“When was that?” — “Many moons ago”, or where to find witnesses to consider the case which has been sent for a new trial
Transfer of a case from the Supreme Court of Ukraine to the court of first instance for a new trial or in connection with the liquidation of the District Administrative Court of Kyiv means that the hearing of the case starts from the beginning and all the circumstances must be established anew. Thus, the new composition of the court, guided by Article 90 of the Code of Administrative Procedure of Ukraine, shall evaluate all evidence, in particular, testimonies of witnesses.
The following question arises: where to find witnesses for another interrogation by a new composition of the court, if the transaction took place ten or more years ago?
The Code of Administrative Procedure of Ukraine does not contain clear provisions for such cases.
In our opinion, the obligation of the new composition of the court to examine the evidence and question the witnesses does not exclude the possibility that the court might accept and evaluate as a separate evidence the audio recording of the interrogation conducted by a previous composition of the court with a transcript of this audio recording.
We are aware of cases when such a recording has been accepted, evaluated by another court composition and admitted as evidence.
The possibility of using an audio recording of an interrogation conducted by a different court composition is also consistent with the conclusions of the Supreme Court of Ukraine (for example, in the Resolution as of August 19, 2019, No. 750/574/15-к), but regarding interrogations in criminal proceedings.
Unfortunately, we have not found relevant conclusions of the Supreme Court in administrative cases, but we hope that the Supreme Court will be consistent in this matter and will not deny a similar approach in administrative cases.
The full version of the article is available in Ukrainian by the link.
Kind regards,
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