Analysis of the KDAC’s decision on the SAPO’s head selection process

On December 20, the infamous District Administrative Court of Kyiv (DACK) issued a decision cancelling the Rules of Procedure of the Selection Commission for the selection of the head of the Specialized Anti-Corruption Prosecutor’s Office. This became known first from the official press release of the court, and later the decision was published on his page by a member of the Commission, Roman Kuybida.

According to the law, decisions of the courts of the first instance do not come into force immediately. The decision of the KDAC will not come into force until its appeal is considered by the Sixth Administrative Court of Appeal or after the expiration of the 30-days period given for the submission of the appeal.

Therefore, this decision of the KDAC is not an obstacle to continue the competition, to complete the completion and appoint the winner to the position of head of the SAPO.

It is important to note that judge Oleksiy Ogurtsov, who made this decision, has the status of a suspect in the criminal proceedings conducted by the NABU and the SAPO against a criminal organization in the KDAC, which used its influence to seize power within the Ukrainian judiciary. However, another judge of this court illegally (unreasonably) refused to remove him from the case.

Justification of the decision by the KDAC

According to Judge Ogurtsov, there is a gap in the law. He states that the law does not give the Commission the power to approve the Rules of Procedure. He analysed the amendments to the law and pointed out that in the version of the law “On the Prosecutor’s Office” dated July 2015, the provision on the SAPO’s head selection provides for the right of the commission to adopt the Rules of Procedure, but later the Parliament changed this provision and created a gap.

Indeed, in the wording of the law in early 2015, there was a provision: “The Rules of Procedure for conducting a competition for these positions is determined by the Rules of Procedure.

However, the judge completely ignored the provision of the acting version of the law (Article 8-1): “The organization and conduct of the competition is carried out by the Selection Commission, which includes:…”

The provision is much broader than the power to determine the Rules of Procedure, because the organization of the process includes but is not limited to the approval of the Rules of Procedure, it also includes the implementation of all other necessary actions to conduct the selection process. This power means making any decisions related to the organization of the process. According to the glossary, organizing something means “creating, founding something, involving others, relying on them, carrying out certain activities, developing their preparation and implementation process”.

Obviously, the approval of the Rules of Procedure, which details and defines the procedure is an element of the organization of the process. It is logical to approve detailed rules of procedure and continue to follow them. At the same time, the KDAC did not present any argument that any clause or provision of the Rules of Procedure contradicts the law.

Therefore, the acting provision of the law gives the Commission discretion in determining the Rules of Procedure.

Also, the KDAC in its analysis of the Law for some reason drew attention to only one of the versions of the law, which mentioned that the procedure for the competition is approved by the commission.

However, in fact, the provisions of the Law on the selection procedure have changed many times, including in 2015. Here are the amendments cited by the KDAC. The court did not take into account that in 2015 the provisions were changed and provision that specified a power “to adopt rules of procedure” was excluded and changed to a power “to organize and conduct the competition”.

It is important to mention that the previous head of the SAPO, Nazar Kholodnytskyi, was appointed when the latter version of the Law has been already enacted, it did not include a provision requiring approval of the Rules of Procedure. Instead, there was a provision giving the Commission power to organize the process.

Moreover, in 2015 the competition result was also appealed to the KDAC. At that time, the KDAC did not see any violations of the law when Commission approved the Rules of Procedure. And then the courts of first and appellate instances recognized such a procedure as lawful, and the Supreme Court found no grounds to overrule the decision based on violation of substantive and procedural law.

Therefore, Nazar Kholodnytskyi was appointed under the same conditions and under the same regulations as are applied to the ongoing selection process. But only now, when the actual winner of the selection process is not favoured by the Office of the President, the KDAC decided to declare the existence of the “gap” in the law.

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