On January 13, 2023, during the eighth session of the Verkhovna Rada of Ukraine of the IX convocation, the project of the Law "On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Conduct of a Court Session in the Event of Impossibility of Full Recording by Technical Means in Conditions of War or State of Emergency" was registered. 8359.
Indeed, for a long time in connection with the military aggression of the Russian Federation against Ukraine, in particular, regular massive missile attacks on critical infrastructure on the territory of Ukraine, forced shutdowns of electricity consumers have been applied. These circumstances also concern judicial institutions, which, despite difficult conditions, continue to work and perform their functions. Although the lack of electricity does not directly affect the work of judges, secretaries, etc., but in connection with the legally established requirement, the content of which is that during the judicial review of the case, the full recording of the court session must be carried out using a sound recording technical means, and in in some cases, and with the help of a video recording technical means, this leads to mass postponements of court sessions and the announcement of breaks in court sessions in courts throughout the territory of Ukraine. The presence or absence of the possibility to fulfill the legal requirements regarding the recording of the legal process with the help of technical means directly depends on the power supply.
Draft Law No. 8359 envisages the introduction of amendments to three procedural codes at once, namely: Code of Criminal Procedure of Ukraine, Code of Criminal Procedure of Ukraine and Civil Procedure Code of Ukraine. However, it is proposed to supplement the articles of these regulatory legal acts with provisions identical in their content, which are aimed at establishing the legally provided possibility, in cases of objective impossibility of full recording of the court session by technical means, the secretary of the court session recording the progress of the court session in writing in the minutes of the session, in which the essential moments of the case are reflected in the sequence in which they took place in the court session.
The proposed additions include a list of information that must be specified when drawing up a written protocol of a court session. It should be noted that a specific list of such information is common for a larger category of cases that are considered by courts and which are recorded under normal conditions by technical means. The list established by the draft law is not exhaustive and allows the secretary of the court session, if necessary, to specify other information in the written protocol. However, in comparison with the norms available in the procedural codes, which outline in general terms what information should be indicated in the protocol of the court session, the list proposed by the draft law is more detailed, and indeed this approach is to specify the information that should be indicated in the protocol in the case impossibility of recording the court session by technical means is appropriate, precisely because of the written nature of this document. Therefore, in order to eliminate ambiguity, ensure the objectivity and completeness of the specified information, it should be more meaningful and clearly stated about all the details of the case, about the procedural actions taken during the consideration of the court case, etc.
The draft law sets deadlines for the full preparation of such a protocol of a court session. It must be drawn up by the secretary of the court session within five days from the day of the end of the court session, and in exceptional cases during the consideration of particularly complex cases, if the compilation of the journal requires considerable time, it can be drawn up within ten days after the end of the court session. This provision establishes a much longer period of time during which a written protocol must be drawn up, compared to the terms currently established in the procedural codes, according to which the protocol of the court session is kept by the secretary of the court session and signed by him immediately, but no later than the next day after the court session and joins the cause. However, it should be emphasized that the text of the draft law does not mention the obligation of the secretary of the court session, after the written protocol has been fully drawn up, to certify its correctness by affixing his signature, which seems to be an omission, since the signature of the secretary is actually the final element of the drafting of the protocol of the court session and entrusts the civil servant-secretary of the court session with responsibility for the correctness and quality of keeping the written protocol. Although already in the next paragraph it is indicated that the participants in the case have the right to familiarize themselves with such a protocol of the court session and, within five days from the day of its preparation and signing, submit their written comments regarding the incompleteness or incorrectness of its content, which are attached to the case materials, through that the inconsistency of the content of the proposed additions is created, as this paragraph clearly indicates that the complete drafting of the protocol is not only associated with specifying all the necessary information, but also with signing it.
In addition to making additions to the mentioned procedural codes, it is also proposed to add Art. 11 of the Law of Ukraine "On Access to Court Decisions", and in fact at the legislative level to fix a potentially possible situation (e.g. temporary power outages), under which it is objectively impossible to enter a court decision into the Register and allow all court decisions and separate opinions of judges , under the conditions of the occurrence of a similar situation, immediately at the first opportunity, but no later than five working days from the date of elimination of the relevant circumstances, to be entered into the Unified Register of Court Decisions.
However, the most important and the one that needs the most attention is the issue of compliance of this draft law with the Basic Law of Ukraine – the Constitution. Yes, Art. 129 of the Constitution of Ukraine enshrined the principle of public court proceedings and its full recording by technical means. This is one of the fundamental principles of judicial proceedings, which is a necessary component designed to ensure the reflection of the course of court proceedings, the execution of procedural actions by the participants, etc. And the prepared protocol and the technical record attached to it can be used at the next stages of the judicial proceedings, therefore the consolidation of the norm proposed by the draft law on recording the course of the court session exclusively by keeping a written protocol of the court session is an initiative that directly contradicts the Constitution of Ukraine. From the point of view of compliance with the principles of judicial proceedings, taking into account even the objective impossibility of recording the court session by technical means, non-implementation or even partial recording would be an unequivocal violation of the law and non-compliance with the fundamental principles of judicial proceedings.
Draft laws submitted for consideration must first of all comply with the Constitution of Ukraine, with which there are obvious problems in draft law No. 8359. Therefore, it can be assumed that a more justified option in this case would not be an attempt to establish the possibility of holding a court session "on the record" without fully recording the course of the court session by technical means, but on the contrary, introducing such additions that allow the domestic judicial branch to "adapt" to modern realities, without violating established principles at the same time. The right of access to justice is extremely important and must be ensured by the state under any conditions. As the initiators of the draft law rightly note, even in the conditions of the legal regime of martial law, the courts are obliged to continue working and administering justice. Therefore, it is quite appropriate to raise the issue of providing judicial institutions with such technical equipment, the use of which will not depend on the availability of uninterrupted power supply, or at least can be used for a sufficient period of time in offline mode. Currently, the order of the State Judicial Administration of Ukraine No. 156 dated 06.06.2022 "On the approval of the Instruction on working with technical means of recording the court session" (hereinafter referred to as the Instruction) is in force, the text of which specifies what exactly is included in the technical means of audio/video recording, but at the same time, it is stated that as part of these means, instead of the equipment defined by the Instructions, other devices that are capable of performing the necessary functions and are part of the audio/video conference system or other similar stationary systems available in the court may also be used. Therefore, the mentioned document allows the use not only of specifically installed equipment for full recording of the court process by technical means, but also other similar devices, the main requirements of which are the ability to perform the necessary functions and their belonging to the technical system of court equipment.
Having considered this draft law, we can conclude that its authors timely paid attention to the existing problem in the administration of justice. However, the proposal regarding the impossibility of recording the court session by technical means, even taking into account the objective reason, is one that does not correspond to the Constitution. Summarizing, it should be noted that the draft law No. 8359 is still imperfect, needs to eliminate inconsistencies and make additions to the content, some of them are proposed in this article.