The Supreme Court defined the scope of the Law "On Administrative Procedure" in disciplinary cases concerning judicial experts
In legal relations regarding the consideration by the Central Expert Qualification Commission of issues of disciplinary liability of judicial experts after the entry into force of the Law of Ukraine dated February 17, 2022 No. 2073-IX "On Administrative Procedure" and before the introduction of relevant amendments by the Law of Ukraine dated October 10, 2024 No. 4017-IX "On Amendments to Certain Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine 'On Administrative Procedure'", the Central Expert Qualification Commission did not lose its powers to conduct disciplinary proceedings and continued to exercise them based on the Law of Ukraine dated February 25, 1994 No. 4038-XII "On Judicial Expertise" and the Regulation on the Central Expert Qualification Commission under the Ministry of Justice of Ukraine dated March 3, 2015 No. 301/5 adopted in accordance with it, as well as the certification of judicial experts in the part that does not contradict the principles of the Law of Ukraine "On Administrative Procedure".
The Supreme Court emphasized this while considering case 340/3787/24.
What the dispute was about
A judicial expert was held disciplinarily liable.
The expert appealed the decision of the Central Expert Qualification Commission. In the lawsuit, he requested to recognize as unlawful, null and void, and to cancel the individual act (decision) of the Central Expert Qualification Commission on holding him disciplinarily liable and applying a disciplinary sanction to him.
He argued that after the Law "On Administrative Procedure" came into force, the commission allegedly lost the right to conduct disciplinary proceedings because at that time its powers were defined not by law but by a subordinate act of the Ministry of Justice.
The courts of first and appellate instances dismissed the claim.
They concluded that the commission did not lose its powers, and the expert plaintiff committed a disciplinary offense by deciding matters beyond his qualification.
The Supreme Court agreed with this approach.
Position of the Supreme Court
Paragraphs 3 and 4 of Section IX "Final and Transitional Provisions" of Law No. 2073-IX do not provide for the automatic termination of special legislation or the loss by administrative bodies of their powers until such legislation is brought into compliance with this Law. Until the relevant amendments are made, legislative and subordinate normative legal acts are applied insofar as they do not contradict the principles of Law No. 2073-IX.
Article 14 of the Law of Ukraine dated February 25, 1994 No. 4038-XII "On Judicial Expertise" defined the grounds for disciplinary liability of judicial experts, types of disciplinary offenses and disciplinary sanctions, and authorized the Ministry of Justice of Ukraine to determine the procedure for considering issues of disciplinary liability of judicial experts.
The Supreme Court noted that the absence in the Law of Ukraine dated February 25, 1994 No. 4038-XII "On Judicial Expertise" of a direct indication of the Central Expert Qualification Commission as the body authorized to consider disciplinary proceedings does not in itself indicate the absence of legislative consolidation of the relevant discretionary powers.
The introduction of amendments to the Law indicates not the creation of a new body or the granting of new competence to the Central Expert Qualification Commission, but the alignment of the provisions of special legislation with Law No. 2073-IX and clarification of procedural aspects of the implementation of already existing powers.
In legal relations regarding the consideration by the Central Expert Qualification Commission of issues of disciplinary liability of judicial experts after the entry into force of Law No. 2073-IX (December 15, 2023) and before the introduction of relevant amendments by Law No. 4017-IX (November 15, 2024), the commission did not lose its powers to conduct disciplinary proceedings and continued to exercise them based on the Law of Ukraine "On Judicial Expertise" and the Regulation on the Central Expert Qualification Commission under the Ministry of Justice of Ukraine dated March 3, 2015 No. 301/5 in the part that does not contradict the principles of the Law of Ukraine "On Administrative Procedure".
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