Remote Court Hearings in Ukraine: Creativity vs. Conservatism
Roman Kuybida on the remote work of the courts.
On March 12, the Ukrainian government introduced quarantine throughout the country to prevent the spread of COVID-19, which continuous to this day. Shortly thereafter, strict restrictions were imposed, including on using the public transportation. Intercity transport connection was suspended, as was the subway. Ground urban transportation operates in a severely limited mode, transporting only health workers, civil servants, and employees of critical infrastructure enterprises. People are advised not to leave their homes to the extent possible.
In response to such events, courts began to close their door to visitors who are not participants in trials, as well as to persons with symptoms of respiratory diseases. The Council of Judges of Ukraine urged citizens to abstain from visiting courts and asked case participants to file motions for postponement of hearings or for hearings via videoconference.
Remote hearing: court – court –case participant
Elements of remote court have been implementing in Ukraine since 2011. Videoconferencing was started to be used for communications between courts first introduced in criminal cases, followed by civil, commercial, and administrative cases starting in 2012.
Courts use videoconferences to enable participation in hearings by persons located outside the boundaries of a court that is hearing the case. But in order to participate in a hearing, the party or witness must appear in the court at their place of residence, which is equipped with a videoconferencing system. This is where identification of the person also takes place.
The videoconferencing system is also used by courts for remote hearings in cases where the suspect, accused, or convicted person is detained in pre-trial detention jail or in prison.
This system does not meet the current needs for remote hearings in the context of the spread of COVID-19, since the party is required to appear in the nearest court anyway.
After the quarantine was introduced, courts have significantly reduced the number of hearings.
Remote hearing: court – case participant
On March 30, the Parliament adopted a controversial law. On one hand, it suspended the statute of limitations in all civil, commercial, and administrative cases during the quarantine period, and on the other hand, it allowed participants in these cases to participate in court hearings remotely, without leaving their home or office.
On April 2, the Law came into force and de facto “froze” proceedings in the majority of civil, commercial, and administrative cases. The prospect of remote hearings via videoconference exists only where all participants and the court are interested in continuing the proceedings.
Hearings in criminal and administrative offences cases are either postponed or conducted in normal mode, but behind closed doors to the public. Only some courts organize online streaming of hearings.
Courts started applying the new Law on remote hearings. For example, on April 3, judge of the Dnipro Administrative Court scheduled a preliminary hearing in a case via Zoom for April 13. The hearing was broadcast on the judge’s YouTube channel.
13.04.2020 preliminary hearing in the Dnipro Administrative Court
On April 8, the Seventh Appellate Administrative Court reported that it had conducted two hearings in administrative cases via Zoom. However, there was no online broadcast of these sessions, nor is a recording available by open access. That same day, the court scheduled hearing in another case via Zoom for April 16.
There are also two cases of conducting remote hearing via Skype in criminal and administrative offences case. In the first case, investigative judge of the High Anti-Corruption Court considered the issue of extending the period of house arrest upon petitions of the prosecutor and the accused. In the other case, the Rivne Appellate Court remotely interrogated a witness who was at home, while hearing the case in the courtroom. Journalists were present in the courtroom. These are bold decisions, because unlike in other categories of cases, in these cases there is no clear legislative ground that would entitle to participate in the in a case from home.
On April 8, the State Court Administration determined that videoconferences could be conducted using the little-known Ukrainian system EasyCon. As of now, the system has not been tested in courts because it is not adapted to their needs.
Participation in a hearing from home or office in Ukraine so far is rather rare than a common practice.
Conservatism. So far, not too many judges and parties have responded to the Council of Judges’ call to use videoconferences. This requires the interest of both judges and parties. Such a combination is rare. In most cases, courts refuse to grant a motion on remote hearing, pointing to various reasons. For example, on April 6, another judge of the Dnipro Administrative Court (the same court that scheduled hearings via Zoom) denied a party’s motion for remote hearing referring to … the lack of court’s technical capacity. On April 8, the Donetsk Commercial Court justified a similar refusal by referring to the fact that the party is purportedly not registered in the EasyCon system – even though the courts themselves first learned about this system from the State Court Administration only on the same day.
Remote hearings and publicity. In order to ensure publicity, the law provided that, in the case of participants’ attendance in hearings via videoconference, online broadcast of hearings is mandatory. The first two hearings conducted via Zoom were not announced or made available to the public. However, the two decisions scheduling future hearings through this software included the conference ID information. In one of the cases, which was considered by the Administrative Court in Dnipro via Zoom, Zoom users received the link to live broadcast of hearing on YouTube while trying to join the videoconference. In fact, the preliminary hearing was held via online broadcast on the judge’s YoTube-channel. Thus, the transparency (publicity) of hearings was ensured.
Identification. Lawyers frequently raise the issue of identification of participants who attend hearings via videoconference. The most reliable way of remote identification is electronic digital signature, but not many citizens have it and not every program supports such identification. On the other hand, the law also allows the use of identity documents for identification, but it is impossible to verify their authenticity at a distance. However, in most cases, it is reasonable to presume the good faith of parties.
Attempt to encourage the use of little-known product as the only alternative. MP Taras Tarasenko has stated that the State Court Administration’s decision is not aligned with the law and concerns over attempted monopolization of this niche by the only supplier of services – despite numerous other existing software solutions that are widely known and free. At the same time, some judges reported that they have the authority to independently choose remote hearing tools; what is important is that the tool chosen complies with the law and meets the court’s and case participants’ needs.
Deputy Head of the Board Centre of Policy and Legal Reform
Note: Hyperlinks to court decisions only work if the user is in Ukraine