The High Council of Justice in its advisory opinion supported the draft Law of Ukraine “On making amendments to certain legislative acts of Ukraine regarding ensuring the holding of the court hearing in the event of impossibility of its full recording by technical means under the conditions of martial law or a state of emergency” (registration No. 8359)
Draft Law No. 8359 proposes to amend the Code of Commercial Procedure of Ukraine, the Civil Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine with provisions stating that under the conditions of martial law or a state of emergency, in the event of an objective impossibility to full recording of the court hearing by technical means, the course of court session is recorded by the secretary of the court hearing in writing in the minutes of the court hearing, which reflects the essential moments of the case consideration in the sequence in which they take place at the court session.
It is also proposed to amend the Law of Ukraine “On Access to Court Decisions” with provision that under the conditions of martial law or a state of emergency, in the event of an objective impossibility of entering a judicial decision into the Unified State Register of Court Decisions (hereinafter also referred to as the Register), as an exception, the court enters into the Register all judicial decisions and dissenting opinions of judges without delay at the earliest opportunity, but no later than five working days from the date of elimination of the relevant circumstances.
The High Council of Justice believes that the amendments proposed by draft law No. 8359 are necessary for implementation of the state's obligation to ensure everyone's right to judicial protection under the conditions of martial law or a state of emergency, will neutralize the risks of lengthy consideration of court cases by unstable power supply of courts, and will ensure timely resolution of disputes by the court.
The Council emphasizes that the right to judicial protection, cannot be limited even under the conditions of martial law or a state of emergency.
The current provisions of the procedural legislation provide for the requirement to full recording of the court hearing by means of sound recording equipment, and in some cases – with the help of video recording equipment.
The Constitution of Ukraine defines the openness of trial and its complete recording by technical means as one of the basic principles of legal proceedings.
In connection with the missile attacks of the russian federation on energy infrastructure facilities throughout the territory of Ukraine, stabilization and emergency shutdowns of electricity consumers are being applied.
The measures taken to restore the power supply cannot yet fully resolve the problem of uninterrupted power supply in courts, which will continue to affect the course and duration of procedural actions.
Thus, in the conditions of martial law or a state of emergency, granting the secretary of the court hearing the right to record the court hearing in writing in the minutes of the court hearing will contribute to unhindered administration of justice by the court and compliance with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and will be the only possible way to comply with the principle of continuity of the justice execution.
The position set out in the draft law was also supported by the Council of Judges of Ukraine, since the proposed norms will provide an opportunity to resolve the current situation and ensure citizens' right to access to justice.
However, the HCJ drew attention to the fact that defined by draft law No. 8359 in articles 222 of the Code of Commercial Procedure of Ukraine, 247 of the Civil Procedure Code of Ukraine, 229 of the Code of Administrative Procedure of Ukraine requires approval.
In the view of the above, the High Council of Justice supports draft law No. 8359, taking into account the proposed technical amendments.