12:24 19.04.2021

Author ROMAN BABIY

Judge not, that ye may not be judged

6 min read
Judge not, that ye may not be judged

Roman Babiy, Ukrainian lawyer, politician, People's Deputy of Ukraine of IX convocation

 

A few days ago, the President of Ukraine Volodymyr Zelensky initiated the immediate liquidation of the District Administrative Court of Kyiv. Draft Law № 5369 dated 13.04.21 contains only 3 sentences in the main part, as well as the final and transitional provisions. The essence is simple: to liquidate the DACK, to create a new one - the Kyiv City District Administrative Court. Then it is the deputies who are going to work with this. 

Society treats this idea differently: from restoring confidence in the judiciary through the elimination of a "dirty" court and the creation of a new, virtuous one instead, to "it's just renaming, not liquidation" and "it's fulfilling the will of Western partners and war against displeasing authorities and disobedient judges".

However, as always, the "devil is in the details", in this case - in the final and transitional positions.

Let’s imagine that this law was passed and it came into force. On the same day, the DACK ceases to hear all cases, regardless of the stage at which it is being considered. Even those in which all the evidence is examined and all the explanations are heard (now this process can take a year or even longer).

Then the process of creating a new court will begin. While it goes on, unfinished and new cases should be considered by the Kyiv District Administrative Court (the regional).

The DACK must very quickly, within two calendar weeks, transfer ALL (both current and archival) cases to the KDAC, which will accept them. I don't think it's real, but, on the other hand, no negative consequences have been established in violation of this norm, so in fact "they will be transferred one day...."

But the most important thing is how to ensure relatively fast consideration of cases and protection of the rights and interests of people seeking judicial protection. The DACK has 50 judges. In KDAC - 22 judges with 25 full-time positions, i.e. twice less. In 2020, the KDAC considered about 20 thousand proceedings, and the DACK - about 60 thousand - three times more.

In case of adoption of the bill in the submitted edition all the workload from 50 judges of UASK who barely adhered to the terms of consideration of cases, immediately will pass to the existing regional court in addition to existing caseload. That is, if we take the statistics of last year as a reference, the 22 judges of the regional court since then have to consider 80 thousand cases. The workload per judge will increase 4 times!

The way out could be a temporary increase in the number of KDAC judges. However, these positions still have to be filled by judges. It is easier and more correct to focus on the rapid creation of a new court. Though, in the current situation in the absence of the High Qualification Commission of Judges of Ukraine, this is just impossible in the nearest future.

The bill on the resumption of the HQCJU still needs to be supported in the second reading, then a tender commission should be drawn to form the HQCJU, then a tender to the HQCJU will be held, and then some (hopefully short) time will be needed to organize the HQCJU’s work. Only after that it is possible to start competitions for new judges, and the contest itself will take a long time. In addition, a year and a half of unresolved urgent issues have arisen in the HQCJU. According to the most optimistic estimates, this will take about a year.

I do not think that under such daily workload KDAC will have time to consider many cases within a year. In fact, the administration of justice in administrative cases would almost stop not only in Kyiv, but also in the Kyiv region. This will deprive the citizens of the opportunity to protect their rights from actions, decisions, inaction of central and local authorities. And all cases that the regional administrative court does not have time to consider during the interim period will be immediately transferred to the newly created court, and their consideration will begin from the outset.

Such a gloomy picture is formed in the administrative proceedings in the case of the adoption of the transitional provisions in the bill №5369 in this version.

There’s another kink. The bill does not explain the future fate of the current judges of the DACK. According to the Constitution, the mere fact of liquidation of a court is not a ground for dismissal of judges. They must be offered a transfer to another court. And only if the judge does not agree to such a transfer - he is fired.

But where should DACK judges be transferred? As an option there may be new courts or other administrative courts where there are vacancies. An additional condition for the transfer is the qualification assessment (more than half of the judges of the DACK did not pass it). And these procedures must also be reflected in the bill.

Therefore, in my opinion, it is necessary to develop a better model of transfer and consideration of the DACK cases than the one proposed by the bill. There can be several options:

  • temporarily increase the number of KDAC judges and fill new vacancies through the procedure of temporary transfer from other first instance administrative courts.
  • redistribute cases between the nearest administrative courts (neighboring regions) to reduce the burden on KDAC. At the same time, allow these courts to complete the cases that will be transferred to them.
  • allow the DACK to complete the consideration of those cases that it has begun to consider on the merits, and to transfer all new and unsolved ones on the merits to the regional administrative court.
  • start the transfer of cases after the start of the new court, and before that the DACK is going to consider the cases. Although this option is the least consistent with the grounds for the bill.

Choosing such a model requires a separate discussion, upon the results of which we must choose the most balanced option to ensure the citizens’ right to access to justice.

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