The Office of the President and Cabinet of Ministers continue to push for a controlled court to replace the DACK

It seems the Cabinet of Ministers and the Office of the President believe the country needs a controlled court of nationwide importance. On January 8, the Parliamentary Legal Committee, led by Denys Maslov, recommended the Verkhovna Rada to consider yet another harmful draft law, № 12368, on the establishment of a High Administrative Court (HACU). This new court is intended to replace the notorious District Administrative Court of Kyiv (DACK). However, Ukrainian authorities are doing everything possible to create yet another institution under their control.

Draft law № 12368 essentially duplicates three previous draft laws that DEJURE Foundation and its partners had criticized earlier and that were rejected by the Verkhovna Rada.

The fact that this initiative aligns with the government’s policy is evident not only from the Cabinet’s authorship but also from statements made during the Legal Committee’s meeting. Deputy Head of the Presidential Office, Iryna Mudra, argued that international experts should not have a meaningful role in selecting judges for the HACU. “We support the functioning of the Expert Council as an advisory body, not one that assumes the powers of the High Qualification Commission of Judges (HQCJ). This should be explicitly stated in the draft law – that it is exclusively an advisory body,” Mudra said, as reported by the Anti-Corruption Action Center.

As before, the draft law proposes a controlled procedure for forming the new court, but this time, it’s even worse. The casting (prevailing) vote of international experts in selecting judges is undermined, with greater authority given to the notorious Council of Judges, led by Bohdan Monich. According to journalists, Monich is affiliated with Andriy Portnov, Deputy Head of the Presidential Administration under Yanukovych, and Pavlo Vovk, the head of the now-liquidated DACK, which the new court is supposed to replace.

Initially, candidates would be vetted by the Expert Council (comprising three members nominated by the Council of Judges and three nominated by international organizations). If the Expert Council issues a negative opinion on a candidate by majority vote or if the votes are tied 50-50, the final decision would be made during a joint meeting with the HQCJ.

At such a meeting, the candidate must secure a qualified majority vote from both bodies (15 out of 22 members). This essentially requires nearly unanimous support from HQCJ members (if the Council of Judges representatives oppose the candidate), which is highly unrealistic, especially if not all commission members are present.

As a result, the three representatives of the Council of Judges in the Expert Council would effectively have veto power over any candidate they disapprove. Furthermore, frequent joint meetings to discuss “inconvenient” candidates would overload the HQCJ, ensuring that only “controlled” candidates make it into the new court.

To prevent this negative scenario, it is essential to revert to the successful model where judges were selected by a body entirely composed of representatives from international organizations. This approach has already proven effective in forming the High Anti-Corruption Court (HACC). A competition for vacant positions in the HACC is currently underway using this same model.

Additionally, it is critical to ensure transparency in the selection process for the new court. The current draft law does not require live broadcasts of the judge selection hearings for the HACU, depriving the public of any oversight over the process.

The draft law also proposes a “narrowed” jurisdiction for the HACU. Cases related to reviewing HQCJ and High Council of Justice (HCJ) decisions, inaction by the Central Election Commission, actions of presidential candidates, and similar matters are proposed to remain under the unreformed Supreme Court as a court of first instance.

Like its predecessors, draft law № 12368 deprives Ukrainian society of the opportunity to establish a truly new and independent court, directly contradicting the demands of international partners. Furthermore, creating the HACU is one of the key requirements of the International Monetary Fund. The European Commission also emphasized the need for an independent administrative court in its latest report on Ukraine.

So far, MPs have not included this draft law on the Rada’s agenda due to a lack of votes. However, it could be brought to a vote soon. DEJURE Foundation hopes that the MPs will not allow the creation of another controlled court and will adopt the effective model used to establish the HACC. Otherwise, both international support and European integration will be jeopardized.