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Law of Ukraine on social and economic guarantees in connection with the spread of the coronavirus: the right to a fair trial and issuance of restrictive orders

6 April 2020

On April 2, 2020, the President of Ukraine signed the Law “On Amendments to Certain Legislative Acts Aimed at Providing Additional Social and Economic Guarantees in Connection with the Spread of the Coronavirus Disease (COVID-2019)” (# 3275).

Among its norms are the following:

12. In the Civil Procedure Code of Ukraine (Vidomosti Verkhovnoi Rady Ukrainy (VVR), 2004, # 40-41, 42, p. 492):

3) Section XII "Final Provisions" shall be supplemented with new part 3 to read as follows:

"3. During the quarantine established by the Cabinet of Ministers of Ukraine for preventing the spread of the coronavirus disease (COVID-19), the time frames specified in Articles 49, 83, 84, 170, 178, 179, 180, 181, 185, 210, 222, 253, 275, 284, 325, 354, 357, 360, 371, 390, 393, 395, 398, 407, and 424 of the present Code, as well as other procedural periods for changing the subject or grounds of the claim, increasing or decreasing the amount of claims, submitting evidence, disclosing evidence, obtaining evidence, as well as time frames for applying to court, filing a statement of defense and an answer to a statement of defense, objections, explanations of a third party regarding a claim or statement of defense, suspension of the statement of claim, filing a petition for review of the decision adopted in absentia, return of a statement of claim, counterclaiming, filing of a petition for the annulment of a court order, consideration of administrative case, appeal, consideration of a petition of appeal, cassation appeal, consideration of a cassation petition, submission of an application for reopening cases upon discovery of new facts or exceptional circumstances, shall be extended for the duration of such quarantine."

The adoption of this norm was due to the fact that for the period of quarantine in connection with the spread of the coronavirus disease free movement of individuals was restricted, the operation of the public transport was suspended or significantly restricted in many places. As a result, people may not have the physical ability to get to a court and, accordingly, within the procedural periods established by the court or the law and cannot perform certain legal proceedings. And according to Article 126 of the CPC, the right to perform a legal proceeding is lost upon the expiration of the time limit established by law or the court; documents submitted after the expiration of the procedural periods remain without consideration. Accordingly, the extension of the grounds for prolonging such time frames for the period of quarantine is intended to ensure the exercise of the right to a fair trial.

This norm states that the validity of certain civil procedural periods shall be prolonged for the period of quarantine. In particular:

1) the time frames defined by articles 170, 178, 179, 180, 181, 185, 210, 222, 253, 275, 284, and 325 of the CPC. These articles concern regulatory and action proceedings (general or simplified). Instead, the restrictive order is issued in a separate proceeding (Articles 350-1 - 350-8 of the CPC). In other words, the changes made in this part do not concern the aspects of issuing a restrictive order;

2) other procedural periods for changing the subject or grounds of the claim, increasing or decreasing the amount of claims, submitting evidence,… as well as time frames for applying to court, filing a statement of defense and an answer to a statement of defense, objections, explanations of a third party regarding a claim or statement of defense, filing a petition for review of the decision adopted in absentia, return of a statement of claim,… a petition for the annulment of a court order … These time limits also apply to an action proceeding, regulatory proceeding, and not to the issuance of a restrictive order which is considered in a separate proceeding;

3) time frames for considering an administrative case; in this case, it is a public law dispute submitted to the administrative court in which at least one of the parties is an executive body, local self-government body, their public individual or official or other entity that exercises power, managerial functions based on the legislation, including the performance of delegated powers. In other words, the changes made in this part do not apply to cases concerning the issuance of a restrictive order;

4) time limits for submitting evidence, calling evidence, and time limits for legal recourse… As a reminder, according to articles 350-1 - 350-8 of the CPC, any time limits for the submission of the application for issuing the restrictive order are not established; the application for the issuance of a restrictive order, inter alia, must already contain the circumstances proving that the court has to issue a restrictive order and evidence (if any) confirming these circumstances; the court considers the case on the issuance of a restrictive order no later than 72 hours after receipt of the application for the issuance of a restrictive order by the court.

As a general rule, a motion for the calling of evidence by the court is submitted together with an application for issuing a restrictive order. The application must state: 1) what evidence is being called for; 2) circumstances that can be confirmed by this evidence or arguments that can be disproved by it; 3) grounds which show that the appropriate person has this evidence; 4) measures taken by the person submitting the motion to obtain this evidence independently and evidence of such measures taken and (or) the reasons that make it impossible to obtain this evidence independently. The amendments made to the CPC allow a survivor to request extension of the period for filing such a motion for the duration of the quarantine, but this will, of course, postpone the decision on issuing a restrictive order. Therefore, we would not recommend that a person applying for a restrictive order exercise this right;

5) time limits specified in Articles 354, 357, 360, 371, 390, 393, 395, 398, 407, and 424 of the CPC, as well as other procedural periods pertaining to time limits for an appeal, consideration of a petition of appeal, cassation appeal, consideration of a cassation appeal, submission of an application for reopening cases upon discovery of new facts or exceptional circumstances: these changes also do not worsen in any way the situation of the survivors in whose favor the restrictive order has been issued, since according to the law, the court's decision to issue a restrictive order is subject to immediate execution, and its appeal does not stay its execution.

The above clearly shows that the amendments made to the Civil Procedure Code of Ukraine improve the ability of individuals to exercise their right to a fair trial, and do not contain any grounds for the courts to postpone the consideration of applications for the issuance of restrictive orders.