Marsz Tysiąca Tóg dwa lata później. Suwerenność i praworządność – rola sądów po pandemii COVID-19
The Ukrainian Judiciary in a Meteor Shower: A New Reality or an ongoing Challenge?1
Prof. dr Iryna Izarowa*, Dr Serhii Kravtsov**
1. Introduction with Some Points for Discussion
Everyone has the right of access to just ice and judicial protection. It is a right guaranteed by the Universal Declaration of Human Rights, the European Convention on Human Rights, and the Constitution of Ukraine, and cannot be displaced by any of today’s challenges. For two years, the entire world has been faced with a pandemic, and now, only a month ago, Europe and Ukraine were unlawfully and unreasonably attacked by russian2 military forces, and the war is still going on.
It cannot be said that humanity is facing such challenges for the first time in its history, or even during the existence of the judiciary. At the same time, the high standards of the rule of law and human rights that have developed over the past century require special attention in these two cases.
The challenges determine the specific nature of the administration of justice in those states where a special legal regime has been adopted, but cannot narrow or deprive a person of his or her rights, in particular, access to justice.
At the same time, the logical question is whether these events can still be considered challenges, whether it is necessary to adapt to the new reality of the modern world, in which disaster can strike in one’s daily life at any moment. The discretionary power of judges and, in the case of Ukraine, the head of the judiciary, may be justified due to the current obstacles, and perhaps a case by case basis should be introduced in the very essence of the concept of state powers.
2. Some Achievements of the COVID-19 Period for Courts and Litigation in Ukraine
When briefly summarising the events that occurred during 2020–2022 because of the COVID-19 pandemic, we can focus on one defining detail – distancing. The infection spread in crowded places and locations lacking fresh air, so staying indoors became dangerous and we required a review of conventional approaches. Museums introduced schedules and video tours, stores switched to online platforms for selling and delivering goods, and the courts? The courts also adapted to the new conditions of reality, ensuring common standards of access to justice and the proper exercise of the individual’s right of access to justice and judicial protection.
Therefore, flexible time limits and online communication were the most important achievements of Ukrainian courts while COVID-19 was at its peak.3
During the pandemic, the civil process – namely the sequence of specific actions of the court and the participants in the case – became subject to additional risks because of the need, in some cases, to hold a hearing in the presence of the parties, i.e. individuals must be in the courtroom. Likewise, to a lesser extent, the pandemic influenced the violation of procedural time limits associated with the parties performing various procedural actions.
Of course, when it became clear that avoiding the spread of the virus was directly related to physical contact between people, it was decided to expand the possibility of videoconferencing. In March 2020, the CPC of Ukraine was amended by the following rule about participation in court hearings by videoconference (Article 212)4. Consequently, a person wishing to take part in a court hearing could exercise their right to be heard by the court via videoconference without having to visit the courtroom.
In April 2020, the Procedure for working with technical means of videoconferencing during a court hearing in administrative, civil, and commercial proceedings with the participation of the parties outside the court5 was adopted. Pursuant to Clause 1 of Section III of the Procedure, in order to participate in a court hearing by videoconference, the party to the case must pre-register using their own electronic signature in the system and check their own technical means for compliance with the technical requirements for videoconferencing.
According to the official data, the dynamic of civil cases has remained almost the same. In 2020, the numbers fell by just 5.97%6. In general, this bears witness to the adaptation of courts and participants to the distanced life of COVID-19.
The CPC of Ukraine was also amended by a clause on the extension of procedural terms for the duration of the quarantine7. This led to the principle of reasonable time of court proceedings enshrined in the CPC of Ukraine, which, as well as being an integral element of a person’s right to a fair trial, could not be properly implemented during the rule of unlimited and unconditional extension of procedural terms for quarantine. At the same time, the seriousness of the reason for missing such deadlines allowed courts to correct the situation in time and provided guarantees of reasonable deadlines for the consideration of the case for all participants in the process.
Additionally, there are no cases against Ukraine in the ECtHR involving a violation of Article 6 during the pandemic period.
Therefore, the COVID-19 pandemic shows that courts may adapt to new conditions and that special adaptive regimes can ensure the possibility of effectively performing everyday social functions now and, if needed, in the future, in line with what the recommendations require.
It is now reasonable to say that rules should be developed for the courts in any emergency, as, even before the end of the coronavirus pandemic, the Ukrainian courts faced an even greater problem – war in independent Ukraine.
3. Courts amid War: Notes from the Ukrainian Field
On 24.2.2022, russian troops invaded Ukraine and violated its territorial integrity, inflicting heavy losses on defence facilities, civilians, and national and local government buildings, including courthouses. Since then, justice in Ukraine has been paralysed in cities such as Chernigiv, Kharkiv, Kherson, Mariupol, Energodar, Berdyansk and elsewhere.
On the first day of the war, the President of Ukraine signed a decree imposing martial law throughout Ukraine for a period of 30 days8.
Today, the courts in Ukraine operate under martial law and administer justice with certain restrictions, in particular, on the implementation of the territorial jurisdiction. It can be said that Ukrainian courts administer justice only in the absence of threats to the lives and health of the participants in the case, as well as court staff. Only factual impossibility led to the termination of more than hundred Ukrainian courts and a change of territorial jurisdiction. These issues are analysed in part 3.1 of this note; the efforts related to the preservation of court archives and record-keeping materials is in part 3.2; the issues of the judiciary leadership in Ukraine and the stable functioning of justice are studied in part 3.3; part 3.4 deals with the working conditions of court employees. As a result, interim conclusions are given, in order to improve the concept of access to justice in wartime.
3.1. Territorial Jurisdiction of Ukrainian Courts
During the period of war, the Ukrainian courts have generally administered justice properly. Access to the Unified State Register of Judgments (USRJ), as well as to the services of ‘Status of proceedings’ and ‘List of cases under consideration’, was temporarily suspended.
The State Judicial Administration of Ukraine reports that for the period from 24 February to 21 March 2022, the courts adopted and sent 151,662 decisions to the USRJ9. The president of the Supreme Court gave an interview in which he said that, for the same period in peacetime, the courts issued approximately 250-300,000 decisions10.
At the same time, during russia’s attempts to seize large territories of Ukraine, some territorial units suffered destruction, or even came under the direct control of the aggressor country. Thus, in order to prevent the complete absence of justice in Ukraine, in March 2022, the Supreme Court began to issue orders to change the territorial jurisdiction of courts under martial law11.
During this short period, 10 such orders were issued, and the areas where the activities of the courts were suspended are increasing day by day. As of now, this has affected 121 courts out of a total number of about 600 courts in Ukraine12 (10 courts in the Donetsk region; 3 courts in the Zhytomyr region; 14 courts in the Zaporizhia region; 4 courts in the Kyiv region; 2 courts in the Mykolaiv region; 16 courts in the Luhansk region; 23 courts in the Kherson region, 20 courts in the Kharkiv region, 2 courts in the Sumy region, 26 courts in the Chernihiv region). There are 75 Ukrainian courts located in war-torn areas13.
The reasons for terminating their activities vary, including in particular: the complete destruction of the court building and the inability to administer justice; the real threat of destruction of court buildings; and where the areas the courts are located have been occupied by russian troops.
In total, according to the State Judicial Administration, 137 courts cannot administrate justice, and 49 courts are located in areas occupied by Russian troops14. To date, a total of six courts have been destroyed or damaged.
For example, the building of the Kharkiv Court of Appeal was physically destroyed. On 6 March 2022, at about 7:20 p.m., two powerful explosions occurred near the building of the Kharkiv Court of Appeal, as a result of which the building suffered substantial damage. The blast completely knocked out the windows, significantly damaged the interior and burned the roof.
After the restoration of Ukraine’s full sovereignty and victory over the russian occupiers, the work of such courts will be resumed.