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Enacted law to combat coronavirus creates a risk of “freezing” justice
On March 30, the Verkhovna Rada of Ukraine adopted the Law “On Amending Certain Legislative Acts to Provide Additional Social and Economic Guarantees in Connection with the Spread of Coronavirus Disease (COVID-19)”. The Law provides for amendments to a large number of regulations in order to “update, improve legal relations in many areas of life that have changed due to the spread of the COVID-19 coronavirus”. Part of the amendments relate to the area of justice.
The Law envisaged the following rules for the quarantine period:
1) automatic extention of the terms of appeal to the court and procedural terms in civil, economic and administrative cases for the duration of quarantine;
2) granting the participants of civil, economic and administrative cases the right to participate in the court sessions in the videoconference mode using their own technical equipment, outside the court premises; confirmation of participant’s identity is carried out by means of an electronic digital signature, in the case of its absence – in accordance with the procedure established by the Law “On Unified State Demographic Register and Documents Confirming the Citizenship of Ukraine, Identifying a Person or his/her Special Status” (most likely, this means demonstration of a document identifying a person) or by the State Judicial Administration;
3) granting the court the right to restrict access to the court session of persons who are not parties to the proceedings, if participation in a court session would endanger life or health of a person (this provision is missing in administrative proceedings);
4) in criminal proceedings, the possibility for a local court to initiate before a court of appeal transferring an application to another court for consideration by an investigating judge, if it is impossible to appoint an investigating judge in the appropriate court (except for covert investigative (search) actions).
1. Consideration of a case in court consists of separate successive stages, the terms of which are set by law or by a judge. Automatic extension of the terms of one stage leads to the fact that the court cannot proceed to the next stage. For example, due to the automatic extension of the appeal period, court decisions will not come into force. In such a case, it does not matter whether an appeal is filed. This completely deprives the court and the participants of the case of any opportunity to influence the possibility of considering the case.
Adopted changes will prevent the court from conducting any civil, economic or administrative proceedings, as failure by one of the parties to take any procedural action (such as not filing a withdrawal to lawsuit) will force the court wait until the quarantine is over.
In fact, this will result in the suspension during the quarantine period of civil, economic and administrative cases, where at least one party is not active. This is a dangerous decision made by the legislator, because the suspension or limitation of the powers of the courts is not allowed even in the state of emergency, which has not yet been introduced in Ukraine.
An alternative to solving the problem of conducting court proceedings during the quarantine period could be to establish, at the legislative level, the court’s authority to recognize a valid reason for missing the terms (including restraint deadlines) if it was caused by a quarantine. The same should apply to criminal cases, if the deadline is not missed by the prosecution.
At the same time, only the terms, which expired during the quarantine period, should be renewed/extended, as it usually does not make sense to extend, for example, the annual period, which began shortly before the introduction of the quarantine.
In addition, the Law should provide that in cases of administrative offenses and disciplinary cases, quarantine periods shall not be not included in the limitation periods and in the periods of proceedings.
2. The right of the parties to the proceedings to participate in the video conference from home or office should be supported, although its implementation in practice will be difficult due to the lack of a Single Judicial Information and Telecommunication System, which, according to the procedural codes, should enable holding video conferences.
A solution could be to use other publicly available systems that support videoconferencing (Skype, Zoom, Google Meets, etc.), but the courts may not wish to give a “creative” interpretation to procedural law. Moreover, in the context of the suspension of all procedural time limits, this norm may appear to be unnecessary in practice.
3. Openness of the litigation process and the right of any person to be present at the court session is one of the elements of the constitutional principle of publicity of the trial. Provisions on the right of a court to restrict access to the court sessions of persons who are not participants of proceedings, if participation in the court session constitutes a threat to the life or health of a person (these changes, for some reason, apply to all types of judicial proceedings except administrative), are likely to be abused, because they do not establish criteria for the limitation of access to the court for visitors. Such a criterion may be the need to maintain a social distance between persons in the courtroom (1.5-2 m).
It would be also correct to envisage that where a court restricts access of free listeners to a court session, then a mandatory video broadcast of that session on the Internet should be provided.
4. Changes to criminal justice regarding the possibility of transferring an issue to be considered by an investigating judge to another court may be useful not only during the quarantine period, especially where the courts do not function due to the absence of judges. At the same time, there is a risk that the adopted procedure for transferring cases from the jurisdiction of one court to another through the court of appeals will create a dangerous practice of identifying courts with “convenient judges” who make “right decisions”, in violation of the principle of impartiality, fairness etc.
5. The law was adopted as a whole in “turbo regime”, as the draft law itself was registered on the eve of voting. On the day of voting, it was considered by a non-profile parliamentary committee. As a result, the draft law was approved without discussion and without consideration of the conclusions made by the Main Scientific and Expert Department.
We understand the need for a quick response from the legislator to today’s challenges, but this must be done in accordance with parliamentary procedures. Due to the lack of discussion, the law turned out to be poor quality and could have negative consequences.
Moreover, during the same plenary session of the Verkhovna Rada of Ukraine, the draft law No. 3276, similar in substance (as regards the CPC of Ukraine), was approved in the first reading. The future of this draft law is unclear, given that in fact its provisions have already been approved.
Forced hospitalization without a court decision is unconstitutional
On March 24, the Government introduced a 30-day emergency situation regime in Ukraine. Amendments to the Government’s decrees were also adopted, including “On certain restrictive anti-epidemic measures aimed at preventing the spread of COVID-19 respiratory disease caused by the SARS-CoV-2 coronavirus”. The new restrictive measures and powers of the authorities to enforce them include the forced hospitalization of coronavirus patients. In particular, health professionals are required to examine the persons who have had contact with infected persons or who have symptoms of illness, but refuse to undergo a voluntary examination and to make their mandatory hospitalization or to assign a quarantine (self-isolation). Minister of Internal Affairs Arsen Avakov said that the mandatory hospitalization would take place at the discretion of a medical officer by officers of the National Police and National Guard of Ukraine.
Emergency situation regime is a special temporary legal regime that arises due to the violation of the normal conditions of life and activity of people through an accident, catastrophe, natural disaster or epidemic, which is implemented in the manner prescribed by the Civil Protection Code of Ukraine. At the same time, unlike the state of emergency, it does not imply state interference in the management of private companies or restrictions on the rights and freedoms of Ukrainians.
As the experts of the Centre of Policy and Legal Reform have already noted, the only possible legal instrument for substantially restricting the rights and freedoms of a person in order to fight a coronavirus is to declare a state of emergency by the President of Ukraine with the support of the Verkhovna Rada of Ukraine (see in detail).
Following the adoption by the Government on March 25 of new restrictive quarantine measures to combat the coronavirus pandemic, unconstitutional mandatory hospitalization of coronavirus patients has been introduced in Ukraine, as it is carried out in the absence of judicial control (without court decision). Medical opinion from a health professional who has confirmed the COVID-19 diagnosis is sufficient for enforcing hospitalization.
Article 29 of the Constitution of Ukraine stipulates that a person may be detained without a court decision only if it is necessary to prevent or stop committing a crime. In all other cases, only a court decision is required. Detention is a physical restriction on the freedom of movement of a person and mandatory forced hospitalization of persons matches this definition by all its characteristics. The 1950 Convention on the Protection of Human Rights and Fundamental Freedoms stipulates that it is possible to detain people without a court decision to prevent the spread of infectious diseases and people with mental illness (paragraph (e) of part 1 of Article 5 of the Convention), but this must be preceded by a medical expert’s (doctor’s) opinion and further obtaining court permission to continue treatment.
In compliance with the requirements of the Convention, Ukrainian legislation establishes, as an exception, the need to detain persons in order to prevent the spread of infectious diseases or mentally ill persons who pose a danger to themselves or others (Laws “On Combating Tuberculosis Diseases”, “On Psychiatric Assistance”, “On Protection of the Population from Infectious Diseases”, etc.). However, in such a case, within 24 hours, the relevant institution that made the hospitalization should appeal to the court for further detention in accordance with the procedure established by Chapters 10, 11 of the Civil Procedure Code of Ukraine. The court, after hearing the parties, having examined the materials of the proceedings, including the medical report on the diagnosis and the presence of the danger that the person may cause, shall decide on further mandatory treatment (isolation).
Taking into account the insufficient level of readiness of the legislation for an emergency situation and the difficulty of interfering with the freedom of movement of a person, we believe that a person must know clearly what enforcement measures can be applied to him/her by law enforcement officers.
In summary, mandatory forced hospitalization of persons with coronavirus disease would be possible only in the case of making amendments to the legislation of Ukraine, which will introduce judicial control over the restriction of individual freedom.
“Opposition Platform – For Life” proposes to return to the laws of Soviet times
On March 29, the Verkhovna Rada registered the draft law No. 3174 “On Amendments to the Criminal Code of Ukraine (concerning resale of goods during quarantine, epidemic, emergency situation, state of emergency or martial law)”, initiated by people’s deputies of Ukraine Nestor Shufrych, Dmytro Natalukha and others.
This draft law proposes to supplement the Criminal Code of Ukraine with a new Article 199-1, establishing criminal responsibility (with a fine amounting from UAH 8,500 to 17,000 or imprisonment for up to three years with confiscation of property, and in aggravated circumstances – imprisonment for three to seven years with confiscation of property) for “resale of anti-epidemic goods needed to prevent the spread of the epidemics, pandemics, including the spread of coronarvirus disease (COVID-2019) and/or goods of significant social importance listed by the Cabinet of Ministers of Ukraine, if the price exceeds 1.5 times or more the price level set by the Cabinet of Ministers of Ukraine for such a good.”
The draft law is legally and substantively illiterate, starting with its title (repeated by the title of Article 199-1), which does not take into account the meaning of the article itself.
At present, no one, including the Cabinet of Ministers of Ukraine, knows the exact list of goods other than regular soap that can help prevent epidemics and pandemics, including the COVID-2019 coronavirus pandemic.
The concept of “goods of significant social importance” is completely vague and cannot be used in the law, which provides for the most serious type of legal responsibility. Explanation that the list of such goods should be determined by the Cabinet of Ministers of Ukraine does not improve the situation, since the Cabinet of Ministers of Ukraine, on the one hand, similarly can not produce an exhaustive list of such goods, and on the other hand, may from time to time change the corresponding list, which will mean permanent shift from criminalization to decriminalization and vice versa of the action provided by Article 199-1 in a particular part.
The above actions are proposed to not be considered a crime if the price of the relevant good does not exceed 1.5 times the price level determined by the Cabinet of Ministers of Ukraine for such a good. Therefore, for example, the purchase of a device for mechanical ventilation of the lungs worth UAH 800,000 and reselling it on the same day for UAH 1,200,000 will not be considered a crime, and if the resale price reaches UAH 1,200,010 – it will be considered a crime. The logic behind this is difficult to understand. Even in Soviet times, the Criminal Code’s article on speculation referred simply to “buying and reselling goods for the purpose of making money.”
It is proposed that the subject of the crime can be not only an entrepreneur or a company officer, but any person, that is, even the one who resells a few alcohol aerosols or a dozen masks before the epidemic begins.
Finally, the authors of the draft law, of course, did not take into account that the current Criminal Code of Ukraine does not allow confiscation of property for crimes that are not serious (except for some specific cases set out in Article 59, which do not relate to “speculation”).