The first online audiences are planned in Ukraine. Meanwhile, less than 10% of quarantine violation protocols result in real fines.
Online ship meetings are already a reality. First of all, there were separate cases as part of the experiment, like next Monday in the Dnieper. And then, after the software development, – in “mass” mode – as needed, or by agreement of the parties.
Meanwhile, in “offline” mode, in more than 90% of cases where cases are brought to bring people to administrative responsibility for violation of quarantine rules (fines of 17 or 34,000 hryvnia), national courts take the side of the citizens. This was discovered by analyzing data from the Unified State Registry of Judicial Decisions from the OK law firm. For example, out of more than 400 submissions from law enforcement officers, only 32 were satisfied with the courts. Admittedly, about half of the cases were referred to the police for review.
The trend is more or less clear: the courts have not, as some have suggested, “stamped” punitive decisions. What is the reason? Let’s try to find out. We will also analyze the problems that our quota system itself suffers from quarantine.
Hope for the Constitution, but don’t provoke …
The director of scientific development at the Center for Political and Legal Reforms, Nikolay Khavronyuk, recalls that the ban on driving on the streets without a mask, staying in parks, etc. was introduced by regulation – a resolution from the Cabinet of Ministers. And any regulation should be based on the provisions of the law. “Decree No. 255 should be derived from the provisions of at least three relevant laws -” On the protection of the population against infectious diseases “, the fundamental principles of health protection legislation and” On the guarantee of well- to be health and epidemic of the population ”. And it is based solely on the provisions of the first of the laws mentioned, with only one of its articles – the 29 … Article 29 does not give Cabinet the power to establish restrictions on the rights of citizens and duties additional, ”said the lawyer. And he refers to article 64 of the Basic Law: “The constitutional rights and freedoms of man and citizen cannot be limited, except in the cases provided for by the Constitution of Ukraine”. The government’s list of quarantine measures contains a number of restrictions on constitutional rights and freedoms:
- right to dignity;
- freedom of movement;
- the right to non-interference in personal and family life;
- the right to assemble peacefully, without arms, and to hold rallies, rallies, campaigns and demonstrations, etc.
However, such restrictions, according to Nikolai Khavronyuk’s conclusion, could be legalized by the introduction of a state of emergency in the country. Indeed, according to the law “on the legal regime of the state of emergency”, restrictions on certain human and civil rights are possible. However, the authorities have not yet accepted it.
In addition, the director of scientific development of the Central Control Commission describes a number of provisions introduced by Parliament in the Code of Administrative Offenses as “abstract”. Article 44-3 “added” “Violation of the rules relating to the quarantine of persons” simply provides for “draconian” fines for citizens – from 17,000 to 34,000 hryvnia and for civil servants – from 34 to 170,000. ” 34 THOUSAND HOUSES FOR CITIZENS ARE AN INSUFFICIENT INQUIRY THAT CONFLICTS THE PRINCIPALITY OF PRINCIPALITY, AS IT DOES NOT TAKE INTO ACCOUNT THE LEGAL INCOME OF THE POPULATION, the amount of the fines provided for by the Code of Criminal Procedure and more. And he continues: “Dozens or hundreds of other rules, procedures, instructions on quarantine, sanitation and hygiene, prevention and response to epidemics, contain instructions only for officials and do not therefore apply only to them. None of the officials is obliged and cannot really know them and therefore cannot be held responsible for their failure. The Constitution provides: “Ignorance of the laws does not exempt from legal responsibility”, but it does not say about ignorance of the regulations, “concludes Havronyuk.
These circumstances are undoubtedly taken into account by the majority of judges examining the relevant administrative requests. At the same time, lawyers point out that “positive” (negative for citizens) judicial decisions on fines can be appealed, in cassation, before the Constitutional Court (by submitting the constitutionality of the statutes) and, finally, before the European Court of Human Rights.
BUT! JURISPRESSORS AND HUMAN RIGHTS DEFENDERS, HOWEVER, THE UKRAINIANS ASK NOT TO INTERRUPT THE QUARANTINE RULES, “TO TEST THE DESTINY” – “GOOD” OR “WRONG” OF THE JUDGE. In particular, Nikolay Khavronyuk recalls that current legislation provides a number of grounds for engaging the legal responsibility of citizens. In particular, we are talking about:
1) people who are carriers of the causative agent of a dangerous infectious disease – to avoid complying with the ban on activities that may contribute to the spread of the disease;
2) persons who escape compulsory surveillance or medical examination, hospitalization, treatment or compulsory quarantine in the cases provided for by law;
3) other people – for violation of special conditions and regimes: a) work, b) study, c) displacement or d) transportation set up to prevent the spread and elimination of a dangerous infectious disease in or in Ukraine separate area.
How to Quarantine Ukrainian Courts
The legal state cannot completely abandon quarantine, or stop the economy entirely. In addition, a number of new cases related to violations of quarantine rules brought into the country have been added to the examination of criminal, economic and other “current” cases. It is necessary to react immediately to the representations of the law enforcement authorities.
On the other hand, the national justice system can only respond to the challenges caused by the pandemic. Preserve the life and health of the servants of Themis, the administrative and technical staff of the judicial institutions and all participants in the proceedings. Therefore, each court independently determines the work schedule, the procedure and the method of holding meetings, in particular access to premises, filing of documents and other things. At the same time, the court administrations are guided by the recommendations of the Council of Judges of Ukraine concerning the establishment of a special working regime during the quarantine period. We are talking about limiting and postponing the examination of “non-urgent” cases, reducing the number of meetings held in an institution for a day, as well as observing the requirements for the security of persons in public buildings. Some courts have limited themselves to taking into account general recommendations, in particular, they have introduced strict rules so that citizens can access the premises, a contactless way of submitting documents. ALSO FOR CITIZENS AND LEGAL ENTITIES – PARTICIPANTS IN LITIGATION PROCESSES CALL TO POST THE PROCEDURE WITHIN QUARANTINE MEASURES. And, according to industry experts, in most cases, mutual understanding can be achieved.
And it is only in certain cases that the courts have completely ceased to function during quarantine. It mainly concerns appeal institutions. For the courts of first instance, this option is unacceptable. The Courts of Cassation also operate in a “restricted-usual” mode: citizens’ access to buildings is minimized as much as possible and the reception of citizens by judges and management has been largely canceled. But there is no mass transfer from examining the cases. For example, on the page of the Supreme Court on the website of the judicial authority of Ukraine, we find information that only a few hearings scheduled in the coming days have been withdrawn from the review or postponed. Little has changed in the work of higher courts, even because many cases are dealt with there in a simplified trial – in writing. With regard to public hearings, quarantine restrictions common to the whole country apply here.
The first attempts at electronic procedure
All documents submitted through the Electronic Court are duly filed documents.
As a result, courts are increasingly considering cases using remote methods – in writing, by videoconference, online, using special applications. For example, the board of directors of the seventh administrative court of appeal has already held two meetings in videoconference mode. The cases were listened to using the ZOOM program in conference mode. ONLINE MEETINGS IN ACCORDANCE WITH THE REGULATIONS OF THE CODE OF ADMINISTRATIVE PROCEDURE. THE PARTICIPANTS ‘FACILITIES ARE ESTABLISHED BY COPIES SENDING DOCUMENTS AUTHORIZED BY ELECTRONIC DIGITAL SIGNATURES.
The first of the lower courts, which decided to hold a meeting using the capabilities of the ZOOM, according to the Opendatabot platform, was the Dnipropetrovsk Regional Administrative Court. On April 13, it will review Transform Energy’s lawsuit against customs in Kiev. The complainant wants the meeting to be held online due to quarantine measures.
Convenient and affordable. Admittedly, the time for these meetings is limited to 40 minutes. In addition, the use of third-party software is associated with certain risks – in particular, due to the possibility of foreign influence on the course and material of the trial. Special software is already being prepared in Ukraine, which will function as a module of the ESITS (Unified Judicial Information and Telecommunication System). Work began well before quarantine – in accordance with the requirements of a number of updated procedural codes, which widened the possibilities for electronic procedures. IN AN IDEAL, LEGAL PROCEDURES IN VIDEO CONFERENCE MODE WILL BE EXECUTED EXACTLY THROUGH THE ESSENTIALS OF THE ELECTRONIC OFFICE, SO THE “ELECTRONIC COURSE”. But now, the program is only tested in a few “pilot” judicial bodies in the country. Consequently, the chances of the system working in the coming months are few. From May 1, they will only start to organize “trial” meetings outside the courts which have access to the corresponding functionalities.
By the way, the other day, in accordance with the law on “anti-coronavirus”, the State Judicial Administration of Ukraine approved the “Procedure for working with technical equipment for videoconferencing at a hearing in administrative, civil and economic proceedings involving parties outside the court premises ”.
To participate in the meeting by videoconference, you will need to pre-register using an electronic signature on the official web portal of the judiciary www.court.gov.ua. Then – at least 5 days before the hearing, – the participant in the file must file a request specifying:
- name of court;
- case number;
- the date and time of the meeting in which he wishes to participate in videoconference mode;
- surname, first name and patronym;
- your status in a court case;
- E-mail address used for registration in the system;
- telephone number to contact the court.
The initiator must send copies of the request to other participants in the process at the same time. On the day of reception, a request to participate in a court session by videoconference outside the court will be recorded in an automated document management system. It will also be given to the president of the court, who will decide on the possibility of holding a meeting by videoconference, provided that the court has the necessary technical capacities.
Vladislav Obukh, Kiev
According to the materials: ukrinform.ru