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Weekly analytics for 13 – 21 April 2020

21.04.2020

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua





How the courts implement the new law on videoconferences


Event

On April 2, a number of legislative changes came into force, which provided for the right of the parties of the court proceedings in civil, commercial and administrative cases to participate in court sessions in the videoconference regime using their own technical equipment during the quarantine period. In order to detail these provisions, on April 8, the State Judicial Administration of Ukraine (hereinafter – the SJA) approved the Procedure for using EasyCon service for such videoconferences (see political points for April 6-13, 2020).

In practice, the implementation of legislative novelties is slow and controversial. An analysis of the data of the Unified State Register of Court Rulings as of April 21 showed that of more than seven hundred courts:

1)  14 courts (2% of all courts) satisfied the requests for holding a court session in a videoconference regime. For this purpose, the courts used both the approved service EasyCon (7 courts) and other software: Skype (2 courts), ZOOM (4 courts). The possibility of using Skype for videoconferencing has been repeatedly reported by the Economic Court of Kyiv. However, some courts decline requests for holding videoconferences with the use of services other than EasyCon (for example, rulings in cases No. 924/1645/14398/3917/191207/13610/12);

2)  at least 18 courts (2.5% of all courts) reported the technical impossibility of organizing videoconferences using the participant’s own technical equipment. Moreover, Lviv District Administrative Court and Kupyansk City District Court in Kharkiv region reported a malfunction (improper performance) of EasyCon system in the court.

CPLR Assessment

One of the constitutional principles of the judiciary is the publicity of the court procedure, and the right of any person to be present at an open court session is an integral part of this principle. In conditions where quarantine measures are introduced in Ukraine and many courts do not allow access to their premises for the visitors, who are not participants of the court proceedings, a court session must be broadcast online. Moreover, Part 4 of Article 11 of the Law of Ukraine “On Judicial System and Status of Judges” requires the court to broadcast its session, if all participants are involved in the videoconference regime.

EasyCon service does not have the possibility of online broadcasting. Skype and ZOOM services allow online broadcasting (for example, on Facebook or Youtube). Thus, the judge of the Dnipropetrovsk District Administrative Court A. Ryshchenko, who was one of the first in Ukraine to appoint and hold a court session online using the ZOOM service, organized its online broadcasting on Youtube.

Instead, the CPLR experts’ attempt to participate as free listeners in a court session using ZOOM, but without an online broadcast, failed because they were not even allowed to the videoconference.

In summary, at present, holding videoconferences with the use of participants’ own technical equipment have not become widespread, and in single cases where courts hold sessions in this format, this is done in violation of one of the fundamental principles of justice. In addition, in relation to videoconferencing, a contradictory judicial practice is being formed, first and foremost, with regard to the interpretation and application of the Procedure, approved by the SJA. It should be reminded that earlier, the CPLR experts provided recommendations to courts on the organization of litigation in emergency circumstances, which also included recommendations on videoconferences and online broadcasts. It is important to announce in advance the online broadcast of a session on the court’s website or in social networks so that all interested parties can view it.



Parliament has increased responsibility for causing fires: in fact, the problem has been cornered


Event

On April 13, 2020, the Verkhovna Rada of Ukraine amended the Code of Ukraine on Administrative Offenses (CUAO) and the Criminal Code of Ukraine (CC), increasing responsibility for actions aimed at air pollution and destruction or damage to plant life, in particular for combustion of stubble (amendments introduced by the Law No. 556-ІХ dated April 13, 2020).

CPLR Assessment

As of today, the CUAO and the CC of Ukraine provide for 17 types of offenses for violation of fire safety rules, arson etc. The variance of punishments (penalties) for them is very wide. For example, the punishment for the same action – arson – can vary from a fine of UAH 850 and up to life imprisonment (in case of the corresponding consequences). In our opinion, this is an example of non-systematic thinking and may give rise to a situation where a prosecutor or judge is uncertain of the proper qualification of the arsonist’s actions, which will affect the effectiveness of the investigation and the ability to prosecute the accused person.

If we look at the problem more broadly, in the absence of a state strategy for combating human-caused fires (at the level of state policy), it is the bodies of pre-trial investigation, prosecutor’s office and courts that are recognized as almost the main executive agencies in fire combating cases. At the same time, the forensic, personnel, organizational support of the investigative and operational units is in a very unsatisfactory condition. Moreover, legal responsibility is always just a minor remedy that does not solve any problems by itself, including the problem of fires. In the absence of a state policy, relying solely on criminal and administrative responsibility tools is an extremely unsuccessful strategy, given the limited resources available to law enforcement and justice agencies and the current state of the problems they face at the national level.

As experience shows, even if the Ukrainian authorities (under pressure from external factors or society) develop an acceptable state (public) policy, they are not always able to fully implement it (as in the case of the 2014 Anti-Corruption Strategy and the State Program for its Implementation, which were not even half implemented). This may also be the case if a Fire Combating Strategy, Action Plan for Oil Sector Development under Negative Oil Price Conditions, an Infectious Disease Prevention Concept, or a Comprehensive Motorway Safety Program are developed and approved, as well as detailed plans for their implementation that will determine such aspects as timeframes, contractors, sources of implementation support, and procedure for monitoring and analysis of implementation. Before that, strengthening responsibility for offenses by increasing the size of the sanction will not be an effective tool in solving the problem.