The draft law on liquidation of the District Administrative Court of Kyiv is unacceptable and violates the rights of citizens
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Ukrainian National Bar Association considers that the draft Law of Ukraine “On Liquidation of the District Administrative Court of Kyiv (hereinafter - DACK) and Establishment of the Kyiv City District Administrative Court” (Reg. №5369 of 13.04.2021) should be finalized, clear, coherent, and substantiated, and should reflect the interests of persons involved in the proceedings.
With such a letter UNBA addressed the Head of the Committee of the Verkhovna Rada of Ukraine Andriy Kostin.
Reference: The draft law proposes to liquidate the DACK and establish the Kyiv City District Administrative Court with the place of location in Kyiv and to determine that the territorial jurisdiction of the Kyiv City District Administrative Court extends to the city of Kyiv.
Additionally, the subject of the legislative initiative proposes to transfer the functions of consideration and resolution of administrative cases under the jurisdiction of the DACK to the Kyiv District Administrative Court before the Kyiv City District Administrative Court will be created.
Given that the activities of the District Administrative Court, the jurisdiction of which extends to the city of Kyiv, are of significant public importance, the Committee on Administrative Law and Procedure of UNBA conducted a legal analysis of this draft law.
Based on the results of the analysis, UNBA believes that the draft Law needs to be thoroughly finalized and calls for consideration of the proposals and comments submitted at the sitting of the Verkhovna Rada Committee on Legal Policy.
UNBA emphasizes that the second part of Article 125 of the Constitution of Ukraine provides for the procedure of formation, reorganization, and liquidation of courts, according to which the court is formed, reorganized, and liquidated by law, the draft of which is submitted to the Verkhovna Rada of Ukraine after consultations with the High Council of Justice.
As a result, the consultative opinion of the High Council of Justice on the draft Law of Ukraine (Reg. №5369 of 13.04.2021) received before the draft law was submitted to the Verkhovna Rada of Ukraine is important in the procedure of submission, consideration, and adoption of the draft law.
"Violation of the procedure for approval and/or introduction and further adoption of the law carries the risk of declaring the law unconstitutional," - the UNBA letter states.
The UNBA Committee also points out that the draft law does not refer to a specific ground provided by a special law (Law of Ukraine “On the Judiciary and the Status of Judges”) to terminate the activities and liquidate the DACK. According to the fourth part of Article 19 of the Law of Ukraine "On Judiciary and Status of Judges," the grounds for the formation or liquidation of the court are: changes in the judicial system defined by this Law; the need to ensure access to justice; optimization of the state budget expenditures; or change of the administrative-territorial structure.
The UNBA also points out the possible violation of the constitutionally defined guarantees of independence and inviolability of judges in the administration of justice, as well as legal liability for failure to perform their duties.
This is since per parts two-three of Article 82 of the Law of Ukraine "On the Judiciary and the Status of Judges", transfer of a judge to another court is carried out on the basis and within the recommendation of the High Qualification Commission of Judges of Ukraine, issued as a result of the competition to fill the vacant position of a judge.
At the same time, the transfer of a judge to the position of a judge in another court of the same or lower level may be carried out without competition in cases of reorganization, liquidation, or termination of the court in which such a judge holds the position of a judge.
At present, the High Qualification Commission of Judges of Ukraine is not fully functioning (no legitimate composition has been formed).
In such circumstances, in the event of the liquidation of the DACK, the judges of that court will not be transferred to another court. Thus, there will be a situation of legal uncertainty regarding the observance of the constitutional guarantees of the independence of judges.
The proposed draft law provides for the liquidation of public authority by adopting a legal act (special law) on liquidation with the simultaneous creation of a new legal entity (Kyiv City District Administrative Court) with similar functions.
In this context, it should be noted that the draft Law of Ukraine does not provide for the succession of the Kyiv City District Administrative Court, in such circumstances it is appropriate to establish a new court based on the material and technical base of the DACK.
"We would like to consider that in practice the parties to the case and other interested parties in case of liquidation of the court have questions regarding the receipt of decisions and other documents issued earlier by the liquidated court. An analysis of law enforcement practice indicates that there have been cases of refusal to issue certificates and other documents required by applicants by another court or public authority.
We believe that this issue also needs legal regulation, and therefore, we ask you to pay attention to this during the consideration of the draft Law of Ukraine (Reg. № 5369 of 13.04.2021)," the UNBA letter reads.
At the same time, UNBA draws attention to the fact that before the start of the Kyiv City District Administrative Court, which is provided by the bill, the Parliament must ensure the principle of legal certainty. Therefore, participants in administrative cases must be sure of the clarity of the grounds, objectives, and content of the proposed regulations, and, consequently, they must be able to anticipate the legal consequences of their behavior.
In such circumstances, the draft law should enshrine the principle of legal certainty, namely by determining that administrative claims, applications, and complaints filed with the DACK before the start of the Kyiv City District Administrative Court are considered by the Kyiv District Administrative Court.
Simultaneously, the moment of the beginning of activity of the Kyiv City District Administrative Court should be determined by the notification of the State Judicial Administration on the beginning of the activity of the court (Kyiv City District Administrative Court).
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