Administrative collapse or how a “victory” over the OASK will cause global violations of the rights of Ukrainians to a fair trial

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According to the Ukrainian traditions of reform, when it is not possible to get rid of an objectionable leader, the entire institution is liquidated. The cost to the budget and negative consequences are usually not taken into account. This is what happened to the District Administrative Court of Kyiv.

Special status

The reader, to whom the mass media explained in detail the political expediency of such a step, should first of all remember the special importance of the metropolitan jurisdiction in accordance with the Code of Administrative Procedure.

After all, the jurisdiction of administrative courts extends to cases in public legal disputes, in particular:

– with the subject of authority regarding the appeal of his decisions (normative legal acts or individual acts), actions or inaction;

– regarding acceptance into public service, its completion, dismissal;

– between the subjects of authority regarding the implementation of their competence

– regarding legal relations related to the election process;

– regarding the formation of the composition of state bodies, local self-government bodies.

As for jurisdiction, as a general rule, administrative cases regarding the appeal of individual acts, as well as actions or inactions of subjects of authority, which were accepted (committed, allowed) in relation to a specific person, are decided at the choice of the plaintiff at the place of registration (residence, stay ) of the latter or at the location of the defendant. That is, the initiated reform affects all Kyivans who are suing the authorities.

In addition, the OASK also had exclusive jurisdiction. These are, in particular, administrative cases regarding the appeal of normative legal acts of the Cabinet of Ministers, a ministry or other central executive body, the National Bank or another subject of power, the powers of which extend to the entire territory of Ukraine.

In other words, the OASK was actually a key court in the country, which decided cases of national significance, and had a direct influence on the work of the highest authorities. It was precisely because of “resonant” decisions that did not suit the authorities and (or) an active part of civil society that he actually acquired a scandalous status.

If we believe the dry language of numbers, then in 2022 the judges of the OASK considered 21.5 thousand cases. (by other court data, provided to us upon request, this is 29,481 cases). More than 80% of them were decided in favor of the plaintiffs (read – against the state). At the same time, such a high percentage of satisfied claims was typical for the entire 15-year period of the court’s activity.

In general, as of mid-December, 62,000 cases and materials were pending at the OASK. Almost 21.7 thousand of which arrived in 2022.

You can draw conclusions about the workload of the court over the years from the infographic compiled on the basis of the data provided to us by the OASK itself. It is noteworthy that the court coped with the work (when the number of considered cases was commensurate with or exceeded the number under consideration) only in the period from 2010 to 2013.

Transition

One way or another, OASK was liquidated by the Law of 13.12.2022 No. 2825-IX. A little later, the State Judicial Administration, by its order No. 477 dated 20.12.2022, formed the corresponding liquidation commission and approved the plan of measures for liquidation (according to available information, this order is now being appealed by one of the judges of the OASK).

At the same time, the same law established the Kyiv City District Administrative Court, located in the capital.

According to the law, the OASK immediately stopped the administration of justice. The following procedure was established for the transition period: before the new court begins its work, all metropolitan cases must be considered and resolved in the region. For this, the OASK had to transfer 62,000 case materials to the Kyiv District Administrative Court within ten working days.

And after the completion of the reform, from the day the Kyiv City District Administrative Court begins its work, all cases with the jurisdiction of the city of Kyiv must be transferred to it from the KAOAS.

Implementation difficulties

Given the known slowness of Ukrainian justice even in Strasbourg, the question arises whether it is realistic to transfer all cases of the OASK to the region, and then to the newly formed district court? And when, in connection with such reforms, will it be possible to count on fair justice?

They do not see any prospects in the judicial system. “The first problem is the transfer of cases that are in the OASC,” said the Chairman of the Supreme Court Vsevolod Knyazev in an interview with the “Legal Practice” publication. – As far as I know, the cases are already transferred. But the process is very slow… The throughput capacity of the office of the Kyiv District Administrative Court (if they will deal only with this issue) is about 100-200 cases per day. If you count: 100-200 per day, 3-4 thousand per month. This means that the transfer of sixty thousand cases will take years.”

The head of the Supreme Court emphasized that the law does not provide for another mechanism. “And, unfortunately, those persons who are participants in court proceedings in cases transferred from the OASK will be deprived of the opportunity to protect their rights for a long time,” he summarized.

After all, there are only 23 judges in the KOAS, and it already has thirty thousand cases pending before it. Of course, the judges will not be able to overcome the increase in workload on their own, so V. Knyazev talks about the possibility of seconding judges.

But there are also 22 vacancies in the apparatus of the Kyiv District Administrative Court, to which the legislator added 62,000 cases for the new year. Maybe because of the expected flurry of cases, there announced about recruiting But, taking into account the extremely low remuneration of employees (not to be confused with the monetary maintenance of judges), those willing to rake through piles of papers are unlikely to appear.

Of course, the optimal way out of the situation would be the formation of the Kyiv City Administrative Court with a new staff of judges as soon as possible. But even this is currently impossible. Because it is possible to fill the new institution with judges through a competition, which is procedurally organized and conducted by the Higher Qualification Commission of Judges. But even this formation is absent today. The prospects of its formation are also ghostly.

Reasonable terms

In practice, there is currently a complete mess. So, when the author of this article inquired at the State Judicial Administration about the state of consideration of his two cases, which the OASK is considering from 2020 and 2021, respectively, there forwarded requests to the liquidated OASK and the receiver of the case to the KAOAS. In the first, of course, washed handsreferring to the liquidation law, and later in general returned the question DSAU. And there was no response at all from the region.

At the same time, the Convention on the Protection of Human Rights and Fundamental Freedoms obliges the Contracting States to organize their legal systems in a way that would enable courts to comply with the requirements of paragraph 1 of Article 6, including the requirement to conduct a trial within a “reasonable time”. This was repeatedly emphasized by the European Court of Human Rights (see, for example, the case “Zimmerman and Steiner against Switzerland”). A temporary accumulation of unresolved cases does not lead to liability, if the state promptly takes measures to overcome such an emergency situation.

Even the introduction of reforms aimed at speeding up the consideration of cases cannot justify delays in their consideration. After all, this does not cancel the obligation of the state to ensure consideration of the case within a reasonable time (case “Fisanotti vs. Italy”). States are obliged to organize the entry into force and implementation of such measures in such a way as to avoid the prolongation of the consideration of pending cases.

Without hope hope

So, the situation is actually deadlocked: the prospects for the creation of a new court are unclear, and the “DoS-attack” with case materials of the Kyiv District Administrative Court, organized by politicians, is expected to lead to the failure of the judicial system.

Obviously, similar phenomena of uncertainty, when materials may and may not be in any court at the same time and according to Schrödinger’s imaginary experiment, courts are both alive (by law) and dead (in practice) are the new reality of the judiciary in Ukraine.

Can we still hope for Strasbourg? After all, when the consideration of cases is so prolonged, one can not wait for the complete exhaustion of means of protection at the national level and immediately apply to the ECHR (see, for example, the decision “Banchok and Laszlo Magyar (No. 2) against Hungary”).

But the situation is not better in Europe either. The usual terms for consideration of cases there are 8-10 years (for details, see the article “On selective intelligence”). And this is complete nonsense for the purposes of an administrative dispute.

So in Ukraine, in fact, a situation arose in which the authorities received carte blanche for any actions against their citizens. Without the prospect of restoring justice in the courts.

Author: Volodymyr Bogatyrlawyer, honored lawyer of Ukraine

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