Court podcasts: court hearing in videoconference mode during the quarantine
On April 2, 2020, amendments to the Code of Administrative Proceedings of Ukraine came into force, one of which allows the parties to participate in a court hearing by videoconference outside the courtroom using their own technical means.
We are talking with the judge-spokesperson about:
• the difference in videoconferencing before and during quarantine;
• organization of a court hearing by videoconference by both the party to the case and the court;
• the opportunity for participants in the case after quarantine to participate in a video conference outside the court.
Olha Shkil, court press secretary: Dear listeners, you are greeted by the Sixth Administrative Court of Appeal. And we continue to record podcasts about the work of the court. Today we will talk about holding court hearings in videoconference mode during the quarantine.
On April 2, 2020, amendments to the Code of Administrative Proceedings came into force, including an amendment to Article 195, which allows participants of the case during the quarantine, established by the Cabinet of Ministers of Ukraine to prevent the spread of coronavirus disease (COVID-19), outside the court premises using their own technical means.
On April 23, 2020, the State Judicial Administration of Ukraine approved the Procedure for working with technical means of videoconferencing during a court hearing in administrative, civil and commercial proceedings with the participation of the parties outside the court.
Initially, EasyCon software was proposed for such video conferencing.
We will talk to Oksana Epel, judge speaker of the Sixth ACA, about the difference in videoconference before and during the quarantine, the organization of a videoconference court hearing, and even some funny cases.
Olha Shkil: Mrs. Epel, please tell us about the new procedure of the videoconference, which is currently actively used by the courts?
Oksana Epel, Judge Speaker of the Sixth ACA: Good afternoon, dear listeners, and all those who will find this information useful.
As you know, in pursuance of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Aimed at Providing Additional Social and Economic Guarantees in Connection with the Spread of Coronavirus" (COVID-19), the State Judicial Administration approved the Procedure for Working in the videoconference mode. It happened on April 8, 2020. In this way, it was first established that the video conferencing system is a set of hardware and software "EasyCon".
Later, on April 23, the order expired and a new procedure was approved, which provides for the possibility of using in the videoconferencing system all available to the court and litigants means of providing court hearings in videoconference and meet the requirements of the law.
So far, some courts have held court hearings using public programs such as Zoom and Skype.
For me, EasyCon is more acceptable than Zoom or Skype, because this program allows you to quickly identify a person with an electronic key.
For example, Skype requires faster and more powerful Internet to use, otherwise there are technical problems and interruptions.
Whether the EasyCon program originally proposed by the SJA will be more convenient than Zoom or Skype in the future will be clear over time, as the feasibility of any innovation can only be verified by using it for at least a month or more. Technical products, despite their convenience, often have shortcomings that are best seen only in the work. The well-known Skype and Zoom programs have been actively used for many years, and, nevertheless, they are constantly being improved, because they must fully meet the demands of society. Unfortunately, not all courts are provided with high-speed and high-quality Internet to use these programs. In addition, the issue of ensuring the confidentiality of information, personal data and identity, and authority in the use of these programs remains open.
Olha Shkil: There are always unpredictable problems and questions when implementing something new. Tell us, what problems did you face and how did you solve them?
Oksana Epel: The problem remains the quality of the Internet and the ignorance of many participants in the case regarding the registration procedure in any program, as well as the lack of an electronic key.
Therefore, the courtroom secretary and the staff of the court in each such case provide advice and assistance. For example, we have personally developed a step-by-step guide for participants in the process of exercising the right to the videoconference, which we send together with a memo on rights and responsibilities.
Olha Shkil: In your opinion, has the workload on the courtroom secretary increased? Or has this method of videoconferencing, when one or both parties are away from the courtroom, simplified the work?
Oksana Epel: I want to say that the workload on the courtroom secretary in connection with the organization of the online hearing has increased significantly, because now we need to make additional efforts to such an organization. For example, timely send a court ruling on the appointment of a videoconference, and, if necessary, to consult those participants who have difficulty registering or submitting documents electronically.
Olha Shkil: And what about the broadcasts of the court hearing on the Internet? In which cases is it held and have meetings already been broadcast under your chairmanship?
Oksana Epel: Yes, such cases were considered under my chairmanship. but it's a little different. Such consideration is carried out in order to comply with the principles of publicity and openness of the process. These are mostly cases of high-profile cases that have attracted public attention and where the courtroom cannot accommodate the number of willing free listeners, members of the media or the public.
Olha Shkil: My next question will become traditional for our podcasts. What is the algorithm of my actions if I want to participate in the case by video conference from home?
Oksana Epel: To participate in the court hearing by videoconference, the party to the case must pre-register using his own electronic digital signature and check his own technical means for compliance with technical requirements.
If the participant does not have an electronic signature, and this happens, or the system chosen by him does not allow registration using such an electronic signature, the student must pre-register in the selected system using a login and password or with others provided by the selected system means of registration.
In addition, in his application for participation in the court hearing, such a party to the case must indicate the presence or absence of an electronic signature. By the way, you can get your own electronic signature in one of the accredited key certification centers, and it's not difficult.
Then you should go to the official web portal of the Judiciary of Ukraine, in the section "Participation in the video hearing". If the party of the case has chosen the EASYCON program, it is necessary to register using his / her own electronic signature in this system, or, if he / she has chosen another, in the respective program.
The decision on the possibility to confirm the identity of a party to the case without an electronic signature, as well as the decision on the choice of the system to be used for the court hearing by videoconference, is made by the main judge in each case separately.
The party of the case no later than 5 days before the court hearing must submit an application to the court to participate in the court hearing by videoconference. And we should not forget that a copy of such a statement is necessary for other participants in the case.
In the statement the party of the case must state:
• name of the court;
• court case number;
• the date and time of the court hearing in which the participant wishes to participate online;
• your last name, first name and patronymic;
• your status in a court case;
• e-mail address used by him to register in the system;
• the name of the system itself, which is proposed for video conferencing;
• court telephone number;
• a note on the presence or absence of an electronic signature.
Such a statement of the participant on the day of receipt by the court is subject to registration in the automated document management system of the court and is transmitted to the relevant judge.
If several participants take part in the court hearing remotely, the courtroom secretary by telephone or electronic means clarifies and agrees with all participants in the court proceedings whether they have the appropriate software and the possibility of using it for the court hearing.
Next, the main judge decides on the possibility of holding a hearing by videoconference, provided that the court has the appropriate technical capacity, such as: the availability of equipment, the possibility of using it on a specific day and time or high-speed and high-quality Internet to use the proposed program. The presiding judge shall inform the courtroom secretary.
The court hearing itself in the online conference mode takes place at the appointed time and specified in the court decision, and consists of many stages. It would be appropriate to say about such stages, and the question of holding the court hearing itself in the online conference comes quite often from the participants in the case. However, it will be quite a long story, so we will add such steps to the supplement to our podcast.
Olha Shkil: In your opinion, does the law provide for the possibility for the parties to continue (I mean after quarantine) to participate in a videoconference outside the courtroom? And if so, in what cases?
Oksana Epel: Part 1 of Art. 195 of the Code of Administrative Proceedings of Ukraine in fact has previously established that the parties of the case have the right to participate in the hearing by the videoconference outside the court, provided that the court has the appropriate technical capacity.
After the introduction of quarantine, this rule is supplemented by Part 4, which clearly states that it is during the quarantine established by the Cabinet of Ministers of Ukraine that the parties may participate in the court hearing by videoconference using their own technical means. Therefore, after the quarantine it is necessary to be guided by part 1 of Article 195 of the Code of Administrative Proceedings of Ukraine. But please note that the fact that such a rule does not provide for the possibility of using the participants' own technical means. That is, it is not clearly enshrined in the norm. An appropriate procedure for the use of this rule has not been developed. So, theoretically, this possibility remains. It is possible that quarantine will be the impetus for new legislative changes and we will be able to continue to hold online meetings, which, in my opinion, is a positive innovation.
Olha Shkil: When it comes to remote participation in studying, participants participate from a variety of places: from hotels to parties. And where do the videoconference participants get in touch with?
Oksana Epel: In fact, the process has just begun, and from my own practice I will say that in court hearing, in connection with the court, the parties came from different premises: whether the office, or the place of work of a representative of the authority, or house. And it was quite an interesting case when a lawyer contacted the court and participated in the court session without leaving the car.
Olha Shkil: So, dear listeners, let's summarize the topic of video conferences:
• it is clear from practice that this is a new procedure for holding court hearings, but it requires additional efforts of the courtroom secretary and the employees of the court administration who provide the videoconference.
• you can use any program for implementation; the main thing is that it meets the requirements of the law and the capabilities of the courts.
• the application must be submitted within 5 days, as well as send a copy to all parties to the case.
• the form of the application for participation in the court session by videoconference outside the court premises is given in Annex 2 to the Procedure approved by the SJA of Ukraine. It is also posted on the website of the Sixth Administrative Court of Appeal.
Stay healthy and write what other issues you are interested in and need to be covered in our podcasts. Sincerely with you.