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The judges will sit online

05 June 2020

It is possible to hold court hearings during quarantine online outside the court premises – such changes have been made to the procedural legislation of Ukraine – says senior associate, attorney ADER HABER Dmitry Shahirmanov for Ukrainian Lawyer (№4-5).

That is, the parties to the process may participate in the trial outside the courtroom with their own technical means and with the help of appropriate software.

In order to implement legislative changes related to videoconferencing outside the court premises, on April 8, 2020 the State Judicial Administration of Ukraine developed and approved the Procedure for working with technical means of videoconferencing during court hearings in administrative, civil and commercial proceedings with the parties outside the premises the court, which regulated the procedure for submitting relevant applications and conducting court hearings by videoconference using EasyCon software.

On April 23, 2020, the State Judicial Administration of Ukraine approved the new procedure, which actually allows courts and litigants to hold court hearings by videoconference using any technical means and software that allows court hearings by videoconference. .

Thus, at present, videoconference hearings outside the courtroom are possible not only through EasyCon, but also through any software available to the court and litigants.

If we analyze the application by the courts of the SIA regulations and the conduct of court hearings by videoconference outside the courtroom at this time, the vast majority of court hearings are postponed, considered in the absence of participants or held in the presence of participants directly to the court.

Postponement or consideration of court cases in the absence of the parties to the case occurs due to technical problems with software systems in court, which make it impossible to hold a court hearing by videoconference, about which the courts draw up a relevant act.

Given the current changes made by the SJA to this procedure and the current practice of conducting court hearings remotely, it is currently difficult to imagine that courts will be “included” in videoconferencing via mobile devices or personal computers through video communications software. for example, WhatsApp, Zoom or Skype.

Meanwhile, some courts, in particular the Supreme Court (Administrative Court of Cassation), the Northern Commercial Court of Appeal and some general courts, have already reported that the latter held a videoconference hearing outside the courtroom.

Of course, the whole legal community is interested in and welcomes videoconference hearings outside the courtroom, but courts are not in a hurry to “digitalize” either due to real technical problems or insufficient material support, or due to the fact that such the format of the court hearing is new and has not been engraved on the status quo, as it provides for a slightly different procedure for the actual holding of the court hearing and the recording of its results.

This does not mean that the court should not even be asked to hold a court hearing by video conference outside the courtroom. On the contrary, the more applications for videoconferencing that go to court, the sooner an online court hearing will become commonplace and will be considered a regular appearance of a party to the case.

Holding a court hearing in this mode, firstly, ensures the work of the judiciary and prevents delays in court proceedings, and secondly, is extremely important for the health and lives of litigants and court staff in a difficult epidemiological situation. .

The positive experience of remote court proceedings outside the court premises should be maintained and continued after the end of quarantine, because under such conditions participation in the court becomes more flexible and in some cases frees the party from long and exhausting business trips.

In addition, conducting a videoconference hearing outside the courtroom is not only about the comfort of a lawyer (or a person without such status) and the client’s costs, but also about access to justice in general, which in this case can be provided for everyone regardless of location on the day and time of the hearing.

This requires the will of the legislator, because at this time a court hearing by video conference outside the court is possible only during the quarantine established by the Cabinet of Ministers of Ukraine to prevent the spread of coronavirus disease (COVID-19).

Therefore, it is too early to say that the quarantine restrictive measures have led to the impetus for online court hearings and the digitalisation of courts, as both courts and the legislature have heard videoconferences outside the courtroom is seen as a temporary and forced step.

 

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