DNIPROPETROVSKYI COUNTY ADMINISTRATIVE COURT
April 03, 2020 Case No. 160/2860/20
Dnipropetrovskyi County Administrative Court composed of Presiding Judge Ryshchenko A.Y., having considered in Dnipro in written procedure the statement of the plaintiff's representative on holding a videoconference within the claim of Transform Energy Limited Liability Company to the Kyiv Customs Office of the State Customs Service on recognition as illegal and annulling the decisions,
On 13.03.2020 Transform Energy Limited Liability Company appealed to the Dnepropetrovskyi County Administrative Court with a claim to the Kyiv Customs Office of the State Customs Service for recognition as illegal and annulling the decisions.
By the court ruling of the Dnipropetrovskyi County Administrative Court of 18.03.2020, the proceedings were opened and the case was to be heard under the rules of the general proceedings on 13.04.2020.
On 02.04.2020 the court registry received application of the plaintiff’s representative for participation in a court hearing in the videoconference mode in the order prescribed by the part 3 of Article 195 CAJ of Ukraine (outside the court premises) in connection with measures taken to prevent the spread in Ukraine of acute respiratory COVID-19 disease caused by the SARS-CoV-2 coronavirus.
In deciding this application, the court proceeds from the following.
According to the Article 195 CAJ of Ukraine participants of the case have the right to participate in a court hearing in the videoconference mode outside the court premises provided that the court has appropriate technical capability, which the court indicates in the ruling on opening proceedings in the case, except when the appearance of this participant in court was found binding by the court.
The Court notes that, in accordance with the Cabinet of Ministers of Ukraine Decree of 11.03.2020 No. 211 “On prevention of spread of COVID-19 acute respiratory disease caused by the SARS-CoV-2 coronavirus in Ukraine“ (as amended), the restrictions on carriage of passengers by vehicle intercity transport, as the transportation by rail, were prohibited, in accordance with the Cabinet of Ministers of Ukraine Decree of 23.03.2020 No 228 “Issues of transportation by air” receipt and departure of aircrafts for transportation of passengers was limited.
In addition, the Decree of the Cabinet of Ministers of Ukraine of 11.03.2020 No. 211 significantly restricted the transportation of passengers by public city transport.
The measures introduced make it much more difficult and impossible for the parties to exercise their right to participate in the court proceedings because of restrictions on movement both within the territory of the country and within settlements.
It was also recommended by the decree to provide technical support for real-time work via the Internet.
According to Article 64 of the Constitution of Ukraine under conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be established with the indication of the period of effectiveness of these restrictions. The rights and freedoms envisaged in Articles 24 , 25 , 27 , 28 , 29 , 40 , 47 , 51 , 52, 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 of this Constitution shall not be restricted.
Therefore, the right to judicial protection established by Article 55 of the Constitution of Ukraine cannot be restricted even if quarantine is declared.
Including impossibility of restriction of the right established by part 5 of Article 5 CAJ of Ukraine, namely: to participate in the consideration of the case in accordance with the procedure established by this Code.
Taking into account that the case consideration in general proceeding involves the personal presence of the parties concerned, holding of a videoconference hearing, as well as the submission of written evidence and explanations during the hearing in the written procedure, it is appropriate for securing the right to participate in the hearing to conduct it by videoconference or in writing in the context of quarantine and restrictions imposed on movement within the territory of the country.
At the same time, depriving a party of the right to participate in the consideration of his case because of quarantine measures would be contrary to the requirements of the Constitution of Ukraine, CAJ of Ukraine and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and would be disproportionate between the used means and intended objective.
Paragraph 1 of Article 6 of the Convention enshrines the following elements of the right to a judicial remedy: 1) the right to a case hearing; 2) the fairness of the court hearing; 3) the publicity of the case and the decision; 4) a reasonable time for case hearing; 5) consideration of the case by court established by law; 6) the independence and impartiality of the court.
Article 6 of the Convention provides for the right of every person to have a public hearing of his case. The public nature of the case is aimed at protecting the individual from the secret, non-public administration of justice. On the other hand, publicity is an important tool that helps to build confidence in the judicial system. The publicity requirement extends to both the process of case hearing and reading of the court decision.
The European Court has repeatedly stated in its practice that the right of access to a court enshrined in Article 6, paragraph 1of the Convention is not absolute: it may be subject to permissible restrictions since it requires state regulation by its very nature. Member states enjoy some discretion in this matter. However, the Court shall to decide in last instance the decision on compliance with the requirements of the Convention; it must ensure that the right of access to a court is not restricted in such a way or to such an extent that the very substance of the right will be nullified. Moreover, such a restriction will not meet the requirements of Article 6, paragraph 1, unless it pursues a legitimate aim and there is no reasonable proportion between the used means and the intended objective (§44 Prince Hans-Adam II of Liechtenstein v. Germany).
Article 195 of the CAJ of Ukraine establishes the possibility of holding a court hearing in the videoconference mode outside the court premises at the request of the parties to the case.
Part 3 of the said article refers to the possibility of a court hearing in the videoconference mode outside the court premises in accordance with the requirements of the Regulation on the Unified Judicial Information and Telecommunication System.
Considering that the right to participate in the consideration of its case is guaranteed by the Convention, the Constitution of Ukraine and the CAJ of Ukraine, taking into account restrictive measures related to the introduction of quarantine in the territory of Ukraine, and that the Regulation on the Unified Judicial Information and Telecommunication System is currently not approved, the court considers it feasible to use the available technical means for conducting court hearings outside the courtroom.
According to Part 3-1 of Article 195 CAJ of Ukraine during quarantine established by the Cabinet of Ministers of Ukraine to prevent the spread of coronavirus disease (COVID-19), participants in the case may participate in a court hearing in the videoconference mode outside the court premises using their own technical means. Confirmation of identity of users is conducted by affixing electronic signature. If the person does not have such a signature, confirmation is carried out in accordance with the procedure established by the Law of Ukraine “On Unified State Demographic Register and Documents Confirming the Citizenship of Ukraine, Certifying the Person or his Special Status” or the State Judicial Administration Of Ukraine.
Taking into account the need to ensure the right of access to justice, the equality of participants in the process before the law and the court, in order to ensure timely consideration of administrative cases, the court considers necessary to satisfy the petition of the plaintiff's representative and to hold a hearing in the videoconference mode, taking into account the technical capabilities in court.
Guided by Articles 195, 248, 250 of CAJ of Ukraine, the court
The plaintiff’s representative’s application for a videoconference hearing in case №160/2860/20 should be satisfied.
Appoint the court hearing №160/2860/20 in videoconference mode outside the court on April 13, 2020 at 1:30 pm.
Warn the parties that in accordance with Part 4 of Article 195 CAJ of Ukraine the risks of technical impossibility to participate in videoconference outside the court premises, interruption of connection, etc. are borne by the party who filed the relevant application.
Obligate the parties to submit scanned copies of documents proving the identity of the participant or his representative for establishing the authority, written statements and petitions, written evidence certified by electronic digital signature one business day before the court hearing.
The videoconference will be conducted using the Zoom application, which can be installed at https://zoom.us.
In order to participate in the hearing by videoconference, the parties need to use computer equipment or smartphones with Internet access that allows the transmission of audio and video.
Designated video conference using the Zoom application is by the link: https://us04web.zoom.us/j/6059916700.
Conference ID: 605 991 6700.
Provide the parties with instructions on how to use Zoom service and a note on their rights and obligations.
Warn the parties that a Zoom videoconference hearing is limited up to 40 minutes.
Warn the parties about the need to attend a conference from the premises that would eliminate the presence of extraneous sounds (noise) and in a neat condition.
A copy of the ruling shall immediately be sent to the parties for execution.
The ruling is effective from the moment of its signing and is not subject to appeal.