Functioning of courts in the occupied

or shelled communities 

14.03.2022

 

As we all know, according to the Decree of the President of Ukraine No. 64/2022 of February 24, 2022, martial law was introduced in Ukraine. This has produced the so-called domino effect, leading to changes in all spheres of life of the country. The justice system, in particular, is no exception.

 

Recall that, according to Article 26 of the Law of Ukraine ‘On the legal regime of martial law’, reduction or acceleration of any forms of legal proceedings is forbidden. Moreover, in the case of inability to dispense justice, laws changing the territorial jurisdiction of court cases, which shall be considered in the respective courts, or changing the location of such courts (according to procedures prescribed by law) may be adopted.

On March 3, the Verkhovna Rada of Ukraine adopted the Law of Ukraine ‘On amendments to the Law of Ukraine ‘On the judicial system and status of judges’ on changes in courts’ jurisdiction’. In particular, this law stipulates that, in view of hostilities, operation of a court may be terminated with the simultaneous nomination of another court.

Shortly afterwards, on March 6, according to the Supreme Court Order No. 1/0/9-22 ‘On change of the territorial jurisdiction of court cases due to conditions of martial law’ [1], provision was made for changing the territorial jurisdiction of cases which were to be heard in regions where it is now impossible to continue to exercise justice. Thus, as an example, cases under the jurisdiction of the Kherson Court of Appeal will now be considered by the Dnipro Court of Appeal.

Over the following few days, the Supreme Court adopted a number of similar orders [2] introducing new changes in the territorial jurisdiction of court cases. Since the imposition of martial law in Ukraine until today, such changes have already affected 99 courts. Information on further changes in territorial jurisdiction for cases in Ukraine can be traced on the official website of the Supreme Court (in the section ‘Press-Center’, subsection ‘News’) [3].

 

Following this, on March 13, the Supreme Court issued its Recommendations to courts of first and appellate instances in the event of forfeiture of a population centre and/or court, or imminent threat of such forfeiture [4]. These recommendations provide for certain preventive and protective measures to be implemented in the event of an objective threat of seizure of the court, in particular:

• If possible, it is necessary to remove court cases, starting from the most important cases (for example, proceedings on particularly serious crimes, materials of criminal proceedings in which the person is detained, etc.).

• Documents containing state secrets must be destroyed.

• The contents of servers must be copied to portable media and removed from the court, if possible.

• Before leaving the court facility, it is necessary to prevent access from the technical devices of the court to the Unified Register of Court Decisions.

• The said cases and contents of servers must then be transferred to the court which now has jurisdiction in lieu of the court whose activities have been terminated.

 

The above recommendations apparently have some connection with the experiences of 2014. Recall that, after the transfer of jurisdiction of certain courts of occupied territories, they stopped functioning as courts of Ukraine. Nobody tried to remove the archives of such courts out of the occupied territory, as it would have been dangerous for the lives of court employees. Nobody transferred the pending proceedings from the occupied territories [5].

The imposition of martial law and the Russian armed aggression against Ukraine have made their adjustments not only to the territorial jurisdiction of cases, but also to certain procedural aspects of the procedure for their consideration.

Thus, on March 2, the Council of Judges of Ukraine published Recommendations on the work of courts during martial law [6], in particular:

• A decision of the meeting of judges is necessary to determine how the court keeps operating. If it is impossible to convene and hold the said meeting (including remotely), the chairman of the court is

authorised to make such a decision himself. When deciding on the conditions of the work of the court for the war period, it is necessary to be guided by the real current situation in the region.

• All court employees shall be transferred to remote work, where possible. At the same time, a certain number of people shall remain in the court building during the working day.

• It is necessary to explain to citizens the possibility of postponing the consideration of cases in connection with hostilities and the possibility of consideration of cases by videoconference. Accordingly, it is recommended, if possible, to postpone the consideration of cases and to withdraw them from consideration (except for urgent court proceedings).

• Cases that are not urgent shall be considered only with the written consent of all participants of the proceedings.

• Courts shall focus exclusively on the running of urgent proceedings (such as detention or its extension proceedings).

• It is recommended to carefully approach the issues related to the return of procedural documents, leaving them without any movement, setting deadlines, and - to extend the relevant deadlines, at least until the end of martial law.

• To allow participation in a court hearing by videoconference using people’s own technical devices, if a person, under objective circumstances, cannot participate in a court hearing by videoconference using technical means specified by the Criminal Procedural Code of Ukraine.

• If the case is considered collectively and the panel of judges cannot meet in one room, it is permitted that they consider cases from different rooms, including using their own technical devices.

Information on the peculiarities of the work of a particular court can be found on its official website (in the section ‘Press-Center’, subsection ‘News’). For example, current information on the work of the Commercial Court of Kyiv Region can be found at https://ko.arbitr.gov.ua/sud5012/pres-centr/news/.

In addition to the above, on March 3, the Supreme Court prepared an Information Letter No. 1/0/2-22 on certain issues of criminal proceedings under martial law [7]. Among the most important, in case the investigating judge is unable to exercise certain powers, the prosecutor, in determined cases, may exercise such powers independently (such as granting permission to carry out a raid, conduct covert investigation actions etc.).

[1] https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/war/Rozp_06_03_2022.pdf

[2] https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/Rozp_08_03_2022.pdf

https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/war/Rozp_10_03_2022_1.pdf

https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/war/Rozp_12_03_2022.pdf

[3] https://supreme.court.gov.ua/supreme/pres-centr/news/

[4] file:///C:/Users/oksana.riabinina/Downloads/MSL/Integrites%20Home/Recomendatsii.pdf

[5] https://court.gov.ua/userfiles/zvit_sp_sud.pdf

[6] http://rsu.gov.ua/ua/news/usim-sudam-ukraini-rsu-opublikuvala-rekomendacii-sodo-rooti-sudiv-v-umovah-voennogo-stanu

[7] https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/war/Inform_lyst_2022_03_03.pdf

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Oleksandr Onishchenko

Partner, Head of Domestic Litigation