Further expansion of remote (online) hearings,
including the remote participation of judges,
court secretaries, witnesses and experts and the
admission of new forms of recording court
hearings, as well as giving the court the
opportunity to make decisions in electronic form
or to publish them on court websites is possible
and expedient, if the remote hearings meet the
basic requirements that guarantee its fairness
(CEPEJ, 2022 p. 4-5). At the same time, we note
that the possibility of conducting dispute
resolution in the mode of videoconference
outside the court premises by using its own
technical means cannot adequately protect
against the transpiration about the progress and
results of dispute resolution with the
participation of the judge (Apparatus of the
Supreme Council of Ukraine, 2023, p. 7).
Indicative in this aspect is the decision of the
Criminal Court of Cassation as part of the
Supreme Court, which annulled the decision of
the Court of Appeal in the case of seizure of
property, during the hearing of which the Court
of Appeal allowed the defence attorney of one of
the accused to participate in the hearing by means
of a telephone call (The Supreme Court of
Ukraine, 2023). Returning the case for a new
hearing, the Criminal Court of Cassation noted
that the Court of Appeal did not make a decision
regarding the participation of the defence
attorney in the mode of videoconference, as it is
required by the Criminal Procedural Code of
Ukraine.
It is necessary to decide on the issue of the
physical location of judges, the secretary of the
court session and other participants in the
proceedings during the remote hearing of the
case. To accomplish this, the experience of
different countries in solving this issue should be
studied. Thus, the physical presence of the judge
in the court premises is required in some
countries, in others it is not required. Some
countries find intermediate solutions, such as
requiring the presence of only the chairman of
the panel of judges (CEPEJ, 2022 p. 4).
Therefore, Ukraine, taking into account the
positive international experience, should regulate
the issue of physical absence of judges in the
court premises during the remote hearing of cases
at the legislative level, provided that such hearing
meets the basic requirements that guarantee its
fairness.
In accordance with the requirements of Recomm
endation CM/Rec (2010)12 of the Committee of
Ministers of the Council of Europe (Council of
Europe, 2010), judges must be provided with the
information necessary to take appropriate
procedural decisions, if such decisions have
financial consequences. In particular, it is about
granting judges the right of direct access to
automated information and telecommunications
and reference systems, registers, data banks, the
holders (administrators) of which are state
agencies or local self-government agencies
(Decree of the President of Ukraine
No. 231/2021, 2021).
Besides, the possibility of remote access of
judges to the document management system
should be introduced, in case if the access to this
system is ensured by using the judgeβs own
qualified electronic signature. The appropriate
procedure and conditions for remote access must
be approved by the State Judicial Administration
and agreed by the High Council of Justice
(Explanatory notice 47d9/1-2023/4698, 2023,
p. 3).
It is also important to prescribe in details the
procedure of remote judicial proceedings in the
new Law, i.e. a clear algorithm of actions both
for judges and court proceedings participants.
It should be noted that the position regarding the
administration of justice by judges during
military aggression outside the court is actively
supported by the High Council of Justice. The
main argument is the need to ensure the safety of
judges, staff of court apparatus and court
proceedings participants. Moreover, the High
Council of Justice insists on the importance of
the immediate settlement of this issue in the
legislation of Ukraine, since several disciplinary
complaints are currently pending against judges
who administered justice in this way (High
Council of Justice website, 2022).
The Law of Ukraine No. 3200-IX regarding
mandatory registration and use of electronic
offices within the Unified Judicial Information
and Telecommunication System for the
participation in court proceedings (Law of
Ukraine No. 3200-IX, 2023) came into force on
June 29, 2023. At the same time, the Law states
that defence attorneys, notaries, state and private
enforcement employees, arbitration managers,
judicial experts, state authorities, other state
agencies, local self-government agencies, and
other legal entities must register their electronic
offices in the Electronic Court.
Registration and use of the electronic office is
free of charge; an electronic digital signature and
a little time are required for the registration. The
electronic office is the only one, regardless of the
jurisdiction and instance of the court, where you