Financial Dependence and Questionable Selection: Why Draft Law No. 12368-1 on Administrative Courts is Harmful

The draft law that envisions the creation and operation of two new courts to replace the dissolved Kyiv District Administrative Court (No. 12368-1) is scheduled for voting in the Verkhovna Rada on February 25.

The establishment of a single new High Administrative Court is also a requirement of the International Monetary Fund (IMF) and the European Union (EU). Moreover, international partners have insisted that the new court be created following the same model as the High Anti-Corruption Court (HACC), with the involvement of the Public Council of International Experts (PCIE). However, instead of establishing a single administrative court with the PCIE participation, MPs not only rejected this approach but also amended the draft law for its second reading, introducing several flaws.

What Are the Risks?

1. Judicial Selection Procedure. Selecting judges for these courts involves an Expert Council composed of three Ukrainian representatives appointed by the odious Council of Judges and three international experts. While the voting procedure formally grants international experts a casting (prevailing) vote, in practice, it is “diluted” by the requirement for joint sessions between the Expert Council and the High Qualification Commission of Judges (HQCJ). Effectively, this procedure is another step toward reducing or even eliminating international experts’ role in judicial selection.

2. Voting Procedure for the Council’s Regulations. Additionally, Draft Law No. 12368-1 does not define how the Expert Council should vote on regulations or other procedural matters. Without a specified voting procedure that guarantees international experts a prevailing vote, there is a risk that rules and procedures could be compromised through negotiations with judicial elites, allowing undue influence over the Council’s work.

3. Lack of Financial Autonomy for Administrative Courts. The proposed courts are, in fact, local and appellate courts rather than high specialized court (as the HACC is). This distinction affects their funding mechanism, as they will be financed through the State Judicial Administration (SJA) rather than directly from the state budget. This model creates risks of financial influence on the newly established courts via the SJA.

It is important to note that the State Judicial Administration is responsible for providing resources to the judiciary, including court premises, supplies, salaries for court employees, and more. In the past, SJA heads have been involved in numerous scandals, including the infamous “Vovk tapes” and National Anti-Corruption Bureau of Ukraine investigations, or have had discrepancies in their asset declarations.

4. Jurisdiction. The proposed courts will handle lawsuits against the Cabinet of Ministers, central executive bodies, the National Bank, NABU, the Specialized Anti-Corruption Prosecutor’s Office (SAPO), the National Agency on Corruption Prevention (NACP), and others. However, Draft Law No. 12368-1 does not mention lawsuits against the decisions made by judicial governance bodies — the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ). Currently, the Supreme Court interferes in the work of the HCJ and HQCJ, despite this not being its function. Meanwhile, the Supreme Court systematically seeks to undermine any progress in judicial reform through such actions.

5. The Council of Judges Appoints Experts under the Ukrainian Quota. The fact that the Council of Judges will appoint three members of the Expert Council is particularly concerning. The Council of Judges has a track record of appointing individuals with questionable integrity and professionalism, including a figure implicated in the “Vovk tapes,” the Supreme Court Chief Justice under Yanukovych who supported the repressive “laws of January 16,” and a judge who released a Berkut officer suspected of killing three Maidan protesters.

Draft Law No. 12368-1, in its current form, casts doubt on the effectiveness and independence of judicial selection for the new administrative courts. DEJURE Foundation has previously emphasized that the PCIE model is a key guarantee of an independent and impartial judicial selection process and must be applied when creating the new High Administrative Court. Additionally, to ensure that the new administrative court can impartially review high-profile cases involving top government bodies, it is essential to guarantee its financial and organizational independence.