III.1. International and National Law Governing Criminal Proceedings

To build the rule of law and the welfare state, several conditions must be met, including ensuring the rights and legitimate interests of citizens, the rule of law in all spheres of state and public life, fair and lawful pre-trial investigation and trial. To do this, in particular, it is necessary to establish a benchmark for compliance and implementation of international regulations in the field of criminal justice.

The Universal Declaration of Human Rights (1948) enshrines the fundamental right of everyone to the effective restoration of his or her rights by the competent national courts in case of a violation. Besides, Articles 10 and 11 define the basic principles of the administration of justice: presumption of innocence, trial by a fair, independent and impartial tribunal, legality (there is no crime without reference to it in law).

The Convention for the Protection of Human Rights and Fundamental Freedoms (1950) complements this list with such general principles as reasonable time, openness of court proceedings, except as provided by law, public sentencing, protection of the right to defense, adversarial proceedings.

The regulation of the sphere of ensuring the rights of the defendant has received special attention in the international legal field. In particular, the Minimum Standard Rules for the Treatment of Prisoners of 30 August 1955 enshrine the right to protection of persons who have been arrested or detained without charge. Under Principle 13 of United Nations (UN) General Assembly Resolution 43/173 of 9 December 1988 “Code of Principles for the Protection of All Persons Detained or Imprisoned in Any Way”, any person at the time of or after detention must be explained the rights and how a person can exercise those rights.

If we talk about national law, to harmonize it, the legislator has very accurately and in detail prescribed the existing principles of criminal justice in international law. Article 55 of the Constitution of Ukraine (1996) provides that everyone is guaranteed the right to appeal in court against decisions, actions, or omissions of public authorities, local governments, and officials. It also enshrines the right of everyone to professional legal assistance, the presumption of innocence, the prohibition to prosecute twice for the same offense, the freedom to expose oneself, and the right not to testify against close relatives and family members.

The main law regulating the procedure for pre-trial investigation and trial is the Criminal Procedure Code of Ukraine (2012). In Article 7 it stipulates that the content and form of criminal proceedings must comply with the general principles of criminal proceedings, which include, in particular: access to justice and the binding nature of judicial decisions; publicity; publicity and openness of court proceedings and its full recording by technical means; reasonable timing.

Important guarantees of justice are also established by the Law of Ukraine “On the Judiciary and the Status of Judges” (2016), in particular, consideration of the case by a fair and competent court, equality before the law and the court, the right to review and appeal, the language of the proceedings.

Numerous bylaws are adopted for the full and accurate implementation of the principles enshrined in-laws and international acts in the field of criminal justice. In particular, the Regulation on Investigative Units of the National Police of Ukraine, approved by the Order of the Ministry of Internal Affairs of Ukraine dated July 6, 2017, No 570, establishes the main tasks of pre-trial investigation bodies, including the protection of individuals, society and the state from criminal offenses; protection of the rights, freedoms and legitimate interests of participants in criminal proceedings; ensuring a prompt, complete and impartial investigation of criminal offenses under the jurisdiction of the investigative bodies of the National Police.

Certain issues of organizing and conducting a pre-trial investigation are disclosed in the Resolutions of the Plenum of the Supreme Court of Ukraine. For example, problematic issues of sending complaints against decisions of inquiry bodies, investigators, prosecutors on the initiation of criminal cases and their solutions are described in the Resolution of the Plenum of the Supreme Court of Ukraine “On some issues of initiation of a criminal case” of June 4, 2010 No 6.

Thus, we can talk about a really detailed legal regulation of criminal justice in Ukrainian law. Procedural codes and laws enshrine the most important principles while protecting the fundamental rights of citizens. However, in the new context of recognizing the coronavirus as a pandemic, the legislator was tasked with resolving new aspects of existing public relations as soon as possible. The need for rapid decision-making and the unwillingness of Ukrainian judicial and pre-trial bodies to make drastic changes have led to serious problems in the field of criminal justice.

III.2. Changes in the legislation governing the procedure of criminal proceedings in a pandemic

Before analyzing the features of criminal proceedings due to the coronavirus, it is necessary to consider the provisions of the law governing this issue.

The provisions of the European Court of Human Rights (ECHR) in Article 15 provides for the possibility for a Member to derogate from certain of its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), but only to the extent required by the severity of the situation, and provided that such measures do not conflict with other obligations under international law.

According to Article 64 of the Constitution of Ukraine, the constitutional rights and freedoms of man and citizen may not be restricted, except as provided by the Constitution itself. In conditions of martial law or state of emergency, certain restrictions on rights and freedoms may be established, indicating the term of these restrictions. According to paragraph 14 of part 1 Article 92 of the Constitution of Ukraine, the proceedings are determined exclusively by law. When adopting new or amending existing laws, it is not allowed to reduce the scope of existing rights and freedoms, and exceptions to this general rule may take place only in the event of martial law or a state of emergency.

The Resolution of the Cabinet of Ministers of Ukraine “On Prevention of Spread of Acute Respiratory Disease Covid-19 Caused by SARS-CoV-2 Coronavirus” on March 11, 2020 No 211 (with further changes) was introduced throughout Ukraine. Its provisions have largely affected the rights of citizens, their access to judicial and law enforcement agencies, the work of such bodies, as well as the implementation of certain procedural actions.

The Law of Ukraine “On Protection of the Population from Infectious Diseases” (2020) regulates the implementation and operation of quarantine, and, in particular, provides for the possibility of establishing temporary restrictions on the rights of individuals and legal entities and imposing additional obligations on them.

On March 16, 2020, in his Letter, № 9rs-186/20, the Chairman of the Council of Judges of Ukraine, Monich recommended establishing a special regime of courts for the period until April 3, 2020. It was advised to refrain from attending court hearings if the hearing did not require attendance, and from going to court if there were signs of any viral illness; for citizens and other persons-to submit documents to the court remotely, to submit to the court applications for consideration of cases in their absence according to the materials available in the case, to refrain from visiting the court premises.

The High Council of Justice (HCJ) in its Decision of March 26, 2020, No 880/0/15-20 provided recommendations to the courts on the administration of justice and recommended:

continuous administration of urgent cases, which are determined by procedural codes and courts (judges);

if possible, to hold court hearings in real-time via the Internet;

for the duration of the quarantine to organize a flexible schedule of judges and court staff, the meeting of judges to establish the rotation of judges to resolve urgent procedural issues and urgent cases in special proceedings;

restrict access to court hearings of persons who are not participants in the proceedings;

to hold court hearings with the use of personal protective equipment by judges and parties;

to switch to e-mail processing, and;

to inform the participants of court proceedings of the possibility of postponing the consideration of cases in connection with quarantine measures.

In addition, the HCJ decided to appeal to the public authorities with proposals to amend the procedural codes, which would ensure the right of individuals to access to justice in quarantine.

Thus, the Verkhovna Rada of Ukraine (Ukrainian Parliament) gradually made appropriate amendments to the Civil Procedure Code of Ukraine (2004), the Commercial Procedural Code of Ukraine (1991), the Code of Administrative Procedure of Ukraine (2005), and the Criminal Procedure Code of Ukraine. Law “On Amendments to Clause 20-5 of Section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine on Peculiarities of Judicial Control over Observance of Rights, Freedoms, and Interests of Persons in Criminal Proceedings and Consideration of Certain Issues During Judicial Proceedings Period of Quarantine Of Ministers of Ukraine in order to prevent the spread of coronavirus disease (Covid-19)” of April 13, 2020, No 558-IX amended Article 135 of the Criminal Procedure Code of Ukraine and provides for the possibility of holding a court hearing at the pre-trial and trial stages of criminal proceedings by videoconference.

Thus, the laws and clarifications introduce certain changes regarding the implementation of criminal proceedings in Ukraine in a pandemic, in particular, the possibility of holding court hearings by video conference. It is recommended:

to restrict access to court hearings of persons who are not participants in the case, to establish a flexible work schedule of courts;

to use personal protective equipment when visiting judicial institutions, and;

citizens were asked to submit all necessary documents to the courts remotely online.

Nevertheless, some changes have caused new problems in the field of criminal justice, which we will consider below.

III.3. Features and main problems of criminal proceedings at the stage of pre-trial investigation

Let us now analyze some features of the proceedings at the stage of pre-trial investigation. Thus, the main problem was the lack of amendments to the Criminal Procedure Code of Ukraine, which would regulate the suspension of procedural terms during the quarantine. As a result, investigators were forced to normally apply to investigate judges for an extension of the pre-trial investigation. As a reason, it was pointed out that the established quarantine restrictions do not allow to carry out necessary investigative actions. In addition, given the difficulties in coming to court due to restrictions on public transport, investigators are immediately asked to consider the petition without their participation. Considering that in some areas the investigating judges were significantly overworked even before the epidemic, so investigators must try to get permission for urgent investigative actions until late at night in a live queue (Communication Department of the National Police, 2020; ^{Suk, 2019}), the numerous petitions for the continuation of the pre-trial investigation due to quarantine restrictions had an extremely negative impact on system operation as a whole.

We can also talk about the slowdown in all structures that may be involved in the pre-trial investigation. Courts, the prosecutor’s office, and expert institutions work in a reduced mode. The same happens in other public and private organizations. Under such conditions, investigators spend more time obtaining the necessary information and carrying out certain procedural actions (Bars, 2020).

There are also some difficulties in conducting investigative actions. In particular, since a large number of companies and government agencies have switched to remote operation mode, conducting a search and enforcing a decision to grant temporary access to things and documents is difficult. Thus, it is obvious that the investigator will be able to conduct such investigative actions only of those companies and bodies that have continued to operate as usual. This may have the effect of violating the principle of equality before the law and the courts (^{Shapran, 2020}). To eliminate such inconsistencies, it is necessary to develop a unified approach at the legislative level to conduct certain investigative actions in a pandemic and to make appropriate changes to the Civil Procedure Code of Ukraine. Besides, by making appropriate changes, it is also necessary to solve the problem of adjusting the terms for the period of quarantine restrictions.

In Italy, for example, a law was passed introducing a “freeze period”. This means that all trials that should be conducted during this period (except for the extremely important ones) are postponed to the dates after the quarantine restrictions have been lifted, and all procedural terms (in particular, the pre-trial investigation) are extended for the duration of such quarantine (^{Fisyn & Kostrikova, 2020}).

Public contact with all law enforcement agencies was also limited. Thus, on March 13, 2020, the Office of the Prosecutor General suspended the reception of citizens in the prosecutor’s office and temporarily restricted the access of the population to the administrative buildings of the prosecutor’s office. On March 16, 2020, the National Anti-Corruption Bureau of Ukraine restricted the work of citizens’ receptions and completely switched to written communication. The National Police of Ukraine and the Security Service of Ukraine did the same.

This schedule of law enforcement agencies violates the guidelines of their activities, which provide for “accessibility” and “openness” of these bodies. To eliminate such a violation, it is necessary to establish an opportunity to establish communication with these authorities: the creation of a hotline for communication with citizens, the organization of reception of citizens via video link at a certain time. Besides, it is necessary to inform the population at the state level about all possible ways of communication with law enforcement agencies.

As ^{Jennings and Perez (2020}) rightly point out in their article “The Immediate Impact of Covid-19 on Law Enforcement in the United States” in many US states, law enforcement agencies did the same as in Ukraine-restricting the entrance of citizens. However, in addition, those wishing to report the offense were advised to either call or fill out online applications on the relevant sites. Scholars also point to the need to further develop the field of online communication between law enforcement agencies and the public, as this will significantly reduce paperwork and speed up the response to offenses.

Besides, the problem of staff shortages in law enforcement agencies, in particular, the National Police, is critical. For example, in the first weeks of quarantine, there were not enough employees to control the order in transport, and therefore everyone was involved-forensic scientists, investigators, operational units. The solution to this problem may be to increase funding for law enforcement agencies, and to develop programs that provide certain motives for employees of such bodies (Bars, 2020).

Problems also arose due to increased liability for violating quarantine rules. In particular, the Law “On Amendments to Certain Legislative Acts of Ukraine Aimed at Preventing the Occurrence and Spread of Coronavirus Disease (Covid-19)” of March 17, 2020, No 530-IX amended the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine, which introduced administrative and increased criminal liability for violating quarantine rules. However, the “Final Provisions” section clearly states that the term of strengthening criminal liability is 3 months. In such a short time it is extremely difficult to carry out the necessary investigative actions, conduct the case in court and pass sentence. Thus, even though such changes have a justified and positive purpose-to force citizens to comply with the rules of quarantine and prevent the spread of the disease, we can talk about the negative consequences of their introduction. This is, in particular, the demotivation of law enforcement officers who are forced to conduct a pre-trial investigation of an offense that the court simply will not have time to consider; excessive burden on courts and pre-trial investigation bodies.

A similar problem was faced in the Russian Federation (2020), where a bill was signed amending the Criminal Code to establish criminal liability for violating quarantine rules. However, such changes were not foreseen, which helped to avoid the negative consequences described above.

To prevent the recurrence of such situations in the future, the legislator needs to be more careful in making changes to the legislation, to analyze the possible consequences, positive and negative aspects of such implementations.

III.4. Features and main problems of criminal proceedings at the stage of the trial

The implementation of criminal proceedings in a pandemic has several features (due to quarantine restrictions), the schedule of enterprises, courts, and other institutions, and in connection with which there are certain problematic issues.

As mentioned above, the investigating judge or court has the right to decide to hold a court hearing by videoconference, except when the court hearing is on consideration of a request for extension of detention, in which the suspect (accused) is outside the courtroom, if suspect (accused) objects. The court hearing is held by videoconference on the terms specified by the Criminal Code. The participation of a defense counsel in a court hearing is ensured following the requirements of the Criminal Code. The decision to hold a court hearing by videoconference may be made by an investigating judge, a court on its initiative or at the request of a party to criminal proceedings, except for consideration of a request to choose a measure of restraint in the form of detention.

However, in contrast to the amendments to the Law “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)” of March 30, 2020, No 540-IX, to the Commercial, Civil Procedural Codes and the Code of Administrative Procedure of Ukraine, and which provided for the possibility of participants in such cases to participate in a court hearing by videoconference outside the court using their own technical means-the Criminal Code was not amended. Thus, the purpose of Law No 558-IX, which is given to prevent the spread of coronavirus disease, is leveled, because a person must still come to the relevant court at his place of residence, especially since the share of criminal cases accounts for a significant part of cases. The data are the following: 7600 administrative cases; 29900 criminal cases; 25100 civil cases; 10900 business cases (^{Safir, 2020}). The percentage is clearly illustrated in the diagram.

Figure 3 Number of cases examined in court using videoconference 

The lack of a single platform for videoconferencing in criminal proceedings also raises some issues. Thus, the Order of the State Judicial Administration of Ukraine of April 23, 2020, No 196 approved the “Procedure for working with technical means of videoconferencing during a court hearing in administrative, civil and commercial proceedings with the participation of parties outside the court”, which provides for the use of EasyCon in economic, civil and administrative proceedings. The introduction of this system is a positive step towards the so-called digitalization of the court, and the system itself is quite convenient and easy to use. In addition, the relevant institutions have created special instructions for its use.

It should be noted, however, that this Procedure also provides for the possibility of video conferencing using not only the system “EasyCon”, but also to use other programs such as Zoom, Skype, TrueConf. The courts have the right to choose the most convenient ways to establish communication, and the Procedure only provides a recommendation on the use of the “EasyCon” system. For some reason, only the procedure of videoconferencing in criminal proceedings was left out of consideration. Earlier it was reported that on April 30, 2020, the pilot project of the e-criminal system “eCase” would be launched. National Anti-Corruption Bureau of Ukraine, Specialized Anti-Corruption Prosecutor’s Office, and the Supreme Anti-Corruption Court of Ukraine (anti-corruption authorities) should have been the first to check it (Office of the Prosecutor General, 2020). However, so far this system is still in the testing phase.

Also, it can be noted that one of the problems of videoconferencing in criminal proceedings is insufficient logistics of courts. This is evidenced, in particular, by the refusal to hold a court hearing by videoconference due to lack of technical capacity. Many cases are constantly postponed for this reason. For example, the request to hold a court hearing by videoconference was repeatedly denied and the date was postponed for almost a month, as decided by the Decision of the Zhovtnevyi District Court of Kryvyi Rih, Dnipropetrovsk region of August 19, 2020, in the case No 212/5119/20. Besides, as a rule, only 30% of courtrooms are provided with appropriate technical equipment in courts by videoconference. Due to this, the queues to book a hall for the month ahead are constantly growing (^{Safir, 2020}).

To overcome the existing problems of holding court hearings in criminal proceedings by videoconference, state and judicial bodies need to take several decisive measures. Thus, the introduction of a single, albeit alternative, videoconferencing system, which could be used with its technical means, would promote respect for the rights of all participants in court proceedings and prevent the spread of coronavirus disease. And the introduction of a state program to provide courts with technical equipment to ensure quality and clear communication would help speed up criminal proceedings.

However, compared to some countries, our partially functioning system still looks good. In France, for example, courts have suspended cases other than the most important, including cases involving detainees; children; eviction of perpetrators of domestic violence. In the United Kingdom, similarly, after the introduction of general quarantine, only urgent cases are heard, for example, criminal offenses, but only if they continue for no more than three days. The European Court of Human Rights has also reduced the number of cases and only deals with disputes whose cessation will lead to “irreparable damage” (^{Safir, 2020}). Thus, in these jurisdictions, criminal proceedings in some categories of cases continue, but with the peculiarities of court visits, while others are suspended altogether, which is usually forced, but still a violation of citizens’ rights to a court.

Let’s now consider the problems that arise with the use of the subsystem “Electronic Court”. The Law of Ukraine “On the Judiciary and the Status of Judges” assign the issue of e-justice to the State Judicial Administration of Ukraine. According to the Order of the State Judicial Administration of Ukraine of June 1, 2020, No 247 “On the introduction into the trial operation of the subsystems Electronic Court and Electronic Cabinet” in all local and appellate courts of Ukraine (except the Kyiv Court of Appeal) and the Administrative Court of Cassation of the Supreme Court the functioning of these subsystems was introduced. The Electronic Court subsystem should ensure the exchange of procedural documents in electronic form between courts, bodies, and institutions of the justice system, between the court and the participants in the trial and between the participants in the trial (Ukraine, 2020, Electronic court).

Of course, the introduction of this subsystem in the courts, as well as the possibility of conducting court hearings by videoconference, is a positive step, which eliminates unnecessary bureaucracy in the courts, speeds up the processing of necessary documents, and reduces paperwork. In addition, in the context of the spread of coronavirus disease and the introduction of quarantine measures, the participants in the trial were able to send all the necessary documents to the court without leaving home. However, in practice, it is clear that not everyone has the technical ability to submit all the necessary documents through this system. Even though the digitalization of the country continues to grow, the number of internet users lags behind European levels:

• Cities with a population of more than 100,000 inhabitants (74%);

• Settlements from 10,000 to 100,000 inhabitants (70%); and,

• Villages up to 10,000 (58%) (Economic truth, 2019).

Of course, in such a situation, villagers become the most vulnerable category of the population. In the so-called “village courts”, many participants in the trial do not have computers, and a large part of the population is not informed about this possibility at all (Legal Newspaper, 2020). The way out of this situation can be to properly inform the public about the possibility of submitting all necessary documents to the court online, including by mobile phone.

According to foreign scholars ^{Chawinga, Khumbo Kapondera, Chipeta, Majawa, and Nyasulu (2019}), in Malawi, a small African country, there is a well-developed e-justice system since the 2000s. Special web portals offer various types of services, such as submitting evidence and documents to the court online, conducting court hearings by videoconference, searching for the necessary information on the case.