While some part of the office workers can efficiently work from home having all the required technical means, the courts in Ukraine are in dire need of a transition to digital justice. The “Electronic court” (hereinafter referred to as “E-court”) system had to enable such transition but its implementation faced a number of technical and legal problems. Although, the advantages of E-court make judicial bodies move towards transition to a contemporary and convenient method not only to accept documents in electronic form, but also to hold hearings by means of video conferences without personal attendance of the parties and their representatives in the court room. So, let us consider why the “noncontactness” of the court proceedings can become an advantage and benefit for the Ukrainian court system.
Court hearing on Skype or Zoom
The implemented quarantine measures in Ukraine, as well as in many countries of the world, that require a social isolation, demonstrate that personal meetings and negotiations with a “physical” presence are not always necessary. Actually, many forms of communication such as personal meetings of all participants in one place can be substituted by video- or telephone conferences. Thus, as we can judge from our experience, such forms of communication are a convenient and an effective method to settle working issues in real time. However, is it possible or convenient to hold hearing via videoconference? We say it is necessary to do it.
It is clear, that nothing in the world can replace the personal attendance of the lawyer–attorney in the courtroom filled with the atmosphere of order and traditions, but holding videoconferences with the court and other participants in legal proceedings is a demand of our time. Firstly, it is obvious, that online court hearing saves time and client’s expenses, as it makes possible to minimize hourly rates – that is the time required for the arrival at a court and the expenses related to the attorney’s business trip to other locality. Another advantage for the client’s management is the possibility to connect to the on-line court hearing from the client’s office. It enables the client to spare significantly the time and company’s money and to provide the presence of his/her staff, for example chief accountant who will give guidance to the court’s representative attorney on some aspects of the accounting in tax disputes. Certainly, such “presence” cannot substitute the preliminary preparation for the hearing by the client’s representative, but in complicated cases, this know-how can become a useful and prompt assistance for the lawyer representing the client’s interests.
Herewith, the practice of participation in online court hearings with the representatives connected to the hearing from places outside the court is rather widespread in the world, but is quite new for Ukraine. Nevertheless, during the pandemic even the courts of highest resort in Ukraine refer to this way of conducting the court hearings, thus minimizing social contacts between the participants in the hearing. Therefore, the online hearings can’t be treated as the future for the Ukrainian judicial procedure, as they are already a fully valid reality, though delayed.
Electronic transmission of documents to the court
Long before the coronavirus pandemic, the E-court allowed for the electronic reference to the court without “paper” submission with “wet” signatures. Thus, in a corresponding chapter of the E-court named “Submissions” it is technically feasible to draft documents according to the adequate patterns (forms). It contains the majority of statements of fact, such as statements of action, recalls etc., as well as such procedural statements as motions to enroll the evidence etc. Nevertheless, as of the date of this article preparation the E-court did not allow the possibility to hand in an application about participating in the court hearing via videoconference involving the representative outside the court in an electronic form, and that is why such application could be handed in a traditional “paper” form, that made it not convenient for the participants considering that there is a procedural demand to submit this application to the court no later than 5 days prior to the hearing. We expect such apparent fault in the work of the E-court will be eliminated in the nearest future.
At the same time, the submission of documents to the court in electronic form requires cancellation of all documents attached to the files in the case. In particular, to compile claim documents in tax and commercial cases it is necessary to scan the primary or other “paper” documents and send their electronic copies to the court. Certain types of documents such as VAT invoices or service delivery reports (reports of completion) have already been drawn in electronic form for a long period due to the requirements of law and convenience for the document flaw of corporate counterparties. Thus, if the claimant company has the documents drawn up in electronic form, the most convenient way for this company to refer to the court is in e-form, consequently sparing the company’s funds and time that otherwise would be wasted on printing paper copies of electronic documents.
Meanwhile, there are two sides to the coin. In practice, while considering administrative cases such as tax disputes, the tax authority being a participant in the case finds a range of grounds and reasons not to submit documents in electronic form. As a rule, “the lack of technical capability” is one of such reasons. However, in certain cases the quality of electronic copies of “paper” documents submitted by such participants is very low. Of course, it does not facilitate the digitalization of all materials in the case. However, we believe that after an appropriate launch of Е-court in Ukraine, the public bodies, as well as other participants in the case, would rather submit electronic proofs and statements of case thus reducing the expenses on their participation in trials. Nevertheless, an appropriate technical support of such bodies is also the key factor contributing to the E-court proper operation.
Compulsory electronic judicial proceeding
As of today, the codes of judicial practice contain provisions stating that the lawyers, notaries, private executors, legal experts, public bodies and local authorities, as well as business entities of public and communal sectors of economy shall mandatory register the official electronic addresses in the Single Judicial Information and Telecommunication System, while other persons shall do it as they determine. However, these provisions have not yet entered into force and applying for electronic judicial proceeding is the right of all parties.
Upon launching of the Single Judicial Information and Telecommunication System (E-court is just an integral part of this large system), the court hears the case based on the case information in electronic form. Service and other documents and evidence in paper form shall be transformed into electronic form no later than three days after the date of their delivery to the court and shall be added to the materials of the electronic legal case in a stipulated order. The pilot operation of the system started on the 1st of March, 2019 and today we can see that the technical maintenance of E-court is not flawless: at some periods of time, among them normal working hours, the access and entry are not possible for users. Herewith, the administrators of this resource provide no warning about any maintenance being carried out.
However, we hope that such problems in the operation of the main electronic resource of the judicial branch are temporary and quite soon all the participants in legal proceedings will be able to use the advantages of electronic judicial proceeding, primarily its remotability. Electronic court is the demand of our time and circumstances we face today.
Tetiana Prychepa, Senior Lawyer