Advocates should not be responsible for communication during court hearings

In the context of permanent blackouts and instability of telecommunication equipment, lawyers and other participants in court cases should not be responsible for the risks of technical impossibility of participating in a videoconference during a court hearing.

During the meeting on June 7, the members of the Bar Council of Ukraine analyzed the provisions of the Regulation on the Procedure for the Functioning of Certain Subsystems (Modules) of the Unified Judicial Information and Telecommunication System, approved by the decision of the HCJ of 17.08.2021 No. 1845/0/15-21, and drew attention to its clause 46.

According to the current version, if the court has the technical capability, a party to the case may participate in a court hearing via videoconference outside the court premises using its own technical means in accordance with the procedure established by the procedural law.

It was also established that the risks of technical impossibility of participating in a videoconference outside the courtroom, interruption of communication, etc. are borne by the party to the case who submitted the relevant application.

In this regard, the participants of the meeting recalled the decision of the BCU of November 16-17, 2022, No. 148 «On the validity of the reasons for the absence of a lawyer from a court hearing, investigative actions, etc. during martial law».

At that time, the Council pointed out that the rules of the procedural codes provide for the possibility of participation of participants in the case in a court hearing via video conference. However, due to missile strikes on critical and civilian infrastructure, shopping and business centers, and residential buildings, there are power outages, emergency and planned power outages, which undoubtedly affects the quality or lack of communication.

Force majeure circumstances, including military events and other similar circumstances, are considered to be one of the valid reasons for a person's failure to respond to a call. Therefore, there are sufficient grounds to believe that the circumstances related to the introduction of martial law, including the loss of Internet connection or electricity during participation in a videoconference, are force majeure circumstances, which is a valid reason for the failure of advocates to appear at court hearings, investigative actions, pre-trial investigation bodies, administrative jurisdiction, etc.

Therefore, in the opinion of the UNBA members, the provision of clause 46 of the Regulation on the risks of technical impossibility of participation in a videoconference should be removed from the Regulation.

The UNBA's appeal will be sent to the High Council of Justice.

It should be reminded that the UJITS video conferencing subsystem provides:

1) video and audio recording of court hearings, booking (reservation) of courtrooms, the possibility for the parties to the case to submit documents (including procedural documents, written and electronic evidence, etc.) during the court hearing via videoconference;

2) the possibility for users to participate in meetings of other bodies and institutions of the justice system via videoconference.

In order to participate in a court hearing via videoconference, a party to the case must first register in the Electronic Cabinet. The party to the case must also check his/her own technical means for compliance with the technical requirements set forth in the User Manual of the videoconferencing subsystem for working with the system.