Remote justice in Ukraine: developments in the time of quarantine
Sayenko Kharenko, Ukraine
Sayenko Kharenko, Ukraine
Sayenko Kharenko, Ukraine
In late 2017, the new Civil Procedure Code of Ukraine (the Civil Procedure Code), the Commercial Procedure Code of Ukraine (the Commercial Procedure Code) and the Administrative Procedure Code of Ukraine (the Administrative Procedure Code) came into force. All these instruments provide for the Unified Court Information and Telecommunication System (UCITS).
The UCITS was supposed to ensure:
electronic workflows between the courts and parties to disputes (all case files held electronically, with no necessity to file hard copies);
the participation of parties in hearings via video conferenceusing their own devices (videoconference outside any court building).
The implementation of UCITS has not yet been finished. Nevertheless, the quarantine introduced in mid-March 2020 due to Covid-19 has accelerated the digitalisation of litigation in Ukraine.
To ensure rights of access to courts, as well as to protect the population from Covid-19, Ukrainian courts have put in place a number of additional measures to facilitate remote justice.
The E-Court and electronic workflows
In March 2020, the Council of Judges of Ukraine issued its recommendations for the courts and the population.
In these recommendations, the Council encouraged the courts to email scanned copies of case files to the addresses specified in the motions of the parties (where technically possible).As a result, if relatively few documents are on a given file, the court may send copies by email to the relevant parties, making attendance at court to review the file unnecessary.
In addition, the Council of Judges of Ukraine recommended that parties file documents via email or the Electronic Court System (the E-Court).While correspondence by email is not exactly provided for by the procedural codes, the situation with the E-Court is different.
The State Court Administration of Ukraine officially launched test usage of the E-at the end of 2018. As of now, all the first instance courts, courts of appeal and the Supreme Court (only chambers dealing with commercial and administrative cases) are part of the E-Court pilot and parties may use the E-Court (although they are not obligated to).
Currently, this system allows the parties and their attorneys to file submissions, to track the status of the submitted files, to receive court decisions and study case files. The E-Court also contains templates of some procedural documents. Recently, the E-Court also started sending case update notifications to parties.
However, as the system is still in test mode, there may still be technical shortcomings. In addition, both the non-mandatory nature of the test system and the large number of files that are still submitted in hard copy do not yet allow full transfer to the electronic workflow. Nevertheless, the courts continue scanning all case files and the State Court Administration of Ukraine has emphasised that the courts shall firstly scan the files in those cases where the parties use the E-Court.
Video conferencing through video conference platforms
Before the Covid-19 quarantine, parties could take part in hearings held in another city by means of video conference. However, the party had to be present in the courtroom of another court.
At the very beginning of the quarantine, the Ukrainian Parliament adopted a law that allowed the parties to take part in hearings using their own devices, without the necessity to appear in a courtroom at all (but only during the quarantine).
The law merely states that video conference platforms are permitted for hearings. This, however, does not apply to witnesses, translators and experts who have to be present in the courtroom. It is worth noting that the possibility of using video conference platforms depends on a court’s technical capability: courts may reject a motion on video conferencing. At the same time, it is evident that generally courts have taken a positive approach to granting the respective motions.
There are no limitations on the type of video conference platforms that can be used. For example, as of 6 May 2020, the Kyiv Commercial Court held 25 hearings via such platforms (18 via Skype, 3 via Microsoft Teams and 4 via EasyCon (a court-specific platform). Hearings held via video conference platforms have to be recorded, with the court keeping several extra copies of the respective record.
In addition, the Ukrainian Parliament has adopted a law that allows creditors’ meetings within bankruptcy proceedings to be held online. At this time, the law has not come into force, but some insolvency managers have already started using video-conference platforms to hold these meetings.
A guaranteed right of access to courts during the Covid-19 pandemic demands urgent steps and measures from the state and each court staff member. This is both a challenge and an opportunity for a technical revolution in justice. Ukraine has taken a course towards remote justice and we all hope it will succeed.
The Recommendations of the Council of Judges of Ukraine (17 March 2020), see http://rsu.gov.ua/uploads/news/risenna-rsu-no19-vid-170320-sodo-3139072992.pdf
The letter of the State Court Administration of Ukraine of 08 August 2019 No 15-20379/19, see https://dsa.court.gov.ua/userfiles/media/media/DSA_08_08_19_list.pdf, accessed 26 October 2020.
Kyiv Commercial Court, see https://ki.arbitr.gov.ua/sud5011/pres-centr/novyny/935191/, accessed 26 October 2020.