Last Thursday (January 9), the parliament voted for a bill that could re-create the CACK-2. In general, administrative courts consider disputes between citizens and the state. Since all central government bodies are located in Kyiv, it will be through the Kyiv Administrative Court that it will be possible to challenge the appointment of heads of ministries, heads of all anti-corruption agencies, prosecutors of the State Bureau of Investigation (SBI) — and, in principle, any decrees of the central government, except for presidential decrees.
Until December 2022, CACK was headed by the scandalous judge Pavlo Vovk. Under him, the court blocked competitions for positions in government bodies, played along with individual politicians, and manipulated other courts. The court was liquidated two years ago. Since then, the legal community has feared that the authorities will create CACK 2.0 in its place.
To restart the administrative court, two bills were considered: a government bill and a bill by “Motherland” deputy, lawyer Serhiy Vlasenko.
The government proposed to create a Higher Administrative Specialized Court. It would not be part of the general system of courts and would include the first and second (appellate) instances. Ukraine already has an example of such a court — the High Anti-Corruption Court (HACC). It differs from others, for example, in that any judge of this court must be approved by the Public Council of International Experts. This reduces the risks that the executive branch will appoint “its” people as judges and will be able to administer justice. This is exactly the scheme that the government prescribed for the High Administrative Specialized Court — and this met the requirements of Western partners.
Serhiy Vlasenkoʼs bill proposes that the Kyiv City District Administrative Court (KCDAC) consider disputes important to the country. It was created when the CACK was liquidated, its location was changed, but it is still under construction and does not consider cases. The government wanted this court to consider ordinary disputes between citizens and city authorities: with the tax office, pension fund, etc. Vlasenko proposes that the court also consider state-level disputes. In addition, he is proposed to create a second instance court in the capital — an appellate court.
The governmentʼs project meets the requirements of Western partners. Serhiy Vlasenkoʼs project does not. However, the parliament rejected the governmentʼs project and voted for Vlasenkoʼs project.
Legal experts interviewed by Babel name 4 risks for the judicial system if the court is created according to Serhiy Vlasenkoʼs project:
- Judges for the new court will be elected without international experts. They will undergo a regular competition — like any local court of first instance. This does not meet the requirements of Western partners, as stipulated in the agreements. If Ukraine does not fulfill them, it will not receive money from the EU and the IMF (“Motherland” systematically opposes international experts participating in competitions for high positions).
- A person with low qualifications could become a judge. Since the court would be an ordinary local court, the requirements for qualifications and experience would be minimal. Theoretically, a lawyer with five years of experience in farming could become a judge.
- Judges will have low salaries and great temptations for corruption. Judges who will hear the most important cases will receive 50 thousand hryvnias per month.
- Another administrative court of appeal will appear, which will disrupt the unity of the judicial system. An administrative court of appeal, whose jurisdiction extends to Kyiv, already exists. The new court of appeal will introduce confusion and will contradict the judicial reform of 2016-2017.
The head of the “Servant of the People” faction Davyd Arakhamia in a comment to Babel, could not explain why the "servants" failed the government project and approved Serhiy Vlasenkoʼs project.
“The target was the government bill. When it failed, we decided to support an alternative one, regardless of [its content]. Otherwise, we would have had to register [the bill] again, wait another 14 days for the submission of alternative [projects], and we would have missed the deadline set by IMF,” explains Arakhamia.
According to him, the text of the bill will be finalized. The Verkhovna Rada’s regulations do not allow for a complete change to the text of the bill, but the deputies ignore this — and have already submitted a completely different draft to the second reading more than once.