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Observers:

Kazakhstan

Tunisia

Consultative Council of European Judges (CCJE)

Council of Bars and Law Societies of Europe (CCBE)

International Union of Judicial Officers (UIHJ)

Albania

Report on Measures Taken by the Council of Ministers of the Republic of Albania, the High Judicial Council of the Republic of Albania and Durrës Judicial District Court regarding Covid-19

10 July 2020
by VICE/PRESIDENT,
Markelian Koça

Armenia

With the COVID-19 pandemic spreading all over the world and the lockdowns everywhere courts are faced with new challenges. Although in the Republic of Armenia the Government has declared a state of emergency, the courts continue to function during the state of emergency which is stipulated by the law.
At the Civil Court of Appeal of the Republic of Armenia most of the cases are carried out through written procedure, however we had a case that in no way it could be realized through written procedure (child care case). So the Chair of the Court of Appeal Mr. Arsen Mkrtchyan came up with idea to do the hearing via long distance using communication means. We established necessary equipment (notebook, camera, projector) and for the first time in the history of Armenian judicial practice the hearing was carried out via long distance. The opportunity to carry on hearings via long distance is stipulated in the Civil Procedure Code. According to article 145 of the Code the parties can file a justified motion to participate in a hearing via long distance if there is an equipment for long distance hearing at the courtroom.
All the other courts are being distributed with the necessary equipment so hopefully long distance hearings will become an indispensable tool in prevention of the COVID-19 pandemic.

Narine Avagyan, Civil Court of Appeal of the Republic of Armenia

Austria

 Trasnmitted by Georg Stawa, Counsellor for the Western Balkans, Austrian Federal Ministry of Justice

23 March 2020: MEASURES ON COVID-19
I am aware that the precautionary and preventive measures demand a lot of effort from the judicial staff and that the current situation is reason for increased attention. Therefore, I would like to thank all of the staff for their level-headed and professional handling and excellent cooperation. Last but not least, the handling also shows the great sense of responsibility of the judiciary for our society.
On Monday, March 16, 2020, an ordinance by the Justice Minister to amend the rules of procedure for the courts of first and second instance came into force. You can find these below.
The following preventive measures should apply until April 13, 2020:
• The general opening hours in the courts expire. The movement of parties is limited to their elementary procedural rights, guaranteed by the procedural codes. This includes, in particular, the inspection of files and the possibility of submitting applications and other submissions to the court on time.
• The official acts required for the granting of procedural and party rights can only be made by prior notification by telephone and should be done by telephone or email if possible.
• The “office day” must also take place without exception by telephone and must limit itself to urgent matters if possible.
• The entry points remain open during the court's official hours to ensure that written submissions are ensured.
• In criminal matters, hearings with the exception of detention and other procedures that cannot be postponed can be cancelled ex officio in accordance with Section 226 (1) (2) or (4) StPO . As far as hearings take place, the public can be excluded in accordance with Section 229 (1) 1 StPO.
• Even in civil matters, oral hearings should only be held to the extent that it is absolutely necessary to maintain orderly administration of justice. It should also be checked whether already scheduled hearings can be cancelled.

Other measures to protect staff:
All staff whose presence is not essential to maintain legal activity at a minimum is required to work from home.
In addition, the core or block time regulations for key employees who have to provide on-site service are to be dropped in order to be able to guarantee the greatest possible flexibility in the organization of working hours with regard to any childcare obligations. Constructional measures are to be taken to ensure that the risk of infection is minimized in tight spatial situations. This can be done, for example, by using plexiglass.
Citizens are requested to contact the local court personally only in urgent cases. Apparent unspecific general symptoms must be checked as part of access controls.
Planned events as part of the further and advanced training are temporarily canceled or postponed.
Hygienical measures have to be applied at highest attend!
Dr. Alma Zadić, LL.M.
AT-Minister of Justice
Attachments:

Azerbaijan

Comment posted on behalf of Ramin Gurbanov PhD/Doctor in Law, Senior Official & Judge, Azerbaijan

Due to the particular circumstances linked to the coronavirus (COVID-19) pandemic the Supreme Court of the Republic of Azerbaijan adopted a decision "On measures to be taken by the courts to prevent the spread of coronavirus (COVID-19) infection in the Republic of Azerbaijan", dated March 19, 2020.

By this decision, it was recommended to temporarily postpone the consideration of the cases until April 20, 2020, except the cases that need to be considered urgently or not require a court hearings (i.e. selection, prolongation, changing and lifting of judicial sanctions, cases of administrative detention, enforcement of lawsuits, order proceedings, simplified proceedings on small claims, special proceedings on some categories and etc.). In order to provide efficiency and access to justice, it was recommended to use widely the “Electronic Court” information system by the courts, especially on civil and commercial disputes, as well as consider administrative cases by the consent of the parties without oral hearings.

All cases related to early release from custody, as well as issues of extending the period of arrest are considered using of remote video conference system. Also, it is planned to launch an application for some types of civil cases, which will ensure virtual participation of the parties at the court hearings.

At the same time, in order to prevent the spread of coronavirus (COVID-19) infection the courts take all necessary measures such as disinfection of the building, providing the masks to the court staff and judges, measuring the temperature of all visitors and equipping all premises with sanitizers. The court staff which are under the risk moved to remote work, the other court staff performs its activities on the basis of shift work.

Comment transmitted by Leyla Zakirova, National coordinator, Azerbaijan
"In addition to the previous comment made by Representative from Azerbaijan,  I would like to add that all citizens were notified and asked to sue or file other documents electronically only. Every court provided separate telephone number which would be active for citizens consulting on their specific questions related to activity of court during quarantine or provide answers  on general topics." 

Belgium

Message de Monsieur Jean-Paul Janssens, Président du Comité de Direction du Service Public fédéral Justice du Royaume de Belgique.

Depuis le 18 mars à midi, la Belgique est entrée en confinement et ce jusqu'au 19 avril. C’est la décision prise par le Conseil national de sécurité (CNS).

La population est priée de rester chez elle pour éviter la diffusion du coronavirus. Il est demandé de limiter les déplacements à l'essentiel (santé, nourriture, travail, aide aux gens dans le besoin, etc.). Le télétravail doit être favorisé au maximum et seuls les commerces de premières nécessités seront ouverts. Le respect de la distanciation sociale doit être respectée quand on ne peut avoir recours au télétravail.

  1. Cours et Tribunaux belges ont décidé qu’il était impératif que les Palais de justice restent ouverts. Ainsi, les Palais de justice sont ouverts avec l’information suivante affichée à l’entrée de chaque bâtiment :

« En raison des mesures de confinement décidées par le gouvernement, et prenant cours ce 18 mars à midi, vous n’êtes autorisés à franchir cette porte qu’à condition que vous soyez convoqué pour une audience, ou pour récupérer ou déposer votre permis de conduire, ou former un appel ou un pourvoi au pénal. Toutefois, nous restons accessibles par email et par téléphone pour toutes autres questions. Les requêtes d’appel et autres documents de procédure peuvent être déposées dans la boîte aux lettres et seront traitées sans délai, ou exceptionnellement envoyées par email, avec, pour les actes de procédure payant, preuve de paiement préalable à l’appui ».

Chaque chef de corps informe par ailleurs le barreau et les huissiers que tout document de procédure pourra être exceptionnellement envoyé par email ou par le système e-deposit.

Les personnes qui sont en mesure de télétravailler sont autorisées à la faire. Il s’agit, en majorité, des greffiers et magistrats.

Les greffiers en chef s’assurent qu’une garde au greffe est effective par un ou plusieurs greffiers en vue d’assurer les signatures et les quelques audiences qui ont dû être maintenues, au terme des ordonnances de service prises par chacun des chefs de corps.

Le chef de corps s’assure également qu’un ou plusieurs juges (selon la taille de la juridiction) est/sont rappelable(s) en cas de besoin.

Pendant le télétravail, les greffiers assureront l’assistance aux juges, à distance, notamment en veillant à préparer, en temps et à heure, les projets de jugements rédigés par les magistrats, en exécution de la mesure de recours à la procédure écrite.

Bosnia and Herzegovina

Comment transmitted by Katica Jozak-Mađar, President of the Cantonal Court at Novi Travnik

In accordance with the Recommendations High Judicial and Prosecutorial Council and the HJPC B&H Decision of the on the organisation of work in courts and prosecutions in Bosnia and Herzegovina nr. 08-02-2-1020-2/2020 from 22 March 2020, Cantonal Court adopted a Decision on the organisation of work during the emerging epidemiological situation in the country caused by COVID-19 nr. 06 0 Su 013930 20 Su from 17 March 2020 and Decision on the organisation of work  nr. 06 0 Su 013930 20 Su from 23 March 2020, in order to protect personal health and public health and to prevent the spread of the new Corona virus (COVID-19):

  • Delay of scheduled hearings except hearings that are required by law to be urgent and cases which are close to the end of the statute of limitations.
  • Proceedings in criminal cases which are directed against people's health have priority in prosecuting.
  • Restricted access to the court building to persons, parties of the court.
  • A notice on the delivery of documents to the court was issued and published on the website and at the court entrance in order to inform the general public about the new work regime.
  • Direct communication between court staff is minimized. Communication is done mainly by phone and email.
  • Shortened (parttime) working hours.
  • The possibility of working from home is provided.
  • The number of court employees has been reduced. Other judges and court staff were referred to work from home.
  • Based on the document export instructions of the HJPC and court's decision to authorise export of documents, ICT officer exported the documents and the cases were delivered to the judges electronically, taking into account the security of document delivery.
  • The court takes all measures such as desinfection of the building, providing protection masks and gloves to the judges and to the court staff.

Information on behalf of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina

No: 08-02-2-1020-2/2020

Sarajevo, 22 March 2020                                                                            

Pursuant to Article 17, paragraph (1), item 30) of the Law on High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of BiH, 25/04, 93/05, 48/07 and 15/08), the High Judicial and Prosecutorial Council Bosnia and Herzegovina held a telephone session on 22 March 2020 and adopted the following:

D E C I S I O N

on the organisation of work processes in courts and prosecutor's offices in Bosnia and Herzegovina

With a view to preventing and avoiding the spread of COVID-19 (corona virus) in the courts and prosecutor's offices in Bosnia and Herzegovina, the following measures are hereby ordered:

  1. The main hearings in criminal matters are to be postponed except in cases:
  • in which detention has been ordered or sought
  • where there is a risk of statute of limitations expiring
  • in other urgent cases as set forth in criminal codes in Bosnia and Herzegovina
  1. Hearings in minor offence cases are to be postponed except in cases initiated on the basis of reported non-compliance with the decisions and orders issued by the competent authorities during the declared emergency over the corona virus (COVID-19) outbreak. The duty judge assigned to minor offence cases may also decide to take action in other cases for reasons of urgency.
  2. Hearings in civil matters are to be postponed except in cases in which a prejudgement attachment is to be decided.
  3. Courts need to organise a duty roster of judges for criminal, civil and minor offence cases referred to in articles 1. 2. and 3. of this decision.
  4. Prosecutor's offices need to organise a duty roster of the required number of prosecutors to handle the cases referred to in Article 1 of this Decision.
  5. Only those judges and prosecutors who are on duty on a particular day in accordance with the duty roster are to come to the court/ prosecutor's office on that day.
  6. Duty judges assigned to civil cases may individually decide on the urgent need to handle  individual cases based on an assessment of the case and its urgency. It is necessary to organise and facilitate work from home for second and third instance judges, and meetings of judge panels may be organised on an ad hoc basis at the discretion of court president.
  7. Courts and prosecutor's offices need to arrange a duty roster for the performance of administrative tasks.
  8. Failure to comply with this decision gives rise to liability.
  9. Court presidents and chief prosecutors are required to assess the risks to human health and make ad hoc decisions that are more restrictive with regard to work processes in the courts and prosecutor's offices than the measures provided for in this decision. The measures in this decision are considered to be minimum restrictive measures.
  10. This decision remains effective as long as the extraordinary circumstances caused by the COVID-19 (corona virus) in Bosnia and Herzegovina persist.

President

Milan Tegeltija

To:

  • All heads of judicial institutions
  • a/a

Bulgaria

Bulgaria’s COVID-19 Response in the Field of Justice

(Review prepared by Svetozara Petkova, Attorney-at-Law, Rule of Law Consultant)

28 April 2020

The measures governing Bulgaria’s COVID-19 response are very dynamic and change in a matter of days. The review below outlines the measures affecting the judiciary as of 28 April 2020. It is expected that these measures will be subject to further changes within a very short period of time.

Bulgaria’s response to COVID-19 in the judicial field is governed by 3 groups of acts: The Act on the Measures and Actions during the State of Emergency declared with National Assembly Decision of 13 March 2020 (hereinafter referred to as State of Emergency Act or SEA), numerous subsequent decisions of the Supreme Judicial Council reflected in the protocols of the Council’s meetings, and orders of individual court chairs. As the rules of the law and the decisions issued by the Supreme Judicial Council are becoming more detailed over time, we are witnessing a gradual reduction of the discretion of court presidents in managing individual courts’ COVID-19 response.

  1. State of Emergency Act (SEA)

In response to the COVID-19 outbreak, on 13 March 2020, the National Assembly of the Republic of Bulgaria declared a state of emergency. The state of emergency shall be in effect until 13 May 2020. It is not clear yet whether it will be extended. On the basis of the above decision, on 24 March 2020 the National Assembly adopted SEA. The law was amended twice already, on 9 April and on 24 April 2020. The law shall be in effect for the duration of the state of emergency. Several of the measures imposed by the law have implications for justice.

Suspension of time limits:

In accordance with SEA, for the period from 13 March 2020 until the state of emergency is lifted the following time limits shall cease to run:

  • the procedural time limits for judicial, arbitration and enforcement proceedings, except the time limits for those types of cases that are explicitly stated in an Annex to the SEA (the content of the Annex is described below);
  • the statutes of limitation and other time limits provided for in statutory acts, with the expiry of which rights of private persons are extinguished or acquired.

Extension of time limits:

The following time limits shall be extended:

  • the time limits specified by law, other than the suspended ones, which expire during the state of emergency and are related to the exercise of rights or performance of obligations of private entities;
  • the effect of those administrative acts, which are limited in time and whose effect should have expired during the state of emergency.

Suspension of enforcement:

  • All public sales and entries into possession, announced by state and private bailiffs, shall be suspended. After the state of emergency is lifted, the public sales and entries into possession shall be re-scheduled, with no new fees and charges.
  • No attachments shall be imposed on the bank accounts of individuals and medical establishments, attachments on salaries and pensions, security measures on medical apparatus and equipment, as well as the making of inventories of movable property and real estate owned by natural persons for the purposes of enforcement, except for maintenance obligations, damages for torts, and claims for unpaid salaries.
  • The enforcement of obligations for the transfer of a child shall not be suspended.

Suspension of the effects of defaults and delays of payments:

  • Until the end of the state of emergency, in case of delay in payment of obligations of private entities, debtors under credit agreements and other forms of financing (factoring, forfeiting and others) provided by banks and financial institutions, including when these receivables have been obtained from other banks, financial institutions or third parties, and under leasing contracts, no interest and penalties shall be charged, the obligations may not be declared prematurely due, the contract may not to be terminated due to default, and no items may be seized.

Measures promoting social distancing:

  • Until the state of emergency is lifted, open court hearings, including those of the Competition Commission, may be held remotely, ensuring the direct and virtual participation of the parties and participants in the proceedings. Minutes shall be drawn up for the meetings held and shall be published without delay. The court or the Competition Commission, respectively, shall inform the parties when a distance hearing will be held
  1. Decisions of the Supreme Judicial Council (SJC) of the Republic of Bulgaria

The Judicial College of the SJC took a number of decisions related to the COVID-19 outbreak. As early as 10 March 2020, it recommended to court presidents not to examine cases in open court hearings for at least a month. In response to that recommendation, numerous court presidents issued orders suspending court hearings in their courts for various periods of time. There was a lack of uniformity in the implementation of this measure. However, with the subsequent amendments of SEA and respective decisions of the SJC, the discretion of court chairs and individual judges has been substantially reduced and currently the approach to suspending hearings throughout the country has become relatively uniform. Discretion can be exercised by individual judges when deciding whether to hold online hearings. However, due to a lack of procedures thereof and the accompanying technical infrastructure, online hearings are held rarely and mostly with regard to imposing measures on suspected persons in the framework of ongoing investigations where the conducting of online hearings through software such as Skype can easily be arranged between judges and prosecutors.

Based on SEA, the Supreme Judicial Council adopted a number of COVID-19 related measures (decisions made with Protocols of 15 March, 16 March, 31 March, 7 April and 14 April 2020). The measures include: 

  • Service of documents shall be suspended, with the exception of the cases under the SEA Annex, for which the service of documents shall be done by phone or by electronic means.
  • Access to the court buildings of citizens, parties to cases, experts, translators, attorneys and all other persons shall be forbidden, except for the ones summoned for the scheduled cases listed in the SEA Annex.
  • Court presidents shall set up an organization to ensure the work of the courts by approving the duty schedules of judges, bailiffs, registrars and clerks.
  • The access of magistrates, registry judges, bailiffs and clerks to court buildings shall be forbidden, except for those on duty according to the work schedule prepared by court presidents.
  • Court presidents shall arrange for the provision of all administrative services on a one-stop-shop basis, physically located as close as possible to the entrance of the court building, ensuring that it is continuously provided with the necessary protective measures against the spread of the infection.
  • Court presidents shall arrange for the use of a courtroom (possibly only one) as close as possible to the entrance of the court building and provide it with the necessary protective measures against the spread of the infection. If there is more than one judicial authority in a building, only one courtroom shall be used, if possible.
  • Submission of any type of documents to the courts shall be done by post or by electronic means.
  • The case files shall be consulted only at the phone numbers and e-mail addresses announced on the websites of the courts.
  • Courts shall publish on their official websites information on the organization established in the context of the state of emergency.
  • Judges should work remotely on the cases for which the trial has ended and decisions are due.
  • Following the end of the state of emergency, court presidents shall prepare reports on the work done by the judges - the number of court acts written.
  1. Procedural timelines that are NOT suspended in accordance with the Annex to the SEA

Criminal cases for which the procedural timelines shall NOT be suspended:

  • Imposition of detention and review of requests for changes to imposed detention in the framework of ongoing investigations or ongoing criminal cases;
  • Review of violations of the measures imposed in the course of ongoing investigations;
  • Imposition of measures aimed at protecting victims of crimes;
  • Reviews of cases for removing convicted persons from office;
  • Reviews of cases for placing convicted persons in psychiatric wards;
  • Interrogation of convicted persons before a judge in the course of ongoing investigations;
  • Interrogation of witnesses before a judge in the course of ongoing investigations;
  • Review of requests for the imposition of measures for securing fines, confiscations and civil claims in the framework of criminal proceedings;
  • Review of requests for the imposition of coercive medical measures;
  • Cases for coercive placement in psychiatric wards;
  • Cases under the Extradition Act and the European Arrest Warrant on the requests of detainees or the transfer of persons;
  • Cases under the Law on the Recognition, Enforcement and Sending of Judicial Acts for Imprisonment or Measures Including Imprisonment;
  • Cases regarding the imposition of sanctions on minors under the Decree on Combating Petty Hooliganism;
  • Criminal cases under Article 225, para 6 of the Criminal Code which incriminates the sale of goods at speculative prices during a state of emergency (new provision).
  • Criminal cases under Article 326 of the Criminal Code which incriminates the transmission of false signals for help or alarm;
  • Criminal cases under Article 355 of the Criminal Code which incriminates the violation of measures that are meant to prevent the spread of contagious diseases;
  • Procedural actions regarding approvals of personal bodily examinations, searches and seizure of evidence and of correspondence in the framework of ongoing investigations;  
  • Review of requests for the use of special intelligence devices or for obtaining data from telecommunication operators in relation to criminal proceedings;
  • Cases examining proposals or requests for release on parole.

Civil and commercial cases for which the procedural timelines shall NOT be suspended:

  • Cases for exercising parental rights regarding interim measures;
  • Cases under the Protection against Domestic Violence Act, regarding orders for immediate protection or amendment thereof, and cases where the request for protection is rejected;
  • Requests for permissions for the withdrawal of child deposits;
  • Requests for admission of security for future and pending claims;
  • Cases for securing evidence;
  • Requests under the Electronic Communications Act;
  • Requests to stop business registration proceedings under the Business Registry Act.

Administrative cases for which the procedural timelines shall NOT be suspended:

  • Cases appealing orders for immediate execution of administrative acts;
  • Review of requests for the divulgence of tax or social security information;
  • Review of requests for suspending the immediate execution of tax inspection acts under the Tax and Social Insurance Procedure Code;
  • Review of challenges against police arrests under the Law on the Ministry of Interior;
  • Cases for admission of security for future and pending claims;
  • Cases for securing evidence;
  • Challenges of orders for imposing of solitary confinement on prisoners;
  • Cases where protection against illegal acts or omissions of an administrative authority is sought;
  • Cases under the Public Procurement Act, the Concessions Act, the Act on the Management of Resources under the European Structural and Investment Funds;
  • Cases regarding coercive expropriation of property for state or municipal needs;
  • Cases under the Election Code;
  • Cases for challenging acts establishing public claims of the state;
  • Cases related to challenging building permits or approval/amendments of such building permits;
  • Cases related to the challenging of acts issued in relation to the state of emergency;
  • Cases regarding challenges to acts that terminate administrative proceedings.

Croatia

Comment transmitted by  Igor Jukić, Senior Expert Advisor, Ministry of Justice, Republic of Croatia

Following the announcement of the COVID-19 disease epidemic in the Republic of Croatia, in accordance with the recommendations of the Croatian Institute of Public Health and the National Civil Protection Headquarters, on 13 March 2020, the Ministry of Justice issued a recommendation for the work of all judicial authorities in the Republic of Croatia during the epidemic. All judicial authorities have continued to operate, and only those proceedings and operations that have been identified as urgent are carried out by appropriate security measures. Court hearings and other non-urgent cases have been postponed until further notice. In order to organize work in new circumstances, the heads of the judicial authorities have the mandate to allow employees to work from home where possible, and the recommendations state that communication in dealing with parties and all participants in proceedings is done electronically in all cases where that is possible.

In relation to prison conditions, a special attention is given to the prevention of contagion, and precautionary measures have been adopted, such as increased hygiene of persons and premises, as well as disinfection of facilities and additional supply of protection equipment. Prisoners’ rights to receive visits are restricted, videoconferencing with competent courts is intensified, the possibility to organise video-visits to prisoners is broadened, and more frequent open air walks within the prison compound are practicised. Lastly, every prison facility has ensured specific rooms to isolate persons with symptoms that might indicate the development of the disease, and adequate isolated areas of a greater capacity within the prison system are being prepared if they will be needed.

Denmark

Comment from Marianne Gram Nybroe, Special Advisor and International Coordinator at the Danish Court Administration

Update 

Contribution transmitted by Marianne Gram Nybroe, Special Advisor and International Coordinator, Danish Court Administration, Department for Development and Organzation

14 May 2020

The Danish Courts reopened on April 27th. Please find attached the plan for the reopening of the Danish Courts as of 27th April.

As a special measure in order to facilitate larger cases especially cases with a jurys - court rooms have been set up in a conference center in Copenhagen. Pictures are at the end of the attached document.

Read the Plan for reopening the Courts of Denmark: https://rm.coe.int/plan-for-reopening-of-the-courts-of-denmark/16809e5a14

_________________

Emergency plans for the Courts of Denmark

On Wednesday 11 March 2020 the Courts of Denmark set in motion an emergency alert in order to manage critical case-areas while still abiding by the government’s call to shut down the public sector and to follow the precautionary measures of the health sector. The reorganisation of case proceedings and the evaluation of ‘critical’ cases have been undertaken in close cooperation with a number of presiding judges and the Danish Court Administration.

On the evening of 11th March 2020 the Danish Court Administration circulated a list of which areas were considered ’critical’, and which ones were not to be given priority during the lockdown. The Courts of Denmark have employed their resources to ensure that as much as possible of the courts’ work can be managed from home by court employees, but the majority of court cases have nevertheless been cancelled.

Administrative procedures at a distance
The critical areas that continue to be administered locally by the courts are cases either bound by deadlines or cases of vital importance. These include: preliminary examinations before a magistrate; extension of deadlines and orders of urgent procedures; custody cases where the defendants’ case, on the principle of proportionality, cannot be postponed any longer; § 747 questionings that cannot be postponed; official bailiff actions that cannot be postponed; other criminal cases where, for the sake of the accused, witnesses, or injured parties, postponement would be disproportionate; certain cases of administrative custody; registration of property or land cases; especially urgent bankruptcy cases; and certain urgent notarial cases.

To what extent a case fulfils the conditions of being ’critical’ is up to a concrete evaluation by the individual court. Similarly, it is up to the courts themselves to organise their work in consideration of local conditions. In these exceptional circumstances, there will be differences in case-management capacity between the individual courts. It is therefore important that the users contact their local court if they need to know which cases and types of cases are running and which have been postponed.

On Thursday 12 March 2020 on their respective home-pages all the courts set out an emergency procedure for the coming weeks, where they informed the public of the consequences of COVID-19 and the lockdown of the public sector.

”The Danish Court Administration will help the courts to ensure that as much work as possible can continue to be done at home,” says Kristian Hertz, its director. “Most court sittings have been postponed, and both our court employees and our court users are aware of this. But there are a number of other cases that can be distance-managed, and we are making every effort to maintain and extend this work-form, so that not everything in the judicial system grinds to a halt. One example of this is in the area of wills, where instead of physical attestations, citizens may make a so-called ‘witnessed will’. Information on this is available on our home-page, domstol.dk, and at our linked-in profile at Danmarks Domstole.”

The Director of Development in the Danish Court Administration, Merethe Eckhardt, adds, ”We are learning how the courts can manage as many tasks as possible from home, but this is ‘a work in progress’. We are also experimenting with virtual meetings internally, and hopefully we are gathering a wealth of experience that will be of benefit when we return to normal.”

Short-term and long-term solutions

There are many challenges to the Danish judicial system in making it function in the present, exceptional, situation. The most important task is to maintain an emergency staff in the critical case-areas. But it is also important for the Courts of Denmark to ensure a close cooperation with other actors in the criminal case domain; to advise the courts on a broad range of legal and judicial questions that have arisen and will continue to do so; to safeguard IT-access; and to guide, assist, and support the more than 2,200 court employees, of whom by far the majority are now working from home.

”Clearly, this exceptional situation will mean that the backlog of cases and the case-processing times will increase, now that planned court sittings have been postponed,” says Kristian Hertz. “We are very aware of this, and we’re doing all we can to manage the situation. It’s still too early to say anything more concrete about what we can do when the crisis is over, but we’re setting up a taskforce to see how best we can resume our normal service, when the time comes.”

During the lockdown the courts will unfortunately have to give lower priority to the following case-areas: criminal cases, including current main hearings; civil cases, including current main hearings; bailiff cases, apart from the most urgent; administration of deceased persons’ estates; and notary business, apart from the most urgent.

The crisis management team of the Courts of Denmark is coordinating the work in order to ensure the emergency functioning of the courts. The team comprises the management and a number of key employees in the Danish Court Administration, as well as representatives from the courts. The team receives daily inputs from the courts, deals with all aspects of the emergency situation, and regularly sends relevant information to the courts and internally within the Administration.

Finland

Comments transmitted by Ms Noora Aarnio, Senior specialist, International Affairs, Department of Development, The National Courts Administration

Update of 2nd June 2020: 
On 29 May 2020 the National Courts Administration has published a “recovery plan” (Palautumissuunnitelma / Återgångsplan). This plan examines the functioning of the courts whilst the epidemic continues. It has been formulated in cooperation with occupational health care professionals. The plan is intended to assist in arranging the work of the courts during the epidemic and recovery from it. The plan notes that the responsibility for arranging the work of the courts lies with the courts themselves and they may have to deviate from the procedures described in the plan based on their specific circumstances.  

The advice discusses issues such as risk management, work safety, internal preparedness, recovery (including resuming hearings at the court house) and communication with customers and stakeholders


Update of 13 May 2020:

“On 15 April 2020 the National Courts Administration has published a guide for all courts on using remote connections at a trial. The guide has been drawn up only for the current exceptional situation, and it is not intended to change existing policies, instructions or recommendations. The goal of using remote connections more effectively is to minimise health risks by avoiding gatherings of several people.

By 5 May 2020 the Finnish district courts have suspended the hearing of 5,587 criminal cases (approximately 20,000 criminal cases were still pending at the end of 2019) and 1,388 civil cases is currently The courts of appeal have suspended the hearing of 286 cases (roughly 4,000 cases were pending at the end of 2019). The administrative courts have suspended the hearing of 238 cases and the special courts the hearing of 41 cases.

For up to date information we encourage you to visit the National Courts Administrations “current issues” webpage at: http://tuomioistuinvirasto.fi/en/index/loader.html.stx?path=/channels/public/www/tuomioistuinvirasto/en/structured_nav/ajankohtaista/2020

08 April 2020

As the reaction of the Courts to the health threats created by the corona-virus is developing, I thought it timely to give you an update on the situation in Finland.

The management of the courts convenes once a week to an online meeting to discuss the situation. The National Court Administration participates to these meetings.

Due to the epidemic the National Court Administration has issued advise to the courts. However, as is emphasised also in the advice, the national state of emergency does not effect the independence of the judiciary.

The advice discusses issues such as internal and external communication of the courts, ensuring customer service, personnel issues including distance working, and meetings and trainings.

The advice also discusses the possibilities for organising trial sessions without the presence of the parties at the courthouse. As a general guidance the National Court Administration states that the courts should continue to handle cases to the extend possible with the available resources and whenever possible without endangering the health of the participants. However, physical presence at the court houses should be limited to parties of urgent cases. The National Court Administration continues to support the courts in making full use of the possibilities to handle cases using modern technology (such as Skype and video conferencing, for example) whilst emphasising that the decision as to whether to use such technology or not is always that of the judge.

In the recent management meeting it became clear that lot of court sessions for the spring has been cancelled, but not all.

Specifically in relation to the international legal assistance, the courts noted that they do not categorically exclude it but may have to prioritise, according to the resources available.

Greece

Comment from Konstantinos Koussoulis, Judge at the Greek Council of State

CEPEJ member, Chair of the Greek Ministry of Justice Committee to monitor the impact of Artificial Intelligence on the judicial systems

All courts’ hearing procedures were temporary suspended, until the 10th of April - with some exceptions regarding the examination of requests for granting or annulling provisional orders, all criminal hearings about pre-trial detention, all proceedings about emergency cases and the issue and publication of court decisions. When it is necessary, videoconference may take place and all other means of communication can be used as long as due process rights are insured. In addition, a provision was introduced for a full suspension of deadlines in judicial proceedings as well as a suspension of the enforcement proceedings.

Italy

Comment transmitted by Massimiliano Blasone, Attorney at law, authorized to defend before the Supreme Court, Member of the Commission of the Bar Association of Trieste for the study of executive procedures

23 April 2020

LAW MUST GO ON

THE REACTION OF ITALIAN CIVIL JUSTICE  TO THE COVID-19 EPIDEMIOLOGICAL CRISIS

(Massimiliano Blasone - 8.04.2020)

A) EMERGENCY LAW

Trying to ease coronavirus’s impact on society and the market economy, the Italian Government has adopted, between February and April of this year, numerous measures contained in three Decree-Laws. These have to be coordinated with the Prime Minister’s decrees issued in accordance with the state of emergency declaration.

These measures have been introduced gradually, in line with coronavirus’s spread, not only in time but also geographically. It is important to note that many of these measures have been disregarded causing the Government to intervene with stricter containment rules.

The last of them is Decree-Law number 18 of 17.03.2020, known as “Cura Italia” Decree. It contains complex interventions regarding the Nation Health Service’s reinforcement; it also includes economic measures to assist families, workers and companies. This Decree applies to the entire national territory and has to be turned into law by the Italian Parliament in appr. 60 days.

Art. 83 intervenes also in the Civil Justice field. This intervention aims to achieve two principal goals:

1) to suspend and postpone all procedural activities so as to reduce the possibility of infection;

2) to neutralize the negative effects on the protection of the rights, due to the postponement of most procedural activity.

To achieve these purposes, the Law-Decree has divided the immediate future into two different temporal phases (from 9.03.2020 to 15.04.2020 and from 16.04.2020 to 30.06.2020) applying to them different regulations. With a new Law-Decree of 6.04.2020, containing urgent measures for businesses, strategic sectors, elections and justice, the Government provided for the postponement of the term from 15 April to 11 May.

For this reason, art. 83 laying down urgent measures regarding civil, criminal, military and fiscal Justice, taking into account the postponement of the deadline fixed by the April Decree, regarding civil proceedings stipulates that:

A.1) PHASE 1 (from 9 March 2020 to 11 May 2020):

The hearings in currently pending proceedings are automatically postponed to a later date, after 11 May 2020. This postponement applies to all Italian courts.

So, according to this Decree, the expiry of terms for all civil proceedings, including enforcement procedures, is suspended. The terms for the adoption of judicial acts and their motivation are suspended as well.

If a term commences during this period, it will be considered as commencing at the end of the said period (i.e. on 12 May).

These measures do not apply in certain cases, namely:

- cases falling under the jurisdiction of the Juvenile Court, regarding the issuance of declarations of adoptability, unaccompanied foreign minors, minors who have been removed from their family and situations in which serious damage is possible;

- cases regarding alimony or maintenance obligations that result from family relationships, from kinship or wedding;

- precautionary proceedings connected to the protection of fundamental rights; urgent proceedings that regard the protection of mentally or physically incapacitated citizens, such as the interdiction, the incapacitation and the supporting administration.

- proceedings for the adoption of protection orders against domestic violence; proceedings of validation of expulsion, removal and retention of European and non-European citizens; proceedings for the suspension of the executive effect or the enforcement of a first instance judgement and for the suspension of the enforcement of a second instance judgment challenged before the Court of Cassation.

- all proceedings in which postponed examination could cause serious prejudice to the parties. In this case, the urgency declaration is issued by the Court President or by a judge authorized by him, with a non-challengeable decree, placed at the end or sideline of the main act. By contrast, if the action has already started, the judge in the case (the examining magistrate or the Court’s President) shall issue the aforementioned declaration.

The terms regarding proceedings of mediation, compulsory settlement negotiations with the assistance of lawyers and other types of alternative dispute resolution are also suspended, if the mentioned proceedings have commenced before 9 March 2020 and when these proceedings serve as a condition for the admissibility of the lawsuit. In other words, the suspension of the terms for conducting these ADR proceedings leads to extension of their maximum duration.

A.2) PHASE 2 (FROM 12 MAY TO 30 JUNE 2020)

The court presidents, after discussion with the Health Authorities and with the legal profession’s representatives, could enact organizational measures. The evaluation has to be done on a case by case basis depending on the coronavirus’s spread and trend.

In particular, they could:

a) limit public access, ensuring in any case the access of people who have urgent tasks;

b) limit, after discussion with the heads of court administration, the opening hours of courts. It is also possible to close to the public the offices that do not provide urgent services;

c) regulate access to the services, for example, by requiring reservations, including electronic ones; it is necessary to ensure that the hearings will be scheduled for fixed times; all measures to avoid gatherings must be taken.

d) adopt binding guidelines on the scheduling and carrying out of hearings.

e) order all criminal hearings, special and individual hearings and public civil hearings to be conducted behind closed doors.

f) provide that hearings, in which the presence of other people apart from lawyers, is not necessary, have to be conducted through remote connection. The judge has to communicate, before the hearings, all useful information to the lawyers: the day, the hour and the connection’s modalities.

g) order the postponement of hearings after the date of 30 June 2020, with the exceptions of art. 83.3;

h) provide that, in hearings in which the presence of other people apart from lawyers is not necessary, there shall be electronic exchange and deposition of written notes, containing only the claims and the conclusions, with subsequent adoption of the judge’s act.

These measures could be adopted also earlier, for proceedings that are not suspended.

A.3) COMMON PROVISIONS TO BOTH PHASES

From 09.03.2020 to 30.06.2020, all acts and documents regarding a civil proceeding, have to be filed electronically. The payment of judicial fees also needs to be done by electronically.

B) EFFECTS OF THE DECREE KNOWN AS “CURA ITALIA” ON ENFORCEMENT PROCEEDINGS

The decree does not limit the creditor’s right to impose distraint on debtor’s property. However, it obligates court presidents to adopt organizational measures to ensure access to the bailiff’s office. This office could not be closed to the public also in this period of emergency. So, for example, only the opening hours could be limited and/or public access could be regulated to require a prior reservation.

The decree does not allow the bailiff to suspend or postpone the enforcement, so the bailiff has to conduct it. He has to carry out his duties applying all safety measures, especially in movables’ distraint; he can also require police assistance. He can also remove people who disturb the exercising of his duties, in particular when it is not possible to respect the requirement for preserving one meter of distance from each other. The imposition of distraint over vehicles (car, motorbike and trailer), can be carried out through the sending of a certified email p.e.c. to the competent public register. office, known as P.R.A.

Reading Decree “Cura Italia”, we can see that, regarding enforcement, applies only the deferrals to the hearings and the suspension of terms to the procedural acts in enforcement.

B.1) Hearings

According to art. 83, sub. 1, the hearings concerning enforcement, if scheduled in the period between 09.03.2020 and 11.05.15.04.2020, must be postponed until a date following 11 May 2020. According to art. 83, sub. 7, g), the hearings scheduled later, in the period between 12.05.2020 and 30.06.2020, could be postponed, with an act of the court president.

According to art. 83, sub. 2, the suspension of terms from 9.03.2020 to 11.05.2020 (38 days) applies also to all enforcement proceedings, namely:

B.2) writ of execution

- the period of not less ten days within which the debtor has to be notified of the writ and given an opportunity to fulfil his obligations resulting from the enforceable title under penalty of enforcement action is not suspended because it is not a procedural term.

- the period of 90 days within which enforcement has to be started, under the penalty of ineffectiveness of the writ of execution, is suspended in the period between 9 March 2020 and 11 May 2020. For the writs of execution that have already been notified in this period, the term will commence as of 12 May 2020. However, the suspension or the deferral of this term does not prevent the creditor in progress to start enforcement in the period between 9 March and 11 May 2020.

B.3) for real estate enforcement the terms are suspended for:

- the service of document of real estate distraint (within 90 days from service of document of the writ of execution);

- the registration in the courthouse of the distraint (within 15 days from delivery of foreclosure notification act);

- the application for conducting the sale (within 45 days from service of document);

- the filing of cadastral documentation/notarial relation (within 60 days from filing the sale application);

B.4) for the forced liquidation of loans of third parties toward the debtor the terms are suspended for:

- the service of the distraint document (within 90 days from serving the writ of execution);

- the registration in the courthouse of the distraint (within 30 days from the delivery of the notification of the foreclosure);

B.5) for enforcement over debtor’s movable goods the terms are suspended for:

- the service of the distraint document (within 90 days from serving the writ of execution);

- the registration in the courthouse of the distraint (within 15 days from the delivery of the notification of the foreclosure);

- application of sale (within 45 days from service of distraint document).

B.6) enforcement of the obligation to deliver immovable property, even if it is for residential use, is suspended until 30.06.2020.

This law has to be considered as exceptional, so it cannot be object of analogical interpretation: therefore, the suspension of enforcement cannot be applied to the execution of the eviction order or the transfer decree done by the Judicial Guardian.

B.7) enforcement of the obligation to deliver movable property:

Art. 83 does not allow suspension or postponement of the enforcement of movables. The bailiff can use the powers of art. 513 of Italian Civil Procedure Code, including requiring police assistance. He can remove people who disturb him in exercising his duties, in particular when it is not possible to respect one meter of distance from each other.

B. 8) For the enforcement of an obligation to perform (or not to perform) a specific act:

Art. 83 does not allow to suspend or postpone the filing of the starting act of the procedure. However, the hearing will be scheduled after 30 June 2020.

C) CIRCULARS ADOPTED BY COURTS ON REAL ESTATE ENFORCEMENT

To provide operative references regarding the implementation of the Decrees, all Italian Courts have adopted internal circulars concerning real estate enforcement; these, often, are the effect of discussions between judges and Professional Delegates.

These acts are not uniform. They differ from each other especially regarding the duration of suspension of the delegated professional and judicial custodian’ activities, it could last until 31 March, until 15 April, until 31 May or until 30 June 2020; it depends on individual Courts.

In any case, the suspension applies to:

- the drafting, filing and publication of sale’s notices and the public advertisement of the sale’s notices already filed;

- the custodian and evaluator’s access to the real estate that is object of distraint;

- the real estate’s visits;

- the real estate’s evictions, with the exception of voluntary vacating of the real estate;

- the payment of the price of the auction;

For the auctions, if already scheduled in the period from o8.03.2020 to 30.06.2020, the Italian Courts allow two different approaches:

a) deferral of the auctions, if they have been already scheduled (already filed offers are valid and the terms for submitting new offers are suspended - from 09.03.2020 to 15.04.2020; as a consequence of the Decree-Law of April, it is probable that other decrees will be issued by the Courts which will defer the term from 15 April to 11 May).

b) the withdrawal of already scheduled auctions (so, it is necessary to give back paid deposits and republish the sale’s notice scheduling a date for the submission of new offers.

The first approach allows to save the work already done by the delegated professional before the emergency situation. Thus, the professional does not have to re-do the drafting and the publication of new sale notices, to schedule new auctions and to return paid deposits because old offers are preserved. This first guideline is more in line with the efficiency principle that operates in the enforcement field, because there will not be a significant delay.

D) BEST PRACTICES IN THE ENFORCEMENT FIELD

The lack of uniformity has let delegated professionals and judicial guardians associations to discuss in order to find common best practices. The aims are to ensure parties safety, to promote electronic communication, the use of videoconferences and proceedings continuity, thus simplifying different aspects of delegated professional’s and judicial guardian’s

activities due to the use of electronic communications. These could be defined as “good e-practices”, because of the use of electronic means.

Regarding the development of these new practices in the enforcement field, it is suggested that the rules on conducting sales shall be in line with the following principles:

- the delegate professional will approve the distributions plans through a telematic connection between the creditors, sending also communication to the debtor; so there will not be a hearing in front of the execution judge, in the courthouse. Then, the distribution plan will be submitted electronically to permit to the judge to declare it enforceable;

- the delegated professional could be authorized to use the procedure’s banking account with telematic services, as home banking; so, he could easily provide all the payments, avoiding physical access at the bank.

- the transfer decree could be made by the delegated professional in electronic form and communicated to the courthouse electronically. The judge could review and sign digitally.

- the evaluator could be allowed to do a virtual tour of the good that is object of distraint in order to permit the custodian to give interested people an electronic view, not only a “physical” exam of the good itself; thus contacts between interested people and the custodian could be avoided to limit coronavirus’ spread;

- custodian’s access to verify the real estate’s good condition could be done rarely;

- visits of people interested to make an offer could be organized by the custodian even beyond the 15-day period as of the request through the Public Sales Portal.

E) SERVICE OF DOCUMENTS

The emergency law does not deal with the service of documents.

Art. 10, sub. 2, b) of the Law Decree number 9/2020 provided expressly for suspension of communications and the service of documents. However, the new Decree “Cura Italia” does not provide anything else.

The rules provided by Decree number 9 could be applied until 31 of March 2020. Furthermore, this decree can be implemented only in Lombardy Region and to other provinces that have been defined as “red zone” identified in the Prime Minister’s Decree dated 8 of March 2020. So, it could be applied to the people that have their residence, employment or place of business in this red zone.

The rules contained in the “Cura Italia” Decree, instead, could be implemented across all Italian territory until 11 May.

So, in the entire Italian territory, including the red zone, after 31 March 2020 service of documents is not prevented.

However, the terms for conducting procedural acts are suspended, so if a person does not carry out a notification or a communication, he will not fall into any form of preclusion; and for the person who has to do a notification, any procedural terms are suspended. The communications and service of documents performed in the period between 9 March 2020 and 11 May 2020 will ex lege produce their effects after the period of suspension.

We can say, finally, that we hope that the use of electronic notifications will grow even more, not only in order to guarantee the safety of the operators, but also to ensure that the system improves, avoiding delays between the request of a service documents and the receipt by the addressee, even in case of regular notification.

F) CIVIL HEARINGS

Two new different ways of holding civil hearings are indicated in the emergency law: one documental (i.e. "figurative") and one remote (i.e. in "videoconference").

The courts will be able to use them in the period from 12 May to 30 June and also from 9 March to 11 May, only for urgent proceedings (set out in paragraph 3 of Article 3. 83, above).

F.1 DOCUMENTAL HEARINGS

The Superior Council of the Magistrates' Court in a circular of 11 March 2020 recommends that this type of hearing be allowed.

The use of such a hearing is limited to "civil hearings that do not require the presence of persons other than the defenders of the parties"; therefore those hearings in which the personal presence of the parties is necessary or where other parties such as witnesses, experts, translators, etc. shall participate are excluded from the use of this method.

The use of this tool is possible because of the introduction of the new civil telematic litigation and the subsequent telematic production of the court's acts and measures. Of course, for those proceedings for which the casefile was partly on paper, as permitted by current legislation, the judges would have to request electronic production of a copy of the paper act in advance and assign deadlines for the electronic filing of synthesized written notes.

F.2 REMOTE HEARINGS

The hearing by videoconference must take place through the applications made available by the Ministry of Justice: Microsoft Teams and Skype for Business (decree of the Director General S.I.A. of 20 March 2020).

The judge will have to inform the parties in advance of "day, time and mode of connection".

Latvia

Comment  transmitted by Agnija Karlsone-Djomkina, Head of Division for International cooperation and analytics, Court Administration of Latvia

16 April 2020

Management of the judiciary in the extraordinary situation in Latvia

Measures to reduce the spread of the Covid-19 virus have not become an obstacle to the functioning of the courts – Latvian courts fully guarantee the rights of citizens to defend their rights and legitime interests also in extraordinary circumstances (extraordinary situation announced by Latvian Government until 12 May 2020).

In order to minimize potential risks in the event of an emergency, oral proceedings, which are not related to significant infringement of rights and objective urgency (e.g. issues related to deprivation of liberty, limitation of capacity, etc.) are to removed from consideration (adjudication) and postponed.

To ensure the continuity of court work – the written procedure is used to the extent possible.

The court shall promptly inform the parties of the planned progress of the case. At the end of the emergency, extraordinary handling of the postponed cases shall be ensured. Court hearings during an emergency shall, as far as possible, are organized by videoconference. Also before the emergency situation, court hearings could be held by video conference. In the event of an emergency, this option allows to continue the normal work in remote mode.

If the hearing is organized in person, a distance of at least two meters shall be provided between the persons at the hearing and all necessary measures to reduce the risk of infection shall be taken. The court shall ensure that is able to communicate with the court on the telephone and e-mail throughout the course of the trial, as well as to process the documents received. The taking of decisions and the hearing of cases are dealt with in the written process (both the planned process and ensuring that other cases are dealt with in the written process instead of the oral proceedings transferred) shall be ensured.

In order to protect court staff during the emergency situation, court chancellery shall not, in principle, accept and issue documents from private persons (also in Land Register matters), except in cases, where it is specified in the Law that documents may be submitted only in person (subject to security measures). The court documents will be communicated and documents can be submitted to the court via post, e-mail or an online system (in the cases specified by the law). Documents may also be submitted to the court by leaving it at the special document transfer point or in the mailbox at the court.

If, exceptionally, there is a need for face-to face contact with a court visitor or a case participant (lawyer, prosecutor), the court employee shall request a written confirmation from the person that the person has not been outside the territory of the Republic of Latvia for the last 14 days, has not been infected himself or herself and has not been in contact with the person for whom the Covid-19 has been determined. 

Citizens are also invited to use the online tool www.Manas.tiesas.lv, what in particular, in this crisis situation shall assist to each party to follow-up to the relevant information in the case, the documents submitted, the court rulings, the time when the proceedings have been ordered to hear the audio protocols.

Lithuania

Jelena VASILIONOKIENĖ added a new comment.

Comment by the correspondent from National Courts Administration of Lithuania:
Regarding the exercise of judicial functions during the quarantine period
In accordance to the resolution No. 207 "On the announcement of quarantine on the territory of the Republic of Lithuania" published by the Government of the Republic of Lithuania, which announced the third level (full preparedness) of the civil protection system in the territory of the Republic of Lithuania, the Judicial Council of the Republic of Lithuania recommends that the Lithuanian judicial authorities make following decisions regarding the organization of their court activities during the quarantine period:
1. Determine that, with the exceptions specified, the functions of judges in the administration of justice shall be exercised as follows: 
1.1. Cancel all scheduled hearings in oral procedure during quarantine, except in cases of statutory urgency (for example, issues related to arrest, removal of a child from an unsafe environment). Schedule (postpone) hearings in oral proceedings until the end of quarantine. Ensure that those involved in the case are promptly informed of changes to the date and time of court hearings;
1.2. In urgent cases, organize oral hearings in the manner and time prescribed, taking all precautionary measures relating to the prevention of the spread of COVID-19, while maintaining a maximum distance between the participants in the courtroom. Provide one courtroom (or several if needed), for emergency hearings, provide regular ventilation and disinfection of this courtroom;
1.3. Determine the procedure for the organization of court hearings in the collegial written procedure and for making procedural decisions;
1.4. Determine the procedure for the organization of court hearings in collegial written procedure cases, i.e. provide for the time and periodicity of the presence of the chambers in the court premises, ensure maximum social distance between the members of the individual judicial panels;
1.5. determine the procedure for cases handled in a written procedure by a single judge - the period during which court hearings will be conducted (it is recommended to establish an order for scheduled court hearings in a manner that will minimize the length of time a judge is in court, limiting the number of judges at the premises of the court at the same time, and avoiding social contacts).
2. Determine that court civil servants work remotely without making any further requests. When necessary provide the information necessary to perform work functions. Arrange a work schedule in a manner that there would be no more than one person working in a closed office at one time. Other servants and contractual employees shall be required to work remotely without additional requests on a sliding schedule if there is no possibility to work remotely full time. The schedule for these officials and other employees is set by the Chancellor or Head of Unit. The working hours shall take into account the nature of the functions and shall evaluate how these functions should be performed during the period of the quarantine restriction. Ensure that only one employee is working at a time in a closed office (cabinet).
3. Determine that all judges, as well as court staff or members of their families, who have visited foreign countries 14 days before March 16, 2020, or who have traveled abroad after that date, to be isolated at home, barred from entering court premises and shall apply for leave or leave of absence granted because of illness.
4. Establish a working time regime for assistants to judges and other staff working remotely, which should coincide with court working hours as defined in the court's internal rules.
5. Determine that judges, assistants to judges, and other employees working remotely must comply with requirements set in the Resolution no. 716 of July 24, 2013, published by the Government of the Republic of Lithuania on the General Description of Electronic Information Security.
6. Determine judges, assistant to judges, and other employees indicate their contacts so that they can be reached immediately while they are working remotely.
7. Restrict access to court facilities and stop direct service to persons during the quarantine period. Only judges, assistants to judges and other court personnel may enter the court premises during the quarantine period, when necessary for the performance of their direct functions. Restrictions on service to individuals may be communicated via a notice at the entrance to the courthouse, as well as on the court's website, providing contact information for persons interested in contacting the court remotely.
Chairman of the Judicial Council Algimantas Valantinas

Norway

Comment transmitted by Dag BRATHOLE, member of the CEPEJ network of pilot courts, Court of Appeal of Frostating/ Frostating lagmannsrett Tinghuset, Norway

“On Friday 13 March Norway was to some extent shut down by the government. Kindergartens, schools and universities were shut down, as were businesses that involve close human contact such as hairdressers, etc. Hotels, restaurants, bars were not formally shut down, but mostly closed due to lack of customers. All concerts, theatre performances, and other events were banned. A ban forbidding visits to cabins outside one’s own municipality, was introduced. Shops are not formally shut down, but many closed due to lack of customers. Foodstores and pharmacies remain open. Walks in streets and nature within own municipalities remain legal, and is basically the only legal activity outside one’s own home.

The government asked the parliament’ permission to act in violation of laws under parliament supervision for a period of 6 months. This was granted for one month at a time.

Following 13 March, the Norwegian courts were basically closed for oral main hearings, which are cornerstones in the legal system. Only urgent hearings, such as custody hearings were held. The courts are now slowly returning to a more normal situation, with oral hearings under a strict regime and with widespread use of video technology. Judges and auxiliary staff that are not engaged in court hearings or vital tasks at the court, are requested to work from home. A digital court management system makes this possible, and the legislation has been temporarily changed to allow decisions to be made without physical signatures from all judges. Only the presiding judge has to sign, and the signature may be scanned and sent to the court for registration electronically along with a confirmation from the presiding judge that the other judges have accepted the final wording of the decision.

I believe it is fair to say that the efficiency of the Norwegian courts has been hurt badly so far during the pandemic. On the other hand, experience with digital solutions will be useful when conditions return to normal.

These are personal observations, and are not made on behalf of my court or the Norwegian Court Administration. “

Poland

Comment transmitted by Agnieszka Stankiewicz, Ministry of Justice, Department of Strategy and European Funds, Main Specialist, Poland

15 April 2020

The COVID-19 emergency measures taken by the national judiciaries

The Ministry of Justice prepared many comprehensive solutions in response to the ongoing pandemic of coronavirus and the operating restriction of the judiciary. The solutions are included in the special law entitled “tarcza antykryzysowa” (in English: “anti-crisis shield”) adopted by the Polish Sejm on 28 March 2020. Anti-crisis shield is a special horizontal law containing a number of provisions from various fields relating to the epidemic situation. It also included provisions on the justice system (Act of 31 March 2020 amending the Act on special solutions related to the prevention and combating of COVID-19), other infectious diseases and crisis situations caused by them and some other acts. The main objective was to ensure the continuity of functioning of common, military and administrative courts in special conditions connected with the fight against the epidemic.

General changes upon the organisation of the polish judiciary:

  • The suspension or postponement of the conduct of hearings and public hearings, except in urgent cases (art. 14a ust. 4 of the ACT). A list of urgent cases was recommended, requiring urgent examination, and therefore not subject to ordinances on limiting the determination of judicial list cases.

Suspension of deadlines refers to deadlines in court proceedings (civil, criminal, tax-related, misdemeanour, court-administrative, administrative, enforcement proceedings in administration, as well as deadlines in other proceedings conducted under the Act; art. 15zzr ust. 1 and art. 15zzs ust. 1 of the ACT) during the period of an epidemic emergency or a state of epidemic announced due to COVID-19. There is a possibility for the court or an entity before which the proceedings are pending to summon the parties or participant in the proceedings to perform actions within a specified period of time if the public interest or an important interest of the party so requires, and if failure to perform the action could result in a threat to human or animal life or health, serious damage to the public interest or due to the threat of irreparable material damage. The solution is to provide parties and participants in proceedings with procedural guarantees for participation in proceedings so that no time limit expires during the period of an epidemic/epidemic threat, when for various reasons they may not be able to perform procedural activities (quarantine, contagion and treatment, fear of contagion).

  • The suspension of deadlines in court proceedings.

With regard to the following types of proceedings: pending before administrative an other courts, enforcement of judgments (like eviction from apartments), others commenced under relevant acts of law – any court-imposed and statutory time limits do not start running, and those which have started stop running during an epidemic threat or an epidemic declared due to COVID-19.

  • Procedures related to the presence in the court building of a person who may be reasonably suspected of being infected with SARS-CoV-2 virus and related procedures for securing rooms in which contamination may have occurred, and eliminating the epidemiological threat in them are precisely indicated.
  • It was recommended to pay special attention to the need to provide court employees with masks, gloves and hygiene products. At the same time, it was pointed out that the prevention procedure was followed, including increased hygiene, and limiting contacts with people who return from abroad. Disinfectant fluids have been made available in the court buildings. It was also recommended to check the temperature of the customers.
  • The introduction of rotational and remote work while providing the necessary equipment was considered; as well as providing an additional sabbatical leaves.
  • The introduction of greater flexibility as regards the territorial jurisdiction of the courts. The president of the appellate court may designate another court with jurisdiction to hear cases falling within the competence of the court that had to cease its activities (increased flexibility of competence; art. 14 a ust. 9 of the Act).

The possibility for the president of the court of appeal to designate another equivalent court, located in the area of the same appeal, as competent to hear urgent cases falling within the jurisdiction of a court that has completely ceased to act. This solution serves to ensure that urgent cases can also be handled when the locally competent court becomes completely incapable of performing judicial tasks (e.g. by placing all judges and court staff under quarantine). In the extreme case of complete cessation of activities by all common courts in the area of appeal, the Act provides for entrusting the First President of the Supreme Court with the exercise of this competence at the request of the President of the court of appeal, in whose area the courts have ceased their activities.

  • The introduction of the possibility of allocating judges - with their consent - to other courts where staff is needed.

Extraordinary secondment of judges, with their consent, to other courts in the same appeal is intended to ensure the efficient handling of urgent cases in cases where, due to an epidemic threat or epidemic, the current staffing of a given court capable of performing judicial tasks may prove insufficient. The mode of delegating judges to another court has been simplified. The procedures of delegating a judge and appointing another court will be performed by judicial authorities, in accordance with the principle of independence of judges and for the period of time defined in advance. Such action will enable the support of courts, which operate with insufficient number of judges and examine both their own and external cases. It also has to be possible in cases when a court in a given town is closed for a certain period of time, for example when judges, assessors or court employees have to be subject to quarantine. The most important interests needed to be protected at the moment is the health and life of the citizens.

  • The court becoming inoperative due to the COVID-19 epidemic shall transfer the case files for the ongoing urgent matters to the designated court.
  • The court designated to decide the urgent matters shall retain jurisdiction until the proceedings have concluded before this court.
  • The cessation of operation by a court, body or entity conducting a proceeding or an assessment during an epidemic threat or an epidemic declared due to COVID-19 cannot lead to legal claims based on failure to act, delay or breach of a party’s right to have their case decided without undue delay.
  • Enrolment for judicial training.

A legal basis has been created to determine a new date for organising an exam aiming at an enrolment for the judicial training, in case it will not be possible to maintain it in the initially scheduled date of 2 April 2020. It has been specified that if organising the exam will not be possible until 15 July 2020, it will be tantamount to a cancellation of enrolment for the training and to the fact that the training will not be organized in 2020 at all. In such a case, enrolment fees will be returned to the candidates.

  • Facilitation for lawyer associations and for commercial companies, cooperatives and housing communities.

In order to guarantee their functioning during the state of epidemic and to care for health and life of the representatives of legal professions and to enable the functioning of cooperative bodies, whose members may be subject to quarantine, a distance voting (vote in writing or through means of distance communication) has been envisaged.

  • Monitoring of the functioning of above solutions on an ongoing basis and analysing the need to introduce further organisational changes.

The aforementioned measures are not applicable to time limits for preventing, counteracting and fighting COVID-19 or resulting crises. The measures implemented ensure that urgent matters requiring immediate attention will be addressed even if the court with jurisdiction over a given location is not available, e.g. due to the judges or other court staff being quarantined.

Changes in the field of criminal law:

  1. Limiting hearings and meetings to urgent matters.
  • Urgent cases are defined enumerately, including, inter alia, cases concerning temporary arrest, certain categories of family cases or cases concerning minors, as well as cases indicated by the president of the court as urgent - if failure to consider them could result in a threat to life or health of people or animals, serious damage to the public interest, or due to the threat of irreparable material damage, as well as when it is required by the good of justice.
  1. Suspension of deadlines.
  • exclusion of the possibility of starting the run of procedural and judicial deadlines and suspended the run of deadlines that have started. In this way we enable parties to court proceedings to fully exercise their rights despite the limited functioning of the justice system.
  • for the duration of the epidemic threat, the course of the statute of limitations for the punishability of the act and the statute of limitations for the execution of a penalty in cases of offences was suspended.

With regard to the limitation periods under substantive law for the punishability of the act and the limitation period for the enforcement of penalties in cases of fiscal offences and offences, those time-limits do not run (suspend) during the period of threatened or epidemic declared by reason of COVID-19.

  1. Procedural rights in criminal proceedings.
  • the legislation on COVID-19 does not impose any restrictions on the procedural rights of parties to criminal proceedings, including defendants and defendants.
  • The introduction of a special arrangement to allow the immediate transfer of seized objects for medical purposes, if relevant. It is mainly the smuggled alcohol that was seized in the course of criminal proceedings and which we can immediately transfer to medical purposes related to the epidemic. To this end, we do not have to wait until the end of criminal proceedings.

This law allows the immediate transfer of seized objects for medical purposes. Tin the state of the epidemic, which constitutes a threat to public health, the premise of "exceptional circumstances" for the realization of a justified public interest is fulfilled. Moreover, free of charge transfer of objects which are important for public health or safety and are seized in the course of criminal proceedings is a proportionate measure and does not impose excessive burdens on owners of the objects transferred. Therefore, it should be considered that the solution introduced is fully in line with international standards, including Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Paris on 20 March 1952. (Journal of Laws 1995 No. 36, item 175), relating to the protection of property rights. In the light of this provision and the established line of jurisprudence of the European Court of Human Rights in this respect (see judgments in thecases AGOSI; Raimondo; Honecker and others; Riela and others; S.A. Bio d'Ardennes; Hentrich, etc.), such interference in property rights should be considered justified.

  1. Execution of custody.
  • Extension of the possibility for the prison court to grant, at the request of the director of the prison, an interruption (a break) of prison sentences. The period of interruption may last no longer than until the end of a state of emergency or an epidemic declared because of COVID-19. The interruption may be granted only to those sentenced up to 3 years in prison. It shall not be granted to more severe sentences, repeat offenders, professional offenders, members of criminal groups or terrorists. As of the date on which the authorities declare the end of an emergency or epidemic, the interruption previously granted shall cease by law.

The COVID-19 Act introduced a possibility (in Article 14c) the penitentiary court may, during a period of emergency or epidemic declared due to COVID-19, at the request of the director of the prison, approved by the Director-General of the Prison Service, interrupt a prisoner's sentence, unless there are reasonable grounds for believing that the convicted person, while outside the prison, will not comply with the legal order, and in particular will commit an offence, or will not comply with the guidelines, orders or decisions of the competent authorities relating to the prevention of COVID-19 or the treatment of SARS-CoV-2 infection.

  • If the offender cannot be given an interruption and it is not possible to reduce or eliminate the risk of another person being infected by the convicted person in prison, the prison court may decide to enforce the sentence in a suitable guarded prison.

If the offender cannot be given a break under this rule, or if they do not meet the criteria for giving a break, then in accordance with Article 14d(1)(a) about COVID, during the period of an emergency or epidemic announced because of COVID-19, and it is not possible to reduce or eliminate the risk of another person being infected by the convicted person as part of the action taken in prison, the governor of the prison may ask the prison court, approved by the governor of the Prison Service, to put the convicted person in a suitable guarded prison. The court will decide to carry out the prison sentence by putting you in the rightful medical facility for a fixed period. This time may be extended for a longer period at the request of the governor. The duration of the sentence by being placed in a suitable treatment centre may not be longer than until the end of an emergency or epidemic declared because of COVID-19.

  • The possibility of conducting of a hearing in custody cases by telecomunication devices (teleconference, art. 14f of the Act).
  • Increase in the possibility of being able to serve your sentence in the electronic supervision system (electronic tagging) to a person sentenced to a sentence not exceeding 1 year and 6 months, instead of the existing maximum sentence of 1 year (Article 43la(1)(1) of the Civil Code).

This will enable more flexible management of the population of persons detained in prisons in the face of an epidemic threat.

  1. The provision allowing to donate money earned by the prisoners and gathered by the Professional Activation Fund for the Convicted (in Polish: Fundusz Aktywizacji Zawodowej Skazanych) and the Development of Prison Industrial Workplaces (in Polish: Rozwój Przywięziennych Zakładów Pracy) for the purchase of protection equipment and products being necessary in prison to fight against the state of epidemic threat.
  2. Changes to criminal procedure.
  • In the state of epidemic threat or in the state of epidemic, levied property being important for public health or safety could be transferred free of charge to healthcare institutions, State Fire Brigade, Police, Border Guards and state and local government institutions.
  1. New offences ad new penalties under COVID-19.
  • In view of the state of the epidemic, Poland has aggravated criminal liability for several offences directly or indirectly linked to the exceptional situation. These include criminal exposure of another person to a disease or virus, stalking and identity theft.
  • In addition, we have introduced a new type of offence, involving exposure of large number of people to a contagious disease, and a new type of petty offence, providing the intentional failure to comply with instructions given by service personel.
  • The provisions concerning those, who are being aware of coronavirus infection, have been strengthened. So far this kind of deed is liable to a fine, partial restriction of freedom or prison sentence of up to one year. Now it will be liable to prison sentence from 3 months to 5 years, and in case of exposing many people, of even 10 years.

Changes in the field of family law:

  1. Limiting hearings and meetings to urgent matters. Urgent matters include the following categories:
    • removal of a person subject to parental responsibility or guardianship,
    • referred to in the Act of 19 August 1994 on mental health protection (Journal of Laws: 2018, no. 1878; 2019, nos. 730 and 1690),
    • placement or extension of placement of a juvenile at a juvenile detention center,
    • placement of a foreign juvenile national at a congregate care facility,
    • enforcement proceedings with respect to the above-listed matters,
    • appointment of a guardian ad litem to represent a minor in court or administrative proceedings in urgent matters,
    • interrogation of a person to secure evidence or when it may be reasonably assumed that interrogation of that person at a later hearing may prove impossible.
  2. Proceedings conducted by Polish courts under the 1980 Hague Convention, the Department of Family and Juvenile Matters within the Ministry of Justice is notified of postponed and canceled court sessions (and new dates scheduled as the case may be). The notifications of postponed sessions are coming from the relevant courts; if sessions are canceled without scheduling a new date, the central authority is notified by the chief judges of the relevant regional courts or the chief judge of the Warsaw Court of Appeals. The courts have also requested that all Hague applications be submitted in electronic format only as a preventative measure during the pandemic, which is an adequate solution for this category of cases.

Comment from Michal DABROWSKI, Judge at the regional court of Warszawa-Mokotów, Poland

• The Ministry of Justice has recommended the postponement of non-urgent hearings scheduled to take place between 13 and 31 March 2020. In practice, the courts deem to be urgent, for example, cases concerning minors, domestic violence or temporary arrest. As such, hearings of commercial disputes have been postponed. It is anticipated that hearings scheduled for April-May will be postponed as well. 
• Face-to-face contact between judicial staff and other persons has been reduced, and access to court buildings limited. Court submissions must be filed by post but some courts are accepting submissions filed by email (which is unusual in Poland). 
• Evidence of witnesses in any urgent hearings must be carried out by video or teleconference. 
• It is anticipated that legislation will be introduced to mitigate the impact of the virus on the judicial system. A press release from the Ministry of Justice indicates that the legislation will, for example, stay certain procedural and substantive time limits, including procedural and court deadlines in civil proceedings.

Portugal

Comment from Sara NUNES DE ALMEIDA, Legal Adviser, Cabinet des relations internationales, Direction Générale de la politique de la justice, Minsitère de la Justice du Portugal
Our President declared the Emergency state on the 18th of March, and since then some exceptional and temporary measures to tackle the epidemiological situation have been taken concerning the judicial system.
Law No. 1-A/2020, of 19 March, was published, that sets a number of measures related to deadlines and procedural steps, which, basically, consist on its suspension and application of the judicial holiday regime (article 7 of the referred Law).
These are the most relevant measures included in this article:
-          “To the procedural and processual acts that shall be performed within the processes and procedures, which run in judicial, administrative and tax courts, Constitutional Court, Court of Auditors and other jurisdictional bodies, arbitral courts, Public Prosecution Service, justices of the peace, entities of alternative dispute resolution and tax enforcement bodies, the judicial holiday regime applies until this exceptional situation ceases”.
-          “This exceptional situation is also cause for the suspension of the prescription and statute of limitation periods related to all types of processes and procedures” overruling “over any regimes that establish maximum mandatory periods of prescription or statute of limitation periods, which are extended for the period of time in which the exceptional situation prevails”;
-          In urgent cases, the deadlines are suspended, except when technically feasible, in which “the practice of any procedural steps is allowed through appropriate distance media communication, namely by conference call or video call”. In this sense, “only are undertaken in person urgent acts and measures in which fundamental rights are at stake, namely procedural steps relating to minors of age at risk or urgent educational guardianship proceedings, steps and trials of arrested defendants, provided that this steps or trials do not imply the presence of a number of people higher than that provided by the recommendations of the health authorities and according to the guidelines set by the competent higher councils”;
-          Exceptionally, the judicial holidays regime also apply, with the necessary adaptations, to “procedures that run under notaries and registry offices” as well as “administrative, sanctioning and disciplinary procedures, and respective acts and measures that run according to direct, indirect, regional and municipal administration services, and other administrative entities, namely independent administrative entities, including the Bank of Portugal and the Portuguese Stock Market Regulator”;
-          During this exceptional period, and also based on the judicial holidays regime, the “administrative and tax deadlines regarding private individuals” are also suspended, namely “acts of judicial claims, administrative appeals, hierarchical appeals, or other procedures of similar nature, as well as deadlines for acts within the same tax procedures”.
The provisions of this Law, as well as provisions of Decree-Law No. 10-A/2020, of 13 March, that creates exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID 19, overrule over contrary legal, general and special rules, namely those included in the State Budget Law.
This regime is applicable until the exceptional situation of prevention, containment, mitigation and treatment of the epidemiological infection by SARS-CoV-2 and COVID-19 disease, as determined by the national public health authority, ceases, on a date to be defined by a Decree-Law in which the end of the exceptional situation will be stated. After the termination of the aforementioned exceptional situation, the Parliament will adapt, in its own diploma, the judicial holidays periods to be in force in 2020.
This Law is effective as of 13 March 2020.

Republic of Moldova

Comment transmitted by Victoria Palanciuc, CEPEJ member and national correspondent, Director of the Agency for Courts Administration subordinated to the Ministry of Justice

Sharing solutions and measures implemented in the Republic of Moldova to ensure the functioning of judicial system in the context of the COVID pandemic-19

Like most countries in the world, Republic of Moldova has faced the coronavirus (COVID-19) pandemic situation. Due to spreading of the pandemic COVID-19 the Parliament of the Republic of Moldova declared state of emergency throughout the country for 17 March – 15 May 2020. The national state of emergency was recommended by the Commission for Emergency Situation and was demanded by the head of state within an appeal to the citizens.

This situation has become a challenge for our judicial system and in order to provide access to justice for citizens in such situation, a number of measures have been taken.

By decisions no.1, 4 and 13 from 18, 24 March and 03 April 2020 of the Commission for Emergency Situation specific measures were established also in the justice sector on the period of the setting of the state of emergency. It was stipulated to temporarily postpone the consideration of the civil and criminal cases until May 15, 2020, except the cases that need to be considered urgently. For civil and criminal specific cases it was recommended to courts if possible to schedule hearings considering the use of video conference system and were asked to file/communicate the procedural acts or other documents electronically.

Starting with 2019 criminal cases related to early release from custody as well as complaints on prison conditions are considered using of video conference system. In this way the video conferencing equipment offers the possibility to remotely connect inmates in penitentiaries to participate in court hearings.

From March 18 (immediately after the state of emergency was declared) to the end of April 2020, Moldovan courts used the videoconferencing system to conduct over 600 remote court hearings.

Due to spreading of the pandemic COVID-19 the judiciary uses the video conference system also for issues of extending the period of arrest.

The court staff use the video conferencing equipment to conduct online meetings, trainings with other courts, entities, including the Superior Council of Magistracy and Agency for Court Administration.

The use of the videoconferencing system enabled the delivery of justice even during a pandemic when most institutions were closed down and public services halted. Significantly, it has ensured that those held in detention were not denied their rights. Extending this benefit to other types of legal procedures is a potential next step for a justice system in the process of reform and modernization.

The time limits including the time limits for appeal were suspended.

The enforcement procedures were suspended, excepting the cases where it was possible to comply with the provisions of the Extraordinary national public health Commission in respect of rights to life and to the physical integrity of the participants in the forced execution.

At the same time, in order to prevent the spread of coronavirus (COVID-19) infection the courts took all necessary measures such as disinfection of the buildings and equipping all premises with sanitizers.

The Agency for Court Administration in cooperation with the Ministry of Health Labor and Social Protection provided a useful  COVID-19 video for visitors on all informative screens from court halls and installed at the entrance of each court information boards with COVID -19 protection measures for visitors.

According to specific decisions issued by court presidents a part of the court staff moved to remote work, the other court staff performed its activities on the basis of shift work.

In relation to prison conditions, a special attention is given to the prevention of contagion, and precautionary measures have been adopted, such as increased hygiene of persons and premises, as well as disinfection of facilities and additional supply of protection equipment.

For inmates was doubled the duration and number of telephone calls. Based on the detainee's request, it was allowed providing short-term meetings using teleconferencing systems on software platforms accepted by the penitentiary institutions.

[1] Under the legislation, the state of emergency is declared at a proposal by Moldova’s president or government and is approved by the parliament. The duration of the state of emergency does not exceed 60 days and depending on the evolution of the situation, the head of state or the cabinet can demand the prolongation or shortening of the duration of the state of emergency, as well as the extension or diminishing of its action area. Until 15 May 2020, there have been registered 5745 confirmed cases in the Republic of Moldova, out of which 2280 patients recovered and 202 died.


Romania

Information transmitted by Violeta Belegante, CEPEJ Member (Romania), Legal Adviser, Head of the Private Law Department, Directorate for the Elaboration of Normative Acts, Ministry of Justice of Romania
Update of 4 June 2020
State of emergency measures in Romania:
Read the measures taken: https://rm.coe.int/state-of-emergency-in-romania-judicial-activity-measures-4-juin-2020/16809e959a 

Russian Federation

Information transmitted by George Borisov, Counsellor, International Cooperation Department, The Supreme Court of the Russian Federation
28 May 2020

Editorial about the handling of the COVID situation by the Russian Supreme Court
Exam Passed: How the Supreme Court’s Activities during the Pandemic Will Be Remembered
by RAPSI, 28 May 2020

English version: https://rm.coe.int/russia-rapsi-article-of-28-may/16809e831f 
Russian version: http://rapsinews.ru/publications/20200528/305854995.html


Comment transmitted by George Borisov, Counsellor, International Cooperation Department , The Supreme Court of the Russian Federation

On 19 May 2020, the Plenary Session of the Supreme Court of the Russian Federation gathered online for the first time in history. During the meeting that took place over a web conference, its participants discussed a draft of the Ruling “On Court Application of Norms of the Code of Administrative Judicial Procedure of the Russian Federation, Regulating Proceedings in a Court of Appeal”.

Only the Chief Justice of the Supreme Court of the Russian Federation, Vyacheslav Lebedev, and the Secretary of the Plenary Session, Victor Momotov, were present in the courtroom, the other conference participants had remote access. In total, 89 judges of the Supreme Court of the Russian Federation registered for the session, along with 16 other participants, including representatives of the Russian President and Government, of the Prosecutor General’s Office, Ministry of Justice, Federation Council and State Duma, as well as of the academia.

Following the discussion, the draft ruling was directed for follow-up revision to the editorial commission, which will also work via video link.

This practice has become a positive trend during the current pandemic: electronic technologies are actively developing now, which allows holding urgent sessions effectively and safely. This real-time communication system will be used more often in the future.

7 May 2020: second Review of issues encountered by Russian courts with regard to the pandemic. The review covers further issues of civil and criminal law, legislation on bankruptcy and administrative offences raised by lower courts.

English: http://www.vsrf.ru/en/about/covid19/

Russian original : http://www.vsrf.ru/press_center/news/28883/

_____________

28 April 2020

On 18 March, the Presidium of the Russian Supreme Court and the Presidium of the Council of Judges adopted a joint ruling, recommending it to the courts to limit access of citizens and to consider only urgent cases, and advising the citizens to file applications via the Internet and the post rather than directly through the courts’ registries.

This ruling was later replaced by another Joint Ruling of 8 April, available in English here:

http://www.vsrf.ru/en/files/28846/

On 21 April, the Presidium of the Russian Supreme Court adopted a Review of Issues of Judicial Practice with regard to legislative amendments and measures taken in light of the COVID-19 spread. It covers issues of civil and criminal law, law on bankruptcy and administrative offences that the lower courts have brought to the attention of the Supreme Court since the start of the pandemic.

Please find the English translation of that Review here: Russian Supreme Court - COVID Issues Review No. 1.pdf
https://rm.coe.int/russian-supreme-court-covid-issues-review-no-1/16809e40d0

The Russian original of the Review can be consulted here (http://www.vsrf.ru/documents/thematics/28857/)

Serbia

Comment transmitted by Ivana NINCIC, Ministry of Justice, Consultant, Sector for European Integration and International Projects, Serbia

SERBIAN JUDICIARY IN THE TIME OF COVID19

A State of Emergency has been declared in the Republic of Serbia on March 15th, 2020, with the decision coming into force immediately after its publication in the Official Gazette (http://www.pravno-informacioni-sistem.rs/fp/covid19).

The Ministry of Justice (hereinafter: “MoJ”) was quick to react, issuing March 17th Recommendations Regarding the Work of Courts and Public Prosecutor Offices during the State of Emergency declared March 15, 2020 (MoJ Recommendations Regarding the Work of Courts and Public Prosecutor Offices during the State of Emergency declared March 15, no. 2020112-01-557/2020-05 from March 17th, https://www.mpravde.gov.rs/vest/29159/preporuke-za-rad-sudova-i-javnih-tuzilastava-za-vreme-vanrednog-stanja.php; https://www.mpravde.gov.rs/sekcija/29166/konkretna-uputstva-za-rad-pojedinacnih-pravosudnih-organa-kao-i-javnih-beleznika-i-javnih-izvrsitelja-a-na-osnovu-preporuka-ministarstva-pravde-za-rad-za-vreme-vanrednog-stanja.php), followed by concrete decisions on reorganisation of work by specific courts. The High Judicial Council rendered on March 18th a Decision (Conclusion) (High Judicial Council Decision (Conclusion) no. 119-05-132/2020-01from March 18th 2020, https://vss.sud.rs/sites/default/files/attachments/%D0%97%D0%B0%D0%BA%D1%99%D1%83%D1%87%D0%B0%D0%BA.pdf, amended by decision from March 19th 2020), binding for all courts, going further than the Ministry of Justice recommendation when it comes to civil law matters, adjourning hearings starting from March 19, 2020 until the state of emergency is lifted, except in the following priority cases:

  1. In criminal law matters:
  • hearing custody applications;
  • Concerning the pandemicrelated crimes of “Illegal Trade”, “Failure to Act Pursuant to Health Regulations During an Epidemic” and “Transmitting Contagious Disease“;
  • Against juvenile offenders, or where the injured party is a juvenile under Chapter 18 of the Serbian Criminal Code – Sexual Offences;
  • Hearing domestic violence cases;
  • Where there is a risk of statute of limitations;
  • Concerning crimes committed during the state of emergency and in connection with the state of emergency; and
  • Hearing claims related to media repression orders.
  1. In civil law matters:
  • Hearing injunction applications (their imposition, extension or cancellation);
  • Hearing claims related to domestic violence protection measures;
  • Hearing applications for detention in neuropsychiatric healthcare institutions and
  • Concerning the enforcement of family law orders.

The High Judicial Council has also gone further than the Ministry of Justice recommendation to continue enforcement proceedings and all bankruptcy and reorganization procedures have been adjourned.

The MoJ issued appropriate recommendations to enforcement agents and notaries (https://www.mpravde.gov.rs/vest/29428/preporuke-ministarstva-pravde-za-rad-javnih-izvrsitelja-i-javnih-beleznika.php). The MoJ recommended that all enforcement proceedings which are not urgent be postponed.

On March 18, 2020 the Chamber of Enforcement Agents (“CEA”) obliged and issued instructions to its members. Enforcement agents are prohibited from considering enforcement requests submitted during the state of emergency, and they are effectively banned from taking actions in ongoing proceedings that would enforce a creditor’s claim (e.g. sale of debtor’s real estate or movable property, transfer of salary or remunerations from the debtor’s bank accounts to creditor’s, handover of property). However, some exceptions were provided: ex. claims relating to statutory family support obligations, compensation of damages suffered due to health impairment, work incapacity, disability or debtor’s death, as well as collection of money on a company’s account, may be enforced. The CEA’s instructions also provide that, where enforcement proceedings had already been commenced on a debtor’s salary, employers will be notified to temporarily suspend forced collection until the state of emergency is lifted. The consent of the creditor is not required in these cases.

It should also be noted that some public utility companies, such as “Infostan”, have temporarily suspended ongoing enforcement of their claims for 90 days. In this way, debtors are effectively granted a grace period for the duration of the state of emergency.

On March 17, 2020 the MoJ also issued appropriate recommendations to notaries. These were adopted by the Serbian Chamber of Notaries (“SCN”) and were published on its website on the same day. Notaries continue solemnizing contracts and agreements, as well as issuing notarial instruments and records, but do so only in their offices. Clients who wish to make an appointment with a notary should submit all necessary documents in advance via email. Except in very urgent and justified cases, notaries will no longer certify signatures and copies of documents, nor will they schedule hearings in probate proceedings or in other proceedings delegated to them by courts. Hearings already scheduled will be postponed, unless urgent legal action is required.

Online proceedings against individuals who have allegedly violated self-isolation measures

On March 30, 2020 the Serbian Bar Association sent a letter to the MoJ expressing its opposition to the online proceedings (hearings are held online using platforms like skype) against individuals who have allegedly violated self-isolation measures. The Bar Association’s stance is that this way of conducting proceedings is not provided by law and that it constitutes a drastic violation of the right to a fair trial.

As a reaction to the letter, on April 1, 2020 the Government adopted the Decree on Defendant Participation in the Main Hearing in Criminal Proceedings during the State of Emergency declared March 15, 2020 (www.paragraf.rs/propisi/uredba-o-nacinu-ucesca-optuzenog-u-krivicnom-postupku-vanredno-stanje.html). The Decree provides that in criminal proceedings before a court of first instance, when a presiding judge or an individual judge finds that securing the presence of defendant that is in custody at the main hearing brings a risk of spreading the COVID-19, s/he may decide that the main hearing will be conducted by using technical means for transmission of sound and image, in case that is possible having in mind the technical conditions of the institution.

Decree on Deadlines in Court Proceedings During the State of Emergency

Further, on March 20, 2020 the Government adopted the Decree on Deadlines in Court Proceedings During the State of Emergency (“Decree”). The Decree effectively brings to halt deadlines in most court proceedings as of March 15, 2020. Firstly, the Decree suspends all deadlines for filing constitutional complaints, civil, administrative and private criminal lawsuits, as well as deadlines for initiating non-litigation and enforcement proceedings. Any deadline set for procedural activities in these proceedings, such as submission of appeals and other legal remedies, is also put on “hold” during the state of emergency.

Furthermore, the same solution applies to criminal, misdemeanor and commercial offense proceedings – deadlines for submitting appeals or applying for extraordinary legal remedies in these cases are also paused until further notice.

In most cases, suspended deadlines are preclusive in nature, i.e. in usual circumstances, if a party that fails to submit a claim or an appeal before a set deadline it would lose the right to submit it after the deadline passes. The Decree was adopted for this very reason – to prevent the detrimental effects of preclusion on party’s rights during the COVID-19 pandemic, due to reasons beyond the party’s control.

The deadlines for filing of lawsuits in civil proceedings, private lawsuits in criminal proceedings, proposals for initiation of extra-judicial proceedings or enforcement and security interest proceedings, lawsuit in administrative proceedings and constitutional appeal stop running during the state of emergency declared on March 15th, 2020. The same applies for deadlines for filing legal remedies and undertaking other procedural actions in said proceedings.

In criminal proceedings, misdemeanour proceedings and proceedings for economic offenses, the deadlines for filing appeals against decisions terminating the proceedings, as well as for filing extraordinary legal remedies are suspended during the state of emergency.

Slovak Republic

Comment posted by Barbora Sopková, District Court Banská Bystrica (pilot court – CEPEJ)

Official statement of Ministry of Justice:

In order to limit the spread of contagious human disease COVID-19, the following measures were taken at the Crisis Staff of the Ministry of Justice of the Slovak Republic on 23 March 2020:

MEASURES FOR THE COURTS OF THE SLOVAK REPUBLIC

1. The presidents of the courts shall take measures or extend existing measures to restrict public movement in court premises / buildings until 30 April 2020 by:

- rigorous monitoring of the purpose of persons entering the court building,

- limiting the activities of the Court's information center to the provision of information by telephone and electronic means,

- by restricting access to court premises to persons whose attendance at hearings and other acts of the courts is not necessary, with the exception of the entry of persons for the purpose of service of filings with the registry,    

- allowing persons to enter the court building only for the necessary time and to the premises in order to achieve the purpose of entering the building.

2. not to hold hearings, main hearings and public meetings until 30 April 2020, except:

- acts in custody matters in criminal proceedings, decisions on conditional release from imprisonment, decisions on changes in the manner of imprisonment,

- actions in the care of the Court of Minors, and

- operations without which there is a risk of irreparable damage or other serious irreparable consequence. In order to minimize the escorts of convicts, it is necessary to make maximum use of video-conference facilities in criminal proceedings when conducting the interrogation of the sentenced person; In the period up to 30 April 2020, to allow persons to participate in hearings and other court proceedings to use disinfectants and protective equipment,

3. if it is not necessary for the operation of the court, not to conduct competitions until 30 April 2020;

4. in the period up to 30 April 2020, it is essential to provide adequate disinfectants and protective equipment for all court staff involved in public relations;

5. in the period up to 30 April 2020 in the case of a request for filing in writing to the minutes, resp. another type of act carried out with the person's personal participation, to refuse to perform such acts except in cases where the case cannot be postponed and in the cases referred to in the exceptions to point 2.,

6. adequate hygiene measures to prevent the spread of communicable disease COVID-19 are necessary and maintained by 30 April 2020.

MEASURES FOR PROBATION OFFICERS

1. probation officers are required to remain in the workplace only in the case of performance of duties which cannot be postponed

2. make use of the possibility to change the date of probation supervision - personal contact with the probate at the court seat, and notify the probant of this change by telephone, if possible or by post office or by e-mail

3. to keep a record of the presence of the probant at the court seat (“Guestbook”) at the entrance to the court building during the absence of the probation and mediation officer at the workplace, especially in cases where the probant's presence at the court was not known

4. reject an instruction or request to carry out a material examination (pre-investigation) in the form of a local survey in a dwelling or part of such instruction or request relating to a local survey in a dwelling and notify without undue delay by telephone or e-mail to the person who issued such an instruction or request

5. not to request service trip to the PMS Information System, unless it is a service trip, which ensures uninterrupted course of already ordered or ongoing control by technical means, eg. initial installation or replacement of a malfunctioning or damaged device

6. in the case of work from home environment, ensure the possibility to work in the PMS Information System, if remote access to this information system is possible and to ensure access to the service e-mail box through the website https: /web.justice.sk/owa

7. postpone the date of mediation and, in the event that the mediation period expires, ask the judge or prosecutor who issued the mediation instruction to extend the period within which mediation is to take place

8. in case of uncertainty in the implementation of these measures, follow the instructions of the Head of the Probation Department

In addition to the above, each court has its own measures, protecting both judges and employees. These are therefore more internal rules.

The Slovak Republic adopted Act No. 62/2020 Coll. on certain emergency measures in relation to the spread of dangerous contagious human disease COVID-19 and in the judiciary and amending certain laws which interrupted the passage of certain periods of limitation or extinction. However, that law did not interrupt the time-limits set for the court. Thus, despite the exceptional situation, the courts are obliged to respect the deadlines.    

Slovenia

 Comment on recent developments from Gregor Strojin, Advisor to the President, Supreme Court of the Republic of Slovenia

20 April 2020
President of the Supreme Court of the Republic of Slovenia, mag. Damijan Florjančič, issued a new decree on 30 March 2020 pursuant to Article 83a of the Courts Act and the Provisional Measures Act in relation to judicial, administrative and other public-law cases for the control of the spread of infectious disease SARS-COV-19 (Covid-19) (ZZUSUDJZ).

According to the decree, courts hold hearings and rule in a limited number of court cases which are considered as urgent. This decree revoked the initial decree from 13 March 2020, but the measures which were introduced by the initial decree remain in place.
Until revocation of the decree due to change of circumstances, or until 1 July 2020 at the latest, the courts decide and hold hearings in the following urgent cases:
- investigations and trials in criminal cases in which the accused is deprived of liberty or restricted, as well as in criminal cases of foreigners who do not reside in the Republic of Slovenia,
- proceedings in security cases, other than actions requiring the personal contact of enforcement officers, participants and other persons in such proceedings, and the performance of those acts is not necessary in order to avert the danger to life and human health or to property of greater value.
- enforcement cases relating to the upbringing and care of children and maintenance obligations arising from the law (child custody and alimony),
- non-contentious cases concerning the detention of persons in psychiatric healthcare organizations,
- disputes for publication of a correction of published information,
- other cases for which the law so provides, other than those specified in clauses 6 to 10 of the order of 30 March 2020.
All hearings and sessions in urgent cases should be held via videoconferences if technical and room conditions are met.
All hearings in non-urgent cases are cancelled.
Unless in urgent cases, case parties, lawyers and others:
- are not allowed to enter court buildings,
- can only file via post mail or electronic portal eSodstvo, where applicable
- use published electronic addresses and phone numbers for communication with courts.

In urgent cases, case parties, their representatives and other, who want information about a proceeding, must announce themselves in advance via published contacts.
Court have designated single entry points to court buildings, where all preventative measures against viral contagion are undertaken.
In order to prevent the spread of the viral contagion, for the protection of health and life of people and for maintaining the functioning of courts and ensuring execution of rights and responsibilities, the judge or the president of the chamber can temporarily exclude the public from the entire trial or from a part of it and prescribe other appropriate safety measures.
info: http://www.sodisce.si/sodni_postopki/objave/2020041013584651/
 

_______________________

President of the Supreme Court issued a decree on March 13 on the basis of a proposal by the Minister of Justice - invoking special measures which can be used in cases of natural disasters.and large epidemics, applicable to all courts.
Currently, only essential court staff is working in court buildings. Judges and other personnel, except for urgent cases, are to work from home or to wait at home (depending on the nature of their work).
New emergency legislation regulating this even further is in preparation, as well as a new decree of the President of the Supreme Court which will be based on the new legislation. We expect the new law and order to further limit the scope of urgent cases, address the issues relating to deadlines, as well as to allow/promote receiving claims and other documents via electronic means and to encourage the use of videoconferencing in main hearings.
At work, the courts are facing challenges regarding paper exchange of documents (parties and other bodies), keeping the distance between individuals and other precautions for main hearings (including transport of offenders) and handling the claims regarding security measures (i.e. child custody).
Channels for communication and exchange of documents allowing work from home are being implemented (e.g., remote desktop access, secure exchange of large files, etc.).

Summary of the (current) decree (as of March 13):
- main hearings will only be held and decisions will only be taken in urgent matters (what is urgent matter is established in laws, with the new law giving the President of the Supreme Court the power to further limit certain urgent procedures)
- urgent matters:
- investigations and trials in criminal matters, where the offender is detained and regarding foreigners non living in the country
- security matters (ie. securing evidence, withholding the payment, execution of forbidding of certain actions)
- civil enforcements regarding child custody and alimony
- non-contentious maters regarding detention in psychiatric establishments
- promissory note and cheque claims and protest (note: will most likely be changed to non-urgent)
- claims regarding publishing of correct information (note: will most likely be changed to non-urgent)
- compiling list of deceased's assets (except when cause of death is COVID-19 or unknown) (note: will most likely be changed to non-urgent)
- insolvency cases (except public auctions and other tasks that require personal contacts)
- all other main hearings are cancelled
- except in the above urgent matters, procedural deadlines do not count, and new court writings are not sent
- except in the above urgent matters, parties, attorneys and other people cannot enter court buildings, can file their claims electronically or by post, and use telephone and e-mail to communicate with courts
- in urgent matters, attendees must notice their coming to court by phone or mail in advance
- presence of media on main hearings in urgent matters is limited (but not excluded)
- courts set one entry point in the building, where preventive measures regarding COVID-19 are taken
- persons with detectable infections of respiratory tract (e.g. coughing, sneezing...) are not allowed in the building

Gregor Strojin, Advisor to the President, Supreme Court of the Republic of Slovenia

Spain

Juan fernando ARMENGOT IBORRA added a new comment on 11 May 2020.

On April 28, the Spanish government approved the Royal Decree-Law 16/2020, on procedural and organizational measures to deal with COVID-19 in the area of the Administration of Justice. Among the agreed procedural measures are the following ones:
It will be possible to hold hearings and legal proceedings on August 11 to 31, 2020.
The terms and deadlines provided in the procedural laws will be re-computed from the beginning, once the state of alarm ends.
It is regulated a special and urgent procedure for family matters.
Urgent processing of certain kinds of procedures.
Insolvency reforms.
On the other hand, among the organizational measures, the Royal Decree-Law includes:
The celebration of procedural acts through electronic presence whenever the judicial bodies have the means to do so.
Attention to the public by phone or email.
In the meanwhile, the Permanent Commission of the General Council for the Judiciary meets every day to analyse incidents, resolve doubts or unify criteria on the application of essential services. In addition, the General Council for the Judiciary has prepared a Protocol and a Practical Guide for the reactivation of judicial activity.


Comment transmitted by ARMENGOT IBORRA, Ministerio de Justicia, Letrado de la Administración de Justicia Asesor, Spain

14 April 2020

The Ministry of Justice of Spain published a Resolution of the Secretary of State on 14th March 2020. In this Resolution, the essential services of the Justice were identified and the minimum compliment of personnel different from Judges was determined. Among the essential services, it mentions:
- Precautionary measures.
- Criminal cases with a person in prison.
- Actions of the Civil Registry.
- Protective measures in matters of violence against women.
- Any action whose delay may cause irreparable damage.
By Resolution of March 23, in agreement with the Autonomous Regions, the State Attorney General's Office and the General Council of the Judiciary, individual, collective and organizational protection measures were also established, aimed at minimizing the risk of infection in the development of the work in essential services. These protection measures include:
- Do not allow access to the judicial headquarters unless justification.
- Limit the number of people who access and of the time.
- Provide the user with a mask.
- Establish minimum safety distances of at least 2 meters.
- Provide protection elements in public service posts.
- Promotion of telematics and electronic means of work.
By Resolution of March 30, the Ministry of Justice, the Autonomous Regions, the General Council of the Judiciary, the State Attorney General and the General Bar Association adapted the provision of essential services in the administration of Justice to the Decree Law that specially reduces the mobility of the population during the fight against Covid-19. The Resolution maintains the minimum personnel and essential services identified in the previous resolution, and establishes a basic face-to-face activity completed with another availability regime.
The General Council of the Judiciary has prepared a base document on organizational and procedural measures for the moment after the end of the State of Alarm declared on the occasion of the coronavirus pandemic. The text attends to be an initial working document, subject to debate and to the making of as many contributions as appropriate.
In the website of the Ministry of Justice (mjusticia.gob.es) the resolutions mentioned and other are available.

Switzerland

Coronavirus : Jusqu'à nouvel avis, le Tribunal fédéral suisse (Cour suprême de la Suisse) comme l'ensemble des tribunaux de la Confédération helvétique concentre son activité sur les tâches prioritaires et fonctionne avec un effectif en personnel réduit. La protection juridique pour les affaires urgentes (notamment en lien avec les détentions, la protection de l'adulte et de l'enfant et les mesures provisionnelles) est garantie sans restriction.
Le Tribunal fédéral suisse suspend, dans un premier temps, du 19 mars au 19 avril 2020, les délais fixés par le Tribunal fédéral dans ses procédures en cours (p. ex. ceux fixés pour le dépôt d'une détermination ou le versement d'avances de frais).
Jacques Bühler, délégué de la Suisse au sein de la CEPEJ et secrétaire général suppléant du Tribunal fédéral

Turkey

Comments from Seçkin Koçer, Judge (Ministry of Justice of Turkey - Directorate General for Strategy Development)

The measures in judiciary taken in Turkey to prevent the spread of the coronavirus are based on the two main aspects, the first one is to protect the staff from the disease, including judges and prosecutors. The second one is the measures to protect individuals (parties) from the unexpected results of the measures. In this context, all measures are set to prevent any result that cause deprivation of the rights of individuals.

Ministry of Justice and Council of Judges and Prosecutors are in charge of taking all actions in this regard. Main measures are as follows:

- The number of staff at the courthouse have been reduced considering the workload of each prosecution office and court. Reduced number of staff will be on the shift while the rest of the staff are required to work from home.

- Face to face contact will be reduced between staff and parties. SEGBİS (System of Video Conference and Records In Courts) and UYAP (National Judiciary Informatics System) will be used to ensure communication between parties and staff, especially for the urgent matters.

- All measures on hygiene in courthouses will be meticulously implemented.

- To prevent all the risks that may occur during the hearings, all hearings and face to face proceedings will be postponed until the end of April, with the exception of the matters related to arrest, other preventive measures in criminal proceedings, the matters related to alimony and violence against women, etc..

- All judicial reconnaissence proceedings will be suspended, except urgent matters.

- All the time limits to take actions before the courts and the time limits in alternative dispute resolutions will be suspended until the end of the April.

- Suspension period of cases will not have negative effect on the promotion of judges and prosecutors.

Ukraine

Comment transmitted by SERGII KOZIAKOV, PhD in International Law, Associate Professor, Institute of International Relations of Taras Shevchenko National University of Kyiv (CEPEJ Member)

06 July 2020

According to the indicators published by the State Judicial Administration of Ukraine regarding cases on bringing persons to administrative liability under Article 44-3 “Violation of rules on quarantine of people” of the Code of Ukraine on Administrative Offenses, as of June 30, 2020 in Ukraine:

  • 14598 protocols were received by the court;
  • 3784 protocols returned;
  • 6689 cases considered (including 720 cases on imposition of administrative sanctions);
  • balance of pending cases on the specified date was 4125 cases.  

Comment transmitted by SERGII KOZIAKOV, PhD in International Law, Associate Professor, Institute of International Relations of Taras Shevchenko National University of Kyiv (CEPEJ Member)

Update to the comment in part “3. SPECIFIC WORK MODE OF JUDICIAL BODIES AND COURTS DURING QUARANTINE

24 June 2020 : https://rm.coe.int/update-no-2-to-the-comment-ukraine-covid-19-24-june-2020/16809ed11f

Update to the comment in part “1. GENERAL LEGISLATION” and “5. FINANCIAL MEASURES WITHIN JUSTICE SYSTEM IN CONNECTION WITH THE PANDEMIC

11 June 2020

On May 29, 2020, the Plenum of the Supreme Court addressed the Constitutional Court of Ukraine with submission regarding the constitutionality of restrictions imposed during lockdown in respect of the rights and freedoms of citizens. The Constitutional Court of Ukraine will decide whether such restrictions adopted by the Cabinet of Ministers of Ukraine and Verkhovna Rada of Ukraine (the Parliament) observed the constitutional rights to freedom of movement, peaceful assembly, equality of rights and freedoms (on the basis of age and occupation), entrepreneurial activity and medical care. The Plenum emphasized the discrepancy between the measures taken by the executive body and real social needs in this respect.

Furthermore, the Plenum also appealed to the Constitutional Court of Ukraine regarding the constitutionality of the provisions of Law 553-IX (amending the Law of Ukraine “On the State Budget of Ukraine for 2020”) which established that temporarily, from the date of entry into force of this Law until January 1, 2021, the part one of Article 25 of the Budget Code of Ukraine shall not be applied (according to it the Treasury of Ukraine shall indisputably deduct funds from the state budget and local budgets on the basis of court decision). The Plenum noticed that adoption of this amendment will lead to non-execution of court decisions regarding the deduction of funds from state budget and local budgets on the basis of a court decision and, accordingly, will lead to non-execution of court decisions, being contrary to parts one and two of Article 1291 of the Constitution of Ukraine establishing that court decision shall be binding.

Also, according to the Plenum, the Law 553-IX has disproportionately reduced the remuneration of judges in relation to other employees of budgetary institutions, which, in turn, violates the principles of independence of judges, so this issue will also be considered by the Constitutional Court of Ukraine in light of its constitutionality.


Comment by Sergii Koziakov, PhD in International Law, Associate Professor, Institute of International Relations of Taras Shevchenko National University of Kyiv (CEPEJ Member)

24 April 2020

The first case of COVID-19 caused by the new coronavirus was registered in Ukraine on March 2, 2020. Already on March 3, 2020, this was reported by the Communication Department of the Cabinet of Ministers of Ukraine and a number of front decisions have been taken by state authorities to prevent a spread of pandemic in Ukraine.

  1. GENERAL LEGISLATION
    1. Measures taken by Verkhovna Rada of Ukraine (the Parliament)

The Law “On amendments to certain legislative acts of Ukraine aimed at preventing the emergence and spread of coronavirus disease (COVID-19)” was adopted on March 17, 2020.

The Law establishes the legal basis for the prompt implementation of urgent measures for the prevention and treatment of coronavirus disease by the state, in particular:

  • simplifies procurement of goods, works and services necessary for this purpose (without applying the procedures provided by the Law of Ukraine “On Public Procurement”);
  • 100% prepayment for such goods, works and services;
  • exemption from import duties and value added tax on medicines, medical devices and/or medical equipment serving to prevent the emergence and spread of coronavirus disease;
  • price control for medicines, medical supplies and socially significant goods by the Cabinet of Ministers of Ukraine.

Such rules will be temporary.

The Law introduces a set of legal norms aimed at protecting the rights of individuals and entities during quarantine and restrictive measures related to the spread of coronavirus disease, namely:

  • allowing to work at home for employees, civil servants and employees of local self-government bodies and granting them leave with their consent;
  • granting to owners the right to change the operating mode of bodies, institutions, enterprises, organizations, in particular, regarding the hosting and servicing of individuals and legal entities with further obligatory informing the citizens about such change through websites and by other communication means;
  • prohibition to impose the administrative liability on foreigners and apatrides who were unable to leave Ukraine or to apply to the territorial bodies/units of the State Migration Service of Ukraine for extending their stay in Ukraine in connection with the introduction of quarantine measures;
  • attribution of quarantine to force majeure;
  • extension of time for receipt and provision of administrative and other types of services;
  • prohibition of carrying out planned measures for the state supervision (control) in the area of economic activity by the state supervisory (control) bodies.

The Law establishes administrative liability for unauthorized leave of the observation place by a person who may be infected with COVID-19 disease, increases criminal liability for violations of sanitary rules and regulations for the prevention of infectious disease, and establishes administrative liability for failing to inform about public procurement conducted in accordance with this Law.  

The Law of Ukraine “On amendments to certain legislative acts of Ukraine aimed at increasing the accessibility of medicines, medical devices and other goods purchased by a person authorized to make health care purchases” provides the following novations:

  • setting up a new independent state legal entity for procurement of medicines at state budget  expense (Procurement Organization) established by the Ministry of Health;   
  • all medicines will be procured transparently and in the manner prescribed by law;
  • Purchasing Organization will be able to purchase the medicines directly from domestic and foreign suppliers which will eliminate intermediaries and twisting of prices;
  • registration of medicinal products in Ukraine is being improved, and a simplified procedure for registration of medicines registered in one of the EU countries is being introduced;
  • innovative medicinal products having no analogues in the market will be purchased through the new medicines access agreement mechanism being in use in EU Member States, USA and other developed countries.

The Law of Ukraine “On amendments to the Tax Code of Ukraine on improving the accessibility of medicines, medical devices and auxiliary products purchased at state budget expense and creating conditions for health procurement at the state budget expense” establishes that by 31 December 2022 medicinal products purchased by the Procuring Organization shall be exempt from value added tax. If such medicines were not used for their intended purpose, the officials will be held liable and the VAT should be paid in full.

The Law “On amendments to the Tax Code of Ukraine and other Laws of Ukraine on support of taxpayers for the period of measures aimed at preventing the emergence and spread of coronavirus disease (COVID-19)”

The Law introduced the following amendments to the Tax Code of Ukraine:

  • no penalties shall be applied for violations of tax legislation committed during the period from March 1 to April 30, 2020;
  • moratorium on documentary and factual inspections from March 18 to April 30, 2020;
  • extension of the deadline for filing the annual declaration of wealth and income until July 1, 2020;
  • land payment shall not be amounted or charged in the period from 1 March to 30 April 2020;
  • non-residential real estate owned by natural or legal entity shall not be subject to real estate tax other than land one from March 1 to April 30, 2020.

The Law “On amendments to the Law of Ukraine “On protection of people from infectious diseases” on prevention of the coronavirus disease (COVID-19)” was adopted on April 13, 2020.

The Law introduces amendments to the Law of Ukraine “On protection of the people from infectious diseases,” which define:

  • the concept of ‘self-isolation’, ‘observation’, ‘observator’;
  • conditions of  leaving the quarantine zone by citizens.

The amendments mentioned are time-limited and will be effective for the duration of the quarantine period and for 30 days from the date of its cancellation.

The processing of personal data without the consent of the person for the sole purpose of carrying out anti-epidemic measures is also permitted during this period. This applies only to data on a person with COVID-19. Specifically, it refers to health information, place of hospitalization, name of the patient, date of birth, place of residence, work/study. It is foreseen that within 30 days after the end of the quarantine period, such data shall be subject to depersonalization and, if impossible, to destruction.

    1. Measures taken by the Cabinet of Ministers of Ukraine (the Government)

Within counteracting to spread of COVID-19 virus in Ukraine, the Government adopted the Decree No. 211 of March 11, 2020 “On prevention of COVID-19 coronavirus spread in the territory of Ukraine” with further amendments, and Instruction of March 14, 2020 № 287-d “On temporary restriction of crossing the state border aimed at preventing the spread of acute respiratory disease COVID-19 caused by the SARS-CoV-2 coronavirus on the territory of Ukraine” which introduced the all-national quarantine for citizens of Ukraine on Ukrainian territory.

The documents also establish the following measures:

  • duty of citizens to wear protective masks in public places;
  • prohibition to walk  in a group of more than two, except in cases of emergency;
  • prohibition to visit recreation areas for the reasons other than walk the pets;
  • temporary stop of transportation with foreign countries;
  • temporary prohibition to cross the Ukrainian border;
  • change of the public transport’s work format etc.

Starting from 12:00 of March 18, 2020 the following shall be prohibited:

  • regular and irregular carriage of passengers in urban, intercity, subregional and interregional kinds of transportation (except by car);
  • transportation of more than 10 passengers at the same time in one vehicle in urban electric and road transport, which carries out regular passenger transportation on city routes;
  • transportation of more than 10 passengers at the same time in buses that perform regular passenger transportation on city bus routes.

Starting from March 17, 2020 transportation of passengers by subways in the cities of Kyiv, Kharkiv and Dnipro shall be prohibited.

Starting from 12:00 of March 18, 2020 passenger transportation by rail in all types of domestic traffic shall be prohibited.

Nevertheless, despite the complicated epidemical situation in Ukraine and in the world, domestic courts continue to deliver justice. Under the Constitution of Ukraine the work of the courts cannot be terminated even in state of military or emergency situation meaning that the constitutional right of a person to judicial protection cannot be restricted.

  1. SPECIAL LEGISLATIVE MEASURES IN RESPECT OF JUDICIAL SYSTEM
    1. Verkhovna Rada of Ukraine (the Parliament)

On 13 April 2020 the Law “On Amendments to Section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine concerning the peculiarities of judicial control over observance of the rights, freedoms and interests of individuals in criminal proceedings and consideration of specific issues during the proceedings for a period of quarantine set by the Cabinet of Ministers of Ukraine to prevent the spread of coronavirus disease (COVID 19)” was adopted.

The law temporarily, during the quarantine period, specifies the peculiarities of judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings and the consideration of certain issues during court proceedings.

  1. SPECIFIC WORK MODE OF JUDICIAL BODIES AND COURTS DURING QUARANTINE
    1. The Council of Judges of Ukraine

In such an extraordinary situation the Council of Judges in Ukraine, as a body of judicial self-government, reacted the first. On March 11, the Chairman of the Council called on the Ukrainians to refrain from attending court sessions, if the hearings do not require mandatory attendance, and to refrain from attending court in the presence of any virus disease symptoms.

Few days later, in letter dated March 16, he also addressed the courts recommending that during the quarantine period a specific work mode should be set for the courts, including the following measures:

  • to clarify to the citizens existing possibility to postpone the hearing and the possibility to hear cases in a videoconference mode;
  • to reduce the number of court hearings during the working day; to carry out court proceedings, if possible, in a written procedure;
  • to suspend the personal reception of citizens by the management of the court;
  • to limit admission of non-parties to court hearings;
  • to limit admission to court of  the persons with symptoms of respiratory disease;
  • to limit the reviewing case files by parties in court, if there is a technical capability to make so by sending scans of materials to e-mail;
  • to receive the statements on reviewing through remote communications facilities.

Citizens were also advised to submit documents in electronica form and by remote means, and were encouraged to file applications for holding the hearings in their absence basing on materials present in the case, to refrain from visiting court premises, especially in the presence of disease symptoms.

On March 17, 2020, the relevant recommendations were approved by the decision of the Council of Judges of Ukraine No. 19 and were published on the official website of the body (Annex 1). The decision also postponed for an indefinite period the XVIII regular Congress of Judges of Ukraine.

    1. The High Council of Justice

The High Council of Justice (HCJ) by its decision dated March 26, 2020 №880/0/15-20 recommended to the courts:

  • to administer justice continuously in urgent cases defined by the procedural codes and courts (judges), keeping balance between the right to a safe environment for judges and parties, and the right of access to justice;
  • to conduct court hearings in real time via the Internet where possible;
  • to organize a flexible work schedule for judges and court staff during the quarantine;
  • to recommend the judges’ meetings to decide on daily duty conditions for resolving urgent procedural issues and urgent cases in special types of proceedings;
  • to restrict the access to the court hearings for persons who are not considered as parties concerned;
  • to hold court hearings with the use of personal protective equipment by judges and parties;
  • to recommend to the courts the processing of electronic correspondence;
  • to provide the courts’ staff  with the possibility to perform their duties remotely, if technically possible;
  • to bring to the attention of litigants the possibility of postponing the hearing of cases in connection with quarantine measures.

For prompt development by the judicial bodies of proposals on effective measures aimed to ensure the stable work of the courts and judicial bodies during the quarantine, the HCJ created a Coordination Council, which provided the inclusion of the heads of the HCJ, the Supreme Court, the Council of Judges of Ukraine, the State Judicial Administration of Ukraine, the Judicial Custodial Service, the Committee on Legal Policy of the Verkhovna Rada of Ukraine, the Prosecutor General, the Minister of Justice of Ukraine, the Head of the National Bar Association of Ukraine.

In addition, the HCJ appealed to the President of Ukraine and the Verkhovna Rada of Ukraine with proposal to amend the procedural codes that would ensure the right of persons to access to justice during quarantine in conducting the judicial bodies’ meetings in real time via the Internet and extension (suspension) of terms to appeal court decisions. It also appealed to the State Judicial Administration of Ukraine on speeding up the work on the Unified Judicial Information and Telecommunication System (UJITS), in particular instructed to submit urgently for approval the UJITS Regulation regarding participation of persons in court hearings remotely and to launch the UJITS no later than May 1, 2020.

    1. The State Judicial Administration of Ukraine

On April 16, 2020, the State Judicial Administration of Ukraine (SJA Ukraine) forwarded the letter to the local commercial and administrative courts, courts of appeal, the High Qualification Commission of Judges of Ukraine and the National School of Judges of Ukraine, the Judicial Custodial Service, territorial offices of the SJA of Ukraine, and state-owned enterprises governed by the SJA of Ukraine. By this letter the SJA of Ukraine recommended to take measures to minimize the risks of spreading COVID-19 disease in the courts and justice agencies with further informing it on measures taken and daily number of employees being on medical leave.

    1. The Courts

Most courts operate only within the recommended measures. Some of the courts complemented the proposed recommendations by additional measures, such as more stringent measures on cleaning, use of masks, additional ventilation of court premises etc. Please find below some examples how courts work in the specific mode.

Supreme Court

Some employees of the Supreme Court are transferred to the remote mode. On March 25, more than 300 people worked remotely.

The Supreme Court is also taking steps to minimize the oral examination of cases. The procedural activities of the Grand Chamber of the Supreme Court and the four Courts of Cassation within the Supreme Court during the quarantine period are organized taking into account the peculiarities of the procedural legislation and the specifics of each Court of Cassation.

The participants of the court proceedings are subjected to temperature screening and using the appropriate protection technique such as medical masks and disinfectants. Such protection techniques are also used by judges, court clerks and other staff. The bactericidal lamps are used in the courtrooms.

High Anti-Corruption Court

On March 19, 2020, at the meeting of judges of the High Anti-Corruption Court (HACC), a decision on the institution's activities in connection with the worldwide COVID-19 outbreak and its possible spread in Ukraine was taken. The following is implemented during the quarantine:

    • all non-procedural measures were canceled;
    • admission of non-litigants to court hearings was limited;
    • admission of persons to the courtroom is carried out after the temperature screening. Persons with high fever or signs of respiratory disease are not allowed in court proceedings and court premises. The court's website states that such persons are admitted to the hearing only if they are obliged to participate in the court proceedings, with the mandatory use of protection techniques and the notification of the secretary of that hearing;
    • participants of the hearing are allowed in premises of the HACC not earlier than 10 minutes before the start of the trial;
    • personal receptions of citizens by the leadership of the HACC are suspended;
    • judges (colleges of judges) are advised to reduce the number of court hearings that are scheduled during the day;
    • investigating judges are recommended to appoint meetings related to urgent proceedings (petition for the preventive measures, the search, for permission to conduct secret (search) investigation), for others only with the need of parties to participate or expiration of procedural terms;
    • judges and court’s staff are advised to take self-isolation measures in case of slightest signs of disease.

Citizens (court visitors) are also advised to submit all necessary documents electronically to the official HACC’s email or by post; to file statements on holding the hearings in their absence basing on materials present in the case; to get acquainted with case materials after the quarantine and also, if possible, to refrain from visiting the HACC premises, especially with respiratory diseases.

Dniprovskyi District Court of Kyiv city

With the introduction of quarantine, in order to ensure the safety of court visitors and staff, the admission to court hearings of individuals who are not parties in case is limited. Also there is a duty of technical staff in court since the beginning of the quarantine. Every two or three hours the court premises are treated with disinfectants and the quarters.

On entrance to the court visitors’ temperature is screening. Information on temporary measures of court’s work in order to minimize the risk of spreading the virus is allocated in premises. The parties are notified on the possibility to postpone hearings in connection with quarantine measures, it is recommended to file statements on holding the hearings in their absence basing on materials present in the case; to provide all necessary documents to the court in electronic form; to get acquainted with the case materials after quarantine, or, if so technically available, remotely. Independent movement of parties through the court building is prohibited.

These restrictions do not apply to the consideration of so-called “urgent cases”: materials (submissions) of investigative bodies on search, election and continuation of preventive measures in the form of detention, extension of terms of pre-trial investigation; consideration of criminal proceedings where for the accused the detention as a preventive measure was selected; cases of administrative offenses in which in case of postponement of the case consideration the deadline expires.

  1. RENDERING COURT TRIAL INTO ONLINE MODE

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 disease (COVID-19)” came into force on April 2, 2020.

According to this Law, the provisions of the Code of Administrative Justice of Ukraine, the Commercial Procedural Code, the Criminal Procedural Code and the Civil Procedural Code were amended by the following:

1) Participation in a court hearing by videoconference

  • During quarantine the parties concerned may participate in a court hearing by videoconference outside the court premises with the use of their own technical means (Code of Administrative Justice of Ukraine, Commercial Procedural Code, Civil Procedural Code).
  • Confirmation of identity of users shall be made via electronic signature. If the person does not have such a signature, confirmation is carried out in accordance with the Law of Ukraine “On the 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 (Criminal Procedural Code, Commercial Procedural Code, Civil Procedural Code).

2) Procedural time limits

  • Procedural time limits are extended for the duration of quarantine (Criminal Procedural Code, Commercial Procedural Code, Civil Procedural Code).
  • The time limit set by the court in its decision shall not be less than the quarantine term associated with preventing the spread of COVID-19 (Code of Administrative Justice of Ukraine, Commercial Procedural Code).

3) Publicity of the court hearings

  • The court (or investigating judge) may decide to restrict the access of non-litigants to a court hearing during a quarantine established by the Government of Ukraine in accordance with the Law of Ukraine “On protection of the population against infectious diseases”, if participation in a court hearing threatening the life or health of a person (Criminal Procedural Code, Commercial Procedural Code, Civil Procedural Code).

Please find below the ruling of Dnipropetrovskyi County Administrative Court of April 3, 2020 (Annex 2), which one of the first among Ukrainian courts ruled to hold the court hearing in the online mode basing on the amendments to the codes mentioned above.

  1. FINANCIAL MEASURES WITHIN JUSTICE SYSTEM IN CONNECTION WITH THE PANDEMIC

On April 13, 2020, the Parliament of Ukraine adopted the Law “On amendments to the Law of Ukraine “On the state budget of Ukraine for 2020” (No. 553-IX). The document, in particular, supplementes the Law “On the state budget of Ukraine for 2020” with the Article 29 providing that in April 2020 and until the end of the month of quarantine cancellation, wages, financial security of employees, officials and executives officers of budget institutions (except for persons in the list approved by the Cabinet of Ministers of Ukraine) shall be in the amount not exceeding 10 minimum wages established on January 1, 2020.    

This rule also applies to the calculation of salaries, judges' remuneration, financial security, including for judges, judges of the Constitutional Court of Ukraine, members of the High Council of Justice, members of the High Qualification Commission of Judges of Ukraine, prosecutors.

Just before the adoption of Law No. 553-IX, the HCJ at its extraordinary meeting approved the Advisory Opinion on the respective Draft Law. According to it the HCJ finds the Draft Law amending the Law of Ukraine “On the state budget of Ukraine for 2020” in part of Article 29 as the one which violates the constitutional guarantees of both the independence of judges and the judicial branch as a whole.

  1. SPECIFIC OPERATIONAL MODE OF JUDICIAL AUTHORITIES

The judicial authorities, such as the High Council of Justice, the High Qualification Commission of Judges of Ukraine, the National School of Judges of Ukraine, the State Judicial Administration of Ukraine, the Council of Judges of Ukraine are also operating in a special regime during quarantine in the country.

In these bodies the measures similar to those in courts were introduced: extra ventilation and cleaning of premises, disinfection of office furniture, equipment, door handles, hand disinfection is provided in places accessible for visitors and staff, the use of protective medical masks in the workplace, the maximum possible transfer of employees to work from home, holding of online work meetings etc. The number of specific measures within the powers of judicial authorities was taken.

In particular, on April 9, the State Judicial Administration of Ukraine launched the system of videoconferencing EasyCon for the participation of parties in proceedings outside courts’ premises and approved the Regulation on work with technical means for videoconferencing during the hearings in administrative, civil and commercial processes involving parties outside the court. The videoconferencing system can be launched on any computer or smartphone. It allows the exchange of documents between the conference participants and supports the use of electronic digital signatures. The SJA of Ukraine also created an opportunity for citizens to make a video reception with the leadership of the body and its territorial departments through the mentioned system and published the relevant user manual for these purposes.

The High Council of Justice approved changes to its Regulation whereby meetings of the Council and its Disciplinary Chambers (except closed ones) may be held in video conferencing mode on the basis of EasyCon.

The High Qualification Commission of Judges of Ukraine, during the quarantine period temporarily terminated the acquaintance with the full contents of the judge's dossiers and dossiers of candidates for the position of a judge. This information was published on the website of the Commission.

The National School of Judges of Ukraine is currently conducting trainings of judges and the courts’ staff remotely. For example, it recently launched a remote training course for court staff on the application of the European Convention on Human Rights. In addition, on its website a video commentary with the practical advice of a psychologist for the staff of justice system of Ukraine in connection with the increased risk of the epidemiological situation was published.

  1. OTHER QUARANTINE MEASURES IN JUSTICE SYSTEM

In addition, in order to prevent the occurrence of a coronavirus pandemic in detention centers and penal institutions, the Ministry of Justice of Ukraine is currently examining the possibility of applying amnesty to citizens serving a sentence for a minor crime or whose term of imprisonment is coming to an end.

The Ministry of Justice is also considering initiating changes to legislation that would significantly reduce the number of people sent to detention centers instead of house arrest.

On March, 24, 2020 the Prosecutor General’s Office of Ukraine approved the Recommendations on the specifics of organization and work of prosecuting authorities to ensure their sustainable operation, preventing the spread of corona virus disease (COVID-19) among prosecutors, good sanitary conditions in administrative offices and compliance with sanitary and hygienic norms by prosecutor offices’ staff.

ANNEX 1 Recommendations of the Council of Judges of Ukraine
https://rm.coe.int/annex-1-recommendations-of-the-council-of-judges-of-ukraine/16809e3f74
ANNEX 2 Court Ruling of Dnipropetrovskyi County Administrative Court of April 3, 2020
https://rm.coe.int/annex-2-court-ruling-of-dnipropetrovskyi-county-administrative-court-o/16809e3f75

Kazakhstan

 UPDATE transmitted by Information transmitted by Adiya RAMAZANOVA as on 21.04.2020.

From March 16 to April 15, 2020, the country introduced a state of emergency (hereinafter – SE), and then extended until May 1 (to protect the life and health of citizens, to prevent the widespread transmission of COVID-19 temporary restrictions were introduced, including the movement of people, transport, the organization of public events, etc., and also large-scale sanitary-epidemiological events are being carried out).

On March 28, 2020, the State Commission for ensuring the State of Emergency introduced quarantine in the cities of Nur-Sultan and Almaty.

The citizens are prohibited to leave their homes, except for going to nearby grocery stores, pharmacies and to work.

The work of all organizations have been suspended in these cities, excluding state and law enforcement agencies, healthcare organizations, mass media, grocery stores, pharmacies, and the providers of essential services in the cities.

Visiting other places, as well as moving around the settlement is not permitted. A person may be subject to administrative liability for the violation of these requirements. Thus, visiting the court buildings to participate in the court sessions may be considered as a violation of the quarantine.

Before the introduction of the SE, there were 106 thousand cases and materials in legal proceedings in all courts of the republic. The number of participants in the trials is 326 thousand.

Before the COVID-19 pandemic on average 3 thousand court hearings were held per day, attended by at least 15 thousand people.

To ensure the constitutional rights for the judicial protection during the SE, the Supreme Court and the Judicial administration have developed the recommendations on the format and working arrangements of all the courts of the country.

I. The acceptance of the documents.

There is electronic single window access to all services provided by the courts.

The users, staying at home, have the opportunity to submit the documents electronically, using the service "Judicial cabinet" from any gadget with Internet access.

There is a mobile version of the "Judicial cabinet". It is free to download onto smartphone, laptop, or tablet.

More than 90 types of applications in the electronic format can be submitted to the court using the "Judicial cabinet".

In these circumstances, the parties receive the feedback from the court promptly (registration number, the date and time of the court session, and others.).

Since March 16, 2020, 62,836 applications have been submitted to the courts of Kazakhstan, including 58,736 or 93,5 % in electronic format.

In the Court’s Registry, incoming paper documents must be converted into electronic format after the disinfection.

II. The consideration of cases in courts.

All courts of the republic are recommended to consider court cases remotely using videoconferencing (VCS), both stationary (with the police, the Prosecutor's Office, the places of detention) and mobile (using smartphone, tablet, laptop via WhatsApp, Skype and others.).

The daily monitoring of cases has shown that in the first days of the SE introduction, only half of the cases were considered remotely.

Since the end of March, there has been a positive trend towards a daily increase in the proportion of court sessions held using VCS.

In 2018, 40 court sessions per day were held using VCS in courts, in 2019 - 110, and in 2020 before the SE - 150 sessions. In the first week of the SE, the courts considered about 1,000 cases (50% of all court sessions) remotely on a daily basis. By the end of the first decade of April - almost        2 thousand court sessions were held remotely, i.e. 99% daily.

Currently, in the courts of Kazakhstan 100% of cases can be considered in electronic format, IT technologies allow solving this problem.

If the process participant requested a personal participation in the hearing, or the case must be considered with the participation of jury, then such cases must be suspended or postponed until the end of the SE based on the procedural law grounds.

This does not apply to the cases involving:

- the violation of the SE regime;

- the restriction of personal freedom of citizens.

III. The organizational measures.

a) Personnel.

It is recommended to have the minimum number of staff to stay at work to ensure the functioning of the court and the consideration of urgent cases (no more than 30% of judges and court staff are constantly working on a rotating schedule).

Other judges and employees are sent on vacation or transferred to remote work upon their request (considering the information security requirements, judges and court staff have remote access to the unified information and analytical system that provides both record-keeping and legal proceedings in all courts of the country).

(b) Information work.

In mass media and social networks it is actively explained:

- the requirements of the SE and quarantine;

- how courts work in the SE;

- the advantages and opportunities of electronic legal proceedings;

- the instructions of working with IT services;

- the legislation on the extension and restoration of procedural deadlines, including the statutes of limitation and deadlines for appeal.

c) Other measures.

The courts have cancelled the reception of citizens, seminars, meetings, and round tables.

All courts are provided with temperature measuring devices, quartz lamps, antiseptics, and medical masks.

The premises are regularly sanitized, and masks are distributed free of charge to visitors.

If the judges and court staff, as well as other persons in court buildings, show the symptoms of illness, there are immediate measures taken to isolate them, and emergency medical assistance is called.

 

Nail Akhmetzakirov,

Head of the Judicial Administration


Information transmitted by Adiya RAMAZANOVA

By the Decree of the President of Kazakhstan K. Tokayev from March 16 to April 15, 2020, the country introduced a state of emergency (hereinafter – SE) (to protect the life and health of citizens, to prevent the widespread transmission of COVID-19 temporary restrictions were introduced, including the movement of people, the organization of public events, etc., and also large-scale sanitary-epidemiological events are being carried out).
On March 28, 2020, the State Commission for ensuring the State of Emergency introduced quarantine in the cities of Nur-Sultan and Almaty.
The citizens are prohibited to leave their homes, except for going to nearby grocery stores, pharmacies and to work.
The work of all organizations have been suspended in these cities, excluding state and law enforcement agencies, healthcare organizations, mass media, grocery stores, pharmacies, and the providers of essential services in the cities.
Visiting other places, as well as moving around the settlement is not permitted. A person may be subject to administrative liability for the violation of these requirements. Thus, visiting the court buildings to participate in the court sessions may be considered as a violation of the quarantine.

Before the introduction of the SE, there were 106 thousand cases and materials in legal proceedings in all courts of the republic. The number of participants in the trials is 326 thousand.
On average, at least 3 thousand court hearings were held per day, attended by at least 15 thousand people.
To ensure the constitutional rights for the judicial protection during the SE, the Supreme Court and the Judicial administration have developed the recommendations on the format and working arrangements of the courts.

I. The acceptance of the documents.
There is electronic single window access to all services provided by the courts.
The users, staying at home, have the opportunity to submit the documents electronically, using the service "Judicial cabinet" from any gadget with Internet access.
There is a mobile version of the "Judicial cabinet". It is free to download onto smartphone, laptop, or tablet.
More than 90 types of applications in the electronic format can be submitted to the court using the "Judicial cabinet".
In these circumstances, the parties receive the feedback from the court promptly (registration number, the date and time of the court session, and others.).
Since March 16, 2020, 35,566 applications have been submitted to the courts of Kazakhstan, including 32,680 or 92 % in electronic format.
In the Court’s Registry, incoming paper documents must be converted into electronic format after the disinfection.

II. The consideration of cases in courts.
All courts of the republic are recommended to consider court cases remotely using videoconferencing (VCS), both stationary (with the police, the Prosecutor's Office, the places of detention) and mobile (using smartphone, tablet, laptop via WhatsApp, Skype, Zoom, and others.).
The daily monitoring of cases has shown that in the first days of the SE introduction, only half of the cases were considered remotely.
Since the end of March, there has been a positive trend towards a daily increase in the proportion of court sessions held using VCS.
So, on April 3, 2020, out of 1,825 hearings 1,472 (80.7%) were held using video communication, including 100% of VCS hearings held in 2 regions, and more than 90% in 5 regions.
Currently, all necessary measures are taken to ensure that in April 100% of cases are considered in electronic format throughout the country. IT technologies allow solving this problem.
If the process participant requested a personal participation in the hearing, or the case must be considered with the participation of jury, then such cases must be suspended or postponed until the end of the SE based on the procedural law grounds.
This does not apply to the cases involving:
- the violation of the SE regime;
- the restriction of personal freedom of citizens.
III. The organizational measures.
a) Personnel.
It is recommended to have the minimum number of staff to stay at work to ensure the functioning of the court and the consideration of urgent cases (no more than 30% of judges and court staff are constantly working on a rotating schedule).
Other judges and employees are sent on vacation or transferred to remote work upon their request (considering the information security requirements, judges and court staff have remote access to the unified information and analytical system that provides both record-keeping and legal proceedings in all courts of the country).
(b) Information work.
In mass media and social networks it is actively explained:
- the requirements of the SE and quarantine;
- how courts work in the SE;
- the advantages and opportunities of electronic legal proceedings;
- the instructions of working with IT services;
- the legislation on the extension and restoration of procedural deadlines, including the statutes of limitation and deadlines for appeal.

c) Other measures.
The courts have cancelled the reception of citizens, seminars, meetings, and round tables.
All courts are provided with temperature measuring devices, quartz lamps, antiseptics, and medical masks.
The premises are regularly sanitized, and masks are distributed free of charge to visitors.
If the judges and court staff, as well as other persons in court buildings, show the symptoms of illness, there are immediate measures taken to isolate them, and emergency medical assistance is called.

Nail Akhmetzakirov,
Head of the Judicial Administration

Tunisia

Information transmitted by Narjes Tira, Field officer - Council of Europe office in Tunis (Tunisia)
TUNISIA
The experience of the Ministry of Justice in dealing with the spread of the COVID-19 pandemic (in French: L’expérience du ministère de la justice pour faire face  à la propagation de la pandémie du COVID-19) 
https://rm.coe.int/document-mj-covid-19-tunisie-5-juin-2020/16809e9879 

Consultative Council of European Judges (CCJE)

Council of Bars and Law Societies of Europe (CCBE)

CCBE concerns and propositions regarding the current phase of reactivation of the justice system in the light of the COVID-19 crisis
24/06/2020: https://rm.coe.int/en-atjtf-20200624-ccbe-concerns-and-propositions-regarding-the-current/16809ede25

__________________

Comment transmitted by Mr. Simone Cuomo, Senior Legal Advisor, Council of Bars and Law Societies of Europe

 “Following a survey among its members, the Council of Bars and Law Societies of Europe (CCBE) published an overview of measures taken in some European countries addressing the impact of the Covid-19 crisis on justice issues, with a particular focus on issues affecting the work of lawyers. The overview is available under this link: https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/CCBE-Survey-Exchange-of-experiences-and-best-practices-between-bars-AM-3.pdf

Please note that the overview is based on information received from various CCBE members bars and law societies and is still subject to further updates and changes.

The CCBE survey was structed along the following topics:

- Court Proceedings

- Access to a lawyer – in prison / during preliminary proceedings

- Individual measures by Bars or Law firms”

International Union of Judicial Officers (UIHJ)

Position Paper  of the International Union of Judicial Officer – April 2020

« How can enforcement agents contribute to overcoming the economic crisis connected to the COVID-19 pandemic? »

How can enforcement agents contribute to overcoming the economic crisis connected to the COVID-19 pandemic?

  1. The International Union of Judicial Officers (UIHJ)

Founded in 1952, the UIHJ is an international, non-governmental organisation bringing together 93 associations from 89 countries, representing the profession of judicial officers and enforcement agents spread over four continents.

The UIHJ is a member of the Economic and Social Council of the United Nations, an observer member of UNCITRAL and of The Hague Conference on Private International Law (HCCH), a permanent observer member of the Council of Europe’s, European Commission for the Efficiency of Justice (CEPEJ), a founding member of the European Law Institute (ELI) and a technical partner of OHADA.

The UIHJ participates in numerous expert missions on behalf of the World Bank, the IMF, the Council of Europe, the European Union, the EBRD and USAID. It is also working in cooperation with ASEAN and WAEMU.

The UIHJ aims to assist or advise its members, regarding the legal reform of their country’s enforcement system and the practical implementation of legal change. In this regard, its contribution is based on and supported by international standards and principles on the enforcement of court decisions, as contained in documents adopted specifically by the Council of Europe, such as the recommendation Rec(2003)17 of 9 September 2003, of the Committee of Ministers as well as the CEPEJ guidelines of 17 December 2009 on enforcement.

In 2015 the UIHJ also published the Global Code of Enforcement, which consists of standards proposed at a global level concerning the profession of the judicial officer and enforcement proceedings.

  1. Position of the UIHJ during the confinement period caused by the COVID-19 pandemic

Faced with the COVID-19 pandemic, the UIHJ is aware of recent developments in many countries, regarding essential measures taken, which also have an impact on the legal system and on the enforcement of court decisions. In this period of crisis, where there is significant risk to the health of the population, it is important that measures be taken to protect them, including confinement. Such protection does not only focus on health, but also to economic well-being.

Should measures be put in place prohibiting or limiting the enforcement of court decisions?

The UIHJ is in favour of and encourages the suspension or limiting the use of enforcement measures, during the period of confinement, as decided by the authorities of each country, except for cases of absolute necessity, for example maintenance claims. The UIHJ’s position is based on two criteria:

    • A need for human and moral consideration in the face of a crisis of this unprecedented scale;
    • A need for practicality, as confinement requires sanitary measures, which are hardly compatible with the effective implementation of enforcement measures.
  1. Position of the UIHJ after the confinement period linked to the COVID-19 pandemic
    1. Main issues
      1. Economic and social issues

The disruption caused by COVID-19 will leave its mark on society. They will cause significant economic losses worldwide: bankruptcies, unemployment and insolvency.

Countries are taking steps to strengthen the economic situation of their citizens. This does not mean that such legislative measures during the COVID-19 crisis should only focus on the interests of debtors, regardless of their financial position. It is important to emphasise that the creditor in the enforcement procedure, is usually a small and medium-sized enterprise.

Suspending or postponing enforcement will cause serious cash flow problems. The economic system and market structure will be severely impacted. Economic stakeholders and investors will lose trust in the legal system. Corrupt practices are likely to ensue.

The implementation of enforcement procedures should remain proportionate. Such procedures should make it possible to guarantee payment for the creditor, while protecting the fundamental rights of the debtor. Socio-economic rights imply the obligation of the state to guarantee, respect and protection for all concerned.

Social and economic developments following the COVID-19 crisis will result in a different approach to enforcement systems, debt collection and the profession of enforcement agent. To do this, measures such as mediation and debt rescheduling must be favourably considered.

      1. Legal issues

In a key judgment delivered on 19 March 1997, Hornsby v. Greece (Appl. no. 18357/91), the European Court of Human Rights established the existence of a right to the enforcement of court decisions within a reasonable time, on the basis of the 6§1 of the European Convention on Human Rights. The right to enforcement is therefore an integral part of the right to a fair trial.

Likewise, in another key judgment Pini and others v. Romania of 22 June 2004 (Appl. nos. 78028/01 and 78030/01, §183), it states that the judicial officers "work to ensure the proper administration of justice and thus represent a vital component of the Rule of Law”.

Of course, like all human rights, the right to enforcement cannot be regarded as mandatory. As the European Court has stated, it cannot compel a state to have every judgment of civil character enforced whatever it may be and whatever the circumstances (I.e.: C. M. v. Belgium, 13 March 2018, App. no.67957/12). It recognises various limits, reflecting general interest considerations, as well as the personal interest of the debtors. In this sense, the European

Court accepts that a delay in the enforcement of a judgment may be "exceptionally" justified "by special circumstances" (7 May 2002, Burdov v. Russia, Appl. No. 59498/00, §35).

Consequently, postponing enforcement is only possible on the condition that it is momentary and duly justified. Thus, national legislation which would suspend civil enforcement procedures due to the public health crisis, which we are currently experiencing is only compatible with the requirements of the right to a fair trial, if the postponement of enforcement, only lasts for a period of time, strictly necessary to find a satisfactory solution in the fight against the spread of the COVID-19 virus (Adde, ECtHR, 28 July 1999, Immobiliare Saffi v. Italy, Appl. No. 22774/93, §69).

Extending this period further, would represent a challenge to the necessary balance between the rights of creditors and debtors.

In addition to the disastrous, material and financial consequences which would gradually impact all sectors of the economy, the state concerned would no doubt be exposed to a possible sanction from the European Court of Human Rights, for violation of Article 6, §1 of the European Convention, because of a disproportionate departure from the very substance of the right to the enforcement of court decisions.

Furthermore, the circumstances must also discourage the use of any form of "private justice" contrary to the Rule of Law, which could ensue, for example, by threats and other intimidation targeted against debtor or by an unjustified violation of their privacy, in order to carry out their obligations. It is about maintaining the trust that litigants must have in their legal system (ECtHR, 31 March 2005, Matheus v. France, Appl. No. 62740/00, §71)

    1. The solutions proposed: how can the enforcement agent contribute to overcoming the economic crisis connected to the COVID-19 pandemic?
      1. The need for enforcement of court decisions

It should be emphasised that the right to enforcement is part of the general principle of the right to a fair trial.

The state should therefore put in place measures to ensure access to this right, in order to prevent citizens from turning away from state justice in favour of an uncontrollable private justice.

The enforcement of court decisions is a sine qua non condition for the credibility of the judiciary, the legislator and the state ab initio. It is the guarantor and the core of legal certainty and economic development.

What is the need for legal certainty?

It aims to give economic stakeholders, whether they are business leaders, liberal professions or employees, a clear, simple, stable and respected legal framework.

The state should provide legal security, conducive to guaranteeing investments and developing trade. Legal certainty is therefore combined with the Rule of Law.

"Legal certainty is the right to a judge; the right to a judge is the right to a court decision; the right to a court decision is the right to its enforcement; the right to its enforcement is the right to an enforcement agent." (CEDH, 15 November 2002, Cau v. Italy, Appl. No. 34819/97, Dr. et procéd., March-April 2003, p. 87, obs. N. FRICERO and B. MENUT.)

      1. The professional for the enforcement of court decisions

If the judge renders justice, the enforcement agent enforces it, thus becoming the essential element of legal certainty.

Because he is a highly qualified professional, responsible for his actions against litigants, acting under the control of his supervisory authority, because he is a lawyer close to litigants: for all these reasons, the judicial officer is one of the emblematic figures of legal certainty.

He plays an essential role in ensuring both the effectiveness and the efficiency of enforcement.

He is the interface between the citizen and the judge. The enforcement agent is at the heart of the legal process and perfectly aware of social and economic reality.

With impartiality, the enforcement agent ensures that the enforceable titles are properly enforced, in a correct and balanced manner, giving due consideration to the interest of the creditor and the debtor’s circumstances.

He has acquired unique expertise and experience in this area, through his knowledge of the humane, social and economic environment which he encounters every day.

He alone can ensure that the Rule of Law coincides with the reality of the various situations he faces. His training, status, ethics and discipline, guarantee the fair treatment of all creditors whilst at the same time, protecting the rights of those in significant debt.

The enforcement agent is at the disposal of the authorities, individuals and businesses. He safeguards the integration of the judiciary in our economic and social environment.

One of the main tasks of the enforcement agent, is to settle disputes between creditors and debtors. When an individual is unable to settle his debt, the enforcement agent may establish a repayment plan, with mutual agreement between the creditor and the debtor. In addition, he works for social peace, because he resolves conflicts.

The enforcement agent also plays the role of mediator and conciliator. He is a suitable alternative to resorting to the courts.

  1. Conclusion

Based on its experience, the UIHJ considers that any extension of the postponement of enforcement procedures of court decisions, after the end of a confinement period, would conflict with efforts being taken by the states to overcome the dramatic consequences, of the economic crisis linked to the COVID-19 pandemic.

The enforcement agent provides the state, the law and the economy with the benefits of a competent, accountable and efficient professional, capable of sustaining future economic prosperity.

Link to the French translation