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Liquidation of the Kiev District Administrative Court and Related Practical Difficulties

Durch Gesetz vom 13.12.2022 hat das ukrainische Parlament die Auflösung des Bezirksverwaltungsgerichts der Stadt Kiew und die Schaffung eines neuen Kiewer Bezirksverwaltungsgerichts mit identischer Zuständigkeit beschlossen. Offizieller Grund für die Auflösung sind Zweifel an der Integrität der Richterschaft des aufgelösten Gerichts. Allerdings hatte das aufgelöste Gericht, welches die ausschließliche Zuständigkeit für Klagen gegen die ukrainische Regierung und ukrainische Ministerien besaß, in der Vergangenheit wiederholt in öffentlichkeitswirksamen Verfahren gegen die ukrainische Regierung entschieden. Bis zur tatsächlichen Funktionsfähigkeit des neugeschaffenen Gerichts sind anhängige und neue verwaltungsgerichtliche Verfahren vom Verwaltungsgericht des der Stadt Kiew benachbarten Kiewer Gebiets, zusätzlich zu den Verfahren in dessen eigener Zuständigkeit, zu bearbeiten. Das Verwaltungsgericht des Kiewer Gebiets ist hierdurch überlastet, was in der Praxis den weitgehenden Stillstand der verwaltungsgerichtlichen Rechtspflege in der ukrainischen Hauptstadt und auch im Hinblick auf Maßnahmen der ukrainischen Regierung zur Folge hat.

I. Background and intentions of the liquidation

On 13 December 2022, the Ukrainian parliament adopted Law of Ukraine No. 2825-IX "On the liquidation of the District Administrative Court of Kyiv City and the establishment of the Kyiv City District Administrative Court" (hereinafter referred to as the "Law"). The Law entered into force on 15 December 2022 and provides that the notorious District Administrative Court of Kyiv City (hereinafter referred to as the "DAC of Kyiv City", in Ukrainian – Окружний адміністративний суд міста Києва) is replaced by a new court with identical material and territorial jurisdiction and similar name – Kyiv City District Administrative Court (hereinafter referred to as the "Kyiv City DAC", in Ukrainian – Київський міський окружний адміністративний суд).

1. Allegations of corruption of judiciary

The liquidated DAC of Kyiv City has had a questionable reputation for a long time, extending back to the presidencies of Petro Poroshenko and even Viktor Yanukovych. President Selenskyi has been lobbying for abolishing this court since 2021.

The head of the DAC of Kyiv City, Pavlo Vovk, has been a frequent subject of media interest for his occasionally erratic style of handling court proceedings, and for his lifestyle and personal financial situation. After investigations by the National Anti-Corruption Bureau in 2020, recorded conversations between Mr.Vovkand other judges discussing corrupt schemes during court proceedings were leaked to Ukrainian media. Investigators believe that Mr. Vovk headed a "criminal organization" aimed at "seizing state power, establishing control over the High Qualification Commission of Judges of Ukraine, the Supreme Council of Justice and creating artificial obstacles in their work". In June 2022, an indictment was submitted to the High Anti-Corruption Court. However, as of February 2023 Mr. Vovk has not been convicted yet.

Nevertheless, on 9 December 2022, International Anti-Corruption Day, the US State Department imposed sanctions against Mr. Vovk for soliciting bribes in return for interfering in judicial and other public proceedings. This is widely considered to have been the final trigger for the adoption of the Law four days later.

2. Controversial court decisions of the DAC of Kyiv City

As the DAC of Kyiv City`s territorial jurisdiction covers the capital of Ukraine, and as its exclusive material jurisdiction covers administrative lawsuits against the Cabinet of Ministers (government of Ukraine) and Ukrainian ministries, numerous prominent and controversial administrative court cases have been litigated in this court:

  • The DAC of Kyiv City blocked protests during the Euromaidan (Revolution of Dignity) at the end of 2013.4 In 2019, the court suspended US-born physician and Poroshenko ally Ulana Suprun from performing the duties of the Minister of Health. The court cancelled a new official version of Ukrainian spelling in 20216, blocked the formal renaming of Moscow Avenue in Kyiv7, and compelled the Ministry of Education to revise the description of the Euromaidan (Revolution of Dignity) events in Ukrainian history textbooks.

  • Some years ago, the DAC of Kyiv City recognized the forced nationalization of Privat Bank, the biggest Ukrainian non-state bank owned by oligarchs Igor Kolomoisky and Gennadiy Bogolyubov, as illegal. The court blocked the forced renaming of the Ukrainian Orthodox Church (Moscow Patriarchate).

  • At the end of December 2021, the DAC of Kyiv City opened proceedings on the claim of former president Yanukovych against the Ukrainian parliament with regard to the latter`s description of Mr. Yanukovych`s ousting during the Euromaidan in February 2022 as a self-removal from the presidency. The Secretary of Ukraine`s National Security and Defence Council, Oleksiy Danilov, alleged in May 2022 that Russia had the plan to reinstate Mr. Yanukovych as president with the help of the DAC of Kyiv City, which was supposed to declare Mr. Yanukovych`s removal illegal.

After the introduction of martial law in Ukraineon 24 February 2022 followingthe full-scale Russianag-gression, the DAC of Kyiv City did not acquiesce but continued to annulate governmental acts:

  • The court awarded multi-million pay-outs to lustrated judges, and former Deputy Prosecutor General, Serhiy Kiz and lifted Ukrainian sanctions on a company with a Russian beneficiary owner.

  • Judges of the DAC of Kyiv City reinstated a number of public officials who were dismissed under the "Lustration Law" and awarded them significant pay-outs for forced absenteeism.

  • In August 2022, one of the judges reversed the April decision of the National Energy and Utilities Regulatory Commission (NEURC) on the revocation of a licence for electricity production and the right to receive "green tariff" for a company whose co-founder and beneficiary owner is a Russian citizen.

Most of the mentioned court decisions were appealed and later overturned by the Sixth Administrative Court of Appeal.

3. Provided reasons for court liquidation

Due to its controversial decisions and its judges with doubtful reputation, the DAC of Kyiv City has earned reputation as the most scandalous Ukrainian court and a symbol of judicial corruption.

After the imposition of US sanctions against Mr. Vovk, president Selenskyi justified the liquidation of the DAC of Kyiv City in a speech at the meeting of the Plenum of the Supreme Courtwith the demand for fairness of the judicial process.

Considering the pressure from the international community, the liquidation of the DAC of Kyiv City can be perceived as fulfilment of Ukraine's obligations to its international partners. Also, considering the numerous court decisions undermining government decisions, the liquidation of the court may have been considered a matter of national security by the Ukrainian leadership.

II. Processing of administrative court cases during the transition period

Immediately upon effectiveness of the Law on 15 December 2022, the DAC of Kyiv City was stripped of its powers and therefore unable to continue processing pending and new court cases.

1. Jurisdiction affected by the liquidation

The liquidated DAC of Kyiv City had exclusive jurisdiction for administrative cases pertaining to normative legal acts of the Ukrainian government (Cabinet of Ministers), as well as ministries, other central executive bodies, National Bank and other public authorities, the powers of which extend to the entire territory of Ukraine. In other words, the DAC of Kyiv City was the key court in Ukraine that resolved cases of national importance and had a direct impact on the work of the highest public authorities.

Further, the liquidated DAC of Kyiv City had normal administrative jurisdiction in disputes between individuals or legal entities with public authorities with regard to normative or individual legal acts, actions, or inactions when the plaintiff or defendant has its place of residence or its location in Kyiv City. Accordingly, the liquidation affects all administrative cases where both parties are residing or located in Kyiv City.

2. Transitional jurisdiction of the Kyiv District Administrative Court

According to the Law, until the Kyiv City DAC starts its work, cases within the jurisdiction of the liquidated DAC of Kyiv City shall be transitionally considered by the Kyiv District Administrative Court (hereinafter referred to as the "Kyiv DAC", in Ukrainian – Київський окружний адміністративний суд). The normal jurisdiction of the Kyiv DAC covers the Kyiv region (the Ukrainian region bordering to and surrounding Kyiv City).

3. Actual transfer of court cases

The Law obliged the liquidated DAC of Kyiv City to transfer all court cases pending or otherwise in its possession within ten working days upon effectiveness of the Law to the Kyiv DAC. In concrete numbers, this would have meant that more than 60.000 pending court cases and more than 300.000 archived court cases were to be transferred during the period from 15 December 2022 to 30 December 2022 – a matter of impossibility.

4. Upcoming re-transfer of court cases to the new Kyiv City DAC

The Law further stipulates that court cases must be transferred again to the new Kyiv City DAC once this court starts operation. Specific terms and deadlines for this upcoming retransfer are not specified in the Law.

III. Implementation issues

1. Overloading of the Kyiv DAC

The transitionally competent Kyiv DAC has a significant workload generated by its original jurisdiction over the Kyiv region. As of February 2023, the Kyiv DAC is staffed with 23 judges and has approximately 30.000 pending court cases. According to experts unrelated to either court, the Kyiv DAC has the technical ability to accept only about 100-200 additional cases per day (3.000 - 4.000 per month). Taking into account the steady flow of incoming new lawsuits originating in Kyiv City (formerly under the jurisdiction of the DAC of Kyiv City) and Kyiv region (original jurisdiction of the Kyiv DAC), the workload of each judge is extremely high. Consequentially, the mandatory transfer of 60.000 pending court cases from the liquidated DAC of Kyiv City to the Kyiv DAC is progressing slowly and may drag on for years.

Disputing parties are unable to file any motion until their particular court case has been transferred to the Kyiv DAC and assigned with a file number.

2. Establishment of the new Kyiv City DAC

Staffing the new Kyiv City DAC is subject to particular judicial procedures and will require significant amounts of time.

To appoint judges at the Kyiv City DAC, the High Qualification Commission of Judges must organize and conduct a competition. This authority has not been working between autumn 2019 and end 2022, partly due to the fact that the DAC of Kyiv City had deprived the chairman of the High Qualification Commission of Judges of his powers. As the commission has not been working for more than three years, arrears need to beresolved, and the competition is expected to take several months. As of March 2023, the commission is interviewing candidates for judge positions. As a next step, the final list of judge candidates shall be reviewed by the Supreme Council of Justice, an independent body of state power and judicial governance designed to ensure independence and integrity of the judiciary.

3. Doubts regarding the lawfulness of the liquidation of the DAC of Kyiv City

According to some voices, the liquidation of the DAC of Kyiv City violates Art. 10 (1) and Art. 12 of the Law of Ukraine No. 389-VIII "On the Legal Regime of Martial Law", which state that the powers of courts cannot be terminated and restricted during martial law.

Contrarily, supporters of the court liquidation argue that these provisions do not prohibit the liquidation of a court per se during martial law, but rather interdict termination of a functioning court during wartime if its powers to render justice cannot be transferred to another court. Therefore, according to this position, the liquidation of the DAC of Kyiv City would have been permissible because its powers are temporarily carried out by the Kyiv DAC.

Unsurprisingly, the judges of the liquidated DAC of Kyiv City are of the opinion that the adopted Law does not comply with the provisions of the Constitution of Ukraine, procedural legislation, and the requirements of wartime. Some affected judges have voiced the intention to challenge the liquidation in court, raising accusations that the procedure has been politicized. As of end February 2023, no legal action has been filed in this regard, but it appears possible that the adoption of the Law will be appealed to the Constitutional Court of Ukraine or, ultimately,to the European Court of Human Rights.

IV. Conclusion

The recent organizational changes in the administrative jurisdiction in the city of Kyiv were motivated mainly by notoriously problematic judges, but partly also by Ukrainian leadership`s discomfort with a number of judgements. It remains to be seen whether the intended facilitation of fair justice and elimination of corruption will prevail.

There is a certain risk that unrealistic statutory deadlines, existing bureaucracy, and also the unstable general situation created by the Russian aggression will lead to significant delays, jeopardizing the reform.

As a consequence of the protracted structural changes in the administrative judiciary, dispute partiesare suffering from significant delays in their court proceedings. It cannot be excluded that, caused by the numerous transfers of court cases between several courts, some court cases may ultimately get lost.

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