Article by ALI for Dzerkalo Tyzhnia
On 9 January, the parliament adopted as a basis draft law No. 12368-1, authored by Yulia Tymoshenko Bloc MP Serhii Vlasenko, on amending the Law of Ukraine “On the Judiciary and the Status of Judges” and some other legislative acts of Ukraine regarding the establishment and functioning of the Kyiv City District Administrative Court (KCDAC) and the Kyiv City Administrative Court of Appeal (KCACA). As stated in the explanatory note to the draft law, its main objectives are to “ensure the efficiency and transparency of the administrative proceedings, eliminate conflicts of interest and minimise possible corruption risks in the courts,” etc. It sounds like a mockery if you look into the details.
Thus, it is proposed that the KCDAC should consider cases against central executive authorities (the Cabinet of Ministers, ministries and the Antimonopoly Committee), review decisions of competition commissions regarding competitions for the positions of heads of the Specialised Anti-Corruption Prosecutor’s Office, National Anti-Corruption Bureau, National Agency on Corruption Prevention, etc., as well as cases Cases against the President, Parliament, High Council of Justice, High Qualification Commission of Judges, etc. that are currently under consideration by the Supreme Court as a court of first instance, and the KCACA should be an appeal against the decisions of the “district administrative court.”
At the same time, “the competition for the positions of KCDAC and KCACA judges is held in accordance with the procedure established for local courts by the Law of Ukraine “On the Judiciary and the Status of Judges.” Isn’t it logical to select judges for the appellate courts according to the rules for selecting judges of local courts? For those who do not understand that this is sarcasm, we explain: no, this is not the case.
What do we have in the end?
The jurisdiction of cases involves the most complex, important and/or high-profile administrative cases in the country. The selection of judges for both instances, as for an ordinary district or raion court, is done without the involvement of public or international experts, and in violation of the rules for selecting judges of appellate courts.
After voting for the draft law in the first reading, the public and the media have already referred to this court structure as “DACK-2,” although this monster is much worse in reality.
It is also worth adding here that this court structure does not comply with Ukraine’s international obligations and, therefore, will not be accepted by our European and American partners. It also violates the general logic of the judicial reform, whereby “simple” administrative cases Pensions, taxes, etc. of Kyivans should be heard by a district court in Kyiv, and cases involving central executive authorities should be heard by a high specialised court, as is the case with corruption cases, where petty corruption is heard by general courts and grand corruption is heard by the High Anti-Corruption Court.
After the vote, some MPs shared on Facebook that this was only the first reading and the draft law would be “significantly revised” for the second reading.
So who is to blame? How did we get at least a draft-level DACK-2 instead of the High Administrative Court? Most importantly, what should we do to fix it? Let’s find out in this article.
Background
In December 2022, the District Administrative Court of Kyiv was liquidated. This happened as a result of numerous scandalous DACK decisions, the release of the so-called DACK tapes by the NABU, criminal cases against some of the court’s judges, and even the imposition of personal sanctions against DACK President Pavlo Vovk by the United States.
At the same time, the Kyiv City District Administrative Court was established “on paper,” while DACK cases were “temporarily” transferred to the Kyiv District Administrative Court. Most of them remained in boxes and bags for two years until the parliament decided to redistribute them among other district administrative courts according to their workload so that the consideration of these cases could at least start moving.
Five draft laws
However, despite the existence of the “court on paper,” nothing actually happened for some time.
International partners included the need to create a new court in Ukraine’s reform commitments, while the government did everything behind the scenes and slowly.
So, the Ukraine Facility Plan and agreements with the International Monetary Fund provide for the creation of a court that will hear cases involving central executive authorities instead of the liquidated DACK. The judges of such a court should be properly vetted for professional competence and integrity with the involvement of independent experts and “following similar selection procedures for anti-corruption judges.” The deadline for the establishment of this court under the Ukraine Facility, for example, is the third quarter of 2025. At the same time, the competition for positions of judges of this court should be completed by the end of the third quarter of this year. This means that there is virtually no time left.
Meanwhile, the Cabinet of Ministers has been working on a draft law for a year, but almost no one has seen it. When the deadline for passing the draft law was almost over, draft law No. 12206 was submitted to Parliament. MPs from the Servant of the People faction introduced it, but it was actually the work of the Presidential Office. It was followed by an alternative draft law from the Cabinet of Ministers and another draft law authored by the head of the relevant committee, Maslov, which received the committee’s support.
The Parliament rejected all of them in December. In January, another draft law from the Cabinet of Ministers (No. 12368) appeared, which was presented personally in the session hall by Olha Stefanishyna, Deputy Prime Minister for European and Euro-Atlantic Integration and Minister of Justice. It also failed, and the alternative draft law No. 12368-1, authored by Vlasenko, was voted in the first reading, which is the worst of all five versions, but it is on its basis that the final version of the draft law should now be built.
Olha Stefanishyna later complained more than once that she had “spent three days in parliament and had zero results.” She can be understood because international partners will ask her questions about implementing the Ukraine Facility.
Some MPs, on condition of anonymity, said that “they did not go deep into the details of the draft laws on courts but voted as agreed.” Can you guess right away which party’s MPs we are talking about here?
So why do the political authorities and the pro-government majority need Vlasenko’s draft law if Ukraine’s receipt of the next tranches of money depends on fulfilling the Memorandum with the IMF and the Ukraine Facility Plan? If it was necessary to vote for at least some version in the first reading, why did they not vote for the Cabinet of Ministers’ version?
Expert Council vs Public Council of International Experts
Since Vlasenko’s version is obviously unsuitable, and Ukraine has committed to establishing a court similar to the HACC, the court should be created as a high specialised administrative court.
To verify the integrity of candidates, all four draft laws provide for establishing an Expert Council, three members of which should be appointed based on proposals from international partners and three based on proposals from the Council of Judges of Ukraine. This is, in fact, the eighth option of competition in the judicial system and another experiment.
It does not comply with Ukraine’s international obligations, according to which future judges should be vetted “following similar selection procedures for anti-corruption judges”, i.e., with the participation of the Public Council of International Experts (PCIE) per se, which is currently involved in the vetting of candidates to the HACC.
Yes, the political authorities have given some very strange explanations for why it is allegedly impossible to constantly demand that international partners delegate their representatives. However, when the international partners signed, for example, the Memorandum with the IMF, did they understand their obligations to delegate representatives to the PCIE for the purposes of the competition for HACC judges and for the purposes of establishing the new court? Until they hear a clear message that the three-for-three arrangement is okay, imposing on them something they did not sign up for looks like some kind of petty (or not so petty) fraud. A country that wants to become part of the EU and continue to receive international financial support should not play with marked cards.
If the commitments imply the PCIE’s involvement in selecting judges for the High Administrative Court (HAC), then it should be the PCIE.
Insiders among judges
The draft laws on the high administrative court expand the list of persons eligible to apply for the position of judge and establish an additional category: persons who have worked for at least seven years in category A and B civil service positions in governmental authorities whose powers extend over the entire territory of Ukraine.
It should be noted here that the 2016 amendments Regarding justice. to the Constitution of Ukraine and the reform of approaches to the selection of judges opened up opportunities for representatives of independent legal professions Lawyers, academics, etc. to participate in competitions to the Supreme Court, courts of appeal and high specialised courts.
This approach has been used to increase the independence of the judiciary, mitigate corruption risks, reduce political influence and break down power verticals.
If civil servants are now allowed to participate in the competition, this will significantly offset the achievements of the judicial reform of previous years, as government officers are not representatives of independent legal professions. On the contrary, such lawyers are used to working under strict governmental verticals and acting exclusively in accordance with the requirements of their superiors, which, if such persons are appointed to judicial positions, may negatively affect the independence of not only an individual judge but also the entire court and the judiciary as a whole.
In this case, it is simply necessary to appoint civil servants who are liked by the Presidential Office without any competition and complicated structures. After all, it is obvious that such rules are written with an understanding of what names will be submitted to the competition.
Instead of conclusions
First, Ukraine should establish a High Administrative Court to hear cases involving central executive authorities as soon as possible, launch a competition for judges of this court and, in parallel, a competition for judges of the Kyiv City District Administrative Court, which will hear administrative cases After all, it is Kyiv residents who are currently deprived of proper access to justice. of Kyivans. It is important to clearly delineate the jurisdiction between the HAC, KCDAC and the Supreme Court. The real capacities of the HQCJ to conduct competitions should also be taken into account since each competition does not take place in a vacuum but in parallel with many other personnel procedures in the judiciary, of which we already have five.
Second, the PCIE should vet the integrity of future judges of the High Administrative Court, which will assist the HQCJ in this important matter, especially since its powers were extended for 18 months in the autumn of 2024. It is also important that the PCIE has veto power over dishonest candidates, which can only be overridden by joint votes of the HQCJ and the PCIE, with at least three votes coming from international experts.
Third, it is crucial to prevent the HAC from being declared unconstitutional Through the use of regular ad hoc procedures, which is essentially what the Expert Council is. in the future. Therefore, the requirements for judges, their formation, and other aspects should be in line with the overall framework of judicial reform, competitions, and so on.
And the last point for today. It is always very noticeable when the central political authorities try to sabotage the creation of an independent court. Unfortunately, this is exactly what is happening now.
The sooner the Presidential Office and the Parliament realise that Ukraine does not need a pocket court like the DACK (and that it will be impossible to create one), the sooner Ukraine will be able to put a fat plus point on its record in fulfilling not only the requirements of international partners but, above all, in creating a truly independent court that is actually needed by both the government and the opposition, but first and foremost, by Ukrainian society.
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