Weekly analytics for 14 — 20 December

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Event

On December 13, Verkhovna Rada adopted the following laws:

1.«On liquidation of the District Administrative Court of Kyiv and establishment of the Kyiv City District Administrative Court» № 2825-IX (draft law № 5369 was introduced by the President of Ukraine as urgent on April 13, 2021), which provides for:

• the liquidation of the District Administrative Court of Kyiv (DACK);
• the creation of the Kyiv City District Administrative Court in Kyiv with the jurisdiction extending to Kyiv City;
• the transfer of cases to the Kyiv District Administrative Court, which will consider cases under the DACK jurisdiction until the Kyiv City District Administrative Court begins to operate.

2. «On amending Section XII «Final and Transitional Provisions» of the Law of Ukraine «On the Judiciary and the Status of Judges» № 2826-IX (draft law № 5370 was introduced by the President of Ukraine on April 13, 2021 as urgent), which supplements the transitional provisions of this Law with a clause on non-application of provisions of Part 6 of Article 147, which provides that the court being liquidated continues to administer justice until a new court is established.

The Head of Parliament and the President signed the laws on the same day and they entered into force on December 15.

CPLR’s assessment

1.The DACK’s activity and the public corruption scandals that have actively accompanied it in recent years have been repeatedly covered by the CPLR’s experts (more information available in the weekly analyses of May 13-20, 2019, January 13-20, July 13-20, July 20-27, September 1-7, September 15-21, October 20-26, October 27 – November 2, 2020, February 9-15, February 16-22, April 6-12, 2021).

Secret investigative actions data published in 2019 and 2020 may testify to the «trading in justice» by the judges of the DACK, attempts by the head of this court to seize power in the Higher Qualifications Commission of Judges (HQCJ) and the High Council of Justice (HCJ), and interference in the activities of other authorities (Constitutional Court, Supreme Court and other courts, the National Agency on Corruption Prevention). The DACK’s influence was primarily caused by its “exclusive” jurisdiction – this court considered disputes against regulations of the Government, ministries, other central executive bodies, and the National Bank, the NAСP, and other authorities whose jurisdiction extends to the entire territory of Ukraine.

Back in July 2020, experts of the CPLR called the reorganization of the DACK a matter of national security of Ukraine, and Ukraine recognized the seriousness of the issue even at the international level. Thus, memorandum with the International Monetary Fund discussed in 2020 the need to transfer the jurisdiction over administrative cases of national importance to the Supreme Court.

2. Adopted laws only liquidated the DACK and specified that a new court is to be created in its place. Former judges of the DACK will not lose their status as judges and will continue to receive a remuneration as judges without administering justice. Their professional fate will depend on the HQCJ (currently not functioning) and the HCJ (currently not competent). In particular, it is the HQCJ that will determine whether: 1) a competition will be announced for the newly created court (instead of the DACK), or 2) it will be formed by transferring judges (in particular or primarily from the DACK). Should the second option be chosen, the goals of the new law will not be achieved. In the event that a competition is conducted, the DACK judges would be able to apply for it or resign voluntarily. They may also be transferred to another court, and in the absence of consent, they would face removal. The final decision on the issue of removal and transfer of judges is within the HCJ’s purview.

3. The adopted laws do not address the main reason that made the DACK a highly influential court – its «exclusive» jurisdiction. Draft law №5067, which was introduced back in February 2021 was supposed to partially address this issue (transfer of cases involving disputes against regulations of central authorities to the Supreme Court), still remains in Parliament without movement after being adopted as a framework in November 2021.

According to the CPLR’s experts, the only way to comprehensively address the so-called «issue of the DACK» and prevent the emergence of an extremely influential court of first instance in the judicial system is by establishing the High Administrative Court (modeled after the High Anti-Corruption Court, i.e., within the court of first and appellate instance) for hearing administrative cases of national importance. Selection of judges to this court should be conducted with the involvement of international experts.