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.
Popular news
Legislation
The path to ratification of the Convention must not end in yet another delay — L. Izovitova
Ukraine’s preparations for the ratification of the Council of Europe Convention on the Protection of the Professions of Lawyer have already passed key stages. Now, government institutions must submit the matter to the Verkhovna Rada for consideration. In doing so, Ukraine may complete the ratification process faster than EU member states.
Guarantees of the practice of law
Ukraine could be the first to implement a European mechanism for the protection of advocates. What’s holding it back?
Ukraine has a chance to be the first country to ratify the Council of Europe Convention on the Protection of the Professions of Lawyer. Political support for this exists, but the government’s legislative package has not yet been submitted to parliament. Meanwhile, the number of violations of advocates’ rights is on the rise.
Educational events
How can an advocate verify that work has been completed if the client refuses to sign the report?
When billing by the hour, the primary document for determining the fee may be a detailed report on the time spent by the advocate and the work performed. To prevent the client from withholding payment, the contract should specify in advance the procedure for submitting and approving such a report.
Self-government
The BCU took note of the public appeal from the HCJ
The Bar Council of Ukraine has determined that, given the current security situation, it is objectively impossible to hold, in accordance with the procedure established by the Law «On the advocacy and the practice of law», meetings of advocates, regional conferences of advocates and the Congress of Ukrainian Advocates, including for the purpose of electing two members of the High Council of Justice under the quota allocated to the Congress of Ukrainian Advocates.
War
The BCU has launched a digital project «Wall of Remembrance and Honor»
The Bar Council of Ukraine has adopted a resolution to launch the digital project «Wall of Remembrance and Honor». To this end, the UNBA is beginning to collect information on advocates and paralegals who lost their lives as a result of the Russian Federation’s armed aggression against Ukraine.
Interaction
Energy law: the UNBA and the ADMGE have agreed to cooperate
Advocates will deepen their professional expertise in the field of energy law, and participants in the distributed and flexible generation market will have greater opportunities to obtain professional legal assistance.
Educational events
Where does an advocate's time go and what do they get in return
To assess balance in life, it’s worth identifying the areas where the most effort, time, and money are directed, and then determining what a person receives in return: income, respect, support, love, a sense of significance or the fulfillment of an important idea.
Court practice
The SC has clarified the different ways to respond to a lawyer's request that is ignored
If there is no response to an advocate’s request, the advocate has the right to file a petition with the Bar Association to hold the person administratively liable. An advocate may challenge the failure to provide information necessary for the provision of legal assistance on behalf of the client, rather than in their own name.
Publications
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates