Alexander Banchuk from the Ministry of Justice: Society has lost trust in the entire government, not just in the judicial system.

The establishment of an Administrative Court following the dissolution of the controversial OASK, issues within ARMA, juvenile justice, and the path to the European Union were discussed by Deputy Minister of Justice Alexander Banchuk in an interview with RBC-Ukraine.

Ukraine has been striving for over a decade to align with European Union standards to become a full member. This entails a vast number of reforms, not all of which have been successfully implemented. On the contrary, due to the unique Ukrainian context, innovations are often met with resistance and are even more challenging to execute.

Recently, the Ministry of Justice has been engaged in aligning the judicial system with EU standards. It reviews and analyzes legal acts for their "European integration" potential, while also maintaining ongoing communication with Western partners who monitor compliance with these standards. Not all of these recommendations are embraced by the Ukrainian authorities, leading to ongoing debates, one of which has persisted for over a decade concerning judicial reform.

In his interview with RBC-Ukraine, Deputy Minister of Justice Alexander Banchuk explained what is needed to implement European norms into Ukrainian judicial proceedings, why public trust in the courts is lacking, and when results should be presented to the European Union.

On the establishment of an Administrative Court in Ukraine

– When you were appointed to this position in 2019, did you think it was because you criticized the organization of the Ministry of Justice and the decisions of the previous team? Now that a few years have passed, how do you view the organization and decisions?

– As you know, starting September 2024, we will have a new minister – Vice Prime Minister for European and Euro-Atlantic Integration, Minister of Justice Olga Stefanishina. This effectively defines the scope of activities, as it was decided to merge two mandates: European and Euro-Atlantic integration, and the area of justice. We expect that the most challenging areas for negotiations with the EU will be the rule of law, which includes issues of justice, human rights, and combating corruption.

I believe this is an important combination, and, of course, transformations are constantly occurring within the Ministry. For instance, a Department of European Union Law is currently being established to analyze all legislative acts and projects prepared by the government to ensure a higher quality of expertise.

– The Ministry's website regarding your activities is somewhat unclear. From what is written there, it seems you are continuously analyzing legal acts.

– The website reflects the relevant provisions of the Minister of Justice's order on the distribution of powers. This is a peculiarity of our work as reflected there. However, my area of responsibility is legislation in the field of public law. Public law encompasses constitutional legislation and administrative legislation. Additionally, my responsibilities include legislation related to justice and institutions associated with justice. Accordingly, we prepare and review draft laws in these areas.

– Administrative Court. In January, the Verkhovna Rada of Ukraine failed to vote on the establishment of an Administrative Court with the involvement of international experts. What is happening in this process?

– Let's start with what an administrative court is. It is one of the essential elements of the rule of law.

-Essentially, it is a court where a person can come and complain about the authorities, right?

– Yes. This distinguishes a democratic society from totalitarian or authoritarian ones. The paradigm shift is that a citizen, a businessman, or a legal entity representative, if they believe that the actions or decisions of a government body or official violate the law and their rights, have the right to file an administrative lawsuit against that entity.

There are certain elements of the presumption of guilt of the authority. In criminal proceedings, there is a presumption of innocence – a person is innocent until proven otherwise. Here, it is the opposite – the individual simply needs to file a claim stating that such a decision, order, or decree violates their rights. Then, all evidence to refute that claim lies with the authority itself. This is reflected in our Administrative Procedure Code.

Regarding the process itself, previously, the Kyiv District Administrative Court handled cases against central government authorities. This includes the Cabinet of Ministers, the National Bank, ministries, and other central executive bodies. Then, as you know, the OASK was dissolved.

The creation of the Higher Administrative Court is aimed at establishing a court that will exclusively handle such cases. If candidates are selected according to additional filtering mechanisms, integrity checks, and competency assessments, it will focus solely on these matters.

Why is a separate body important? Because it is challenging to consider a case involving a local court judge when it pertains to a Cabinet decision, for example. In countries with centuries of democratic traditions and independent justice, a local court might stop or annul, for instance, a decree from the President of the United States. However, in a young democracy like ours, we must implement additional guarantees.

– Should this be a single court located only in Kyiv?

– Yes, the idea is that it will be a single court in Kyiv that will hear cases against the highest authorities.

– We already have a history with the VAKS. The idea is good, but VAKS is overwhelmed with cases. Society is generally quite critical of the authorities; will there be risks of an enormous burden on the court?

– That could be a concern; we will need to monitor the actual workload. It will depend on the number of cases. However, the number of cases can also indicate whether people trust the court or not.

Again, the burden in the Higher Anti-Corruption Court is due to the peculiarities of criminal proceedings. All cases were examined substantively by a panel, meaning only three judges. Furthermore, in each criminal proceeding, there are numerous decisions made by the investigative judge at the pre-trial stages. We understand that any limitation of rights requires an investigative judge.

There are pre-trial processes where measures of restraint, such as detention, are applied, which involve full court sessions. This is because it pertains to the consideration of requests for the imposition of measures of restraint in the form of detention. Moreover, there are sanctions regarding the seizure of assets for state benefit.

Last spring, amendments were adopted allowing for individual consideration in certain categories of criminal proceedings. However, if there are cases of civil confiscation or asset seizure for state benefit, they will still be considered collectively.

In this case, matters will be considered collectively only if it involves an administrative lawsuit to annul a normative legal act. A normative legal act is, for example, a Cabinet resolution or a ministry order regulating certain relations. Other decisions will be considered individually. We hope that in this way, we won't replicate the burden currently faced by the administrative court in VAKS.

– Perhaps it makes sense to establish several regional courts? For instance, in Odesa, Lviv, or Dnipro.

– The model of higher specialized courts is directly enshrined in the Constitution, which states that higher specialized courts may operate in Ukraine. The logic is that there should be one court. We cannot create a branch of the Higher Specialized Court in the Eastern, Western, or Southern regions.

Moreover, this would not resolve the situation. The current government bill stipulates that to start the Higher Administrative Court, at least 32 judges must be selected. Depending on the workload, there may be discussions about increasing the number of judges, but that will be a decision for the Higher Council of Justice along with the HQCJ.

– What is currently happening in this process? Why did the Verkhovna Rada of Ukraine oppose international experts?

– A law with a different approach has been adopted in the first reading – one that proposes the creation of two courts without the involvement of our international partners in the selection of judges.

– Surely, you have communicated with the members of parliament, asking why they are so opposed to international experts?

– Well, look, a decision has been made, and there is a first reading. The government approved amendments for the second reading of this alternative bill that was adopted.

We submitted amendments that have been agreed upon not only with the IMF but also with representatives of the European Commission. We expect that the revision of the bill will be based on these amendments. The main points are one court and the involvement of international experts. This is the mechanism that will create an effective structure, with independently selected qualified judges. This is why it is important.

– But involving international experts?

– Yes, because they will ensure a higher quality of this process. I try to explain it like this – how can we prepare a text better? We can use a typewriter, a computer, or an artificial intelligence program. What will speed up and improve the quality of our work?

In my view, if the world is moving more efficiently and quickly, we should utilize all these mechanisms. Including the involvement of our international partners – this is also about how to select quality judges. The essence is to ensure that qualified, independent, and competent professionals are selected for this court. Then they