liberation. It combined democratic principles with traditional customary law,

reflecting the desire to restore Ukrainian autonomy within a democratic state. Although

the Constitution of Pylyp Orlyk was never put into practice due to historical

circumstances, it became an essential source of inspiration for subsequent generations

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of Ukrainian politicians and lawyers. It was the first to lay down the foundations of a state

system that aligned with democratic ideals.

Figure 1. Democratic principles in the constitutions of Europe in the eighteenth century

Source: compiled by the author based on research data (Boiko, 2020; Couperus, 2019; Berman,

2021) and analysis of democratic processes (Gorenko et al., 2023; Stechyshyn, 2024;

Kyrychenko & Kyrychenko, 2021).

The Constitution of Pylyp Orlyk of 1710 was an outstanding phenomenon in the history

of legal thought. It laid down the fundamental principles of democratic governance that

influenced the further development of Ukrainian constitutionalism. Its values and ideals

remain relevant in the modern understanding of democracy.

European constitutions have also significantly impacted the development of democratic

processes in Ukraine, especially during the periods of national statehood and adaptation

to European standards. Since the eighteenth century, the ideas and practices of European

constitutionalism have contributed to the gradual introduction of democratic principles

into Ukraine's legal system (Table 1).

Influence of Enlightenment ideas on constitution-

making

•Popular sovereignty, the separation of powers, equality before

the law and individual rights also held by such thinkers as

John Locke, Charles-Louis de Montesquieu and Jean-Jacques

Rousseau, were also important. About many constitutions of

that time (Dauchy et al., 2016), their theoretical base was

Montesquieu’s separation of powers.

The first written constitution in Europe

•The first European written constitution was the Constitution of

3 May 1791, adopted in the Polish-Lithuanian Commonwealth.

It laid down the principles of hereditary monarchy, separation

of powers, and guarantees of citizens' rights, which was a

revolutionary step for its time (Couperus, 2019). Although the

Constitution did not last long due to political circumstances, it

had a significant impact on the further development of

constitutional law in Europe.

The development of democratic principles in

France

•The French Revolution (1789-1799) gave rise to the

revolutionary French Constitution of 1791, which proclaimed

the sovereignty of the people, established a constitutional

monarchy and guaranteed civil rights. Although this document

had its shortcomings, its democratic principles influenced the

formation of constitutional systems in other European

countries (Kobyletskyi & Paslavska, 2023).

Comparison with other countries

•Compared to the UK, which already had a well-established

democratic tradition, the formalisation of these principles in

the form of written constitutions was a new phenomenon in

continental Europe. In the UK, the main democratic

institutions existed in the form of case law and parliamentary

tradition (Simons, 2024).

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Table 1. The impact of European constitutions on democratic processes in Ukraine

Period

European Constitution

Impact on Ukraine

XVIII century

Constitution of 3 May 1791

(Polish-Lithuanian

Commonwealth)

It laid down the principles of separation of

powers, hereditary monarchy and civil rights,

which influenced the development of democracy

in Ukraine.

The end of the

eighteenth century

The Constitution of France

of 1791

The ideas of people's sovereignty and equality

before the law inspired Ukrainian thinkers and

politicians, including the Constitution of Pylyp

Orlyk.

The Soviet period

(1917-1991)

European democratic

models

Formal consolidation of democratic norms (voting

rights, declarations of rights), which were not

actually implemented due to the totalitarian

system.

Independence of

Ukraine

(since 1991)

Constitutions of Western

European countries

(France, Germany)

The principles of the rule of law, human rights,

the separation of powers and popular sovereignty

are integrated into the 1996 Constitution of

Ukraine.

Source: compiled by the author on the basis of research data (Krysachenko, 2023; Buhaienko,

2024; Couperus, 2019) and analysis of constitutional principles (Nazarov & Derkach,

2023; Kyrychenko & Kyrychenko, 2021; Markhgeym et al., 2019).

The constitutions of the Ukrainian SSR adopted between 1919 and 1991 reflected

changes in the political life of the Soviet Union, while remaining controlled by party

ideology. They formally enshrined democratic principles, but due to the totalitarian

regime, real democracy was absent. The main characteristics of the constitutions of the

Ukrainian SSR of this period are their declarative nature and their compliance with the

interests of the Communist Party.

The first Constitution of the Ukrainian SSR of 1919 was adopted in the context of the

establishment of Soviet power. Its main characteristics:

- The principle of the dictatorship of the proletariat. The constitution enshrined the power

of the working class and peasantry, exercised through councils controlled by the

Communist Party. Political multiparty system was eliminated.

- Restrictions on civil rights. Citizens' rights and freedoms depended on their loyalty to

the Soviet government. For example, the deprivation of voting rights affected

representatives of the "non-labour" classes (entrepreneurs, clergy).

- Centralisation of power. The republic was effectively subordinated to the central

authorities of the Soviet Union, which limited the autonomy of the Ukrainian SSR.

The Constitution of the Ukrainian SSR of 1937 was adopted during the period of Stalin's

repression and officially affirmed the "democratic" principles of the socialist state:

- Formal equality of citizens. The Constitution proclaimed the equality of all citizens before

the law, regardless of gender, nationality or social status. However, this provision was

not implemented due to massive repression and political control.

- The principles of "people's democracy". The document declared freedom of speech,

press, assembly and rallies, which were effectively controlled by the party.

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- The leading role of the party. The CPSU's monopoly on power was legally enshrined,

making democratic pluralism impossible.

- Restriction of political rights. The elections were held on a first-past-the-post basis,

where voters could only elect candidates nominated by the Communist Party.

The Constitution of the Ukrainian SSR of 1978, the last Soviet Constitution, reflected the

ideas of "developed socialism":

- Declarative democratic rights. The rights to participate in elections, freedom of speech,

press, assembly and demonstration were enshrined. All these rights were limited by state

control.

- The right to vote. The constitution declared universal suffrage, but elections remained

a formality, as the list of candidates was approved by party bodies.

- Economic and social policy. Equal access to education, medicine, and culture was

proclaimed. However, state control over all spheres of life reduced these rights to

declarations.

- Control over the government. The constitution formally enshrined the separation of

functions between the branches of government, but all of them were effectively

dependent on the Communist Party.

The main drawback of all Soviet constitutions was the lack of natural mechanisms to

ensure democracy, as their provisions were mostly declarative and not implemented in

practice. Despite the formal enshrining of citizens' rights and freedoms, such as freedom

of speech, press, assembly, and participation in elections, these rights were limited by

the strict political control of the party. The political and legal control of the Communist

Party over all institutions precluded the independence of the branches of government,

creating a monopoly on decision-making and implementation of state policy. Elections

proclaimed general and equal became a formality, as voters could not choose between

natural alternatives due to the lack of political pluralism. The judiciary, which was

supposed to be independent, was controlled by party organs, undermining the rule of

law. Thus, the Soviet constitutions enshrined only the appearance of democratic norms,

using them to legitimise the totalitarian regime and suppress political opposition. This

resulted in the absence of any conditions for the development of genuine democracy and

limited the ability of the people to influence political processes.

The influence of Soviet ideology on the legal regulation of democracy is presented in

Table 2.This table demonstrates the systemic influence of Soviet ideology on the

constitutional development of the Ukrainian SSR, where formal democratic principles

were merely declarations that served the interests of the totalitarian regime.

European constitutions are traditionally considered to be a model of democratic

governance and legal regulation. The 1996 Constitution of Ukraine, as part of the post-

Soviet space, adopted many of the key principles of European constitutionalism, such as

the rule of law, separation of powers, protection of human rights and popular sovereignty.

At the same time, there are peculiarities that distinguish the Ukrainian constitutional

experience from its European counterparts.

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Constitutional Evolution of Democracy: A Comparative Analysis of European and Ukrainian

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Lesia Khudoiar, Denys Chyzhov, Larysa Poliakova, Halyna Senkivska, Vira Yavir

286

Table 2. The influence of Soviet ideology on the legal regulation of democracy

Period

Basic principles of

the Constitution of

the Ukrainian SSR

Manifestations of the

influence of Soviet

ideology

Restrictions on

democracy

1919

The dictatorship of the

proletariat.

Power concentrated in party-

controlled councils;

disenfranchisement of "non-

labour" classes.

Lack of multi-party system,

freedom of speech and

independent courts.

1937

The supremacy of the

Communist Party, the

proclamation of equality

of citizens.

Declarative nature of rights;

political control over citizens;

repression of "enemies of the

people".

The Communist Party's

monopoly on power, formal

elections with no alternative,

suppression of press and

assembly freedoms.

1978

Developed socialism,

the right to vote,

freedom of speech and

assembly.

Elections without alternative

candidates; all media under

state control.

Political rights were only

formally enshrined; citizens'

rights were regulated in

accordance with party

decisions.

1980s

The beginning of

perestroika: criticism of

totalitarianism.

Some attempts to introduce

real changes in the areas of

freedom of speech and

political competition.

Lack of real mechanisms to

ensure democratic

transformation.

Source: compiled by the author on the basis of research data (Christensen et al., 2024;

Khaustova, 2022; Simons, 2024) and analysis of democratic norms (Berman,

2021; Couperus, 2019; Boiko, 2020).

While the 1996 Constitution of Ukraine shows a relatively high degree of compliance with

European standards of democracy, at the same time maintaining its own identity.

Ukrainian and European constitutions alike share basic democratic principles, such as

popular sovereignty, the rule of law and separation of powers. However, it is also not

easy for Ukraine to put these principles into practice, and in particular in constitutional

oversight, human rights protection, and decentralisation. Further reform of the legal

system and strengthening of the political culture will be needed for these areas to

progress. While the 1996 Constitution of Ukraine shows a relatively high degree of

compliance with European standards of democracy, at the same time maintaining its own

identity. Ukrainian and European constitutions alike share basic democratic principles,

such as popular sovereignty, the rule of law and separation of powers. However, it is also

not easy for Ukraine to put these principles into practice, and in particular in constitutional

oversight, human rights protection, and decentralisation. Further reform of the legal

system and strengthening of the political culture will be needed for these areas to

progress.

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287

Table 3. Comparative analysis of the Constitution of Ukraine of 1996 and European constitutions

Criterion

Constitution of

Ukraine (1996)

European

constitutions

Comparison and features

People's

sovereignty

The people are the

sole source of

power (Article 5).

It is proclaimed in most

European constitutions

(France, Germany,

Italy).

The principle is implemented

through elections,

referendums and

representative bodies.

Rule of law

The Constitution

has supreme legal

force (Article 8).

It is enshrined in the

constitutions of

Germany, France, and

Spain.

Ukraine has integrated this

principle into its legal

system, but the practice of

its implementation is still

evolving.

Distribution of

power

The legislature,

executive and

judiciary are

independent (Article

6).

The principle of

separation of powers is

implemented in most

European countries.

In Ukraine, mutual control

mechanisms have not yet

reached the level of stability

of European democracies.

Protection of

human rights

Title II guarantees a

wide range of rights

and freedoms.

European constitutions

often include references

to the European

Convention on Human

Rights.

The Constitution of Ukraine

provides for similar rights,

but the practice of protecting

them needs to be improved.

Multi-party

system

The right to form

parties and public

organisations is

guaranteed.

European countries (e.g.

France, Italy) actively

support political

pluralism.

Multiparty system in Ukraine

still has shortcomings due to

the low level of political

culture.

Decentralisation

Recognition of local

self-government

(Article 7).

European constitutions

(Spain and Germany)

enshrine regional

autonomy.

Ukraine's decentralisation

process continues, and

significant progress has been

made in strengthening the

role of local communities.

Voting rights

Universal suffrage

for citizens.

Most European countries

have similar provisions.

According to the

organisation's standards,

Ukrainian elections are in line

with democratic principles,

but there are questions about

transparency.

Constitutional

control

The Constitutional

Court of Ukraine

ensures the

compliance of laws

with the

Constitution.

In Europe (e.g.

Germany), there are

developed mechanisms

of constitutional control.

The Ukrainian system is not

yet effective enough due to

political influence.

Integration of

international law

International

treaties are part of

the national legal

system (Article 9).

Many European

countries (France,

Germany) also have this

provision.

Ukraine is actively adapting

its national legislation to

international standards,

especially in the context of

European integration.

Language

The state language

is Ukrainian (Article

10).

In some countries

(Switzerland, Belgium),

several official languages

are recognised.

The Ukrainian Constitution

emphasises the unitary

nature of the language,

which reflects national

identity.

Source: compiled by the author based on constitutional amendments (Kyrychenko & Kyrychenko,

2021; Gorenko et al., 2023; Buhaienko, 2024) and a review of historical traditions

(Stechyshyn, 2024; Medvedska, 2020; Berman, 2021).

The Constitution of Ukraine of 1996 was important in the creation of a democratic society

and asceticism of the rule of law, democracy and protection of citizens' rights and

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288

freedoms. It is important because it has not only turned into a legal document, but also

a symbol of the democratic change in Ukraine. Among the main accomplishments of the

Constitution is the embedding of a wide variety of rights and freedoms in Chapter II. This

section contains:

• Civil rights: of personal integrity, freedom of thought and speech, the right to life.

• Political rights: functions on the ability to vote in elections, to join political parties

as well as the right to hold peaceful assembly.

• Social rights: work, social protection, education, medical care.

International human rights standards including the European Convention on Human

Rights, these provisions are consistent with. The Constitution has established people’s

sovereignty enshrined by Article 5 of the Constitution, so the citizen is sovereignsthe

citizen can change the government through his elections and his referendums. The

participation of citizens in this principle must be an important element of local self

government.

The Constitution of Ukraine enshrines the rule of law as a fundamental principle of

governance (Article 8). The aforementioned principles are enshrined in the law and form

the basis for all legal operations, including those conducted by state authorities. In this

context, the Constitutional Court of Ukraine bears a particular responsibility for

determining which laws are in compliance with the Constitution.

The Constitution allows for multi-party system and freedom of political activity (Article

36), rendering the process of political pluralism more complete and democratic political

culture rising. The provision is meant to reduce the level of competition in the political

process and to lay the basis for open decision making. A key part was development of

democracy at the regional level, which included consolidation of local self-government

(Article 7). It gave additional powers to Territorial communities in dealing with local

problems and with citizens’ initiative. The development of the legal framework was

created for Ukraine as a result of their responding to the demand about the need of

Ukraine to enter into European community, this was done with the adoption of the 1996

Constitution. Passage seals the primacy of international law (Article 9), and means that

Ukraine enters the world of democracy, rule of law and human rights in the European

way.

The Constitution of Ukraine, enacted in 1996, has become a cornerstone of the country's

democratic system of governance. The formal enshrinement of democratic principles is

of significant importance, as is the establishment of measures to ensure their effective

implementation. Nevertheless, numerous challenges have emerged in relation to

attempts to restrict legal reform and the persisting low levels of political instability.

However, the Constitution retains its paramount importance for the protection of

democracy, human rights and the rule of law in Ukraine.

A review of the Ukrainian experience, the development of democracy in Ukraine, and the

constitutions of Europe reveals that constitutionalism has been shaped by the European

democratic tradition since the time of Pylyp Orlyk's Constitution. The constitutions of the

18th and 20th centuries in Europe served as a model for the establishment of the rule of

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Legal Frameworks (18th–20th Centuries)

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289

law in Ukraine. The most significant factor in the democratisation of society was the

Constitution of Ukraine, adopted in 1996. This document introduced a number of key

principles, including popular sovereignty, the rule of law and the protection of human

rights. Nevertheless, the practical implementation of these principles is contingent upon

further reform of the legal system.

Discussion

The findings confirm that the European constitutions of the eighteenth century

significantly shaped democratic principles in Ukraine, which is in line with the results

drawn by Boiko (2020) and Kyrychenko (2023). For instance, Pylyp Orlyk's constitution

was one of the first and the most democratic, integrating popular sovereignty and a

separation of powers ahead of its time. These provisions have a European

constitutionalism component, which shows their common source of democratic thinking.

The research findings demonstrate, at the same time, the originality of the Ukrainian

tradition of combining democratic ideas with customary law. It contrasts with Western

European models, where the codification process was more centralised (Berman, 2021;

Couperus, 2019). Such a national liberation war of the Ukrainian people makes it evident

that democratic values in the country were shaped by such a war, according to Nazarov

and Derkach (2023).

The principle of democratic ideology is similar, but its application in Ukraine is minimal.

Elsewhere in post-totalitarian countries (Kyrychenko & Kyrychenko, 2021), this

contradiction between progressive norms in constitutions and their implementation has

been observed. For instance, the 1937 Constitution of the Ukrainian SSR enshrine in its

constitution the rights of citizens, yet the totalitarian system makes it virtually impossible

to exercise these rights. Provisions similar to these existed elsewhere in Soviet republics,

where guarantees were only on paper (Markhgeym et al., 2019). Additionally, the results

also offer further research. In particular, the effects of the European democratic traditions

on modern Ukrainian constitutionalism may provide insights into suitable adaptation of

the European experience to the Ukrainian conditions. Furthermore, the study of the

practical implementation of democratic principles within the modern context of

decentralisation and European integration should be well-engaged.

In general, the results achieved are consistent with earlier research. However, as

explained below, they also portray some new aspects of the historical and legal history

of democracy development in Ukraine. In confirmation of the research hypothesis, this

thesis further confirms the central role of European constitutions in developing

democratic traditions in Ukraine. However, an in-depth study of the tasks and

opportunities of constructing a democratic society in contemporary Ukraine is still

required.

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290

Conclusion

The study revealed a significant influence of the European constitutions of the eighteenth

century on the formation of democratic principles in Ukraine, mainly through adapting

the ideas of popular sovereignty, separation of powers and protection of human rights.

The uniqueness of the Constitution of Pylyp Orlyk lies in its integration of democratic

values with traditional customary law, which became the basis for the formation of

national identity even in the context of the national liberation struggle. The analysis

showed that despite the formal enshrinement of democratic principles in the Soviet

constitutions, their practical implementation was limited due to ideological control. The

1996 Constitution of Ukraine demonstrates significant progress in implementing

democratic standards, enshrining the principles of the rule of law, popular sovereignty

and decentralisation, which align with European traditions. At the same time,

implementing these principles effectively depends on further improving the legal system,

political culture and constitutional oversight mechanisms.

Prospects for further research include analysing the current challenges in Ukraine's

democratic development, particularly in European integration processes, and adapting

successful democratisation practices of other countries to the national context.

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Transformation in Times of Global and National Challenges

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OBSERVARE

Universidade Autónoma de Lisboa

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Thematic Dossier

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March 2026

293

THE IMPORTANCE OF CRITICAL INFRASTRUCTURE FOR NATIONAL SECURITY:

LEGAL ASPECTS, RISK MODELS AND MECHANISMS OF STATE MANAGEMENT OF

SECURITY

SERHII BIELAI

belwz3@ukr.net

Doctor of Science in Public Administration, Professor Deputy Head of the Educational and

Scientific Center for the Organization of the Educational Process Head of the Scientific and

Methodological Department, National Academy of the National Guard of Ukraine

Kharkiv (Ukraine) https://orcid.org/0000-0002-0841-9522

OLEKSANDR PIVNENKO

halk.enemigo@gmail.com

National Guard of Ukraine Commander Main Headquarters of the National Guard of Ukraine

Kyiv (Ukraine) https://orcid.org/0009-0009-3528-609X

VADYM YEVSIEIEV

ua117@ukr.net

PhD in Military Sciences, Associate Professor, Head of the Center Retraining and Advanced

Training Center, National Academy of the National Guard of Ukraine

Kharkiv (Ukraine) https://orcid.org/0000-0002-0164-2991

VADYM HLADKOV

vadimgs1806@gmail.com

First Deputy (Chief of Staff) of the Commander of the National Guard of Ukraine, Main

Headquarters of the National Guard of Ukraine

Kyiv (Ukraine) https://orcid.org/0009-0001-3705-1974

IVAN LAVROV

johnapleased417@gmail.com

Postgraduate and Doctoral Studies, National Academy of the National Guard of Ukraine

Kharkiv (Ukraine) https://orcid.org/0009-0005-0706-3711

Abstract

In Ukraine, where the war creates additional challenges, the rapid restoration and adaptation

of critical infrastructure form the basis of the national security field. Between February 2022

and the end of 2023, more than 1,200 major cyberattacks were recorded in Ukraine,

approximately 40% of which were directed against energy and communication systems, and

the damage from missile and drone strikes on infrastructure exceeded $137 billion. The

purpose of this article is to analyze the functionality of legal support critical infrastructure in

the national security system in the current context of military challenges. The study examines

the structure of legal aspects, support critical infrastructure and its place in the overall security

system of the state. Various risk assessment methods are analyzed, such as system models,

multi-level models, and cybernetic models, which help predict possible crisis situations and

plan measures to prevent or mitigate damage. It is argued that resilience can be enhanced

through digital technologies, cybersecurity measures, legal reforms, and better coordination

between public and private organizations. The prospects for optimizing the state of critical

infrastructure in Ukraine are considered, including diversification of supply, modernization of

the energy system, improvement of legislation in accordance with European requirements,

and improvement of the investment climate. A generalized author’s model for managing the

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The Importance of Critical Infrastructure for National Security Risk Models and Mechanisms of

State Management of Security

Serhii Bielai, Oleksandr Pivnenko, Vadym Yevsieiev, Vadym Hladkov, Ivan Lavrov

294

resilience of critical infrastructure in Ukraine during times of increased risk of war is proposed.

The study emphasizes the importance of the legal aspects resilience of critical infrastructure,

its ability to recover quickly, and highlights the role of cooperation between the public and

private sectors.

Keywords

Critical infrastructure, national security, risks, resilience, international experience, legal

aspects.

Resumo

Na Ucrânia, onde a guerra cria desafios adicionais, a rápida restauração e adaptação de

infraestruturas críticas constituem a base do domínio da segurança nacional. Entre fevereiro

de 2022 e o final de 2023, foram registados mais de 1200 ciberataques de grande dimensão

na Ucrânia, dos quais aproximadamente 40% foram dirigidos contra sistemas energéticos e

de comunicação, e os danos causados por ataques com mísseis e drones às infraestruturas

excederam os 137 mil milhões de dólares. O objetivo deste artigo é analisar a funcionalidade

do apoio jurídico às infraestruturas críticas no sistema de segurança nacional no contexto

atual de desafios militares. O estudo examina a estrutura dos aspetos jurídicos, o apoio às

infraestruturas críticas e o seu lugar no sistema geral de segurança do Estado. São analisados

vários métodos de avaliação de riscos, tais como modelos de sistema, modelos multiníveis e

modelos cibernéticos, que ajudam a prever possíveis situações de crise e a planear medidas

para prevenir ou mitigar danos. Argumenta-se que a resiliência pode ser reforçada através de

tecnologias digitais, medidas de cibersegurança, reformas jurídicas e uma melhor

coordenação entre organizações públicas e privadas. São consideradas as perspetivas de

otimização do estado das infraestruturas críticas na Ucrânia, incluindo a diversificação do

abastecimento, a modernização do sistema energético, a melhoria da legislação em

conformidade com os requisitos europeus e a melhoria do clima de investimento. É proposto

um modelo generalizado do autor para gerir a resiliência das infraestruturas críticas na

Ucrânia em tempos de risco acrescido de guerra. O estudo enfatiza a importância dos aspetos

jurídicos da resiliência das infraestruturas críticas, a sua capacidade de recuperação rápida e

destaca o papel da cooperação entre os setores público e privado.

Palavras-chave

Infraestruturas críticas, segurança nacional, riscos, resiliência, experiência internacional,

aspetos jurídicos.

How to cite this article

Bielai, Serhii Pivnenko, Oleksandr, Yevsieiev, Vadym, Hladkov, Vadym & Lavrov, Ivan (2026). The

Importance of Critical Infrastructure for National Security Risk Models and Mechanisms of State

Management of Security. Janus.net, e-journal of international relations. Thematic Dossier - Rule of

Law, Human Rights, and Institutional Transformation in Times of Global and National Challenges,

VOL. 16, Nº. 2, TD3, March 2026, pp. 293-314. https://doi.org/10.26619/1647-7251.DT0226.16

Article submitted on 23 November 2025 and accepted for publication on 08 January

2026.

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The Importance of Critical Infrastructure for National Security Risk Models and Mechanisms of

State Management of Security

Serhii Bielai, Oleksandr Pivnenko, Vadym Yevsieiev, Vadym Hladkov, Ivan Lavrov

295

THE IMPORTANCE OF CRITICAL INFRASTRUCTURE FOR

NATIONAL SECURITY RISK MODELS AND MECHANISMS OF STATE

MANAGEMENT OF SECURITY

SERHII BIELAI

OLEKSANDR PIVNENKO

VADYM YEVSIEIEV

VADYM HLADKOV

IVAN LAVROV

Introduction

Critical infrastructure, which includes energy, transportation, financial, information and

communication systems, directly affects national security, as its failure or destruction

can lead to serious consequences that threaten the sovereignty, territorial integrity and

functioning of the state. The destruction of critical infrastructure causes uneven economic

development, regional imbalance, outflow of financial and intellectual capital, growing

social polarization, slowdown in innovation and investment, and increased environmental

problems.

During the war in Ukraine, the risks of damage to critical infrastructure facilities are

becoming alarming. According to the Business Ombudsman Council, more than 700

critical infrastructure facilities were damaged in 2022 alone. The government of Ukraine,

together with the World Bank Group, the European Commission and the United Nations,

published a report on an updated joint assessment of the damage and needs resulting

from the large-scale invasion of Russia – Rapid Damage and Needs Assessment, RDNA3

(World Bank Group, 2024). The RDNA3 assessment covers the damage caused during

the almost two-year period from the moment of Russia’s full-scale invasion of Ukraine

on February 24, 2022, to December 31, 2023. According to the report, direct losses in

Ukraine have so far reached nearly $152 billion, with housing, transportation, trade and

industry, energy, and agriculture identified as the most affected sectors. The destruction

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The Importance of Critical Infrastructure for National Security Risk Models and Mechanisms of

State Management of Security

Serhii Bielai, Oleksandr Pivnenko, Vadym Yevsieiev, Vadym Hladkov, Ivan Lavrov

296

of the Kakhovka hydroelectric dam in June 2023 led to catastrophic environmental

consequences and exacerbated social problems.

Such challenges create a need for new approaches to legal support for public

administration in the security sector, which must take into account the complex nature

of threats to critical infrastructure and the need for rapid response. The aim of this work

is to analyze the functionality of the legal aspects of critical infrastructure support in the

national security system and to propose the author's concept for the formation of

effective mechanisms for its protection in the conditions of martial law in Ukraine.

Literature Review

Scientists Obi et al. (2024), Ingvarson and Hassel (2023), as a result of their research

on the multifactorial impact of critical infrastructure on the state of national security,

identified the main vectors of such impact: resilience to threats (cyberattacks, physical

destruction); recovery capacity; economic consequences (losses from damage to

infrastructure and a long interruption in its functioning); societal life; defense capability

dynamics; state stability, trust in the government and prevention of social conflicts. The

researchers emphasize that it is important to take into account the cascading effect of

threats, when the failure of one element affects the entire security system.

Lubis et al. (2025) explored the possibilities of quantifying the impact of critical

infrastructure on national security and identified the main aspects of measurement,

including quantifying damage and financial losses, vulnerability analysis (assessing the

weaknesses of critical infrastructure that could potentially be affected), monitoring the

functioning of systems to identify failures and their causes, and modeling the potential

consequences of threats to critical infrastructure.

A number of scholars, in particular, Jada and Mayayise (2024), Saeed et al. (2023),

emphasize the need to raise awareness of public sector employees about information

security standards to prevent the risks of damage to critical infrastructure: ensuring the

uninterrupted operation of facilities, preventing unauthorized interference, predicting

crisis situations and preventing their negative impact. Furthermore, the scientists argue

for the need to establish cooperation between the public sector, the public and business

in the context of common interests in combating cyber threats, emphasizing the need for

interagency coordination and public-private partnerships to improve system reliability.

Kalapodis et al. (2025) promote innovative IDS systems for detecting attack traffic,

arguing that if more protection resources are invested in critical infrastructure, the ability

to resist intrusions can be significantly higher.

Erbas et al. (2024), Paravantis and Kontoulis (2020), studying models for assessing risks

and levels of impact on national security, concluded that the most effective assessment

models for determining the likelihood of hazards and potential consequences (losses)

from the realization of risks are statistical methods, expert assessments, simulation

modeling, decision tree, sensitivity analysis, scenario analysis, as well as calculation and

analytical and similar methods.

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The Importance of Critical Infrastructure for National Security Risk Models and Mechanisms of

State Management of Security

Serhii Bielai, Oleksandr Pivnenko, Vadym Yevsieiev, Vadym Hladkov, Ivan Lavrov

297

The publications of Eusgeld et al. (2011), Große (2021), Li et al. (2022) are considered

relevant, where it is established that the protection of critical infrastructure includes

activities to identify, prevent and neutralize threats, as well as minimize and eliminate

the consequences of their implementation. The authors outline the boundaries of

stakeholder responsibility in this context: the state determines the national policy in the

field, forms legislative requirements and coordinates the work of the national critical

infrastructure protection system; at the same time, owners (operators) are responsible

for ensuring an adequate level of security of facilities, developing and implementing

protection measures, as well as cyber defense.

Dimitropoulos (2020), Rass et al. (2020) proposed a number of methods for modeling

security threats based on risk forecasting. The main approaches to threat modeling are

as follows: threat modeling frameworks (e.g., TRIKE), including structured analysis and

documentation of threats; analysis of risks and vulnerabilities, followed by an assessment

of their consequences; prioritization of preventive countermeasures; development of a

potential breach model to study and predict behavior, potential motives and methods of

attacks.

Despite the significant scientific developments, the issue of rethinking the role of critical

infrastructure in the national security system in wartime requires expanded research and

the development of effective protection mechanisms.

Methodology

To achieve the stated research objective, a comprehensive methodological framework

combining general scientific, special legal, and interdisciplinary methods was applied.

This approach ensured a systematic and multifaceted analysis of the legal, organizational,

and risk-related aspects of critical infrastructure protection within the national security

system of Ukraine under wartime conditions.

The analytical method was used to systematize existing scientific approaches,

international standards, and doctrinal positions concerning the role of critical

infrastructure in ensuring national security. This method made it possible to identify key

legal categories, regulatory gaps, and structural weaknesses in the current system of

state management of critical infrastructure security.

The systemic and structural-functional methods were applied to examine critical

infrastructure as an integrated element of the national security system, characterized by

interdependence between energy, transport, communication, digital, and defense-related

sectors. These methods allowed for the identification of functional links between legal

regulation, institutional mechanisms, and practical security measures.

The comparative legal method was used to analyze Ukrainian legislation in the field of

critical infrastructure protection in comparison with European Union legal acts, NATO

resilience standards, and international best practices. This enabled the assessment of the

level of harmonization of national legislation with European requirements and the

identification of priority directions for legal adaptation.

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298

The modeling method played a key role in assessing potential crisis scenarios and risks

to critical infrastructure. System models, multi-level risk models, and cybernetic models

were applied to simulate the impact of military, cyber, and hybrid threats, as well as to

evaluate the resilience and recovery capacity of infrastructure systems under conditions

of large-scale disruption.

The risk assessment and scenario analysis methods were employed to classify threats,

determine their probability and potential consequences, and evaluate vulnerability levels

across different infrastructure sectors. These methods supported the development of

preventive and mitigation strategies aimed at enhancing infrastructure resilience.

The methods of synthesis and logical generalization were used to formulate an author’s

conceptual model of state management of critical infrastructure resilience during periods

of heightened military risk. This model integrates legal regulation, cybersecurity

measures, institutional coordination, and public–private partnership mechanisms.

In addition, content analysis of legal acts, strategic documents, and policy papers was

conducted to identify prevailing regulatory approaches and emerging trends in critical

infrastructure protection.

The limitations of the study are related to the restricted availability of classified data, the

complexity of empirical verification of security models under wartime conditions, and

potential regional bias due to uneven levels of infrastructure damage and restoration.

Nevertheless, the applied methodological toolkit provides a sufficient basis for

substantiated conclusions and practical recommendations aimed at strengthening the

legal and institutional framework for critical infrastructure protection in Ukraine.

Results

Critical infrastructure is defined as a set of facilities, systems, and networks whose

disruption has a significant impact on the security and stability of the state. It includes

the energy sector, transportation systems, information and communication technologies,

financial sector, and healthcare. In the scientific literature, the concept of “critical

infrastructure” is interpreted as a multi-level system with a high degree of

interdependence.

The full-scale war has shown the vulnerability of Ukraine’s critical infrastructure and its

direct impact on the overall security context on a national scale. From February 2022 to

the end of 2023 alone, more than 63 thousand energy facilities were damaged, with total

direct losses in the energy sector estimated at USD 8.8 billion. In the transport sector,

more than 23.5 thousand kilometers of roads and more than 340 bridges were destroyed;

in the healthcare sector, more than 1.5 thousand institutions were affected, 204 of which

were completely destroyed; in cyberspace, more than 4.3 thousand incidents were

recorded in 2024 alone (State Statistics Service of Ukraine, 2024). As of 2025, the

intensity of threats to critical infrastructure continues to grow, with hybrid attacks

affecting various areas gaining particular popularity (Figure 1) (Ilyenko et al., 2025).

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299

Figure 1. National security and critical infrastructure

Source: (Ilyenko et al., 2025)

Each element of the national security system performs a unique function, and the

vulnerability of one segment can create a cascading effect (Novotny & Janosikova, 2020;

Roshanaei, 2021). At the same time, cyberspace risks are of particular importance, along

with other categories of critical infrastructure risks (Figure 2).

Figure 2. Risks of Critical Infrastructure

Source: created by the author based on Tzavara and Vassiliadis (2024)

National Security

Energy

Healthcare

Water Supply

Finance

Transport

IT/

Communication

Social

risks

Critical Infrastructure

Cyber

risks

Military

risks

Natural

risks

Technological

risks

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The information in Figure 2 emphasizes the multidimensional nature of the risks of critical

infrastructure destruction and highlights the urgent need to improve mechanisms for its

protection, as economic stability, defense capability, and the level of social stability are

largely determined by the security of the critical infrastructure system (Yefimenko et al.,

2023; Tzavara & Vassiliadis, 2024). For example, in the European Union, critical

infrastructure is defined in accordance with Directive 2008/114/EC, which emphasizes

the transnational nature of threats, and NATO pays considerable attention to cyber

defense and common approaches to ensuring the resilience of member states

(Abgarowicz et al., 2014). Israel has strong cyber defenses and centralized threat

management, while Canada focuses on inter-agency coordination and working with

private companies. In all countries, an integrated approach that combines legal,

organizational, and technological mechanisms is important (Grigalashvili & Abiashvili,

2021). Studying these practices allows us to adapt them to national conditions and form

a more effective protection system in Ukraine.

Military security processes are regulated in accordance with the Constitution of Ukraine,

the Laws of Ukraine “On National Security of Ukraine,” “On the National Security and

Defense Council of Ukraine,” “On Defense of Ukraine,” “On Intelligence,” “On the

Principles of Domestic and Foreign Policy,” “On the Armed Forces of Ukraine,” as well as

the Decrees of the President of Ukraine “On Issues of the National Security and Defense

Council of Ukraine,” “On the Decision of the National Security and Defense Council of

Ukraine of September 14, 2020, ”On the National Security Strategy of Ukraine,“ ”On the

Decision of the National Security and Defense Council of Ukraine of March 25, 2021, “On

the Military Security Strategy of Ukraine,” “On the Decision of the National Security and

Defense Council of Ukraine of August 20, 2021 ”On the Strategic Defense Bulletin of

Ukraine“ and Resolutions of the Cabinet of Ministers of Ukraine ”On Approval of the

Regulations on the Ministry of Defense of Ukraine,“ ”On Approval of the Procedure for

Conducting a Defense Review of the Ministry of Defense”.

As for Ukraine, the state policy in this area is aimed at predicting threats, preventing

crises, reducing risks, and ensuring rapid restoration of facilities in the event of attacks

or accidents. Ukraine’s regulatory framework defines the legal basis for the protection of

critical infrastructure. It includes laws, government regulations and strategic documents

in the field of national security. The requirements of international standards and EU

directives are partially implemented. There are gaps in the harmonization of legislation

with international norms. The need to modernize the legal framework is a key factor in

improving the effectiveness of system protection (Herasymenko & Siryi, 2025).

Critical infrastructure is managed by institutions and organizations. Institutions include

central bodies and committees. Financial mechanisms include public funding for

protection measures and incentives for private investment. Legal mechanisms regulate

liability and control over compliance with security standards. The joint application of

these mechanisms allows for the integration of resources and optimization of

management processes (Demirel et al., 2022).

Risks to critical infrastructure are multifactorial in nature and are classified by source.

Natural risks include natural disasters, climate change, and epidemics. Technological

risks include accidents at industrial enterprises, transportation, and the energy sector.

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Social risks are associated with mass protests, terrorist attacks, and other forms of social

destabilization (Ivaniuta et al., 2024). Cyber threats are particularly dangerous because

they disrupt digital systems and can paralyze infrastructure networks. Military risks

become crucial in the context of hostilities and hybrid aggression. Risk classification

allows to systematize threats and develop a comprehensive strategy to prevent them

(Table 1).

Table 1. Classification of critical infrastructure risks

Type of risk

Examples of threats

Potential consequences

Natural

Floods, earthquakes, epidemics

Destruction of facilities, disruption

of vital services

Technological

Industrial accidents, transportation

disasters, power outages

Economic losses, environmental

pollution, human casualties

Social

Mass protests, terrorist attacks, social

destabilization

Threat to the security of citizens,

destabilization of state institutions

Cybernetic

Hacker attacks, cyber espionage,

blocking of digital networks

Paralysis of infrastructure systems,

data leakage, destabilization of

information

Military

Missile and drone attacks, hybrid

aggression, sabotage

Destruction of infrastructure,

reduction of defense capabilities,

large-scale crises

Source: compiled by the author

Table 2. Models of critical infrastructure risk analysis

Model

Characteristics

Advantages

Limitations

Systemic

Considers infrastructure as

a single interconnected

system

Allows to assess

cascading effects

Difficult to apply in

practice

Multi-level

Analyzes risks at the

facility, regional and

national levels

Provides a detailed

assessment of threats

at different levels

Requires a large

amount of data

Cybersecurity

Focuses on information

flows and system

management

Takes into account

digital technologies and

cybersecurity

Limited to non-digital

threats

Source: compiled by the author

Risk analysis models are an important tool for threat forecasting and defense planning.

The cyber model is based on the view of infrastructure as a complex control system

where information exchange plays a key role. The system model analyzes the

interdependence of all elements and their vulnerability to external influences. The multi-

level model involves risk assessment at different levels, from an individual facility to the

national system. Such approaches allow identifying both direct and indirect consequences

of potential threats (Cherdantseva et al., 2016). The use of models contributes to the

development of effective risk management mechanisms and enhanced infrastructure

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resilience. The choice of a particular model depends on the specifics of the sector and the

nature of potential risks (Table 2).

The development of critical infrastructure crises has different scenarios depending on the

scale and nature of the threats. One scenario involves a localized disruption of a single

facility with limited impact. Another scenario involves the cascading spread of the crisis

to other infrastructure sectors (Heino et al., 2019). A systemic scenario is particularly

dangerous when several sectors are disrupted simultaneously. In such circumstances,

the state faces the risk of paralyzing key governance and life support functions. The

consequences of crisis scenarios include economic losses, social instability, and reduced

defense capabilities. The analysis of possible scenarios allows predicting risks and

formulating preventive response measures (Krylova & Hlushchenko, 2025).

The digitalization of critical infrastructure increases the efficiency of management and

control by providing prompt data collection on the state of systems and possible threats.

Monitoring helps to detect and respond to problems in a timely manner, and the use of

digital tools increases the resilience of systems and reduces the cascading effects of

failures. Thus, digitalization, monitoring, and cybersecurity form the basis of modern

critical infrastructure risk management (Lubis et al., 2025).

Modern risk management systems are focused not only on preventing threats, but also

on ensuring rapid recovery. The concept of resilience implies the ability of critical

infrastructure to withstand and adapt to crisis impacts. It includes preventive measures,

monitoring, crisis response, and recovery from incidents. The key principle is an

integrated approach that covers organizational, technological and legal levels. The ISO

22301 and NIST standards governing business continuity management are important for

implementing this concept. The use of resilience models minimizes cascading effects and

increases the reliability of systems (Rehak et al., 2025).

Critical infrastructure protection is impossible without the interaction of the state and

business. Most infrastructure facilities are owned by private operators, which increases

the importance of partnership models. Public-private partnerships involve joint

responsibility for risk management and implementation of security measures. It is

important to exchange information between the entities, including data on threats and

incidents. Such interaction increases the effectiveness of response and optimizes the use

of resources. Examples of partnership initiatives demonstrate the interest of business in

ensuring resilience (Ampratwum et al., 2022).

The full-scale war has created unprecedented threats to Ukraine’s critical infrastructure.

Massive missile and drone strikes have targeted energy, transportation, and

communications. Systematic attacks lead to disruptions in the operation of infrastructure

networks and a decrease in the level of life support for the population. The war increases

the vulnerability of cyberspace as digital systems become targets of cyberattacks. A

particular challenge is the cascading nature of threats, when damage to one sector leads

to disruption of other sectors. At the same time, there is a growing need to quickly restore

destroyed facilities and ensure their resilience. Thus, the war is shaping a new reality in

which the protection of critical infrastructure is a priority for the state (Ivaniuta et al.,

2024).

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Ukraine declares its desire to harmonize its infrastructure protection system with

European and international standards. However, the implementation process faces a

number of challenges. The regulatory framework is fragmented and needs to be updated

in line with EU and NATO requirements, and government agencies do not have sufficient

resources to fully manage risks. Insufficient funding limits infrastructure modernization

and cyber defense, making it difficult to implement international approaches.

The main task of creating a comprehensive strategy for the protection of critical

infrastructure should be to strengthen coordination between government agencies and

the private sector to implement modern resilience standards, create a national cyber

defense system, and train specialists (Adegbite et al., 2023).

The energy infrastructure is currently one of the most affected sectors, in particular in

terms of the amount of damage caused. In general, the destruction of critical energy,

industrial and civilian infrastructure has led to increased security risks, slower

investment, and slower socioeconomic development. As of 2024, the amount of direct

losses caused by the destruction of infrastructure during the full-scale invasion of Ukraine

by Russia between February 2022 and the end of 2023 exceeded 137 billion USD (Figure

3).

Figure 3. Direct losses from the destruction of infrastructure in Ukraine during the full-scale war

of the Russian Federation, billion USD February 2022 – end of 2023

Source: systematized on the basis of the State Statistics Service of Ukraine (2024)

As Figure 3 shows, industrial, energy, and civilian infrastructure suffered the greatest

destruction. This situation requires significant financial injections, periodic transfers, and

the implementation of a strategy to increase the resilience of energy security.

Ukraine has significant potential in the development of renewable energy, which can

strengthen the resilience of energy infrastructure. In order to ensure the fastest possible

3,1

4,5

8,6

2,6

13,1

36,8

58,9

0, 15, 30, 45, 60, 75,

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balanced development of the industry, Ukraine should deepen the processes of

diversification and deregulation, and create conditions for prompt investment. Today, the

crisis conditions of the war are causing a slowdown in the industry’s development (Figure

4).

Figure 4. Development of renewable energy in Ukraine, MW

Source: compiled by the author based on NKREKP (2024)

As shown in Figure 4, the full-scale war has made adjustments to the strategy of resource

use in the energy sector, as a significant number of alternative energy facilities were

destroyed and damaged in the first year of active hostilities.

In order to regenerate critical infrastructure and increase its resilience in wartime crisis

conditions, government institutions should implement effective investment development

mechanisms, including: war risk insurance for investment projects in priority sectors;

interest-free lending for projects to regenerate destroyed or damaged infrastructure;

support for industrial and infrastructure investment projects; development of

international partnerships; financial incentives for the transfer of green technologies,

etc. In particular, the development of a network of industrial parks is positioned as an

innovative solution for the rapid restoration of destroyed critical infrastructure, which will

contribute to sustainable regional development. This approach will allow for the relocation

of production, increase local budgetary injections, and optimize the investment climate.

It is also important to further develop the processes of decentralization and deregulation,

and to introduce priority models of public-private cooperation.

In addition to the above, it is necessary to use digital technologies and innovative

opportunities for data openness, transparency of decision-making procedures for critical

infrastructure and control over their implementation, and the implementation of the

2500

5000

7500

10000

2018 2019 2020 2021 2022 2023 2024

2100

6930

8450

9820

5650

4100

3970

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necessary corrective action. This approach will ensure high rates of post-war

infrastructure regeneration (Figure 5).

Figure 5. Critical Infrastructure Resilience Management Model

Source: Author’s elaboration

Critical infrastructure

Controlling the impact

of internal factors

Analytics, artificial

intelligence

Controlling the impact of

external factors

Strategy and objectives

Political factors

Technological

development

International support of

the environment

Strategic

planning for

sustainability

development

Socio-economic factors

Management system

Development of long-term and

short-term plans

Regulatory and legal

support

Formation of a system of target

indicators

Progress of technology

and science

Management tactics

The concept of

sustainability:

-Normative and

institutional support

-Innovative solutions

- Partnership of

stakeholders: state,

public and business

Digital optimization

Blockchain technologies and big

data analysis

Artificial intelligence

Monitoring and evaluation

of the performance of the

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Analyzing Figure 5, it is necessary to note the importance of integrating digital potential,

as electronic information systems allow for the rapid collection and consolidation of

necessary data, making informed and reasonable decisions, monitoring and controlling

performance. The proposed concept will help to increase the resilience of critical

infrastructure, optimize coordination of actions, and strengthen the national security

system as a whole.

The events related to the occupation of Crimea and parts of Donetsk and Luhansk regions

by the Russian Federation in 2014 prompted the improvement of legal regulation in the

field of national critical infrastructure protection in Ukraine. In response to the political

situation that developed in late 2014 and early 2015, on January 27, 2016, the President

of Ukraine signed a decree enacting the decision of the National Security and Defense

Council of Ukraine “On the Cybersecurity Strategy of Ukraine.” This document effectively

marked the beginning of the formation of legal regulation for the protection of critical

infrastructure. The implementation of Ukraine's Cybersecurity Strategy required a

number of changes to national legislation to provide a basis for the implementation of its

provisions and to increase liability for offences in the field of cybersecurity.

In particular, Resolution No. 563 of the Cabinet of Ministers of Ukraine dated August 23,

2016, approved and enacted the Procedure for forming a list of information and

telecommunications systems of critical infrastructure facilities of the state, which for the

first time provided an official definition of the concept of “critical infrastructure” as a set

of state infrastructure facilities that are most important for the economy and industry,

the functioning of society and the safety of the population, and whose failure or

destruction could affect national security and defense, the natural environment, and lead

to significant financial losses and human casualties.

In order to implement appropriate measures at the national, sectoral, and regional levels

regarding legal and organizational-methodological support, coordination, and

consolidated provision of resources for security systems, the Cabinet of Ministers of

Ukraine, in accordance with the Decision of the National Security and Defense Council of

Ukraine dated December 29, 2016 “On improving measures to protect critical

infrastructure facilities,” developed the Concept for the creation of a state system for the

protection of critical infrastructure in Ukraine, which was put into effect by Order of the

Cabinet of Ministers of Ukraine No. 1009-r of December 6, 2017.

In particular, the Concept outlines the main problems in the field of building a state

system for the protection of critical infrastructure:

- insufficiency and inconsistency of regulatory and legal regulation in Ukraine for the

protection of critical infrastructure systems and facilities;

- uncertainty regarding the functions, powers, and responsibilities of central executive

bodies and other bodies in the field of critical infrastructure protection, as well as the

rights, obligations, and responsibilities of owners and operators of critical infrastructure

facilities;

- absence of a state body at the national level responsible for coordinating actions in

the field of critical infrastructure protection, existing state protection systems, and

crisis response;

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- absence of a unified methodology for assessing threats and risks to critical

infrastructure, preventing their realization, and responding to threats;

- underdeveloped public-private partnerships and uncertainty regarding sources of

funding for critical infrastructure protection measures;

- lack of uniform criteria and methodology for classifying infrastructure facilities as

critical infrastructure, and for their certification and categorization;

- insufficient level of international cooperation in this area.

In addition, during this period, important legislative and regulatory acts were adopted,

aimed at improving the national security and defense system, in particular, the Law of

Ukraine “On the Basic Principles of Ensuring Cybersecurity of Ukraine” and a number of

sector-specific regulatory acts:

- Procedure for forming a list of information and telecommunications systems of critical

infrastructure facilities of the state;

- Resolution of the Cabinet of Ministers of Ukraine No. 519 of 19.06.2019 “On Approval

of General Requirements for Cyber Protection of Critical Infrastructure Facilities”;

- Resolution of the Cabinet of Ministers of Ukraine No. 943 of October 9, 2020, “Certain

Issues of Critical Information Infrastructure Facilities”;

- Resolution of the Cabinet of Ministers of Ukraine No. 1176 dated November 11, 2020,

“On Approval of the Procedure for Reviewing the State of Cyber Protection of Critical

Infrastructure, State Information Resources, and Information, the Protection of Which

is Required by Law”;

- Resolution of the Board of the National Bank of Ukraine No. 151 dated November 30,

2020, “On Approval of the Regulations on the Identification of Critical Infrastructure

Objects in the Banking System of Ukraine”;

- Resolution of the Cabinet of Ministers of Ukraine No. 1295 dated December 23, 2020,

“Certain Issues of Ensuring the Functioning of the System for Identifying Vulnerabilities

and Responding to Cyber Incidents and Cyber Attacks”;

- Resolution of the Cabinet of Ministers of Ukraine No. 519 dated June 19, 2019, “On

Approval of General Requirements for Cyber Protection of Critical Infrastructure

Objects”;

- Resolution of the Cabinet of Ministers of Ukraine No. 1109 dated October 9, 2020,

“Certain Issues of Critical Information Infrastructure Facilities”;

- Resolution of the Cabinet of Ministers of Ukraine No. 1426 dated December 29, 2021,

“On Approval of the Regulations on the Organizational and Technical Model of Cyber

Protection.”

The concept of “critical infrastructure facility” first appeared in the Law of Ukraine “On

the Basic Principles of Ensuring Cyber Security of Ukraine,” but the subject of its

regulation is, to a large extent, highly specialized.

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308

With the start of Russia's full-scale invasion of Ukraine, the process of developing a

national CII protection system has accelerated significantly. During this period, the main

legislative act regulating this activity was enacted – Law of Ukraine No. 1882-IX of

November 16, 2021, “On Critical Infrastructure,” which came into force only on June 15,

2022. With the adoption of this law, the organizational structure of the CII protection

system was outlined at the legislative level; the mechanism for forming the composition

of CII was defined by regulation, which created the legal basis for the proper organization

of CII and its protection.

The European Union's Global Strategy on Foreign and Security Policy, adopted in 2016,

determines the EU's activities in the context of addressing energy security, hybrid

transnational threats, migration, and climate change. Among its strategic priorities, the

Strategy highlights an integrated approach to crisis management, enhancing the region's

defense capabilities, ensuring stability, and developing international cooperation. The

Strategy defines the key principles of the EU's positioning in the international arena,

namely, upholding the rules of the global order and promoting peace. Ukraine has the

potential to be a guarantor of stability in the European region. With active support from

the EU and the US, it will be able to realize its own regional ambitions and implement

systemic reforms at the state level. At the same time, the process requires adequate

security guarantees, which must be formed within the framework of a single effective

national security concept.

Discussion

The results show that critical infrastructure is a system of interconnected elements. This

is in line with international studies that emphasize the growing role of digital security

(Almahmoud et al., 2025). The risk analysis models proposed by the authors

demonstrate different levels of effectiveness: the systemic approach allows for the

interdependence of sectors, the multi-level model provides details at the facility, regional,

and national levels, and the cyber model reveals the role of information flows in system

stability. Comparing the findings of scientists with the results of the current study proves

the need for a comprehensive combination of approaches.

The effectiveness of practical tools, such as risk and resilience management, is proved

by Mitra et al. (2024). In the context of Ukraine, their implementation is hampered by

insufficient funding and weak coordination. Public-private partnerships are promising, but

need to be strengthened. At the same time, international experience shows that an

integration approach provides the highest protection efficiency.

The results of Khrapkina and Metelenko (2025) show the potential for developing the

system based on modern risk management models. At the same time, the Ukrainian

context requires the adaptation of international standards and the rapid restoration of

facilities and their resilience. Obviously, regulatory shortcomings and institutional

constraints hinder progress.

In the scientific discourse, the issue of damage to critical infrastructure in wartime has

been addressed in publications by Guarini et al. (2021), De Rosa and et al. (2022). In

particular, the authors emphasize the scale of Russian attacks on critical infrastructure,

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309

including energy and healthcare systems, and conclude that the main risks point to the

need to strengthen resilience for uninterrupted operation. At the same time, Gunawan

and Pane (2024) analyze the problem in the context of legal protection, institutional

support for assessing damages from the party responsible for the destruction of

infrastructure, as well as international guarantees in this regard.

The research of Pacek and Pacek (2023), Gunawan and Pane (2024), Alcaraz and

Zeadally (2015) correlates with the results of the current article on the importance of

supporting investment regeneration projects and creating security guarantees for critical

infrastructure as a basis for socio-economic development.

Thus, the study confirms the strategic role of legal aspects critical infrastructure in the

national security system. At the same time, it reveals a gap between international

practices and Ukrainian reality. Further research should focus on developing flexible

coordination and financing mechanisms.

Conclusions

Critical infrastructure is a key element of national security, ensuring the stability of

society and the functioning of state institutions. The analysis of the theoretical and

methodological foundations of legal support for the industry has shown that critical

infrastructure is a multi-level system with interdependent components. International

experience confirms the importance of a comprehensive approach to its protection and

implementation of resilience standards.

The study of risks has shown that they are multidimensional and include natural, man-

made, social, cyber and military threats. The use of risk analysis models makes it possible

to predict consequences and develop preventive measures. Crisis scenarios demonstrate

the state’s readiness to respond quickly and restore the system’s functioning, primarily

through effective legal support.

Practical protection tools, such as risk and resilience management systems, increase the

efficiency of public administration. Public-private partnerships help coordinate and

optimize resources. International best practices show the importance of an integrated

approach that includes legal, organizational, and technological mechanisms. The

Ukrainian context is characterized by the increased vulnerability of critical infrastructure

in times of war. The implementation of international standards is complicated by

regulatory, institutional and financial constraints. All of this must be reflected in the

national legislative framework and legal support institutions.

Suggestions for improvement include improvement of legal regulationpolicies to

strengthen coordination, introduce modern risk management models, develop cyber

defense, and improve the legal framework. Implementing these measures will increase

the resilience of critical infrastructure, minimize the risks of cascading effects, and ensure

national security. An integrated approach based on theoretical models, practical tools,

and international experience forms the basis for strategic development and effective

management in the industry’s legal framework.

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310

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CONSTITUTIONAL CONTROL IN EASTERN EUROPEAN COUNTRIES: MODELS,

EFFECTIVENESS AND DEVELOPMENT PROSPECTS

KAROLINA LYSAK

korollek888@ukr.net

Postgraduate Student Department of National Security, Public Management and Administration

Faculty of National Security, Law and International Relations,

Zhytomyr Polytechnic State University

Zhytomyr (Ukraine) https://orcid.org/0009-0005-4255-3644

ALINA VOICHUK

alinavoychuk@ukr.net

PhD (Political Sci.) Assistant of the Department of Political Science

Faculty of Philosophy Taras Shevchenko National University of Kyiv

Kyiv (Ukraine) https://orcid.org/0000-0002-1925-1307

IHOR OKUNIEV

advocate.okuniev@gmail.com

PhD (Legal Sci.), Associate Professor of the Department of Management and Innovative

Development KROK Business School, University of Economics and Law

Kyiv (Ukraine) https://orcid.org/0009-0001-8133-1797

VLADYSLAV PUSTOVAR

vvpustovar7@gmail.com

PhD (Economic Sci.), Doctoral student at the Mykhailo Dragomanov State University of Ukraine

Advisor to Papir Mal Trading House LLC

Department of Political Science Faculty of Social Sciences and Humanities

Mykhailo Dragomanov State University of Ukraine

Kyiv (Ukraine) https://orcid.org/0009-0001-9790-0210

IRYNA NASTASIAK

iryna.nastasiak@gmail.com

PhD (Legal Sci.), Associate Professor of the Department of Theory and Philosophy of Law Ivan

Franko Lviv National University

Lviv Ukraine https://orcid.org/0000-0002-3963-1788

Abstract

This study provides a systematic analysis of the effectiveness of constitutional control in

Eastern Europe in order to identify mechanisms of democratic degradation and preventive

safeguards, given the rule-of-law crises observed in several states. The objective is to

examine models, performance, and development prospects of constitutional review through

the lens of checks and balances, based on the activities of constitutional courts in Estonia,

Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, and Ukraine during 2015–

2024. The methodology includes functional analysis of three core roles of constitutional courts

(protection of fundamental rights, arbitration between branches of power, and constitutional

interpretation), case-study analysis of four constitutional crises (Poland 2015–2023, Hungary

2010–2025, Romania 2012–2024, Ukraine 2010–2025), and correlation analysis using data

from the World Justice Project, V-Dem Judicial Independence Index, official court reports, and

Venice Commission conclusions. The results identify three distinct functional models: (1) Full

constitutional arbitration (Baltic states, Czech Republic) with high efficiency indicators; (2)

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VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 315-343

Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

316

Selective control under political pressure (Poland, Hungary) with sharp declines in

performance after political interference; (3) Unstable control (Ukraine, Romania, Bulgaria)

marked by high variability. The study demonstrates increasing divergence among models from

2015 to 2024, with the standard deviation of the composite efficiency index rising from 12.4

to 19.7 points, contrary to expected convergence under European integration. The analysis

also reveals common techniques of political capture of constitutional justice (procedural

manipulation, court-packing, and reinterpretation of constitutional norms). Correlation results

show strong links between judicial independence and appointment mechanisms, with higher

efficiency associated with transparent selection procedures and balanced institutional design.

Keywords

Constitutional Control, System Of Checks and balances, Eastern Europe, constitutional courts,

democratic rollback.

Resumo

Este estudo apresenta uma análise sistemática da eficácia do controlo constitucional na

Europa Oriental, com o objetivo de identificar mecanismos de degradação democrática e

salvaguardas preventivas, tendo em conta as crises do Estado de direito observadas em vários

Estados. O objetivo é examinar modelos, desempenho e perspetivas de desenvolvimento da

revisão constitucional através da lente dos freios e contrapesos, com base nas atividades dos

tribunais constitucionais da Estónia, Letónia, Lituânia, Polónia, República Checa, Eslováquia,

Hungria e Ucrânia durante o período de 2015 a 2024. A metodologia inclui a análise funcional

de três funções essenciais dos tribunais constitucionais (proteção dos direitos fundamentais,

arbitragem entre os poderes e interpretação constitucional), a análise de estudos de caso de

quatro crises constitucionais (Polónia 2015-2023, Hungria 2010-2025, Roménia 2012-2024,

Ucrânia 2010-2025) e análise de correlação utilizando dados do World Justice Project, do

Índice de Independência Judicial V-Dem, de relatórios oficiais dos tribunais e das conclusões

da Comissão de Veneza. Os resultados identificam três modelos funcionais distintos: (1)

Arbitragem constitucional plena (países bálticos, República Checa) com indicadores de alta

eficiência; (2) Controlo seletivo sob pressão política (Polónia, Hungria) com quedas

acentuadas no desempenho após interferência política; (3) Controlo instável (Ucrânia,

Roménia, Bulgária) marcado por alta variabilidade. O estudo demonstra uma divergência

crescente entre os modelos de 2015 a 2024, com o desvio padrão do índice de eficiência

composto a subir de 12,4 para 19,7 pontos, contrariamente à convergência esperada no

âmbito da integração europeia. A análise também revela técnicas comuns de captura política

da justiça constitucional (manipulação processual, aumento do número de juízes e

reinterpretação das normas constitucionais). Os resultados da correlação mostram fortes

ligações entre a independência judicial e os mecanismos de nomeação, com maior eficiência

associada a procedimentos de seleção transparentes e um desenho institucional equilibrado.

Palavras-chave

Controlo Constitucional, Sistema De Freios E Contrapesos, Europa Oriental, Tribunais

Constitucionais, Retrocesso Democrático.

How to cite this article

Lysak, Karolina, Voichuk, Alina, Okuniev, Ihor, Pustovar, Vladyslav & Nastasiak, Iryna (2026).

Constitutional control in Eastern European countries: models, effectiveness and development

prospects. Janus.net, e-journal of international relations. Thematic Dossier - Rule of Law, Human

Rights, and Institutional Transformation in Times of Global and National Challenges, VOL. 16, Nº.

2, TD3, March 2026, pp. 315-343. https://doi.org/10.26619/1647-7251.DT0226.17

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 315-343

Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

317

Article submitted on 30 November 2025 and accepted for publication on 14 January

2026.

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e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 315-343

Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

318

CONSTITUTIONAL CONTROL IN EASTERN EUROPEAN COUNTRIES:

MODELS, EFFECTIVENESS AND DEVELOPMENT PROSPECTS

KAROLINA LYSAK

ALINA VOICHUK

IHOR OKUNIEV

VLADYSLAV PUSTOVAR

IRYNA NASTASIAK

Introduction

Constitutional review in modern democracies is an important part of the system of checks

and balances, as it allows the judiciary to monitor the compliance of all political

institutions with constitutional standards and protect the fundamental rights of citizens

from unjustified restrictions by the state (Savchyn, 2019). Constitutional courts have

become the main institution new democracies in post-socialist countries countries

Eastern Europe, and this was implemented after 1989-1991 with the main goal of

avoiding repetition of the authoritarian past, ensuring the supremacy of the constitution

over existing laws. However thirty years that have passed since the beginning of

democratic changes, demonstrate uneven trends institutionalization these institutes:

countries Baltics formed an effective system of constitutional control, Poland and Hungary

are experiencing a crisis of the rule of law unprecedented in history these countries that

expressed in political enthusiasm constitutional courts and destabilization theirs

authorities.

System of checks and balances (checks and balances), for the first time formulated

James Madison in the Federalist Papers as a prevention system concentrations power

through mutual containment branches power, in modern constitutional democracies is

being implemented mainly through judicial review of constitutionality acts legislative and

executive branches By institutionalizing the principle of checks and balances,

constitutional courts act arbitrators in disputes between branches authorities and have

guarantee their adherence to the constitutional distribution powers and lack of

usurpations authorities one institution. Efficiency systems checks and balances in post-

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Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

319

socialist democracies Eastern Europe trace to evaluate through the prism of ability

constitutional courts actually limit legislative and executive branches power, not through

formal the presence of judicial control.

Democratic regression (democratic) backsliding) is process gradual undermining

democratic institutions with the help of officially legitimate procedures, such as sabotage

of independence judicial organs as part systems checks and balances (Haggard &

Kaufman, 2021). In contrast from traditional authoritarian coup, modern erosion

democracy is happening gradually through legislative amendments, constitutional

amendments and procedural tricks that keep visibility democratic legitimacy, but destroy

mechanisms limitation power. Constitutional courts, instead of do resistance to such

processes, themselves become objects such policies by modification theirs structures,

constraints their powers or creation parallel jurisdiction that annuls their solution.

The crisis of constitutional control in Poland, where the government has been

systematically capture Constitutional Tribunal by refusing to legally appoint judges,

reducing the quorum for the adoption decisions and appointments new members became

a symbol of potential collapse democratic institutes in the European Union (Halmai,

2018). Another form of degradation that indicates Hungary, there is a transcription

constitution: introduction of a new Basic Law in 2011, increase quantities members

Constitutional Court up to 15 people in order to involve loyal members to the

Constitutional Court, limiting the topic of constitutional control and systematic abolition

unwanted judicial decisions by amending the constitution. Such cases indicate that formal

membership in the EU and acceptance European standards at the entry level are not

guaranteed preservation effective constitutional control in the conditions political striving

for concentration authorities.

Meanwhile, Ukraine, Romania and Bulgaria demonstrate another dysfunction

constitutional control: they are not subject to systematic hobbies, but periodically are

experiencing constitutional crises during which courts are experiencing pressure from

various political forces that forces their to approve politicized decision, change legal

positions after changes in your in stock and cannot to play the role of a stable arbitrator

in interstate disputes (Kopcha, 2020). Between 2010 and 2025 Ukrainian politicians have

survived four constitutional crisis, as a result whose The Constitutional Court has become

an instrument political pressure or decision institutions were ignored by the parties to

the conflict, which weakened the authority of the institution and made it impossible

creation consistent constitutional ideology.

Venetian commission in your Rule of Law Checklist determines independence judicial

power, access to justice and the effectiveness of judicial control as key aspects of the

rule of law, violations which he puts under threatens the entire system of democracy

(Venice Commission, 2016b). However, international monitoring has proven insufficient

to prevent or halt the takeover of constitutional courts: the Article 7 Treaty procedure on

European The Union requires unanimity for sanctions and is therefore blocked by the

mutual support of Poland and Hungary, and economic sanctions in the form of freezing

Euro funds are applied with many years of delay and do not lead to the restoration of the

independence of the courts.

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Constitutional control in Eastern European countries:

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Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

320

The scientific problem lies in the lack of a systematic comparative study of the

effectiveness of constitutional review applied in all Eastern European states, both

successful (Baltic countries), unsuccessful (Poland, Hungary), and those that failed to

stabilize the constitutions (Ukraine, Romania) in historical terms. The available literature

only discusses individual countries or individual cases (formal independence,

appointment procedures), but does not offer a holistic assessment of the actual capacity

of courts to perform three main functions: ensuring fundamental rights of people,

resolving interstate disputes, and developing constitutional doctrine through

interpretation. It no quantitative indicators, using whose can would be to compare

efficiency constitutional control between countries and trace changes over time to to

determine critical moments deterioration situations.

The aim of the study is to thoroughly discussion of models, efficiency and opportunities

development constitutional control in countries Eastern Europe in context systems checks

and balances. In the study are revealed differences in the functioning of constitutional

control models, mechanisms political delight judicial systems and their consequences are

determined institutional factors that contribute or restrict the court's ability to limit

power, as well as is assessed whether can models to get closer with the help of

mechanisms European integration.

Literature Review

Theoretical knowledge about the crisis of constitutional control in Eastern Europe lies at

the intersection of three interrelated areas of research, namely: conceptualizations of

democratic backsliding as a global phenomenon, analysis of mechanisms for seizing

judicial power, and study of post-socialist democratic constitutional changes.

The term “democratic” backsliding was introduced by Levitsky and Ziblatt (2018) and is

used to refer to the process of slow erosion of democracy through the undermining of

important institutions, more from a legal perspective than as a result of a classic military

coup. The authors identify four manifestations of authoritarian behavior, including the

refusal to abide by democratic rules of the game, the denial of the legitimacy of political

opposition, the acceptance or encouragement of violence, and the indulgence in the

exercise of civil liberties by the opposition and the media. Constitutional courts in this

system serve as important “guardians of democracy” (democratic guardrails), which are

supposed to ensure that such trends do not become a threat to the system, but they are

the ones who fall victim to such attacks by populist populists strongmen. Haggard and

Kaufman (2021) describe the anatomy of democratic retreat by examining executive

aggrandizement as one of the main processes leading to the gradual undermining of

institutions that constrain executive power, such as the judiciary, the electoral system,

and parliamentary oversight mechanisms.

Daly (2019) suggests replacing the term “backsliding” with the concept of “democratic

decay” and emphasizes that this process is gradual and its initial signs are difficult to

recognize. The author develops a methodology for empirical research on the decline

based on indicators of the quality of democracy, such as the independence of the

judiciary, access to justice and the effectiveness of constitutional review. This will allow

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Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

321

moving from qualitative assessments to quantitative checks of the process of democratic

degradation, which is vital for timely detection of threats and development of preventive

policies. Some mechanisms of constitutional judicial seizure organized by Landau and

Dixon (2021) in the concept of abusive judicial review, i.e. the exercise of judicial control

to protect the democratic process, but with the aim of undermining it. The authors

distinguish three options: "court – packing" (expanding the composition of the court to

attract loyal judges), "jurisdiction stripping" (reducing the jurisdiction of courts in matters

of political sensitivity) and "constitutional hardball" (the vigorous use of formally legal

but norm – breaking tactics to neutralize judicial resistance). Empirical research on

specific cases in other regions proves that in many cases a combination of these

mechanisms and the rhetoric of defending sovereignty or restoring the balance of power

is used to justify anti-democratic actions.

From von Bogdandy et al. (2018) analyze the European environment of democratic

retreat and conceptualize the rule of law crisis in Poland and Hungary as a “potential

constitutional moment” in the European Union and the need for a fundamental revision

of the mechanisms for protecting common values. The authors lament the ineffectiveness

of current instruments (Article 7 TEU, infringement procedures) and propose to give the

Commission additional powers to oversee the rule of law through annual reports and

certain recommendations, as well as the inability to impose economic sanctions on

regular violators. This decision was partly implemented by the introduction of the EU Rule

of Law Mechanism in 2020, which allows for the freezing of access to EU funds as a result

of rule of law violations.

Bugarič (2019) analyzes descent into autocracy of Central European countries through

the prism of constitutional analysis authoritarian populism, and shows a particular

tendency to appeal to constitutional identity as a means of opposing European norms.

Hungary and Poland use their “national traditions” and “sovereignty” as a pretext for

violating pan-European judicial standards independence and create a narrative

confrontation between the “elitist liberalism of Brussels” and the true will of the people.

Constitutional courts must to protect not universal human rights, but national an identity

that radically rethinks theirs place in the system checks and balances. Analysis of the

phenomenon of abuse constitutional identity, proposed

Scholtes (2021), coming yet further, showing how the idea constitutional identity,

created in scientific literature and legal practice in the interests of preservation national

constitutional traditions against excessive unification according to EU law, was

manipulated authoritarian regimes to justify violation main principles of the rule of law.

In Hungary calls for constitutional identity were used to limit powers Constitutional Court,

annulment its decisions through constitutional amendments and non-implementation

solutions European Court of Human Rights. This leads to an ironic situations where the

idea is intended to support pluralism constitutional traditions, ultimately summary

becomes tool destruction constitutionalism.

Comparative analysis shows that scientific literature about mechanisms democratic

backsliding (executive aggrandizement, court-packing, jurisdiction stripping,

constitutional hardball) and its prevalence in the East Europe is unanimous. However,

still remain unanswered the question of how much fast was deterioration situations (why

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

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Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

322

Poland and Hungary suffered faster worsening than Slovakia, or perhaps restore

efficiency constitutional control after years delight government), and whether helps

external monitoring (as far as effectively EU mechanisms can prevent or stop democratic

backsliding). Gap in research is that functional efficiency constitutional courts has never

been systematically studied within the framework of quantitative research that would

cover the entire spectrum from successful (countries Baltic States) to problematic

(Poland, Hungary) and unstable (Ukraine, Romania) based on standardized indicators

and for the purpose of tracking processes in time.

Materials and Methods

Research efficiency constitutional control in countries Eastern Europe was conducted as

a comparative functional research using official secondary sources for the period 2015-

2025. It has methodological basis that combines comparative law, institutional analysis

and empirical research case law, based on actual success three the most important

functions constitutional courts in security fundamental rights, arbitration between

branches power and interpretative constitutionalism. In it are analyzed eight Eastern

European countries, among whose Estonia, Latvia, Lithuania, Poland, Czech Republic,

Slovakia, Hungary and Ukraine.

Criteria inclusion: post-socialist transformation political systems after 1989-1991;

availability specialized institute constitutional control; membership in the Council Europe

and subordination jurisdictions European Court of Human Rights; availability official

statistical reports constitutional vessels for analysis period that under consideration.

Criteria Exception: Western Balkans (various regional features); Moldova and Belarus

(lack of confirmed data); Russia (withdrew from the Council of Europe in 2022). In

sample presented all options post-socialist democracies in the region: countries Baltics

(successful integration), Visegrad group (differentiated development) and Ukraine (post-

Soviet) (long-term transformation).

Primary source data served official annual reports constitutional courts of eight countries

for 2015-2024, which contain statistics on considered cases, structure of appeals, types

of decisions and deadlines consideration. Used bases data Venice Commission with 47

conclusions of constitutional reforms in the region, decisions European Court of Human

Rights of independence judicial power. Quantitative indicators efficiency received from

the World Justice Project (2024), V-Dem Institute Judicial Independence Index and

Judicial Constraints on Executive Index, Freedom House Nations in Transit Democracy

Scores. Additionally analyzed official texts constitutions, laws on constitutional courts and

public conclusions international expert organizations of constitutional crises.

Research is based on four interrelated methods. To assess actual efficiency constitutional

courts in execution three main functions, regardless from institutional court structure, it

was applied functional evaluation method: for the function protection fundamental rights

were calculated percentage share individual constitutional complaints satisfied from

general quantities filed in court; for the function arbitration between branches authorities

was calculated percentage share decisions that restrict powers legislative or executive

branches power; for the function constitutional interpretation – percentage fraction

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Thematic Dossier - Rule of Law, Human Rights, and Institutional

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March 2026, pp. 315-343

Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

323

solutions of the constitutional court, to which referred to lower courts instances, and

stability legal positions.

case-study method was used for in-depth analysis four constitutional crises: seizure

Constitutional Court in Poland (2015-2023), court-packing in Hungary (2010-2025),

cyclical constitutional conflicts in Romania (2012, 2017-2019, 2023-2024) and multiple

crises in Ukraine (2010, 2014, 2020, 2023). Comparative institutional analysis carried

out through comparison formal parameters (assignment procedure judges, term powers,

scope competences) with actual indicators effectiveness for detection correlations

between institutional design and functional ability.

Detection correlations between institutional features and efficiency systems checks and

balances was carried out with the help of descriptive statistics and correlation analysis:

was determined coefficients correlations Pearson (r) between the nature of the procedure

appointment judges and degree independence judicial power, the existence of the right

to individual appeal and impeccability protection of rights, as well as homogeneity judicial

structure and quality constitutional interpretation.

According to the results of the functional the author proposed the analysis typology that

classifies countries according to three models based on actual efficiency functions

constitutional control. Model 1, “Full constitutional arbitration”, has high indicators for all

three functions and does not have constitutional crises. Model 2, “Selective control under

political pressure”, demonstrates sharp decrease efficiency after political delight

Institute. Model 3, “Unstable control with episodic efficiency”, characterized by high

variability indicators and several constitutional crises.

Results

Typology of models of constitutional control in Eastern Europe

Functional analysis activities constitutional courts in eight Eastern European countries in

the period 2015-2024 shows that there are three radically different models that differ in

real efficiency implementation functions protection of rights, arbitration between

branches authority and interpretation constitution. Despite the fact that centralized

model of constitutional control according to Kelsen and the presence of special

constitutional court, established between 1990 and 1996, were officially accepted

everyone countries that are being investigated, their efficiency in functioning reveals a

wide range of differences in the level political intervention and institutional stability (Pech

& Scheppele, 2017).

Model 1: Full-fledged constitutional arbitration used in Estonia, Lithuania, the Czech

Republic and Latvia, which are characterized by high indicators efficiency all three

functions. Level satisfaction 65-72% of individual constitutional complaints, systematic

limitation legislative and executive authorities (58-64% restrictive solutions) and high

level citation their solutions lower courts (85-92%) are indicative of these courts. The

institutional structure of the countries that included in this groups, provides mixed

appointment procedure judges, which covers three branches power, one term powers

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Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

324

and broad access of citizens to constitutional justice through the institution individual

constitutional complaints.

Model 2: Selective control under political pressure represented Poland (2016-2025),

Hungary (2011-2025) and Slovakia are examples of selective control under influence

policies where efficiency sharply decreased after political conquest of the institute.

Constitution of the Republic of Poland (1997) formally guaranteed sovereignty

Constitutional Tribunal, although in 2015-2016 there were changes in the rules for

appointment judges led to a decrease percent successful complaints up to 39 (and even

to the absence of solutions against the government in conflicts competences) (Pech &

Scheppele, 2017). In Hungary Fundamental Law (2011) in 2011 gave the parliament the

power choose judges the Constitutional Court by two- thirds of the votes, which in the

conditions dominance one parties was used for systematic court-packing new members

by increasing quantities judges (from 11 to 15) and a reduction the age at which judges

could retire. This led to a decrease percent restrictive decisions to 31% in 2011-2024

compared to 69% in 2000-2010, which actually neutralized the system of checks and

balances.

Model 3: Unstable control with periods efficiency is typical for Ukraine, Romania and

Bulgaria, where there is extraordinary variability indicators depending from political

situations. The most Ukraine is unstable, where in 2015 was 71% of complaints were

satisfied, and in 2020-2021 – 28%, which associated with four constitutional crises

between 2010 and 2025. Romania characterized by excessive workload (456 cases per

year – the highest indicator in Europe), which negatively affects the quality consideration,

while Bulgaria demonstrates chronic difficulty with execution decisions (35% of decisions

are not implemented for 12+ months).

This typology illustrates that even when formally applied, Kelsen's model will not provide

effective constitutional control, but the real possibility courts carry out control function

checks and balances is determined political situation, institutional structure of processes

selection judges and external control measures by European institutions (Pech &

Scheppele, 2017).

Function protection fundamental rights: comparative analysis efficiency

Official statistical data for 2015-2024 regarding individual constitutional complaints that

are being considered by the authorities, indicate that three political models constitutional

control are radically different in their ability protect constitutional rights of citizens from

violation by the state. Presence individual constitutional complaints as an institution that

Venetian commission considers one of the most important tools for accessing

constitutional justice (Venice Commission, 2020a) is in effect more or less effectively

depending from degree politicization judicial institutions and stability institutional

structures systems.

Implementation functions software fundamental rights are a sign of the vertical

component of the system checks and balances that restricts arbitrariness states of

actions state, not the horizontal dimension (arbitration between branches power), hence,

the ability constitutional courts satisfy individual complaints against actions state is

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Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

325

important an indicator of actual functioning checks and balances in protecting rights from

intervention states.

Baltic countries and Czech Republic Republic (Model 1) is characterized by stable high

effectiveness in ensuring rights, because interest satisfied individual constitutional

complaints for the subject period is 65-72%. Angerjärv and Greinoman v. Estonia

(European Court of Human Rights, 2022a), the Supreme Court of Estonia, which performs

functions constitutional control, also establishes effective procedural fair trial guarantees

complaints that provides publicity hearings and justification decisions. Average

processing time complaints about a person in countries this one groups also amounts to

8-12 months, which is considered acceptable in accordance with European concepts

intelligent duration proceedings.

In Poland and Hungary (Model 2) efficiency protection of rights in these countries sharply

decreased after political delight constitutional courts (Table 1). Level satisfied complaints

in Poland decreased by 25 percent points, from 64 to 39 percentage points points

respectively in 2010-2015 and 2016-2023. In Hungary, since 2010, the Constitutional

Court has annulled three laws on the grounds of violation fundamental rights, compared

to 47 in the previous period, 2000-2010, which means that actually the constitutional

court stopped to play one's role with protection of rights. Theoretically this is corresponds

to theoretical understanding constitutional rights as restrictions state authorities who

need separate legal protection (Vasylchenko & Matat, 2020).

Ukraine, Romania and Bulgaria (Model 3) have high volatility indicators protection of

rights that are determined political situation. Ukraine is the most unstable, because

interest satisfied complaints in 2015 is 71%, and in 2020-2021 – 28%, which can explain

constitutional crisis of 2020 and the change in the composition of the Constitutional

Court. Romania, which has the largest number of cases considered (4560 in ten years),

satisfies only 48% of complaints, and the average processing time is 18 months, which

double more than in countries Models 1.

Data from World Justice Project (2024) confirm correlation between efficiency protection

of rights and general rule of law: Estonia (0.82), Lithuania (0.79) and the Czech Republic

(0.78) demonstrate highest indicators, while Poland decreased from 0.73 (2015) to 0.64

(2023), Hungary – to 0.55 (2024), and Ukraine stable remains at 0.52.

Comparative analysis shows that implementation constitutional by courts of yours

functions protection main rights directly depends from institutional independence

constitutional courts: countries Models 1 demonstrate stable high indicators, countries

Models 2 have undergone systematic decrease indicators after political coup, and

countries Models 3 remain heavy for forecasting. Although the role of protection

fundamental rights is horizontal in nature in the sense that it concerns relations “citizen

– state”, the role of the constitutional arbitration between branches power is a horizontal

component systems checks and balances, where the constitutional court is autonomous

mediator in conflicts competencies between the president, parliament and government.

It is this role is the most vulnerable to political delight courts, because it directly restricts

potential possibility concentrations power in the hands of the hegemonic political forces.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL. 16, Nº. 2, TD3

Thematic Dossier - Rule of Law, Human Rights, and Institutional

Transformation in Times of Global and National Challenges

March 2026, pp. 315-343

Constitutional control in Eastern European countries:

models, effectiveness and development prospects

Karolina Lysak, Alina Voichuk, Ihor Okuniev, Vladyslav Pustovar, Iryna Nastasiak

326

Table 1. Comparative indicators efficiency functions protection fundamental rights (2015-2024)

Country

Model

Satisfied

complaints (%)

Average term

consideration

(months)

Rule of Law

Index 2024

Estonia

68%

0.82

Lithuania

72%

0.79

Czech

Republic

61%

0.78

Latvia

67%

0.76

Poland

39% (↓ from 64%)

0.64

Hungary

31% (↓ from 69%)

0.55

Slovakia

52%

0.72

Romania

48%

0.58

Bulgaria

51%

0.54

Ukraine

28-71% (volatility)

0.52

Source: compiled by the author on based on the World Justice Project (2024), Venice

Commission (2020a), European Court of Human Rights (2022a).