Despite the advantages of digitalization of the judiciary, the ‘Electronic Court’ system still poses a number of challenges for the parties. This includes incomplete uploading of case materials, restricted access to certain evidence, and complexity in confirming document exchanges.
Familiarization with court case materials is one of the basic procedural guarantees that ensures the right to defense and effective representation of the parties’ interests. According to the legislation, lawyers are required to register their electronic cabinets in the Unified Judicial Information and Telecommunication System. The introduction of electronic justice has significantly expanded the opportunities for practicing law, allowing representation of clients’ interests in courts across any region of Ukraine regardless of physical location.
However, practical difficulties arise, as evidenced by judicial practice. In some cases, not all documents are attached to the electronic case, which hinders full familiarization with the proceedings. This creates risks of procedural rights violations. For example, in cases where a lawyer represents the respondent, the deadline for submitting a response is calculated from the date of receipt of the decision to open proceedings. If a copy of the statement of claim is missing from the case materials, exercising the right to respond becomes difficult or even impossible.
Paragraph 124 of the Regulation on the Procedure for the Functioning of Individual Subsystems (Modules) of the Unified Judicial Information and Telecommunication System, approved by the decision of the VRP dated 17.08.2021 No. 1845/0/15-21, stipulates that upon receipt of a participant’s request for access to case materials or specific documents in electronic form through the ‘Electronic Court’ subsystem, the court receiving such a request scans the documents and attaches them to the electronic court case materials. In the absence of a corresponding request from the participant, the court does this based on the court’s capabilities and when transferring the case to another court instance.
Therefore, lawyers should timely apply to the court with a request for access to case materials or specific documents in electronic form through the ‘Electronic Court’ subsystem. This request should address the scanning of paper case materials by court staff and their attachment to the electronic court case. If timely familiarization with the case materials is impossible, a request for an extension of the deadline for submitting procedural documents should be made.
The legal position defining the standards of proper functioning of electronic justice was formulated by the Cassation Civil Court of the Supreme Court in case No. 752/23008/23. The respondent, who had an electronic cabinet, applied to the district court for access to case materials in electronic form well before the first-instance court’s decision. Although the court was obliged to upload the civil case materials to the ESICTS system, it failed to do so and did not even respond to the request. The Cassation Civil Court concluded (ruling dated 29.01.2025) that this evidently hindered the person from familiarizing themselves with the case materials and submitting a response to the claim. This constitutes a significant violation of their rights and obligations under the CPC norms and Article 6 of the European Convention on Human Rights regarding fair trial.
This decision underscores the importance of documenting instances of non-provision or restricted access to electronic case materials. Such violations can significantly affect the exercise of the right to submit procedural documents, compliance with the principle of procedural equality, and guarantees of a fair trial.
A separate complexity lies in familiarizing oneself with electronic evidence. According to the rules of paragraph 126 of the aforementioned Regulation, if the case materials contain documents in electronic form, the court must ensure familiarization with such documents in the courtroom using appropriate IT tools if technically feasible.
In case No. 504/1930/24, the person was offered to familiarize themselves with a video recording – electronic evidence – in the courtroom. However, the process participant did not take advantage of this opportunity and instead requested a link to download the video from cloud storage. The court decided (ruling of the Kominternivsky District Court of Odessa Region dated 20.06.2024) that there were no grounds to grant such a request. The appeal agreed with this decision.
Furthermore, the provisions of procedural legislation regarding evidence exchange between parties should also be considered. Copies of evidence (except material ones) submitted to the court are sent or provided in advance to other process participants by the submitting person. The court disregards relevant evidence in the absence of confirmation of sending (providing) copies to other process participants unless such evidence is in possession of the respective process participant, the evidence volume is excessive, the evidence is submitted to the court in electronic form, or they are publicly available (Part 9 of Article 80 of the Civil Procedure Code, Part 9 of Article 83 of the CPC, Part 9 of Article 79 of the CAS).
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Thus, the difficulties in applying electronic justice are not always due to the imperfection of the system itself but are often related to the transitional stage of courts adapting to digital tools. In this context, it is particularly important for process participants to timely exercise their rights – submit relevant requests, document violations, and if necessary, request deadline extensions.
Tetiana Rabko
Deputy Head of the NAAU Committee on Electronic Justice and Cybersecurity of Legal Practice