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Weekly analytics for 21 – 27 April 2020

27.04.2020

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




The State Judicial Administration of Ukraine abandoned the idea of using only one application for holding videoconferences in the courts


Event

On April 23, the State Judicial Administration (hereinafter – the SJА) approved the new version of the Procedure for working with videoconferencing equipment during a court session in administrative, civil and commercial processes with the participation of parties outside the court premises (hereinafter – the Procedure).

The Procedure details the specific provisions of the Law No.540-ІХ, which in particular provided for the right of participants in civil, commercial and administrative cases to participate in court sessions in videoconference regime staying outside the court premises (see political points for March 23-30, 2020).

New version of the Procedure provides for the following:

  •  courts can use different software solutions for videoconferences (in the previous version, only the little-known EasyCon service was mentioned, which led to numerous refusals of the courts to hold videoconferences using Zoom or Skype (see political points for April 13-21, 2020);
  •  in order to participate in a court session in the videoconference regime, the case participant must pre-register in the appropriate system using a digital signature, and in the absence of the latter, using login and password (previous version of the Procedure did not envisage alternative methods of registration).

CPLR Assessment

The new Procedure has partially addressed the problems highlighted by the CPLR experts in their analysis of the previous version (see political points for April 6-13, 2020). In particular, formal obstacles to the use of other applications by courts have been eliminated, and digital signatures have ceased to be a mandatory requirement for registration to videoconferences.

However, as in the previous version, the new Procedure does not determine the mechanism for broadcasting court sessions online. Nevertheless, the Law “On the Judicial System and Status of Judges” and the relevant procedural codes oblige the courts to broadcast online all sessions that are hold fully in a videoconference regime.

The SJA also established mandatory requirements regarding the request for participation in a court session in a videoconference regime and the procedure for its submission, which may be regulated only by a procedural law and not a by-law. That is, when approving the Procedure in this part, the SJA acted with excess of powers.

The SJA did not regulate the procedure for the court to identify the case participants who do not have a digital signature. In fact, the procedural laws stipulate that the identification of a participant shall be made using an electronic digital signature, and if it is not available, in accordance with the procedure established by the Law “On the Unified Demographic Register and Documents Confirming the Citizenship of Ukraine, Certifying a Person or his/her Special Status” or by the SJA.



The High Council of Justice opens the doors to representatives of the media and the public


Event

On April 25, the High Council of Justice (HCJ) announced that it would allow representatives of the media and the public to attend the meetings of the HCJ and its bodies during the quarantine period, subject to the use of individual means of protection and prior accreditation. For safe spacing, 10 seats are designated for the media and the public in the session hall, and 4 seats in other meeting rooms. Admission will be granted to persons in order of priority in accordance with the accreditation list.

On April 27, the HCJ broadcasted its session, where consideration of recommendations on the appointment of judges has begun. In total, it is planned to consider 467 recommendations (20 recommendations for each meeting during April 27-29).

Previously, at the beginning of the quarantine, the HCJ had prohibited the access of visitors to its premises, with some exceptions, which, however, did not concern the media and the public.

CPLR Assessment

Permitting to attend the meetings of the HCJ and its disciplinary chambers by up to 10 (or up to 4 depending on the room) representatives of the media or the public, as well as online broadcasting of meetings, is an absolute step towards meeting the requirements of the law (Part 1 of Article 30 of the Law “On the High Council of Justice”) concerning the openness of such meetings.

Today, representatives of the media and the public are deprived of the possibility to use public transport. In addition, the number of seats in the meeting room is significantly limited. Therefore, online broadcasting is the best solution for the quarantine period. It is important to ensure that it is not a single action, but applies to all meetings of the HCJ and its disciplinary chambers.

It should be reminded that earlier, on April 24, a number of non-governmental organizations called on representatives of the courts and the HCJ to ensure openness of their work, as required by law. Given the fact that in quarantine circumstances, limited admission to the premises of the court or the HCJ may be a justified measure, a solution may be an online broadcasting of meetings of the court and the HCJ.



People’s deputies suggest "unfreeze" litigation in civil, administrative and commercial cases


Event

On April 23, the draft law “On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Administrative Procedure Code of Ukraine on the Duration of Procedural Periods during the Quarantine established by the Cabinet of Ministers of Ukraine to Prevent the Spread of Coronavirus Disease (COVID-19)” (hereinafter – the Draft Law) was registered in the Verkhovna Rada of Ukraine.

The draft law provides for the renewal and extension of procedural periods established by law or court for the duration of the quarantine at the request of a case participant or a person who did not participate in the case, if the court decided on his/her rights, interests or obligations. In addition, the procedural periods, which have been earlier extended due to the quarantine, will expire 20 days after the new law enters into force, and during this period the participants of the case and other interested persons may address the court with a request for their extension.

CPLR Assessment

The “Anti-coronavirus” law, adopted on March 30, provides for an automatic extension of procedural periods in of civil, commercial and administrative cases for the quarantine period, which in practice threatened to freeze justice, as reported by the CPLR experts (see political points for March 23-30, 2020). The draft law, which was introduced by the people’s deputies, partially allows to address this problem.

At the same time, the draft law has the potential for improvement:

  •  it is unclear from the draft law whether the court has the right to decline the request of the case participant, whether it is the sole and unconditional reason for renewal/extension of the time period without the need to give reasons. It is more expedient to establish the authority of the court, upon a substantiated request of the case participant, to recognize a valid reason for missing the time limit or the inability to take the necessary procedural action within the determined period and to renew/extend the period. This reason must be related to quarantine;
  •  the court may only renew/extend the term for the entire quarantine period, which is unreasonable. The court should be empowered to determine the length of the extension, depending on the nature and validity of the reason given in the statement of the participant.

In addition, as previously recommended by the CPLR experts, it should be foreseen that in cases on administrative and disciplinary offences, the quarantine period is not included in the limitation period and in the procedural periods.

Taking the above into account, it is advisable to support the draft law with a view of its further improvement.



Draft law on the remote procedure for drawing up a protocol on an administrative offense needs substantial revision


Event

On April 13, the draft law No.3327 was registered in the Verkhovna Rada on improving the procedure for drawing up protocols on an administrative offense for violation of the right to information.

In particular, the draft law proposes:

1) to extend administrative responsibility on a general basis for violation of the right to information and the right to appeal to servicemen and other persons subject to disciplinary statutes;

2) substantially change the procedure of drawing up administrative protocols in all cases on administrative offenses (increase the term of drawing to 3 months, introduce the possibility of remote drawing up of the protocol (in absentia, without a person), etc.).

CPLR Assessment

According to the explanatory note, and given the title of the draft law, the proposed comprehensive amendments to the legislative acts are intended to improve the situation with the observance of the right to information, which is exercised by obtaining a response to a lawyer’s request or application.

In our opinion, the draft law has both positive and negative aspects. Positive changes include addressing a problem that has been repeatedly raised by the Parliamentary Commissioner for Human Rights in her reports (as of today, this body is empowered to hold responsible for violations of the right to information and violations in the area of personal data protection), namely, the extension of general administrative responsibility to officers who have statutory disciplinary responsibility, such as police officers or prosecutors. Another improvement is the extension of the period for drawing up a protocol from 24 hours to 3 months, which resolves the problem that occurred in 2018 with the entry into force of the Law No.2293-VII. This Law introduced non-systematic changes for the purposes of combating offences at the border, that actually blocked the work of the Commissioner for Human Rights, because in certain categories of cases is almost impossible to draw up a protocol within 24 hours from the identification of a person who has committed an offense. These measures can significantly enhance the Ombudsman’s capability to deal with violations of the right to information.

At the same time, the proposed provision on the remote drawing up of the protocol and sending it to the offender’s address is of concern, since the person is partially deprived of the right to defense. As the protocol in its essence is both an evidence in the case of an administrative offense and a means of fixing it, the person is deprived of the possibility to make his/her remarks, to give explanations, in addition to interviewing witnesses and collecting additional materials to prove his/her innocence. Therefore, any preparatory work for the court becomes almost impossible, which narrows the right to defense now guaranteed.

The proposed amendments may adversely affect administration of law, as they apply not only to violations of the right to information, but to all administrative offenses. Drawing up a protocol in absentia is a critical narrowing of the right to defense when it comes to administrative offenses of a criminal nature (in terms of autonomous interpretation of the ECtHR, i.e. punishable by administrative arrest, public or correctional labor), where a person will not be able to defend him/herself properly.

This specific part of the legislative initiative needs revision, because now it contains threats to the right to defense. The existing problem should be solved by targeted amendments precisely to the procedure of bring to administrative responsibility for violation of the right to information, and ideally it should be a systematic institution, envisaged by the code of misconduct/delicts, etc., which should long has replaced the outdated Code of Administrative Offences.



Draft laws No. 3348 and No. 3349 concerning the High Anticorruption Court can have a positive impact on its work


Event

On 16 April, two draft laws were registered in the Parliament on changes in the activities of the High Anticorruption Court (hereinafter – the HACC).

Draft law No.3348 provides for the following amendments to the Law “On the High Anticorruption Court”:

  •  granting the court the right to manage state-owned property belonging to the sphere of its administration (there is no such right now);
  •  possibility to elect investigative judges for a term not exceeding three years with the right of re-election (now the HACC investigative judges are elected only for one year without the right of re-election for two consecutive years, while investigating judges of ordinary local courts can be elected for a term of up to three years with the right of re-election);
  •  changing the requirements for candidates for the position of judge. In particular, a candidate for the position of a judge of the HACC as a court of first instance must have at least seven years of professional experience (at present, only a person with “special” experience – work record as a judge, lawyer, scientist, can become a judge). It is proposed to leave the requirement on “special” experience only for the judges of the HACC Appeal Chamber;
  •  giving the opportunity to become judges of the HACC to former officers of the law enforcement agencies, the Prosecutor’s Office, the Tax Police, the Security Service of Ukraine, the National Anti-Corruption Bureau of Ukraine, the National Agency for Corruption Prevention, the Antimonopoly Committee of Ukraine and other agencies (currently, a prohibition applies to categories of persons who have worked in law enforcement agencies specified in the law, for ten years before being appointed).

Draft law No.3349 proposes amendments to the Law “On the Judicial System and Status of Judges” on delegating to the high specialized courts of the right to exercise control over state-owned property belonging to the sphere of their administration, as well as formulating a specific provision on the salary of judges of a higher specialized court (without changing its size).

CPLR Assessment

Amendments proposed by the people’s deputies can have a positive impact on the court’s activities, in particular:

  •  securing the right to manage state-owned property will enable the court to carry out major repairs in the appropriate premises. In addition, as stated in the explanatory note to the draft law No. 3448: “The HACC is in a situation of uncertainty, dependence on the will of the balance holders of premises and real threats to the stable operation of the court.” The amendments made will minimize these threats;
  •  as stated in the analytical report of the CPLR experts on the monitoring of the activities of the HACC: “in September 2020, the annual term of office of investigative judges will end, which will definitely have a negative impact on the duration of the court procedures. If this situation is not resolved, after September 5, 2020, it will be much more difficult for the three HACC panels to be able to effectively hear the cases already pending. In fact, they will only have to act as investigating judges. Instead, former investigating judges will not have a significant number of cases. This is a serious problem that may block the effective operation of the HACC in the future.” The proposed amendments make it possible to solve this problem;

• partial removal of restrictions on candidates for the position of the HACC judge, as well as the establishment of different requirements for candidates for the positions of judges of the first instance and the Appeal Chamber will allow to broaden the choice of such candidates and to strengthen the court staff.

It should be reminded that the CPLR experts have recently presented a Report on the monitoring of the administration of justice by the HACC, which contains recommendations on the ways of improvement of its work.