Court proceeding in a video-conference mode and broadcasting it from other rooms, including those outside the court premises: specific approaches for understanding and the problems of implementation

This publication attempts to draw attention to the theoretical aspect of the problem named in the title of the article, which, first of all, follows from lack of coherence of legislative positions, in particular, parts 7-8 of Article 11 of the Law of Ukraine «On Judiciary and the Status of Judges» (hereinafter referred to in the abstract as the Law) and Article 336 of the Criminal Procedural Code of Ukraine. It is proven that, in opposition to the indicated provisions of the Law, where, among other things, possibility of engaging other participants of court proceeding in the video-conference mode is provided for (with the specified condition that on both sides of the conference the premises are specially equipped courts for trial sessions), in Article 336 of the CPC of Ukraine the legislator, although unclearly, yet still provides for possibility of broadcasting from other premises that are outside the courtroom. It stands to reason, that such «legislative clash» is also present in other pieces of legislation, which, in the field of practical activity, in combination with other established conditions, creates loopholes that can be used to manipulate the right of the accused (convicted) to participate in the court proceeding. For this reason, the goal was set – to work out recommendations for the legislator and for court practice to prevent violations of the rights of the accused (convicted) to participate in the court proceeding. Methods of research like sampling, judicial prognostication, formal logic, system structure method, systemic analysis, induction and deduction were used to formulate these approaches and conclusive statements, which are offered for consideration by the academic community. The author's considerations are stated, with underpinning thereof, to separate in Article 336 of the Criminal Procedural Code of Ukraine the two types of court sessions, namely: 1) sessions in the mode of videoconference, where the location of court sessions, on both sides, is an especially equipped courtroom; 2) distance court proceeding, where the broadcasting is conducted from any premises that are not a courtroom. It is proven, that the practical component of the problem that is being considered is even more complicated, because there is no unified practice of application of law. In particular, to form the conclusion about the application of the norm of law, stipulated in article 336 of the Criminal Procedural Code of Ukraine, proceeding in the case No.415/1698/12-к was filed for consideration of the Joint Chamber of the Cassation Criminal Court of the Supreme Court, and an address is sent to the members of Scientific-Consultative Council under the Supreme Court to receive the relevant conclusions. And all this is under the circumstances, when the court proceedings in the video-conference mode, due to quarantine limitations and other objective qualities, is not a rare occasion. The mentioned problematic is also considered in regard of possible violations (for preventing them) of the Conventional (Article 6, §1 of the Convention on Protection of Human Rights and Basic Freedoms) and the Constitutional Law (article 24 of the Constitution of Ukraine), and also regarding safety of broadcasting in the cybernetic space.

court proceeding, direct participation, distance session, broadcasting of session, conventional law.