Strengthening administrative justice in Ukraine

Until recently, Ukrainian citizens rarely contested Government decisions in court. The state and its representatives were considered to be acting in good faith and legal means to challenge their actions were limited. But in any democracy, citizens need effective legal channels to protect their rights and hold state authorities accountable for their decisions and actions.

Overcoming challenges

Ukraine began establishing administrative courts in 2004, and in September 2005, it adopted the Code of Administrative Court Procedure. The courts are now in a position to review the decisions, actions and omissions of state authorities.

"Despite these steps forward, some judges still needed to be convinced that they have the authority to review official decisions," says Lubomir Kopaj, OSCE Project Co-ordinator in Ukraine. "Most had previously worked in civil or commercial law."

The Project Co-ordinator was asked to help develop a training programme to boost Ukrainian judges' understanding of the philosophy behind the administrative justice system. From 2005 to 2008, the Project Co-ordinator's office held 23 training workshops, covering both theory and practice, for some 600 judges of the new courts, including the Higher Administrative Court of Ukraine.

It also helped publish the two-part Manual on Administrative Justice for Law Faculties and Legal Aid Clinics. The book explains the main principles and procedures reflected in the Code of Administrative Court Procedure, and suggests a training methodology with test questions and case studies.

Setting precedents

The Higher Administrative Court, which sets precedents through its judgments on protecting the rights of citizens in their relations with state bodies, asked the OSCE Project Co-ordinator to help familiarize judges with best practices in applying the principles of administrative justice.

Advanced training workshops for Ukraine's Higher Administrative Court judges were held in Kyiv, followed by a study trip to the Conseil d'Etat - a respected French institution known for its democratic traditions and positive experience in exercising administrative court procedure. Both the French and the Ukrainian legal systems have their roots in civil law.

Ukraine has 56 judges in its Higher Administrative Court, 123 in its appeal administrative courts and 275 in its regional administrative courts. Olena Holovko is a judge at the Regional Administrative Court of Dnipropetrovsk in eastern Ukraine.

"There are things you know you have to do," she says. "I was keen to be part of this system and despite the new challenges and the huge amount of work, I have never regretted my choice. I realize that the efficiency and the image of the whole system depend on the efficiency and the image of every judge and I am doing my best to promote this."

Lessons learned

Although it is still too early to evaluate Ukraine's system of administrative justice, some lessons have already been learned. For example, some administrative courts have yet to open and some judges still need to be appointed, says Ihor Koliushko, Head of the Board of Directors at the Centre for Political and Legal Reform, a Ukrainian NGO. "This is partly because an effective administrative justice system is not always convenient for all key decision-makers in the country."

Judge Volodymyr Poplavskyi, Deputy Head of the Dnipropetrovsk Appeal Administrative Court, believes that the OSCE-supported workshops have helped instil the spirit of administrative justice in Ukraine. He now trains judges in his region, beginning all his sessions with these words:

"Forget that you are considering a case according to Ukrainian legislation and listen to the philosophy behind administrative justice - why it was established and what kind of ideas the people that drafted the Code were trying to communicate."

To further assist judges and lawyers in applying administrative justice, the OSCE helped publish a Commentary to the Code of Administrative Court Procedure, which explains the principles and rules of the Code's application in the context of international democratic standards, values and good practices.

Holding authorities accountable

"The existence of the Code helps us to hold state authorities accountable even if formal legality is already ensured," says Judge Poplavskyi. "The principles and the main procedure prescribed by the Code force them to be more disciplined and responsible.

"The principle that proof of evidence rests on the defender calls on officials to be well prepared for court hearings, which helps us to consider cases more efficiently. We hope that this and other principles will in the end help the authorities to make more reasoned, justified and transparent decisions."

Several cases show that Ukraine is firmly on track to developing an effective system of administrative justice. For example, the Regional Administrative Court of Kyiv obliged the Ukrainian Migration Service to accept a previously rejected application for refugee status from a citizen of Afghanistan. The Court based its decision on the UN Convention on the Status of Refugees and the case law of the European Court of Human Rights.

The Court also annulled a local decision restricting the right of an NGO to gather in the city park on the grounds that it might obstruct traffic and pedestrians. The Court found these grounds "unreasonable", pointing out that the NGO met the requirements and fulfilled the procedures required for peaceful assembly.

"There is still more work to be done to ensure accountability in Ukraine and help its citizens better protect their rights," says Ambassador Kopaj, "but the OSCE will continue to support these efforts."