Review prepared by Tetiana Rabko, lawyer, advisor at METINVEST BUSINESS SERVICE LLC Metinvest Group, deputy chair of the NAALU Committee on e-Justice and Cybersecurity of Legal Practice.
In the ruling of the Supreme Court as part of the panel of judges of the Cassation Administrative Court dated May 14, 2025 in case No. 580/3809/24 (https://surli.cc/hzelkz), it is stated that courts of all instances are obliged to strictly adhere to procedural guarantees of the parties and take all possible measures to ensure the realization of their rights, including the right to participate remotely in a court hearing.
Case Circumstances
The complainant notes that the appellate court deprived him of the opportunity to exercise procedural rights by not ensuring his participation in the court hearing via video conference, despite the existence of a ruling to grant the relevant motion.
The plaintiff states that ten minutes before the court’s designated time at 12:00 on January 22, 2025, he connected via the video-conferencing communication system (VCC) of the ESITS subsystem ‘Electronic Court’ using a digital signature and personal computer.
However, at the court’s designated time of 12:10, neither during the following hour nor until 13:15, the invitation from the court session secretary to participate in the court hearing via video conference was received.
The plaintiff also did not receive any messages from the court session secretary about postponing or rescheduling the court hearing.
After verifying the complainant’s arguments for their validity, the panel of judges established the following.
According to the case materials, by the ruling of the Sixth Appellate Administrative Court dated January 20, 2025, the plaintiff’s motion for participation in the court hearing scheduled for January 22, 2025 at 12:10 via video conference was granted. However, the appellate court, having connected to the court session on January 22, 2025 at 13:21, found that the parties did not appear and were not in communication. As a result, the panel of judges deemed it possible to consider the case in writing.
In accordance with the first part of Article 195 of the Code of Administrative Court Procedure of Ukraine (in the version in force at the time of consideration of the case by the appellate court), a party has the right to participate in a court hearing via video conference outside the court premises or in another court’s premises provided that the court has the necessary technical capability.
The Supreme Court considers it necessary to draw special attention to the complainant’s arguments regarding his deprivation of the opportunity to participate in the court hearing in the appellate court via video conference, despite the court’s granted motion. Failure to ensure the party’s participation in the court hearing via video conference in the presence of a court ruling and the party’s expressed desire, without proper clarification of the reasons for the party’s non-connection and without documented verification of the court’s technical capability to conduct such a conference, constitutes a significant violation of procedural law, including Article 195 of the Code of Administrative Court Procedure of Ukraine, and the fundamental right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights.
Although in this case the decisions of the lower courts are overturned for other significant reasons related to the incorrect application of procedural law (Article 238 of the Code of Administrative Court Procedure of Ukraine), the Supreme Court emphasizes the absolute inadmissibility of such procedural omissions. Courts of all instances are obliged to strictly adhere to procedural guarantees of the parties and take all possible measures to ensure the realization of their rights, including the right to participate remotely in a court hearing, which is particularly relevant in times of war and for ensuring access to justice. In the re-examination of the case, courts must ensure the strict observance of these rights.
However, since the Supreme Court has concluded on the necessity of overturning the decisions of the lower courts due to the incorrect application of procedural law (Article 238 of the Code of Administrative Court Procedure of Ukraine) and sending the case for further consideration to the court of first instance, a detailed assessment of this procedural violation at this stage is not decisive, although the court of first instance and the appellate court (in case of an appropriate appeal) must ensure the observance of the procedural rights of the parties in the re-examination.