On May 13, 2021, the Verkhovna Rada of Ukraine received a draft law No. 5490 “On Amendments to the Code of Administrative Offenses of Ukraine Regarding the Powers of Higher Specialized Courts to Consider Cases of Administrative Offenses” at the initiative of the Cabinet of Ministers.
TI Ukraine analyzed this draft law and identified the positive changes that it proposes, as well as those things that still need to be worked on.
Article 185-3 of the Code of Administrative Offenses of Ukraine envisages administrative liability for contempt of court. Contempt of court is expressed in malicious evasion of the appearance in court of a witness, victim, plaintiff, defendant, in disobedience of citizens to the order of the presiding judge, in violation of the order during the court session — that is, the commission of actions that indicate a clear disregard for the court or the established rules. The penalty for such offenses is a fine of fifty to one hundred and fifty non-taxable minimum incomes of citizens.
Local commercial and administrative courts, appellate courts, and the Supreme Court, except for the HACC, have the right to bring a person to justice under this article.
However, the Constitution of Ukraine and Section II, Chapter 4 of the Law of Ukraine “On the Judicial System and Status of Judges” envisage another element in the judicial system of Ukraine — higher specialized courts, which are currently the HACC and the High Court of Intellectual Property.
The current Code of Administrative Offences of Ukraine establishes an exhaustive list of subjects that can bring to justice under Article 185-3. However, this list does not include higher specialized courts.
And if this problem is not acute for the Intellectual Property Court (because it does not function), then for the HACC it is a matter of ensuring effective operation. Representatives of the public have repeatedly come to the conclusion that the effectiveness of the HACC’s work depends not only on the quality, training, and integrity of judges, but also on the effective and procedurally appropriate behavior of the defense and prosecution parties. Unfortunately, non-isolated cases of inappropriate behavior of certain representatives of the defense in the HACC significantly affect the overall effectiveness of legal proceedings in this court. TI Ukraine noted this in its study of the HACC’s work.
Therefore, granting the HACC with the right to bring to administrative liability for contempt of court is an increase in the efficiency and viability of anti-corruption proceedings.
What is proposed in draft law No. 5490?
The draft law concisely and clearly regulates the above-mentioned issues. It refers higher specialized courts to bodies that are authorized to consider cases of administrative offenses. Moreover, higher specialized courts will have the authority to consider cases under Article 185-3 of the Code of Administrative Offenses of Ukraine. Appeal chambers of higher specialized courts provide for contesting decisions of the first instance.
The provision of security and human rights tools is one of the cornerstones of the body’s continuous and effective work. If draft law No. 5490 is adopted, higher specialized courts, including the HACC, receive an additional tool for maintaining procedural discipline and proper behavior of the parties. TI Ukraine strongly supports the adoption of draft law No. 5490.