Marsz Tysiąca Tóg dwa lata później. Suwerenność i praworządność – rola sądów po pandemii COVID-19

3.2. Courts Archives amid War

An important issue is to ensure proper court records, preserving case materials, internal court documents, etc. In 2019, the Ministry of Justice of Ukraine adopted an order for the procedure for the evacuation, storage and destruction of documents during a special period¹⁵. This provides an algorithm for actions on documents (including court materials).

In March 2022, recommendations were issued to the courts of first and appellate instances in the event that the locality and/or the court were occupied or there was an imminent threat of occupation¹⁶. According to these recommendations, in the event of occupation or a threat of occupation of the court, each chairman and judge must act in accordance with the current situation and martial law, make reasonable and effective decisions, recognising that saving lives and health is their priority. If appropriate, court case files should be removed, especially those pending before judges, or at least the most important (high-profile) case files should be removed: materials of criminal proceedings in which a person is detained; proceedings against minors; proceedings for particularly serious crimes; other case files that must be considered due to the rights of the participants in the process. If this is not possible, they should try to ensure that such case files are kept in safes in the courtroom¹⁷.

At the same time, it is understood that this procedure cannot always be applied, as in some cases the occupation of territories where the courts are located is very fast. Court employees are simply not able to comply with the requirements of this Procedure in a timely manner.

3.3. Judiciary Leadership and Self-regulation in a Time of War

The efforts of the President of the Supreme Court to stabilise the work of the entire judicial system in Ukraine in a state of martial law, which is extremely important and necessary, should be supported.

Nevertheless, it is also necessary to focus on certain legal aspects of the activity of the President of the Supreme Court. On 3 March 2022, amendments were made to Article 147 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’¹⁸, according to which, in connection with natural disasters, hostilities, measures to combat terrorism or other emergencies, the court may be suspended, at the same time allocating another court to carry out justice in the jurisdiction of the court that has ceased its activities. This is usually the court closest to the court whose work has been suspended, but can be another designated court, by decision of the High Council of Justice, adopted by the President of the Supreme Court – and by order of the President of the Supreme Court. This law entered into force on the day following its publication, and all orders made prior to this may be considered inconsistent with the applicable law.

It is worth noting that a similar situation occurred in Ukraine in 2014, also related to the military actions of the russian federation in eastern Ukraine¹⁹. At that time, the highest level of judicial power in Ukraine, as a court of cassation, was the High Specialised Court of Ukraine for Civil and Criminal Cases, which was empowered to determine the procedures for changing territorial jurisdiction in those territories that became temporarily occupied²⁰. Pursuant to its order of 2 September 2014²¹. this court, on the basis of the Law of Ukraine ‘On the Administration of Justice and Criminal Proceedings in Connection with Anti-Terrorist Operations’²², delegated the powers and jurisdiction of some courts in occupied territories to consider civil, criminal, administrative, and commercial cases (17 courts in the Luhansk region and 35 courts in the Donetsk region).

However, this law provides a clause that, due to the inability of individual courts to administer justice in areas of anti-terrorist operations, the territorial jurisdiction of such courts may be suspended, other courts that will consider their cases should be determined by the President of the Supreme Court. The provisions of this law applied only to those legal relations that were in force as of 2014 in connection with anti-terrorist operations; it did not apply to civil cases.

These regulations are correlated as a general and special rule. Despite this, they do not allow a claim that the President of the Supreme Court is still authorised to decide on the termination of the courts and changes in territorial jurisdiction.

In this context, the question is about recognising such courts as ‘courts established by law’. In short, if the President of the Supreme Court does not have the right to decide on the suspension of courts and to change the territorial jurisdiction of martial law, then there may be negative consequences for the parties in civil, administrative, commercial and criminal cases, as well as for the judges themselves.

In addition, the procedural codes in Ukraine (Part 3 of Article 376 of the CPC of Ukraine, Part 3 of Article 277 of the ComPC of Ukraine, Part 3 of Article 317 of the CrimPC Ukraine) provide that a violation of procedural law forms mandatory grounds for revoking a decision of the court of first instance and the adoption of a new court decision, if the case is considered by an unauthorised court. The application of these rules can be interpreted in many contexts, but it seems that it is possible to overturn the decision of a court whose powers were transferred without due process.

Thus, only the High Council of Justice (HCJ) should decide to close the courts, and there is a very fine line between the adoption of the HCJ decision on 22 February 2022, when 10 members resigned²³ ahead of schedule, and the fact that the President of the Supreme Court, in violation of applicable law, assumed power in order to stabilise the judiciary.

In addition, a self-governing judicial body like the Council of Judges of Ukraine (CJU)²⁴ plays a significant role in supporting the normal functioning of courts in Ukraine.

In this difficult time for Ukraine, the Chairman of the CJU wrote a letter to all the courts in Ukraine noting the order of the President of the Supreme Court on transferring 60% of the judges’ remuneration in support of the Armed Forces of Ukraine. He believes that this initiative should be supported by all the judges in the country without exception – except for judges from those regions where active hostilities are taking place, forcing judges to leave their homes and their courts²⁵. Therefore, he called on all judges of the first and appellate instances to voluntarily limit their remuneration as follows: judges of appellate courts – to transfer 50% to the assistance of the Armed Forces, judges of the first instance – 40%.

On 14 March 2022, the CJU held an extraordinary meeting during which a decision was made regulating certain issues of judges’ participation in resistance towards russian invaders and approving recommendations for the organisation of courts and judges under martial law²⁶.

3.4. Judges and Court Staff in a time of War

The work of the judiciary under martial law is very difficult, in some cases even impossible, but both the courts and the judiciary are still trying to continue this work. There are even situations when judges and court staff join the Armed Forces of Ukraine, the Territorial Defence, in order to defend their homeland from the russian occupiers.

The Verkhovna Rada Committee on Legal Policy reports that from 24 February to 21 March 2022, 23 judges were mobilised, and 12 judges joined the ranks of Territorial Defence in their cities and regions. The actions of these judges deserve respect²⁷.

There is sad and worrying news that should also be shared. In his interview, the President of the Supreme Court mentions the absence of communication with judges in Mariupol, Kherson and other Ukrainian cities that have been destroyed by russian troops²⁸. One Ukrainian judge, Liubov Kharechko, was killed while trying to leave the occupied territory with her family, and the main reason she was shot was her position.

The issue of the court staff’s work during martial law is primarily determined by the norms of the Labour Code, but on 15.3.2022, the Law of Ukraine on the organisation of labour relations under martial law was adopted as a special rule²⁹. The key aspects of this law are that, in connection with the conduct of hostilities in the local area, if a court employee sees a threat to their life or health, they can suspend their employment contract at their own initiative for a period indicated in their statement. In other words, any court employee who feels that they are in danger where they work can write a statement suspending the employment ­relationship.

Then the valid question arises: how is one supposed to do this in real conditions of war?

This issue is quite relevant and should be decided individually by order of the presidents of the courts. If an employee of the court staff does not want to resign, the court cannot simply dismiss them, but can dismiss them during the period of their temporary incapacity for work, as well as during the period of the employee’s leave. Again, returning to the issue of the courts whose activities have been suspended, in this case the dismissal of employees who performed their duties is not allowed.

Since the beginning of hostilities in Ukraine, many people, including the judiciary and judges, have left the country. Most court staff are civil servants (except for assistant judges, as they are subordinated exclusively to judges and are part of the patronage service). On 22.3.2022, the National Civil Service Agency (NCSA) published an explanation of the specific nature of the service of civil servants who went abroad after martial law was imposed in Ukraine³⁰. According to these explanations, civil servants may work remotely, including abroad, during martial law or a state of emergency in Ukraine or in certain regions thereof, and for 10 days after the state is terminated. They do not have to perform the duties of the position if specific employees or departments in which they work are declared, and the head of the government has not allowed them to be at the main place of work until the end of the downtime; they may be issued paid or unpaid leave. Most types of leave are issued with the consent of both the civil servant and the head of the civil service. Certain types of leave are granted to civil servants upon request.

If a civil servant is not working remotely or on official leave and if they are found to be absent from work, then this can be grounds to discipline an employee.

The NCSA explained that the refugee status of an employee does not affect their status as a civil servant. However, the NCSA also reiterates that civil servants are prohibited from engaging in any other paid or business activity other than teaching, research and creative activities, medical practice, or coaching and refereeing in sports, unless otherwise provided by the Constitution or the laws of Ukraine (paragraph 1, part 1 of Article 25 of the Law of Ukraine ‘On the Prevention of Corruption’³¹).

Assistant judges, who are not civil servants but members of the patronage service, deserve special attention. The Regulation on Assistant Judges sets out that the position of assistant judge comes under the patronage service and so is not covered by the Law of Ukraine ‘On Civil Service’, except for Article 92 of that law. Thus, it can be argued that, on the one hand, the social guarantees provided to civil servants during hostilities cannot be extended to assistant judges. On the other hand, however, the same provision stipulates that an assistant judge is governed by the Constitution of Ukraine, the Law of Ukraine ‘On the Judiciary and the Status of Judges’, Article 92 of the Law of Ukraine ‘On Civil Service’, relevant procedural codes, other laws and regulations of Ukraine, the rules of conduct of a court employee approved by the decision of the Council of Judges of Ukraine of 6 February 2009 No 33, decisions of the meeting of judges of the relevant court, instruction on court records, rules of internal labour regulations of the court, this Regulation and their job description.