Roman Babiy, Ukrainian lawyer, politician, MP of Ukraine in IX convocation

 

On December 3, 2022, Ukraine’s principal decision-making body - Verkhovna Rada - adopted in its first reading law №5369 about the liquidation of the Kyiv District Administrative Court (KDAC). Instead - a new Regional Administrative Court is being formed. The bill was voted with more than 300 deputies. On the same day the President signed the bill. On December 15, 2022, the Law (No. 2825-ХХ) entered into force, and the KDAC stopped delivering justice.

Let’s try to figure out, what will happen next. What will be the destiny of judges, the apparatus employees, what’s going to happen to tens of thousands of cases, that were examined by KDAC, and what should do those, who was going to apply to this court. Unfortunately, only a few words in final provisions of this law are dedicated to this problem. 

What will be the destiny of judges and the apparatus?

Let’s start with judges. And let’s be straight – exactly because of them (perhaps some of them) this law was born. However, under the current legislation, the fact of liquidation of the court does not affect the status of the judge.

According to the Ukraine’s Constitution, the liquidation of the court where a judge works is not a reason for the dismissal of this judge.

So, all KDAC judges will remain judges. They will save appropriate guarantees and continue to receive their remuneration. The only difference is that they stop doing their job - hearing cases.

KDAC judges should be offered to transfer to another administrative court. They can be dismissed from their position only if they do not agree to change jobs. This procedure is based on the decision of the Supreme Council of Justice (SCJ), which is currently inactive awaiting for the appointment of new members.

The apparatus employees (in KDAC there were about 200 of them) should be dismissed as employees of any state authority or enterprise that is being liquidated. They will be able to receive a salary for a few more months, but afterwards - they can potentially become unemployed. Ideally, they should be transferred to similar positions in other courts, but in the current difficult times, it is quite unlikely to happen that way.

And what about cases that were or should be heard by KDAC?

Since December 15, the KDAC ceased hearing all cases, regardless of the stage at which the proceedings were at. This also applies to recently filed lawsuits and cases where several hearings were held. This applies also to the cases, where all the evidence has been examined and all the explanations have been heard. As well as the cases at the stage of debate, or those, where the judge has left the conference room to decide. Moreover, if the judge has already announced the short text of the decision but did not have time to finish the full text, he will no longer be able to sign it.

KDAC must quickly transfer all cases to the Regional Administrative Court - within two weeks. I doubt it’s possible to do in such terms. However, on the other hand, I’ve never heard about negative consequences due to the deadline violation. So, “it will be done when it will be done”.

Currently, there are more than 50,000 actual cases in the KDAC, and hundreds of thousands of archive cases.

Before the creation and launch of the new court, all unfinished cases of the KDAC and new lawsuits must be examined by the District Administrative Court of Kyiv (DACK).

Under the current circumstances, it will not be possible to launch a new court quickly due to the Supreme Council of Justice (SCJ), which has been inactive since the beginning of the war. As well as the absence of the High Qualifications Commission of Judges of Ukraine (HQCJU) since the fall of 2019.

Talking optimistically, the work of the SCJ can be resumed in February 2023. Then the SCJ should form a new HQCJU. Tender procedures for HQCJU are ongoing, but not yet completed. Next, the Supreme Court of Ukraine should announce and hold a competition to fill vacancies in the new court. This will also take several months. And we remember that for more than three years, while the HQCJU was out, a huge number of critical issues accumulated.

So, according to the most optimistic outlooks, it is possible to launch a new court in about a year.

Considering all mentioned above, hearing of cases and protection of the rights and interests of people who apply for judicial protection, within at least acceptable terms (not to mention the terms established by the Code of Administrative Procedure), in the administrative jurisdiction on the territory of both the city of Kyiv and the Kyiv region is highly questionable. And here's why.

A little more than 40 judges worked in the KDAC. During the year, these judges considered about 60,000 cases, and by the end of the year, 30,000-35,000 cases remained unreslved.

There are half as many judges in the regional administrative court – about 20. The workload on them is three times smaller - about 20,000 cases per year, and up to 10,000 cases remain pending at the end of the year.

If the entire balance of unconsidered by KDAC cases is transferred to the judges of the regional administrative court, the workload on one judge immediately quadruples!

Under such conditions, how many cases will the judge of the regional administrative court will be able to consider and make a decision in the nominal year before the launch of a new court? Obviously not much. And this is only for existing cases, and there will be new lawsuits. It is not difficult to imagine what will be their destiny and speed of consideration.

We have a risk of a critical slowdown in administrative cases in the entire Kyiv region.

After the launch of a new court, all cases that the regional administrative court does not have time to consider during the temporary period will be immediately transferred to the newly created court, and ... their consideration will restart from the very beginning by new judges.

Because of that, another negative trend may appear - a feeling of impunity in the authorities when they make decisions. They will understand that their decision will not be overturned quickly through the court and they will not be forced to comply with the law. It can take years. The temptation for authorities to make decisions, take actions, or inaction in order to gain certain benefits is hazardous.

Therefore, already now, the competent bodies of judicial power and people's deputies should work out solutions and mechanisms that minimize all these negative consequences.

What are the possible solutions:

1. Temporarily increasing the number of DACK judges and filling new vacant positions through the procedure of temporary secondment from other administrative courts of first instance. In the conditions of war and the absence of the Supreme Court, the staff can be changed by the State Judicial Administration and sent on business trips by the Chairman of the Supreme Court.
2. Redistribution of cases between the nearest administrative courts (neighboring regions) in order to reduce the burden on DACK. The possibility of using video conferencing for court sessions and the electronic court system for filing documents can reduce logistical difficulties for the parties.
3. Amendments to the procedural code, where, as an exception, it is possible to provide for these cases the possibility of continuing the hearing not from the very beginning, but from a certain stage (for example, from the stage of consideration of the case on the merits).

These and similar mechanisms need to be implemented now. Citizens cannot be left without legal protection, even temporarily, especially in disputes with authorities.