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Themis online: How Ukraine launches e-justice

Author : Ksenia Tsyvirko

Source : 112 Ukraine

President Zelensky announced the creation of a "court in a smartphone." In his opinion, IT solutions would help to save the procedural proceedings from unnecessary bureaucratic red tape, make legal proceedings more transparent and minimize corruption risks. Neither the State Judicial Administration nor the "progressive" Ministry of Digital Transformation could answer what exactly Zelensky had in mind and how the "court in a smartphone" should look and work. And only the Minister of Justice briefly mentioned such developments in his department.
13:46, 16 March 2021

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Experts have a very vague idea of ​​how such innovation can work in the Ukrainian realities. After all, the introduction of electronic justice has been going on with varying success for 10 years, and the courts themselves, in conditions of underfunding and the absence of VKKS (carries out qualification assessment and selection of candidates for the position of judges), are completely on the verge of existence.

Related: Zelensky claims reform of Constitutional Court needed "to restore public trust from zero"

Next plans for "trial in a smartphone"

The Minister of Justice, on the air of one of the Ukrainian TV channels, dryly reported on the developments in the direction of online legal proceedings: within one application, such functions will be available as reporting a court case, filing court documents, reviewing documents on the execution of a court decision and obtaining legal assistance...

"By the summer, we plan to introduce the possibility of reviewing and obtaining documents of criminal proceedings conducted by NABU, in electronic form. The court in a smartphone will be a comprehensive service, where practically the entire trial can be accompanied and participated in it online," Denys Malyuska said.

The president's idea didn't come out of anywhere. Almost immediately after his appointment, the newly-made head of the executive committee of the National Council of Reforms Mikheil Saakashvili in the middle of last year proposed to create a "court in a smartphone." However, this element in the concept of judicial reform was never presented to the general public.

Related: Zelensky wants to create "court in smartphone"

According to deputy chairman of the Supreme Council of Justice Oleksiy Malovatsky, "a court in a smartphone" will be difficult to implement in practice: the specifics of court proceedings presuppose debates, which are difficult to conduct in this format. He expects that instead, most likely, only office work will appear in the smartphone, that is, the ability to track and submit procedural documents to the court online.

Head of the Commission on Legal Reform and the Deputy Head of the Verkhovna Rada Committee on Law Enforcement Activities Serhiy Ionushas proposed to "smartphone" the Supreme Court on Intellectual Property.

It was created back in 2017 but did not manage to earn money: due to the dissolution of the VKKS, candidates for the position of judges did not have time to pass the competitive selection. Ionushas said that for "IP court in a smartphone" (abbreviation for intellectual property), a working group will be initiated to develop legislative initiatives, and the new body itself will be able to become an exemplary example of electronic court proceedings.

However, the title law on the Supreme IP Court has not yet been adopted, although this did not prevent the allocation of 40,000 USD for it in the 2021 budget, of which 220,000 USD should be directed directly to the administration of justice.

No matter how progressive the proposals of the current government to create a "court in a smartphone" sound and no matter how they try to strengthen the ratings on the topic of the digitalization of the state, work in this direction has been going on for more than 10 years. True, there is no talk of her special fruitfulness.

Everything new is well forgotten old

Back in the days of Yanukovych, the State Judicial Administration was empowered to introduce an electronic court, organize the exchange of electronic documents between courts and other state bodies, and ensure the functioning of the video-conferencing system. In 2012, as part of a pilot project, they began to exchange electronic documents with participants in the trial in the capital Svyatoshynsky District Court and in the Court of Appeal of the Dnipropetrovsk Region. Now it is possible to send summons by text message or by e-mail if the participants in the trial left data in the submitted documents.

In 2014, the judicial reform started, and 3 years later, changes were made to the procedural codes on the implementation of the Unified Judicial Information and Telecommunication System (UJITS).

Related: Zelensky dismisses head of Constitutional Court Oleksandr Tupytsky

They were supposed to come into force from the moment the ESITS was launched, but to this day it has not fully earned, and the key document – the Regulation on the UJITS – was never adopted by the High Council of Justice. In the end, the deputies decided to put the ESITS into operation in stages, having passed the corresponding law in December last year. This system should consist of several interconnected subsystems and modules that allow it to perform different functions: to submit and track the progress of procedural documents, view the judicial dossier and candidates for this position, exchange documents of court cases with the participants in the process, and state bodies, get acquainted with executive documents, search for judicial precedents to predict the results of the session, receive notifications about the course of the trial.

Many have already become familiar with some elements of the system in practice. For example, UJITS includes, among other things, the Unified State Register of Court Decisions, the Unified State Register of Executive Documents, the web portal "Judicial Power of Ukraine," "Open Data Sets." Since December 2018, the "Electronic Court" subsystem began to work in test mode, and from June 1, 2020, its trial operation started in local and appellate courts.

By registering in the user's account using an electronic digital key, you can submit documents to the court in electronic format and share them with other participants in the process, track the stages of production, receive notifications, and quickly get acquainted with court decisions in electronic format, pay the court fee online, issue a power of attorney for representation in the case. All this would significantly save time and money, relieving the judiciary from unnecessary bureaucratic fuss.

However, in practice, working with the service differs from how it was conceived in theory.

Related: Supreme Court accepts number of lawsuits from TV channels illegally closed by Zelensky

First, some courts immediately refused to accept statements of claim filed through the "Electronic Court", referring to the fact that the Unified Judicial Information and Telecommunication System had not been officially launched, and the relevant legislation had not come into force. In addition, the submitted applications were certified by the electronic digital signature of the ESITS specialist, while the EDS of the plaintiff-applicant himself was literally "lost" during this process.

Secondly, despite the fact that the "Electronic Court" currently has about 50,000 users, this is still very little to do without "paper" costs. If the other party to the trial does not have a registered office in the system, then the court has to print the documents and send them by mail.

In addition, one cannot fail to note the deplorable state of the material base in the courts: far from everywhere there is a scanner for digitizing the paper version of documents, which could then be "poured" into the system. And in courts remote from the city, there are more interesting incidents: they report the theft of a network cable, without which access to the Internet and "digital benefits of civilization" becomes completely cut off...

Thirdly, the human factor plays a significant role in the process of transferring the judicial process into a new format. Some lawyers honestly say that it is much more convenient for them to work with paper versions of documents, and judges would not study hundreds of pages of volumes of the case on a computer when important details can be marked on the printouts. In general, the expert community complains that there was no proper educational work on the use of the "Electronic Court" system and the judges had to learn this on their own.

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Finally, one cannot ignore the fact that users are dissatisfied with the existing portal interface. For filing a claim or other procedural documents, "Electronic Court" suggests using templates prepared in advance. But, as the lawyers note, they cannot foresee all situations: for example, the reasons for postponing the meeting for another day or holding it in the format of a video conference. In addition, you cannot use pre-prepared documents, since the system offers to arrange everything in a built-in text editor.

The main "problem" of the ESITS is that at this moment it is a collection of scattered local bases of courts, state bodies and institutions, between which there is no such cherished automated data exchange. At the same time, the automated document management system, which has existed for a long time in the courts, does not provide an opportunity for joint work with documents.

Will these problems be solved with the introduction of "court in a smartphone"? One can only guess.

Unpaid internet bills and robots in courts

Inspired by the digital achievements of the "state in a smartphone", the authorities decided to drive under the cover of a beautiful interface the judicial system, which is now not in the best condition.

Due to chronic underfunding, the courts do not have enough funds to buy scanners and equipment for video conferencing, state post services, and even pay for the Internet. For example, in the Vinnytsia city court in February there was about 10,000 summons not sent to the address, and without receiving confirmation of the delivery of documents, the court simply cannot proceed to the consideration of the case. And the State Judicial Administration at the end of last year announced a debt to Ukrtelecom in the amount of 220,000 USD: due to a lack of funds, the courts were unable to conclude contracts for the entire year to support the automated record-keeping system, and this phenomenon threatens to become chronic.

Another problem hanging over the judiciary is the lack of a functioning High Qualification Commission of Judges, which was dissolved at the end of 2019 as part of the "cleansing of the judicial system." New rules for the selection of members to this body were never adopted, and the process of appointing and qualifying judges has stalled.

At this point, almost 2,000 judges are missing, and if by the end of the year those who have expired their term of office resign, the total deficit will be more than 60%. However, the staff of the apparatus have already begun to quit en masse due to scanty salaries and a constantly growing workload. For example, in the same Vinnytsia court, civil servants received UAH 695 for their work in February, while the salary of assistant judges fluctuated between 40 and 60 USD. Even the most ideological fighters for justice are unlikely to agree to such conditions.

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While in Ukraine Themis is barely making ends meet, carving out money for the Internet and the purchase of equipment, in more developed countries, electronic court proceedings have stepped far forward. Singapore has not used paper documents since the last century, Italy has had a Digital Administration Code for over 15 years, and the UK had a fully virtual trial in 2018.

In December 2018, the European Commission for the Effectiveness of Justice adopted the Ethics Charter on the Use of Artificial Intelligence in the Judiciary. In Estonia, meanwhile, they have already begun to develop an AI-based robot judge that will consider disputes in relation to small claims amounting to 7,000 euros, and in China even the first meetings have already taken place, where the AI, embodied on the screen in a female judge, independently rendered a verdict.

Despite the fact that the Ukrainian judicial system has a lot of unresolved problems of various sizes, the authorities decided to keep up with digital powers in the "hype" issue of AI development. While agreeing on the government's "Concept for the Development of Artificial Intelligence in Ukraine," the Supreme Council of Justice on February 9 proposed to launch a pilot project on the basis of one of the courts of the first instance to consider court cases on administrative offenses with a formal composition using AI.

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