“The shortcomings and risks that we outlined in our article have been confirmed in practice”.
Last year brought into our lives such a phenomenon as quarantine. As it turned out, neither Ukrainian legislation nor judicial practice were ready for new challenges. As a result, the hasty changes by which the Verkhovna Rada tried to normalize the work of the judiciary have created new problems. ADER HABER lawyers Andriy HVOZDETSKYI and Dmytro SHAHIRMANOV, who became the winners of the 4th Reader’s Confession contest, were among the first to analyze the topic of “procedural quarantine”. Therefore, ZiB asked our lawyers about the assessments of the introduced legislative regulation and its consequences already in view of the practice of application, as well as the realities of judicial proceedings in such conditions.
“In the vast majority of such changes had a more negative effect than a positive one”
– How justified were such procedural changes provided by the law of 30.03.2020 №540-IX?
AH:The desire of the state to settle the unknown and new, including such things as the procedural order in the conditions of quarantine restrictions, which for some time almost paralyzed the work of institutions and the normal way of life of individuals and legal entities, is an adequate and understandable response to challenges. we faced.
At the same time, such a settlement was carried out in a hurry, which inevitably affected the quality of the law. I will leave modesty and say that the shortcomings and risks that we have outlined in our article (seeZiB), found their confirmation in practice.
At the same time, the state of affairs that took place in the spring and summer really necessitated certain procedural relaxations. Both the extension of the time limit, and the possibility of adjourning court hearings, etc. were necessary for individual participants in the trial, given the objective circumstances. In particular, the same changes in
work of transport. Another thing is that, for example, the general postponement of the entry into force of the decisions of the courts of first instance in our title sometimes hindered effective judicial protection and efficient and prompt execution of court decisions, although this was a necessary purpose of appealing to the court.
DS:As we have noted, the procedural legislation of Ukraine has sufficient and effective mechanisms to postpone the consideration of cases in the event of real circumstances under which the party to the case for objective reasons can not appear in court. There are also means of renewing procedural deadlines if a person is actually deprived of the opportunity to take procedural action and draw up a procedural document for a certain period of time.
This law №540-IX simplified the existing procedure and introduced automatic extension of procedural deadlines. It cannot be said that making such changes did not make sense at all. In certain cases, the provisions of this law have been useful for persons who, due to quarantine restrictions, have not been able to appear in court, etc. However, in the vast majority of such changes, in my opinion, had a more negative effect than a positive one, because
significantly delayed court proceedings.
– In your material on the first “pandemic” law, you made a rather radical conclusion: during the quarantine no court decision will take effect. And the lawyers had a lot of objections in this regard. Did your predictions come true given the future practice?
DS:This conclusion was made precisely on the basis of the current procedural legislation. In my opinion, in this matter it is impossible to speak of any arbitrary interpretation of the provisions of procedural laws. After all, the legislator directly determined the extension of the term for appeal.
It cannot be said that litigants often used such a “gap” in the law, but such cases occurred, which led to a significant delay in the trial and, as a result, the inability of the plaintiffs to protect their legitimate rights and interests.
AH:I will be more radical: in fact, in the same social networks, some colleagues allowed themselves to make dubious and radical statements, reading only the “clickbait” title of our article. The same person who got acquainted with the material completely, immediately saw the logic
such a conclusion and the fact that it concerns the decisions of the courts of first instance.
I am convinced that, despite all the variety of forms of information presentation provided by the modern world, the depth and quality of research and analysis, expertise of conclusions is key, which makes legal services useful and in demand, and published materials popular. In this case, there is a great saying that when a person has a toothache, she will choose a dentist based on reviews of his work, rather than the number of subscribers and what good videos and photos he has on Instagram.
Our main task – both in the preparation of analytical materials and in working on projects – to pay attention to the most distant and hidden consequences of a particular aspect, to explore the “pitfalls”, to analyze the rule of law not linearly – as written, but to find out how it will affect the enforcement of other norms or acts. This was the case with this conclusion, which was confirmed 20 days later, when the decisions of the commercial courts of first instance did not enter into force, as the term of the appeal continued.
“Timely entry of information to
The USSR on the entry into force of the decision is extremely important “
– Are you aware of cases when court decisions were recognized as having entered into force in the first months of quarantine, for example, by state executors or notaries?
DS:Of course not. Notaries, state registrars, as a rule, act very cautiously and require applicants to confirm the entry into force of such a decision. Therefore, such documents will not be executed without a court mark on the entry into force of the decision and its availability in the Unified State Register of Judgments.
As for the bodies of the state executive service and private executors, they carry out enforcement, in particular, on the basis of executive documents issued by courts. Thus, the “green light” for the execution of a court decision, which results in its entry into force, is given by the court.
During the validity of the provisions of the first edition of the amendments to the procedural codes (except for the Criminal Procedure Code), the terms for appeal were extended. Therefore, the courts of first instance could not affix the mentioned
marks precisely because of the non-entry into force of the decision.
– By the way, recently the State Judicial Administration drew the attention of judges to the need to control and indicate in the USSR the date of entry into force of their decisions. To what extent is this correct, given that appeals may not necessarily be filed through a court of first instance? Does the law determine who should monitor this?
DS:In my opinion, the timely submission of information to the USSR on the entry into force of a court decision is extremely important and necessary. Especially in cases related to its implementation. In particular, registrars and notaries, who are obliged to verify the information on the decision in the register, are meticulous about the information on its entry into force. The presence of such a mark, especially during the execution of decisions subject to enforcement, can significantly save the time of the party to the case or his representative.
Indeed, appeals in accordance with current case law can be filed directly with the appellate court. However, as a rule, courts of first instance do not issue
executive documents and do not mark the entry into force of the decision on the day following the last day of the procedural term. After all, such a complaint can indeed be filed in the appellate court or on the last day of the term by mail.
The procedure for maintaining the USSR states that information on the entry into force of the decision is entered into the automated document management system of the court and sent to the register by means of such a system. And already the provision on the automated system stipulates that the personal responsibility for entering information on the entry into force of a court decision is borne by the head of the court staff.
“The so-called field for abuse and procrastination has been significantly narrowed”
– As the case law has already shown, not all courts have unequivocally adopted the second law – from 18.06.2020 №731-IX, which corrected some shortcomings of the law №540-IX. Some courts considered that the parties had sufficient time to comply with the procedural requirements and did not renew the deadlines for certain actions, others, in particular the Supreme Court, argued that all procedural deadlines could not expire earlier than 20 days.
after the entry into force of Law №731-IX. Which of these positions, in your opinion, is more reasonable?
DS:In my opinion, the provisions of Law №731-IX are written quite specifically and practically do not allow for the possibility of ambiguous interpretation of its provisions. Thus, the law established that the extended terms expire 20 days after the entry into force of the law. Therefore, during this period, the participants have the right to take appropriate procedural steps.
I believe that it is impossible to formulate an unambiguous answer to this question. After all, I am convinced that each court case is unique in its own way: in some cases, the participants really abused procedural rights and extended terms, so some courts were skeptical of such actions. In others, the courts understood that the party to the case due to quarantine restrictions for objective reasons is not able to draw up a procedural document, apply to the court, come to the court premises or participate in the meeting by videoconference, .
By the way, in my opinion, the wording of the paragraph of the transitional provisions of the procedural codes, set out in the law №731-IX, is more
effective, although it involves applying to the court with a request to renew the procedural term (it is necessary to take additional procedural actions).
According to this wording, the court in each case, considering the application for renewal of the term, will decide whether the restrictive measures have affected and prevented the use of the party’s procedural rights and obligations. Participants, in turn, will be required to prove the existence of such circumstances with appropriate and admissible evidence.
AH:In this case, in the absence of a “comprehensive” extension of procedural time limits, the latter will be extended only in the case of a real negative impact of quarantine restrictions on the use of procedural rights by the participants in the process. Thus, the so-called field for abuse and procrastination was significantly narrowed.
– What other procedural difficulties did the parties to the lawsuits face due to the quarantine and which of them still remain unresolved by law?
DS:Quite often the parties resort to abuse of procedural rights
filing motions to adjourn the case due to the suspicion or presence of a coronavirus in the party to the proceedings, his representative or at the enterprise or organization where such a person works.
Such cases do occur, the level of coronavirus in Ukraine has been relatively high recently and, of course, the presence of such a circumstance is a good reason not to appear in court and adjourn the case if the party concerned so requests. At the same time, realizing this, the courts postpone consideration of such applications in the absence of evidence of occurrence and the existence of such circumstances. It turns out that in this way the parties to the case provide the court with false information in order to delay the consideration of the case.
In addition, in some courts the real problem is to get acquainted with the case materials, to obtain copies of decisions due to the restrictions imposed on them.
It should be noted that the vast majority of courts do not currently accept correspondence through the office, and therefore do not mark the receipt of documents. However, in some cases this is very important for the procedural strategy of the representative and the confirmation of the fact of submission of documents. Not in
in all cases, instead of submitting documents directly to the court, you can use mail.
“Quarantine restrictions did not always lead to the complete impossibility of using rented premises”
– Among other things, there was a lot of controversy over the recognition of quarantine as a force majeure circumstance. Especially in terms of the lessee’s obligation to pay rent in full, despite a direct ban on doing business. We now have a continuation of this topic. What is your position on this?
DS:First, the existence of force majeure does not release the person in respect of whom such circumstances exist from the performance of the obligation in kind, but excludes his liability for failure to perform the obligation properly. The mere effect of force majeure on a person does not terminate the obligation to perform the obligation in kind, as defined by the relevant agreement.
In my opinion, the mere existence of quarantine measures cannot be considered a force majeure circumstance. After all, such restrictive measures have different effects and
continue to affect businesses: some have not experienced these restrictions at all, others have made additional profits as a result, and the commercial activities of others have been nullified.
In this regard, when determining quarantine by force majeure, the applicant should apply to the Chamber for the issuance of the relevant certificate, the type of its activity, how exactly the quarantine restrictions affected the ability of such person to properly fulfill the obligation. etc.
Of course, the state should provide support to businesses that have suffered the most from quarantine measures. However, I think that such support should be provided within the “competence” of the state, such as reducing the tax burden for the relevant categories of people and so on. In my opinion, the state’s interference in private law relations, in particular between the landlord and the tenant, is unjustified. The state should not exempt tenants from paying rent, except in cases where such a landlord and, accordingly, the owner of the property is itself – in the person of the relevant enterprises, institutions and organizations.
Private sector tenants should negotiate with landlords and
independently agree on deferral of lease payments, their forgiveness, etc.
AH:It is important to understand that quarantine restrictions did not always lead to the complete impossibility of using rented premises, it also affects whether quarantine is force majeure. Favorite example – shops in shopping malls.
Thus, under the ban on the operation of shopping malls and malls, such stores could not sell goods in the usual way. However, many operated in the form of online commerce, and the leased space of regular stores, where goods were stored, actually played the role of warehouses. Provided that access to such premises for tenants was not limited, online orders, their formation, packaging, etc. could be shipped from the relevant store. Therefore, it cannot be said that the rented premises were not used at all. In this case, you should refer to the provisions of a specific agreement, find out how the object is defined, the purpose of the lease, the order of use of the premises, etc.
– By the way, how do you feel about the legitimacy of imposing quarantine restrictions by a decision of the Government and not the Parliament? After all, the Constitutional
The Court indirectly noted that such restrictions on rights and freedoms could be imposed only in a state of emergency and only by a decision of parliament.
AH:If we talk about the prospect of lawsuits declaring acts and actions of the Cabinet of Ministers to establish quarantine illegal (it is known that such lawsuits were reported in the media), then I am far from believing in their success. Repeated comments in the summer that the restrictions can be imposed only in the context of a state of emergency can be refuted.
Ukrainian legislation in the field of health care provides for the necessary response of the state, including in order to protect against infectious diseases, which is the coronavirus infection COVID-19. Thus, the Cabinet of Ministers directly establishes quarantine under Article 29 of the Law “On Protection of the Population from Infectious Diseases”. Establishment in the relevant decision of the Government of temporary restrictions on the rights of individuals and legal entities and additional obligations᾽languages,, what rely on on Nthem, was provided by the law in the edition which operated before establishment of quarantine in the spring of 2020.
The same law provides
powers of local executive bodies and local self-government bodies, including the establishment of special exit regimes and᾽ride,, special order carrying out preventive and anti-epidemic measures,, what small place in series administratively-territorial units. Appropriate powers and order provided also and provisions the law “About providedsanitary and epidemic well-being of the population “.
Thus, both the strictest restrictions in the spring and summer of last year and the restrictions in the conditions of adaptive quarantine do not cause reasonable doubts about their legitimacy. In general, it is obvious that the actions of the Government and local self-government bodies are aimed at implementing the constitutional provisions designed to ensure public health, just as the provisions of the Constitution provide for the possibility of restricting certain human rights to public health.
“Making e-court the only platform for interaction with the court, of course, is not the time”
– Can we say that in Ukraine for 3 months the access of citizens to court was actually limited, which is a violation of the Constitution?
DS:In my opinion, it is not necessary to state categorically about the complete restriction of the right of citizens to access to justice during quarantine measures. After all, the courts of Ukraine did not close their doors, received and registered incoming correspondence from participants in the trial, and so on. It cannot be said that the proceedings during the quarantine measures were suspended, as the courts held hearings and heard cases. At the same time, court hearings were postponed for a long time.
Holding court hearings online should significantly simplify and partially solve this problem. However, it can be said that this practice is not widespread due to several factors: as not all participants are able to participate in the meeting by videoconference, so the courts are not always ready for this from a technical point of view.
By the way, during the quarantine, some courts take strict measures to restrict the admission of persons to the premises, as a result of which it was virtually impossible to get acquainted with the case materials, obtain court decisions, etc. In some cases, this is crucial to protecting and restoring the rights of the party to the proceedings.
– Again, today it is often said that “e-justice” will save us. Not to be
to consider restrictions on access to court, for example, requirements to submit applications, evidence and procedural documents exclusively through the electronic cabinet? Moreover, not in all proceedings the interests of the party must be represented exclusively by a lawyer.
AH:First, there are no restrictions at present, the participants in the case are limited by the e-Court platform only when it comes to the exercise of procedural rights and opportunities in electronic form. The usual forms of personal participation, as well as sending and receiving documents by mail, are still available.
Second, the specially designed platform and software are designed to reduce the cyber risks that can occur when using a regular e-mail account created on popular resources. Therefore, there are explanations for the conditions and procedure related to the use of e-court.
Another thing is to hold court hearings by videoconference. Despite these reasons, the quality of software and technical requirements do not always contribute, and even more – limit the possibilities of real support for such meetings. And if the educational process in secondary and higher education, business meetings, where there is also an exchange
information is not provided to the general public using world-renowned applications and platforms, then the dissemination of their use for court hearings given the exceptional nature of the ongoing pandemic would certainly not be superfluous and probably justified.
DS:Indeed, a full-fledged e-court would be and could be a lifeline in this situation. After all, it gives the opportunity to submit procedural documents to the court, receive them, get acquainted with the case materials, etc., and in general to have an effective lawyer’s office online.
I am convinced that the introduction of e-court as soon as possible is extremely important and necessary. At the same time, I consider it incorrect to establish the imperative to submit documents to the court exclusively in electronic form.
It is obvious that not every person now has the opportunity and skills to use e-court and thus apply to a judicial institution. In my opinion, there should be a simple logic in this matter: if there is a doubt that at least one person is unable to use e-court for objective reasons, then it is no longer possible to talk about the introduction of exclusively electronic document management.
Of course, e-court meets the challenges of the times, but to do so as the only platform for interaction with the court, of course, is not timely.