State Judicial Administration of Ukraine regulated the issue of holding videoconferences outside the court premises
On April 8, the State Judicial Administration of Ukraine (SJA) approved the Procedure for working with videoconference tools during a court session in administrative, civil and commercial processes with participation of parties outside the court premises (the Procedure).
The Procedure establishes the following rules:
· holding court sessions in videoconference regime using EasyCon system;
· in order to take part in the meeting, a participant must log in the system using an electronic digital signature (EDS). Participation of unauthorized participants is impossible;
· at the beginning of the meeting, the participant should show the identity document to the camera.
The Procedure was approved with a view to detailing the provisions of the Law "On Amending Certain Legislative Acts aimed at Ensuring Supplementary Social and Economic Guarantees in Relation to the Distribution of Coronavirus Disease (COVID-19)" (which entered into force on April 2), which in particular provided for the right of participants in civil, commercial and administrative cases to take part in videoconference court sessions outside the court premises (please refer to political points of events dated March 23-30).
First, the Procedure determines EasyCon service as the only possible video conferencing system. According to the announcement of the Press Center of Judiciary of Ukraine, the video conferencing application may be chosen at the discretion of the court, but this does not follow from the Procedure, which defines EasyCon as the only video conferencing system.
Secondly, the EasyCon system has several disadvantages. As the CPLR expert Roman Kuybida found out, at the moment of approval of the Procedure, the system operated on a paying basis and was not publicly accessible. It is not yet clear whether the participants of the litigation procedures will also need to pay for it. The system can be used only upon availability of an EDS, which is directly contrary to the law, as the latter provides for the authorization of participants without digital signature in other ways: by means of an identity document or in a manner to be determined by the SJA (it has not done so yet). In addition, the system only accepts EDS issued by 6 providers, not allowing, for example, to use a signature issued by Privatbank (the bank's customers can obtain it online).
Third, the Procedure does not specify the mechanism for broadcasting online court sessions, which is the responsibility of the court if all participants are involved in a videoconference regime. The lack of broadcasting violates the constitutional principle of the publicity of the trial.
According to CPLR experts, the Procedure needs substantial improvement, first of all, in terms of empowering the courts to use other publicly available videoconference systems that are suitable for remote court procedures, as well as providing the possibility of remote participation for persons who do not have an EDS. In addition, an online broadcasting of videoconference court hearings should be provided.