UNBA appeals to SJA and Prosecutor General regarding inadmissibility of restrictions on access to court decisions

The Ukrainian National Bar Association appealed to the State Judicial Administration of Ukraine and the Office of the Prosecutor General regarding the inadmissibility of unjustified restriction of access to court decisions based on requests of prosecutors.

This is stated in the decision of the Bar Council of Ukraine (hereinafter - BCU) dated October 15, 2020.

The issue concerns the secrecy by prosecutors of prosecutors` offices of court decisions in 2019 - 2020 and their execution. There are 36,827 copies of court decisions, to which access is limited. Information about this was received in response to a request addressed to Kholodniuk Z.V, the head of the State Judicial Administration of Ukraine.

According to the response, the administrator of the Unified State Register of Judgments - the State Enterprise "Information Judicial Systems", -  limited viewing in the Register in full and public access the court decisions on the basis of requests filed by prosecutors, namely: from January 1, 2019 to December 31, 2019 - up to 4308 electronic copies of court decisions; from January 1, 2020 to August 20, 2020  - up to 2243 electronic copies of court decisions, ” - the BCU decision states.

UNBA also learned that the Unified State Register of Judgments contains court decisions that are allegedly classified by prosecutors. However, such court decisions were made in open court proceedings and they  are not subject for protection from disclosure.

In addition, the prosecution often initiates the closure of access to court decisions unreasonably, but the Administrator of Registr satisfies the requests of prosecutors and investigators without examining the legal grounds for such a restriction.

The Bar Council of Ukraine draws attention to the fact that such actions contradict the requirements of the Law of Ukraine "On Access to Court Decisions", in particular, total restriction of review of copies of court decisions illegally restricts the individual rights to access court decisions.

"According to the requirements of Part 1 of Article 27 of the Criminal procedural code of Ukraine, participants in court proceedings, as well as persons who did not participate in criminal proceedings, if the court has decided on their rights, freedoms, interests or responsibilities, may not be restricted in access to court, both oral and written information on the results of the trial and the right to review procedural decisions and obtain copies. No one may be restricted in the right to receive information in court about the date, time and place of the trial and the court decisions adopted therein, except in cases established by law,” - BCU emphasizes.

The Bar Council of Ukraine draws attention to the fact that the procedure for access to a court decision is regulated by the Law of Ukraine “On Access to Court Decisions”.

This Law regulates relations on ensuring access to court decisions (decisions, court orders, rulings, judgments) adopted by courts of general jurisdiction, and maintaining the Unified State Register of Court Decisions (Article 1). Thus, it also applies to decisions that are made according to the rules and procedures of the Criminal procedural code of Ukraine.

Pursuant to Part 2 of Article 2 of this Law, all court decisions are open and subject to publication in electronic form no later than the next day after their preparation and signing, except for decisions on seizure of property and temporary access to assets and documents in criminal proceedings, which should be published on the day of their execution.

Pursuant to Part 3 of Article 3 of the Law, the court of general jurisdiction shall publish in the Register all court decisions and individual opinions of judges set forth in writing no later than the next day after their adoption or preparation of the full text.

The first part of Article 4 of the Law stipulates that court decisions published in the Register are open for free access 24 hours per day without holidays through the official web portal of the judiciary of Ukraine.

Pursuant to Part 4 of Article 4 of the Law, the restriction of the right to use the official web portal of the judiciary of Ukraine for free is permitted to the extent necessary to protect information that is subject to protection against disclosure by a court decision.

General access to decisions on permission to carry out the search of a person's home or other property, on refusal to satisfy a request to carry out the search of a person's home or other property of a person, on permission to conduct a covert investigative (search) action, on refusal to grant a request to conduct a covert investigative (search) action is ensured one year after the publication of such decisions in the Register.

If the court decision contains a state secret reflecting the information included in the Code of Information Constituting a State Secret, such decision may be classified as required by the Law of Ukraine "On State Secrets". In this case, access to a decision that contains a state secret is also restricted.

In all other cases, the decisions of the judges are binding on the Register.

The full text of the decision can be viewed on the UNBA website.