In the Focus of the Reform Index: Liquidation of the District Administrative Court of Kyiv. How to Carry the Reform Through and Not Just "Change the Sign."
Beta

In the Focus of the Reform Index: Liquidation of the District Administrative Court of Kyiv. How to Carry the Reform Through and Not Just “Change the Sign.”

Photo: ua.depositphotos.com / aa-w
23 January 2023
FacebookTwitterTelegram
1060

Ukraine’s president Volodymyr Zelensky signed the law “On Liquidation of the District Administrative Court of Kyiv.” Throughout its existence, the court was known primarily for corruption scandals and the judges’ flagrant dishonesty. However, eliminating a corrupt institution is only the first step in “resetting” the system. In order to prevent the DACK’s transformation from turning into “replacing the sign,” qualitative changes are needed: electing professional judges with an unblemished reputation and limiting their power. Though key, these issues have not yet been reflected in legislation.

In the last weeks of December, Ukraine’s president Volodymyr Zelensky signed three essential laws to continue judicial reform. The first law relating to changes in the procedure for selecting judges for the Constitutional Court (CCU) drew fierce criticism from Ukrainian experts and activists. European Union, too, later insisted on making changes to it. The other two laws were concerned with the liquidation of the District Administrative Court of Kyiv and its peculiarities, the creation of a new judicial institution in its place (the Kyiv City District Administrative Court (KCDAC), and the transfer of the “predecessor” court’s cases to it. The adoption and signing of these documents became a kind of victory over judicial misconduct and corruption.

Reform Index experts quite favorably assessed the law “On Liquidation of the District Administrative Court,” with the document scoring 4 points in a special survey. It is the highest result among all regulations evaluated in 2022.

However, none of these laws specify the steps needed for the DACK’s systemic transformation. We are primarily talking about a complete change in the composition of the judges and the limiting of the court’s powers because the law only prescribes boundaries of the jurisdiction of the institution under construction (i.e., the city of Kyiv) without defining the range of cases this court has the authority to consider.

The DACK’s history: looking into the root of the troubles

The year 2004 can be considered the birth of the District Administrative Court of Kyiv. Back then, Ukrainian president Leonid Kuchma signed a decree to form local administrative courts and approve their network. The document provided for the establishment of the following administrative courts’ network starting on January 1, 2005:

  • Twenty-four district administrative courts operating in each region with respective territorial jurisdictions
  • Two district administrative courts in cities with special status (district administrative courts of Kyiv and Sevastopol)
  • The District Administrative Court of the Autonomous Republic of Crimea with the respective territorial jurisdiction.

To avoid confusion about the abbreviations for the courts in this article, it is worth distinguishing them immediately:

  • Liquidated on December 15, the District Administrative Court of Kyiv (DACK) was a special administrative court of the first instance whose jurisdiction extended exclusively over the city of Kyiv. This court was designed to consider cases regarding appealing against the actions or decisions of state authorities (including the central government bodies).
  • The Kyiv District Administrative Court (KDAC) is a district administrative court of the first instance with jurisdiction over the Kyiv region. This court will take over the cases previously considered by the DACK until a new court is created to replace the latter.
  • The Kyiv City District Administrative Court (KCDAC) is a court to be formed to replace the liquidated DACK.
  • The High Administrative Court of Ukraine is the highest administrative court in Ukraine’s system of administrative courts proposed to be created to take over the DACK’s cases concerning national-level state bodies. Notably, the Supreme Administrative Court existed in Ukraine from 2005 to 2016. At the time, it operated as a cassation court (reviewing court decisions by administrative courts of the first instance and appellate courts) and as a court of the first instance, considering cases relating to the election process and parliamentary activities.

 

The DACK differed from district administrative courts in other regions in terms of jurisdiction. Its territorial jurisdiction covered the capital, i.e., the city of Kyiv, housing the country’s central authorities (the Verkhovna Rada, the Cabinet of Ministers, Ministries, the National Bank of Ukraine, anti-corruption bodies, and many others). Therefore, this court’s jurisdiction extended to include cases where at least one party was a central government body.

Simply put, the DACK’s powers allowed it to both consider “domestic” cases (appeals against the decisions of the Kyiv Tax Office, disputes with social security bodies, etc.) and intervene in the government’s affairs. It would cancel the decisions of the government and other central power bodies, block competitions for positions, stall reform, etc.

According to the head of the DEJURE foundation Mykhailo Zhernakov, the power of DACK judges was so great they could block any government decisions.

“What made the DACK the DACK is that it combined cases of the level of an ordinary district administrative court and those concerning the central executive bodies located in Kyiv. The DACK’s jurisdiction happened to cover the city of Kyiv. It concentrated tremendous power within the framework of an ordinary district, in fact, circuit court, which made it what it was,” Zhernakov explained.

The court’s inflated jurisdiction would not have had catastrophic consequences if decent and virtuous judges had worked at the DACK. However, the court’s leadership was elected in 2010  during Yanukovych’s presidency by the deputy head of the presidential administration, Andrii Portnov, and the Party of Regions MP, Serhii Kivalov. Despite the leaders and each of the DACK’s 49 judges being known to have abused power and been dishonest, none were dismissed.

Liquidation of the DACK: why and what took them so long

As mentioned above, one of the biggest problems with the DACK was its corrupt judges. It was necessary to liquidate it to create a new judicial institution in place of the DACK and elect new honest and professional judges legally and transparently.

According to DEJURE Foundation data, not even one of the 49 DACK judges has been known not to have abused power, made dubious decisions, or manipulated income declarations. In addition, the court’s chairman, Pavlo Vovk, his deputy Yevhen Ablov, and several other judges were indicted by Ukraine’s National Anti-Corruption Bureau (NABU) for making decisions in their own interest and the interest of political elites or business circles.

We will not describe in detail every scandalous decision and act of the compromised servants of Themis but will briefly mention the most notorious of them:

  1. Attempts to ban the Revolution of Dignity. In the fall of 2013, judge Viktor Danylyshyn prohibited the installation of tents in the center of Kyiv. Later, judge Bohdan Sanin banned all peaceful gatherings in the center. On December 9, DACK deputy head Ablov actually mandated law enforcement officers to clear Maidan and Khreshchatyk of the demonstrators and tents. The Berkut special police members used these decisions to justify the attempt to clean up the Maidan.
  2. Rewriting history textbooks. In 2020, the DACK ordered that the Education Ministry revise the description of the Revolution of Dignity events in the 2018-2019 textbooks.
  3. Abolishing the new Ukrainian spelling. In 2021, the DACK rescinded the Cabinet of Ministers resolution dated May 22, 2019, on adopting the new Ukrainian spelling.
  4. Ruling against the nationalization of PrivatBank. Based on the lawsuit of Ihor Kolomoiskyi (PrivatBank’s ex-owner) against the National Bank of Ukraine, the Cabinet of Ministers, the Deposit Guarantee Fund, and the National Commission on Securities and Stock Market, the court found their decisions regarding the nationalization PrivatBank illegal. It also invalidated the state’s agreement to purchase the bank’s shares.
  5. Reinstating corrupt officials. In December 2018, the DACK reinstated Roman Nasirov, ex-head of the State Fiscal Service, who was under investigation for abuse of power and office. The DACK also reinstated Mykola Holomsha, who had been earlier lustrated, as the first deputy prosecutor general.

Mykhailo Zhernakov, DEJURE Foundation:

“[The liquidation of DACK] is a matter of national security. Because everything got so out of hand that they tried to bring Yanukovych back here in February at the behest of russia: they were simply preparing the legal ground for making Yanukovych president again when russia was supposed to enter Kyiv. Unfortunately, this issue (the liquidation of DACK, — ed.) took a very long time to resolve, but they finally got around to taking this decision.”

Given the number of decisions that essentially undermined Ukraine’s national security, liquidating the scandalous court was long overdue. The public also insisted that the authorities get rid of the DACK. However, neither of the two after-Maidan presidents was in a hurry to do so.

During the presidency of Petro Poroshenko, it failed at the last moment even though the president had received the consent of the Supreme Council of Justice, without which liquidation would have been impossible. However, he later suddenly excluded the DACK from the order on liquidating courts as part of judicial reform.

President Volodymyr Zelensky also did not listen to the public immediately. When asked about the liquidation of the DACK during a press marathon in 2019, Zelensky said he needed to look into the matter and would not delay the liquidation if necessary. Until 2020, Zelensky did not comment on investigations the anti-corruption bodies conducted against DACK.

In 2020, journalist Danylo Mokryk registered a petition to liquidate the DACK, which received the necessary 25,000 votes. The president then announced he was starting the liquidation process, which, however, got stalled until the International Monetary Fund decided not to give Ukraine another tranche, citing insufficient reform progress, particularly in the judiciary. Only after that did the president submit a draft law on liquidating the DACK with the “urgent” status to the Verkhovna Rada. However, despite this, the law’s adoption was delayed for over a year – until December 13, 2022.

The adoption and signing of this law was the first victory of the public over the corrupt court. According to the head of Transparency International’s legal department, Kateryna Ryzhenko, everyone was interested in liquidating this court: activists, public representatives, and the international community.

“They’ve finally voted for the bill under pressure from the public and the international community, most likely, to meet our obligations to international partners as a state. Overall, the need to liquidate this court has been brewing for years, so it’s certainly a victory,”  Ryzhenko noted.

However, the next step should be the formation of a new court. According to various estimates, the process can take a year or even more.

What should be there in place of the DACK?

Although a long-awaited step opens up room for systemic changes, liquidating the District Administrative Court of Kyiv is only the minimum necessary to continue reform. The DACK must morph from a metropolitan court of almost unlimited power within its jurisdiction into an ordinary administrative court, transferring some of its authority to other judicial institutions.

According to Mykhailo Zhernakov, depriving the newly created court — KCDAC — of the authority to consider cases involving national-level state bodies is essential. A new judicial institution must be designed to review “top-level” issues, namely the High Administrative Court.

“It’s necessary to create a new High Administrative Court by analogy with the High Anti-Corruption Court, engaging international experts to deal with this top level. Let the Kyiv City District Court remain the Kyiv City District Court considering cases regarding the local tax office and the like,” Zhernakov explained.

Finally, the newly created court should be staffed by new, professional judges selected through clear and transparent competitions. The selection of such judges is the competence of the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ), which are also currently forming.

However, the main risk now is that none of these steps are prescribed in the newly adopted law on liquidating the DACK. That is, it is still unknown what power the new judicial institution — the KCDAC — will be granted. If things remain unchanged, it will mean the same corruption risks and possibly a repetition of history.

It should be reminded that until 2005, the Pechersk District Court had the same scandalous reputation as the DACK. Thanks to its location in the Pechersk district of Kyiv, it could hear cases involving Ukraine’s Parliament and  Cabinet of Ministers because they were in the same area. This court, too, is known to have “helped” the authorities eliminate political opponents during Yanukovych’s time in office. During the Revolution of Dignity, its judges put pressure on the activists by making notoriously unjust decisions against them.

Notably, Poroshenko signed a decree on liquidating 29 courts, including the Pechersk court, in 2017, but it was never implemented.

What to do with the judges?

According to Kateryna Ryzhenko, dismissing and sentencing the DACK judges and those “administrators of justice” who became involved in criminal cases during their time in office is crucial.

The court’s liquidation per se does not mean the corrupt judges will lose their jobs, and a decision by the HCJ is needed to do that, which is still forming.

“Judges who worked in the now liquidated court have still not lost their status as judges, continuing to receive salaries and enjoying the benefits of their judge status. To deprive them of the status of judge, there must be a Supreme Administrative Court decision. The reform of self-governing judicial bodies is underway, and the HCJ still needs to be formed before they can address the issue of the DACK judges and their status,” Ryzhenko explained.

Mykhailo Zhernakov added that despite serious allegations regarding each DACK judge, they can still be transferred to another court. To prevent this from happening, the High Qualification Commission of Judges (HQCJ) must assess qualifications and, based on the results, decide whether the judges are fit for their positions. Judges against whom criminal proceedings were opened will lose their jobs if sentenced.

The liquidation of the DACK was a long-awaited and vital step in judicial reform. Still, the changes were not enough to become qualitative and irreversible. For administrative justice system reform to be considered complete, it is necessary to establish the Kyiv City District Administrative Court to replace the DACK and the Supreme Administrative Court to take over the cases involving central state authorities.

Overall, there are four conditions for the successful implementation of judicial reform: the revamped High Council of Justice and the Qualification Commission of Judges to make the selection of candidates for the judge position transparent and fair, a cleansed and new judicial corps, administrative justice system reform, and the renovated Constitutional Court.

With the support of 

Authors

Attention

The author doesn`t work for, consult to, own shares in or receive funding from any company or organization that would benefit from this article, and have no relevant affiliations