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Legal problems of transformation of the basic principles of justice in the context of digitalization of the civil process in Russia and China

Обновлено 05.01.2024 07:07

 

The use of digital technologies in the field of justice is becoming more and more widespread in various States. The People's Republic of China has advanced experience in creating online courts using artificial intelligence and big data. The analysis of the use of various tools in justice, the proposals of developers in Russia and abroad through the prism of Chinese experience allow us to establish that the introduction of technology leads to the need to rethink the basic principles of justice. Information technologies have a more convincing and, apparently, more objective normativity than that laid down in the formal rules of judicial proceedings. The authors found that the use of technologies allows to algorithmize the process of exercising judicial power in such a way as to maximally comply with the basic standards of justice. The transformation of legal proceedings through technology can be consolidated both by creating special norms of substantive and procedural law, and by developing standards and rules for developers and users of technological solutions that directly affect the nature and content of public relations within the framework of the judicial process. The possibility of standardizing judicial activities requires that, taking into account China's law enforcement experience, criteria and limitations for the use of artificial intelligence systems that will be allowed to be used in courts, as well as the features of data collection, storage and processing on which the use of artificial intelligence in the justice system is based.

 

Keywords: digital justice, artificial intelligence in court, online justice, court decision forecasting systems.

 

1. Introduction

 

In Russia, the appearance of the Justice Online service in 2024 has been announced <1>, which will allow citizens to remotely implement the entire scope of procedural actions: from submitting documents to the court and paying state fees to participating in a court session through a web conference and receiving a judicial act. In the interests of transparency and accessibility, Russian courts are also increasing the exchange of electronic documents, the publication of judicial acts on the Internet and cooperation with the media <2>. According to Russian statistics, in 2022, the courts held more than 350,000 meetings via videoconference. The number of technologies applicable in the field of justice is expanding. A single information space of courts (all except constitutional ones) has been created - the federal GAS Justice system, which is used both for filing documents to the court by hyperlinking to the website of a particular court, and for posting and storing adopted judicial acts. With the adoption of the Federal Law of December 22, 2008 No. 262-FZ "On ensuring access to information on the activities of courts in the Russian Federation" (hereinafter - The Law on Access to Information) was entrusted with the task of creating a "unified information space of federal courts and magistrates" as "a set of information interaction between the Supreme Court of the Russian Federation, federal courts, magistrates, judicial community bodies and the Judicial Department system of databases and data banks, technologies for their maintenance and use information systems and information and telecommunication networks operating on the basis of common principles and general rules" (art. 1) <3>. There is an immanent expansion of the spheres of application of digital technologies in the field of justice. The introduction of artificial intelligence technology into the activities of courts is being actively discussed <4>.

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<1>

<2>

<3> Although initially GAS "Justice" was conceived and developed as an information system of federal courts of general jurisdiction, subsequently the information system of arbitration courts was included in it through a hyperlink. In addition, the GAS "Justice" provides access to the search for cases and decisions of magistrates by judicial precincts.

<4> Tsvetkov Yu.A. Artificial intelligence in justice // Law. 2021. N 4. pp. 91 - 107.

 

The widespread introduction of technology into the justice sector is taking place all over the world. Special legislation has been adopted in Europe and the USA <5>. In France, the e-Barreau system was created, which was conceived as "an electronic functional equivalent of traditional procedures and a way to do the same more efficiently using new, electronic tools" <6>, which made it possible to digitalize all traditional objects and activities. There are e-Curia (Court of Justice of the European Union, Court of Justice of the European Union), Civil Trial on Line (TOL) in Italy, and Kwaliteit en Innovatie Rechtspraak (KEI) in the Netherlands.

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<5> Kharitonova Y.S. Platformization of justice: China's experience and the future of the world's judicial systems // Bulletin of Arbitration Practice. 2020. N 3. pp. 3-11.

<6> Velicogna M., Errera A., Derlange S. e-Justice in France: The e-Barreau Experience // Utrecht Law Review. 2011. Vol. 7 (1). P. 163 - 187.

 

The countries of the Asia-Pacific region, and first of all the People's Republic of China, have become the recognized flagship in this area <7>. The experience of online courts impresses researchers from all over the world. On June 19, 2015, the Supreme People's Court of Jilin Province opened the country's first electronic court (www.e-court.gov.cn /). On August 18, 2017, the world's first Internet court, the Hangzhou Court, was established in China (www.netcourt.gov.cn /). In September 2018, the Beijing Internet Court was successively established (www.bjinternetcourt.gov.cn /), as well as the Guangzhou Internet Court (www.gzinternetcourt.gov.cn /).

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<7> Wang Z. China's E-Justice Revolution. Judicature, 2021, 105, 36.

 

The three named Internet courts in China have achieved some results in improving the efficiency and quality of online court proceedings. Over the past five years, Chinese courts have become leaders in the world in their efforts to introduce automated pattern analysis to monitor judges, standardize decision-making, and monitor trends in society. For example, according to statistics from the White Paper "Internet Justice in Chinese Courts" published by the Supreme People's Court at the end of 2019, as of October 31, 2019. Internet courts in Hangzhou, Beijing and Guangzhou have completed 80,819 online trials of Internet cases. The average online court session time was 45 minutes, and the average online trial period for each case was about 38 days, which saves about 3/5 and 1/2 of the time compared to the traditional trial mode. And the index of obedience/submission to a court decision after the first instance was 98.0% <8>.

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<8> .

 

At the moment, the data on the cases of the Hangzhou Internet Court for 2022 has not yet been updated, so let's use the previous data as an example. In 2021, the Hangzhou Internet Court accepted a total of 8,672 cases, including 8,088 civil cases, five administrative cases and 579 executive cases <9>.

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<9>

 

The statistics for 2022 are no less impressive. As of December, the Beijing Internet Court had reviewed 17,519 cases in 2022. Of these, the court has completed 16,151 civil cases and 1,368 enforcement cases. Three types of cases are leading among them: civil rights violations, copyright cases and contract disputes, and these three types of cases account for 51% of all cases <10>.

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<10>

 

With the current internet connection-Suda Guangzhou, Suda Priyal K rassmotrenyu boleee 91 800 del, with an indicator of 98.25% acceptance and decision in first instance, indicator of 86.67% automatic power and indicator of 89.83% intercession in understanding with non-painful sumami trebovanii, in the extravex release of the big resource court authorities it's an achievement to understand exactly what it is in a complex wawerl delah. In 2022. internet-Sud Guangzhou racemotrele in common complexities 2 016 del, Kotor -1 430 cazaytsiya contract Urgench sporov, 1 189 cazaytsiya credit Urgench sporov; so far, 2,014 civil cases, two huge urgencies and one administrative case <11>.

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<11>

 

Investigators in Russia are focused on the problem of the implemented digital Apostille technology in the activity of sudov cherez prism the increased access to legal justice <12>, the increased transparency of the process to solve the solution of the sudami <13>, the increased scope of the sphere of the solution of the sudami <14>, the expanded sphere of the automation of sudami production and the recommended trebovaniy K carried out the remote Punjabi process < 14>. In this time of implementation, Tak namemavable online legal system in various scandalmonger countries in empiremongmonger. In the current work of M. B. B. hotels, proanalyze how the amendments pass in the fundamental principles of the legal system, thatbablethe clearly formed needs of the legal regulation in the data guidelines.

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<12> Valeev D.X., Nuriev A.G. Rossiya legal jurisdiction in realyah digital Apostille / / arbitral and civil proceedings. 2019. N 5. S. 3-8; Maslennikova L.N., Sushina T.Well. The court of Justice of the European Union has been granted a court of law in the context of the development of the digital Urgench technology // Mirovoy sudya. 2019. N 7. S. 11-15; Branovitsky K.L. Digital access to law: cross-border dimension // arbitration and civil proceedings. 2020. N 6. S. 39 - 44.

<13 > Sumin A.A., Chemicheva O.V. A case study in enlarging the Asia-Pacific region: general overview / / international enlarging law and international jurisprudence. 2020. N 2. S. 18 - 21.

<14> Laptev V.A., Solovyanenko N.And. Ambiglectron legal jurisdiction and extravlectron urgand document flow How condition the modernization of the regulatory environment among the businesses / / Rossiyski sudya. 2017. N 2. S. 16-21; Bartzitz I.N., B. Urgkov V.P. It's Chernikova.V. In the context of the development of digital paradigms // contemporaneous law. 2019. N 1. S. 74 - 82.

 

2. Digital Apostille technologies how instrument Apostille

 

In the Russian doctrine of civil civil procedure <15>, the so-called instrumental approach <16> is dominant, in which civil, arbitration and administrative proceedings are considered as activities in which certain digital tools-technologies are used. With points of vision A.V. I do not know, "implementation in the civil process of digital Apostille technologies that accelerate and facilitate interaction between ego participants, thereby contributing to the further development of the evaluative activities, the higher efficiency of the activities, the higher efficiency of the activities, the higher efficiency of the activities and the qualitative achievement of the results of these activities - the development and resolution of specific civil cases" <17>.

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<15> by opinion m.R. So many concepts of "civil proceedings" in a wide variety of languages include: 1) civil trial: civil trial, arbitration trial, administrative court proceedings; 2) bring in civil trial: Notary Public procedure, mediation procedure, pre-judicial settlement of conflicts, third understanding (see). Zagidullin M.R. "Civil process" / / Journal of Russian rights. 2020. N 5. S. 120 - 130). In our investigations, conducting analysis in relation to so many common concepts-the civil judicial process.

<16 > Branovitsky K.L. Renz I.G. I Don't Know Al.V. etc. Digital repeater technologies and civil process: the problem repeater / / Repeater-Repeater. 2018. N 2. S. 56-68; Samsonov N.V. Noncotter repeatedpros evaluationslectron repeatedh evidence in civil process / / Journal civil process. 2019. N 2. S. 40 - 54.

<17 > I Don't Know A.V. "Digital enlightenment", the integrity of the legal system and the cosmopolitanism representing the digitisation of civil court proceedings/ / arbitration and civil proceedings. 2019. N 9. S. 53 - 57.

 

Digital legal justice is a way of putting the ordinary court in the Apostille of technology, how to solve it in the bounds of its own jurisdictions, so and so of legal interactions between the courts and the courts. In particular, we conduct analysis of big data, we adopt technology and a lot of intelligence, we implement blockchain solutions. Technology change allows algorithmize the process of the judicial authorities taking the image, thatthe maximum number of subjects of the standard legal system. It is possible for such standardization and in non-specific degrees of judicial activity to hold opinions on the subject matter in different contextualand, or otherwise in the same context, in which the principle of jurisprudence is based.

Principle of the legal system in Russia is enshrined in the constitutions of Russia. International repeater standard evaluative law is not enshrined in law explicitly, but widely known evaluative <18>. In St. 6 "The right to a fair trial" The European Convention for the Protection of Human Rights and Fundamental Codes, proclaims: "Everyone, in the event of a dispute about his civil rights and obligations or in the identification of any coal charge, has the right to a fair and public hearing of cases within a reasonable time by an independent and impartial court drawn up on the basis of the law" <19>. The UN International Covenant on Civil and Political Rights established that "all plains are in front of courts and tribunals; in coal or civil proceedings, the court has the right to a fair and public hearing by a competent, independent and impartial court drawn up by unanimous law" <20>. It is precisely the achievements of the law, independence and the openness of the state of affairs, the equality with the old world, that implement the digital technologies of the state of the world.

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<18 > Standard Evaluative legal justice: International and national evaluative practices / in order. T.G. Morshtakov. M.: Overseas, 2012.

<19 > Convention O to protect the right of Man and the fundamental freedom of Man (C. Rhyme 04.11.1950).

<20 > International Covenant on civil and political relations has been in place since December 16, 1966.

 

The processes are illegal. Expansion of Sphere and species in the paragliding of technology in legal jurisdictions in the Apostille there are many concerns. How to tick in your summing up Op. digitisation Law Court president of Arbitration Court Central District A.V. Orlov, "there are questions about whether it is permissible to use, and if so, to what extent, in the judicial system of the modern state, domestic technologies in the fields of systemic artificial intelligence are developed to bring legally significant decisions, generalizations and unification of judicial practice of courts of general jurisdiction and arbitration courts, updating databases of GAS "Justice", AIS "legal proceedings", AIS "file of arbitration cases" <21>.

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<21> Orlov A.V. Organization of sudebnoy activities in conditions of pandemics: itogi and perspective Urgant / / Rossiyski sudya. 2021. N 12. S. 46 - 50.

 

Concept developments informatizations sudov common jurisdictions 2013 - 2020, UV. Sudebn, the department and the decree of the Council of sudey Russia of February 19, 2015 N 439, as the basis for digitization of the Court in Russia, assumes the solution of the following tasks: perfection of electronic document management, as well as external electronic interaction of a judge, the court staff with other state bodies and state information systems, creation of electronic interaction between participants in legal proceedings, other persons and the court, development of electronic interactions between participants in legal proceedings, intellectual persons and the court and the introduction of information technologies that help a judge or substitute judge in the administration of justice (artificial intelligence technologies for formations of the project solved, various expert systems that apply the selection of relevant legislative acts and judicial practice, technologies that help to conduct research and evaluation of evidence, modeling (recreating) items in the case, etc.D.) <22>.

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<22 > cm. details: digital Apostille technologies in civil and administrative court production: practice, analytic, perspective.V. Samsonova, E.G. Streltsova, A.V. Tchaikina and others.; rev. red. Well.G. Streltsova. M.: Infotropic Media, 2022. 336 pp.

 

China's experience shows that the introduction of digital technologies into the judicial process <23> has made it possible to "significantly increase the wisdom and convenience of judicial services through "comprehensive, unhindered, barrier-free services for citizens and legal entities during court proceedings" <24>. For example, with the introduction of technologies in China, file recognition, speech recognition at court hearings, evidence recognition and other perceptual intelligence technologies have been significantly improved compared to traditional scanning and recording technologies. In the case of speech recognition in court, Iflytek Speech Assistants Co. Ltd is specially optimized for the Chinese accent, and the recognition rate has reached more than 90% <25>. Compared with the manual input of text materials by the court clerk in court, speech recognition technology in court reduces the trial time by an average of 20-30%, and the time of a complex trial by more than 50%. Also in the field of office management and office automation, artificial intelligence can deconstruct relevant case materials using text recognition, image recognition, semantic analysis, element association and other technologies, as well as recombine them according to specified knowledge graphs to automatically create a brief court order, a table and other elements of court documents. The intellectual litigation support system developed by the Higher People's Court of Hebei Province includes such a document creation function and has reviewed 110,000 cases and created 780,000 documents in less than a year <26>. This system avoids the problems of "different court decisions in similar cases" and "inconsistent application of the law," which, according to observers, generally contributes to the unification of judicial standards and the prevention of unfair court decisions. <27>.

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<23>

<24> Xu Z. Human Judges in the Era of Artificial Intelligence: Challenges and Opportunities // Applied Artificial Intelligence. 2022. No. 36 (1). P. 2013652.

<25> 12309.gov.cn

<26>

<27> Guo M. Internet Court's Challenges and Future in China // Computer Law & Security Review. 2021. No. 40. P. 105522.

 

However, e-justice researchers note potentially conflicting relationships between regulatory regimes of law and technologies, which are characterized by different logic of functioning <28>. Thus, it is noted that "digital technologies, such as EJP (e-justice platforms, e-justice platforms), introduce an additional level of regulation of court proceedings and judicial operations" <29>. It is noted that information technologies have a more convincing and, apparently, more objective normativity than that which is laid down in the formal rules of legal proceedings <30>.

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<28> McAfee A. Mastering the Three Worlds of Information Technology // Harvard Business Review. 2006. Vol. 84 (11). P. 141.

<29> Reiling D., Contini F. E-Justice Platforms: Challenges for Judicial Governance // International Journal for Court Administration. 2022. Vol. 13 (1).

<30> Lanzara G.F. The Circulation of Agency in Judicial Proceedings: Designing for Interoperability and Complexity // The Circulation of Agency in E-Justice. Dordrecht: Springer, 2014. P. 3 - 32.

 

We conducted a survey among young people studying at various faculties of Lomonosov Moscow State University on some aspects of the use of artificial intelligence technology and found out how much confidence this category of respondents have in high technologies in justice.

The results of the survey showed that a significant part of young people show confidence in the digitalization of justice with the help of artificial intelligence, but this percentage remains within the range of 28-41%. Most of all, respondents trust artificial intelligence in order to ensure transparency of the process and ensure its publicity (almost 70% of respondents agreed with this).

Our colleagues abroad also face similar issues. As Chinese lawyer Zuo Weimin notes, "undoubtedly, there is a certain contradiction between the current practice of online justice and traditional judicial proceedings in terms of principles such as immediacy and "direct speech", openness, etc. <...> Follows... to establish and find out the mechanisms suitable for online justice" <31>.

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<31>

 

3. Algorithmization of the principles of judicial power

 

The introduction of digital technologies not only simplifies interaction within the justice system, but also has a significant impact on the substantive side of the administration of justice. Prevailing within the framework of digital e-justice platforms, technologies are gradually forcing a change in the approach to the essence of legal proceedings. The rule of law as a doctrine requires the court to make fair decisions. In this context, at first glance, an impartial system seems to be the most preferable means of resolving conflicts between participants in civil turnover. The collection and evaluation of evidence, the asynchrony of the process, the prediction of decisions - all this should lead to simplification and acceleration of impartial proceedings based only on data. At the same time, the introduction of digital e-justice platforms in various States has led to the realization of some legal problems that require immediate solutions.

For the research, we turned to some basic principles of justice and analyzed them through the prism of applicable technologies.

 

3.1. Legality, accessibility of digital justice and equality of rights of the parties

 

The principle of legality is one of the key principles guaranteeing compliance with the procedural form of civil procedure <32>. According to A.S. Fedina, legality can be defined as "a guideline fixed by civil procedural legislation, by virtue of which the court is entrusted with the obligation to correctly apply the norms of regulatory law and perform procedural actions guided by civil procedural legislation" <33>. At the same time, researchers believe that the operation of the principle of legality has its own characteristics in certain types or stages of the civil process <34>. The courts are obliged to comply with the norms of procedural law, ensure the possibility of exercising the rights of participants in the civil process, and monitor their performance of procedural duties. In the process of administration of justice, judges are guided by legal thinking and rely on their knowledge and beliefs <35>.

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<32> See: Legal procedural form: theory and practice / edited by P.E. Nedbaylo, V.M. Gorsheneva. M.: Legal Lit., 1976. pp. 178-180; Chechina N.A. The main directions of the development of the science of Soviet civil procedural law. L.: Publishing House of Leningr. un-ta, 1987. pp. 52-53.

<33> Fedina A.S. Implementation of the principle of legality in civil proceedings: abstract of the thesis ... cand. Jurid. sciences'. Tver, 2002. p. 12.

<34> Lipatova T.B. Implementation of the principles of civil procedural law in proceedings in the court of second instance: abstract of the dissertation ... cand. Jurid. sciences'. Saratov, 2012. p. 11; Asoskov A.V. Violation of public order as a basis for refusal to enforce decisions of international commercial arbitrations adopted on the territory of the Russian Federation // Law. 2018. N 9. pp. 134 - 142; Plotnikov D.A. Features of the principles of civil procedural law in proceedings in cases arising from public legal relations: abstract of the thesis ... cand. Jurid. sciences'. Saratov, 2013. p. 219.

<35> Tushnet M.V. Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles // Harv. L. Rev. 1982. Vol. 96. P. 781.

 

Technology, like law, restricts and allows a person to act, and therefore entails its own normativity. While the main purpose of the law is the legitimacy of actions (legal/illegal), the logic of technology is based on functioning (works/does not work). As a result, the e-justice service may be functional and effective from a technological point of view, but not legally, and as a result, have no legal force. Similarly, a legally legitimate technology can be considered technologically useless, unsuccessful, or ineffective.

The introduction of digital technologies into the judicial procedure has changed the traditional approach to conducting trials. As a general rule, the parties to the trial must attend the court session in person, and the failure of the party to appear without a valid reason may lead to a decision in absentia (Part 4 of Article 167 of the CPC of the Russian Federation). The immediacy of civil proceedings suggests that the court bases its decision on the case solely on the evidence examined at the court session. The court takes the facts studied from the primary sources, hearing personally the explanations of the parties and third parties, witness testimony, expert opinions, etc. As emphasized in the literature, it is the "direct contact" of the judge in the process of examining evidence that is a necessary factor <36>.

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<36> See, for example: Kotlyarova V.V. On the issue of digitalization of the process of administration of justice // Arbitration and civil procedure. 2019. N 12. pp. 46-49. The main means of proof in civil, administrative and arbitration proceedings are written evidence, which means documents made in the form of a digital, graphic record or in any other way that allows you to establish the authenticity of the document (Part 1 of Article 55, Part 1 of Article 71 of the Civil Procedure Code of the Russian Federation, part 2 of Article 59, part 1 of Article 70 of the CAS of the Russian Federation, part 2 art. 64, part 1 art. 75 of the Agroindustrial Complex of the Russian Federation). Written evidence is presented to the court in the original or in the form of a duly certified copy for review (Part 2 of Article 71 of the CPC of the Russian Federation, part 2 of Article 70 of the CAS of the Russian Federation, part 8 of Article 75 of the APC of the Russian Federation).

 

Since the beginning of the pandemic, in most countries of the world, including Russia, the rules for conducting remote video trials have become more often applied, which allow participants in the process, including the court, to communicate remotely, not to be in a single space, and also to present evidence in digital form. Thus, procedural documents can be submitted to the court in electronic form solely on the initiative of the applicant (see, for example, Part 1.1 of art. 3 of the Civil Procedure Code of the Russian Federation), notification of participants in the process is allowed by e-mail or SMS message, provided that they have written consent to notification in this way.

This phenomenon was designated by V.V. Yarkov as the "dematerialization" of the judicial process, "based on similar trends in civil turnover, the active use of information technologies with the introduction of methods of "contactless" justice, when communication between the court and the participants in the process takes place only within the "virtual judicial space" and is almost completely carried out without personal contact between the judge and the parties" <37>.

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<37> Yarkov V.V. Principles of civil procedural law in the context of deritualization and dematerialization of justice // Arbitration and civil procedure. 2020. N 11. pp. 3-6.

 

In this situation, it turned out to be important to ensure access to justice for all persons with such a need. At the same time, on the one hand, for many there was no need to spend time and money to get to court for personal presence, but, on the other hand, there was a question of material provision of access to justice remotely. Not all citizens have the necessary communication devices with the ability to connect to the Internet.

Thus, the principle of equality of persons in the judicial process (regardless of gender, age, origin, profession, financial situation) was actually continued in connection with providing access to technology and the Internet. V.V. Yarkov emphasizes that a real competition between the parties can take place only if equal opportunities of the participants in the process are respected. Access to the electronic justice system should be open on equal terms, including equality of technical capabilities <38>. Unfortunately, the contradiction regarding the implementation of the principle of equality of the parties is manifested in the fact that there is no information equality in Russia yet.

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<38> Yarkov V.V. Electronic justice and principles of the civil process // Law. 2011. N 2. pp. 44-50.

 

According to the NAFI Analytical Center conducted in early 2020, only 27% of Russians have a high level of digital literacy <39>. At the same time, since 2018, the Digital Equality Program has been operating, a large-scale integrated social program of Rostelecom, which was formed and developed to more effectively solve important social problems of society in the field of digitalization <40>.

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<39> Digital literacy of Russians: a 2020 study.

<40>

 

In this context, the problem of ensuring access to justice through the realization of the right to be heard has become urgent. Thus, a party with access to digital e-justice platforms has the right to rely on the state for the sustainability and security of such services, and a failure to deliver a statement of claim in electronic form on the last day of the expiration of the limitation period should be equated to a violation of the principle of equality of the parties in comparison with the party who used the traditional method of filing a claim. At the same time, such rights in the context of legal proceedings should be enshrined in law. At the same time, a balance in ensuring this principle can be achieved at the point when the dishonesty of the participants in the meeting and possible abuse of rights can be excluded at the initiative of the court. For example, the norm of Part 1 of Article 155.1 of the Civil Procedure Code of the Russian Federation seems justified, according to which persons participate in a court hearing by using VKS systems at their request or on the initiative of the court. According to Chinese researchers, courts can request written consent of the parties to conduct the process by providing documents in electronic form, but in some cases the courts proceed from the fact that providing a party with their e-mail qualifies as consent to receive documents in electronic form <41>.

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<41> Zhang Weiping: Intellectualization of Civil Litigation: Challenges and Legal Responses // Studies in Law and Business. 2021. Vol. 38 (04). P. 16 - 30.

 

Online courts will be perceived differently by different groups of people. The equality of the parties may suffer not only due to the lack of special provisions of the law on ensuring access to technology, but also due to distrust of technology as such or lack of digital literacy. People who do not have the necessary technical skills actually lose access to online justice. According to one survey of participants in online court proceedings in China, the main reasons for the reluctance of parties to cases and lawyers to participate in online court proceedings are: ignorance about online proceedings; inability to use appropriate applications; low Internet connection speed, etc. <42>.

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<42>

 

In the procedural legislation, there is a need to resolve the issue of the fundamental possibility of holding an online meeting in a remote format with the provision of detailed guarantees to the party objecting to the use of VCS, for example. At the same time, the court should be given the right to ignore the objections of a person about the use of online meeting technologies, if there are no confirmed valid reasons for such a request by the party. With the consent of all participants in the process, the court does not have the right on its own initiative to abandon the use of digital technologies in a situation where technically such an opportunity exists.

At the same time, due to the technical difficulties in the practice of Chinese online courts, especially problems existing in warranty conditions such as software and hardware, there is a discussion about the need to immediately transform and modernize these conditions. China's experience shows that some problems of "inequality" between the parties caused by unequal technical conditions can be solved as follows.

Firstly, the speed of the Internet and the stability of communication between online court platforms must be guaranteed. It will be necessary to invest sufficient human, financial and material resources, as well as configure hardware and software devices that meet the requirements of online litigation. It is proposed to develop technical standards for software to support online court proceedings with the possibility of future technology updates.

Secondly, the experience of our Chinese colleagues shows that the "technical barriers" that exist for some participants in the process, such as the elderly, can be eliminated with additional explanations and, if necessary, training in working with the system. Prior to an online trial, relevant court staff, such as judicial assistants or secretaries, may provide some training for the parties and other participants in the process. In addition, the development of more advanced software for online litigation can make the judicial process more intelligent and convenient, which will further contribute to the implementation of the principle of equality of the parties in online litigation.

Thirdly, the experience of the PRC shows that often neither the parties nor the court are able to meet the needs of online court proceedings. The solution may be to create a basic unit, a modern court that can centrally meet the needs of online litigation.

As Duan Housheng notes, "as the acceptability of remote court proceedings continues to strengthen, their procedural legality will also strengthen" <43>, and vice versa, in the process of gradual institutionalization of remote court proceedings, the relevant rules should also be constantly improved in accordance with the standards of legality.

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<43>

 

3.2. Judicial Independence and Big Data Analytics

 

The principle of independence and objectivity of the court is enshrined in the legislation of many countries of the world. In Russia, the protection of judicial independence is a constitutional imperative that requires a careful balance between protecting the role of judges and courts and enabling Governments to fulfill their constitutional responsibilities with respect to the administration of justice.

According to the Constitution of the Russian Federation, the independence of the judiciary is revealed through the norms of special legislation. Thus, by virtue of Article 5 of the APC of the Russian Federation, any outside influence on judges of arbitration courts, interference in their activities by state bodies, local governments, other bodies, organizations, officials or citizens is prohibited and entails liability established by law.

By virtue of the Constitution of the People's Republic of China, unlawful interference, influence or control of the courts by unauthorized persons is excluded from judicial activity: "People's courts independently exercise judicial power in accordance with the provisions of the law and are not subject to interference by administrative bodies, other state bodies or private individuals" <44>. Article 6 of the CPC of the People's Republic of China provides that "the people's courts independently exercise judicial power in civil cases in accordance with the provisions of the law and are not subject to interference from administrative authorities, public organizations or individuals".

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<44> The Constitution of the People's Republic of China.

 

The European Charter on the Status of Judges (1998) also states that "the purpose of the status of judges is to ensure the competence, independence and impartiality that every citizen has the right to expect from judicial authorities and from every judge entrusted with the protection of his rights. The status excludes the possibility of adopting and applying any regulations or procedures that could shake confidence in their competence, independence and impartiality." The independence of the judiciary is interrelated with the impartiality of the court.

The use of digital technologies in justice poses new challenges to ensure the competence, independence and impartiality of judges. The use of technologies, including artificial intelligence, looks very tempting: the algorithm does not experience emotions and may well act independently and objectively. Zhang Weiping, in the context of a discussion on the use of artificial intelligence to complete "computer trials," notes: "It must be recognized that there are objective differences between individual judges. <...> Only artificial intelligence can ideally make indiscriminate decisions, which gives artificial intelligence a special appeal." <45> But this is only at first glance. We have identified several ways to identify and minimize risks: excluding the possibility of influence on judges by any persons and the state, as well as ensuring that actions based on personal prejudice or someone else's recommendations are impossible.

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<45>

 

The risks of influencing the opinion of the court in a particular case in modern conditions are associated with the processing and correctness of perception and evaluation of digital evidence, with the creation of an information field in the media and social networks <46>, as well as with the use of artificial intelligence systems to predict decision-making.

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<46> Baird V.A., Gangl A. The destruction of the myth of legality: the influence of media representations about the procedures of the Supreme Court on the perception of justice // Political Psychology. 2006. Volume 27 (4). pp. 597-614.

 

Artificial intelligence technology carries many risks for justice, demonstrating the emerging problems of legal regulation. On a regular basis, systemic predictive assessments (LJPS) are introduced and verified, designed to determine the ratings of judicial review at the expert and analytical level. Predictions can be used by lawyers, prosecutors, plaintiffs and defendants, as well as judges. The essence of these systems is that digital technologies make it possible to implement self-learning algorithms to develop solutions that are most relevant to a particular situation based on processing huge amounts of data with previously rendered court decisions. For example, as M.A. Malina shows in relation to the activities of magistrates, "by replenishing the database of final court decisions with data on the results of their instance verification, it is possible to gradually form a set of the most "successful" standard court decisions with an increasing degree of reliability. Artificial intelligence captures all possible cause-and-effect relationships between the initial data on legal conflicts and the results of their resolution, ranks them and selects those who have scored the highest score. This creates the basis for the formation of forecasts, expert recommendations for the justice of the peace" <47>.

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<47> Malina M.A. World justice and artificial intelligence // Justice of the Peace. 2021. N 4. pp. 17-21.

 

There is convincing evidence that today's artificial intelligence methods make it possible to effectively classify decision data <48>. Software developers have shown that judicial acts on disputes on the protection of fundamental human rights in the ECHR, labor rights and criminal offenses are suitable for standardization and markup for further machine learning in the necessary way for individual words (plaintiff, defendant, harm, legal facts) or phrases in order to make a forecast for specific cases <49>. That is, in fact, the use of forecasting court decisions is still objectively possible for far from all categories of cases. This is partly confirmed by the statistics of online courts of the People's Republic of China given above.

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<48> Aletras N., Karapatsanis D., Lampos V. Forecasting judicial decisions of the European Court of Human Rights: the perspective of natural language processing // PeerJ Computer Science. 2016. Volume. 2. P. e93.

<49> Chalkidis I., Andrutsopoulos I., Aletras N. Neural prediction of court decisions in English. arXiv Preprint arXiv:1906.02059. 2019.

 

The initial idea that simple text markup is enough to create a working LJP system is correct and has proven itself positively. However, some researchers compare not only the general phrases of court decisions, but also suggest focusing on labeling court decisions in the part where facts are involved, and not on the interpretation of the law by the courts or the presentation of the arguments of the parties and the motivational part of the decisions <50>. We believe that this approach can only be partially supported. Since statements of facts in published court decisions, as a rule, are very selective summaries from the original case material, adapted to match the decision, the most realistic scenarios can justify legal forecasts based on case materials in the form on which the judges themselves actually base their decisions <51>. And in the absence of a motivational part in many decisions, it is not possible to establish the conviction of the court for the purposes of machine learning. Tomaev emphasizes that "law is abstract, value-oriented, builds new things and builds on compromise. Big Data is empirical, algorithmic and deterministic, and does not create anything new." <52> That is, it turns out that the technology lacks objectivity and lacks a theoretical basis. Cognition of the meaning of the law to be applied is an extremely complex creative process that requires deep theoretical and even scientific knowledge <53>.

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<50> Hu Z., Li X., Tu C., Liu Z., Sun M. Few-Shot Charge Prediction with Discriminative Legal Attributes // Proceedings of the 27th International Conference on Computational Linguistics. 2018. P. 487 - 498.

<51> Branting K., Tippett E., Alexander C., Bayer S., Morawski P., Balhana C., Pfeifer C. Predictive Features of Persuasive Legal Texts // ASAIL@JURIX. 2020.

<52> See: Tomaev I.O. Big Data: possibilities of use in jurisprudence.

<53> Chernykh I.I. Legal forecasting in the field of civil proceedings in the context of the development of information technologies // Actual problems of Russian law. 2019. N 6. pp. 58-72.

 

Strictly speaking, the qualification of an action as crimes or violations of human rights (human rights) is carried out by lawyers according to a certain logic within the framework of the disposition of the applicable norm. But at the same time, it is often the position of the court, the judicial interpretation of norms and the situation that acquires special decisive (precedent) importance. Therefore, marking only the part of the decision where the facts are stated deprives us of the opportunity to assess the actual positions of the judge in a particular dispute.

Thus, the most important risk of using self-learning artificial intelligence systems to predict court decisions is a clear adjustment of the algorithm not only to analyze the facts, but also to take into account the nuances of the opinion of the judge who made the decision on which artificial intelligence is trained. In the process of actively promoting the intellectualization of litigation, the question of how to combine intellectual technologies with legal theory is a difficult topic. In particular, how to transform the legal mechanisms formed during the study of legal hermeneutics into identifiers that computers can assimilate requires the joint efforts of lawyers and technical specialists.

At the same time, it should be noted that replacing the free evaluation of evidence by human judges with decisions of unconscious highly intelligent algorithms does not correspond to current public knowledge and expectations about justice, at least emotionally unacceptable <54>. This issue should be taken into account by the legislator when developing and improving the relevant rules on digital justice.

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<54>

 

Further, many scientists mention that during the analysis of the marked-up data, some information sets were identified that become the basis for discrimination against individual social groups <55>. Since discrimination based on gender, race, place of residence or level of education is prohibited, it is necessary to introduce a rule that such data cannot be labeled in decisions for the purpose of predicting court decisions. According to scientists, "discrimination can be defined as a set of norms that enshrine unjustified differences between people based on their state, social, sexual, racial, national, linguistic or political affiliation. People may be discriminated against on the basis of origin, property and official status, place of residence, place of birth, attitude to religion, beliefs, membership in public associations, etc." <56>. In connection with the identified problem, some scientists propose to introduce special restrictions on the quantity and quality of data for making forecasts in order to exclude discrimination in court decisions, as is done in the field of regulation of medical activities <57>.

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<55> For more information about the phenomenon of algorithm bias, see, for example: Kharitonova Yu.S., Savina V.S., Pagnini F. Bias of artificial intelligence algorithms: issues of ethics and law // Bulletin of the Perm University. Legal sciences. 2021. N 3. pp. 488 - 515.

<56> Commentary to the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On the judicial system of the Russian Federation" (Zherebtsov A.N., Kireeva E.Yu., Peshkova (Belogortseva) H.V., Baranov I.V., Mayboroda V.A., Parfiriev D.N., Strukov K.V., Chernus N..Yu.).

<57> Stewart P., Stuhmcke A. Judicial Analytics and Australian Courts: A Call for National Ethical Guidelines // Alternative Law Journal. 2020. Vol. 45 (2). P. 82 - 87.

 

The imperfection of the LJP systems suggests an attempt on the independence of judges and the fairness of court decisions, which is based on such forecasts. The predictive capabilities of artificial intelligence can lead to the refusal of judges from a real assessment of the presented evidence and details of the behavior of the parties to the dispute. And if we assume that the training of the program is carried out by a certain company, then in its sphere of control there will be a possible voluntary or involuntary manipulation of the opinion of the court, which a priori should be independent and unbiased. In particular, bias may occur as a result of interference in the operation of the algorithm by developers or data subjects.

The identified shortcomings of the LJP systems may lead to a violation of the rights of participants in the process, both victims and accused, plaintiffs and defendants in the civil process. Against the background of the opacity and often bias of artificial intelligence, there are great risks that the independence of judges will be compromised both by the action of the technology itself under the influence of the "black box" problem, and by possible pressure on the judge from the outside. According to the researchers, "tasks for developers of such tools should be set by the court, and under the supervision of the court, the acceptance of the results of work should be carried out for the possibility of their practical use, excluding, among other things, contextless analysis or use of the processed information" <58>.

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<58> Orlov A.V. Decree. Op. pp. 46-50.

 

Another, but no less important aspect of predictive justice is that the identification of patterns in the decisions of even the same judge may entail interference with the impartiality of his judgments on a particular dispute under consideration. In order to ensure the independence of judicial activity in some States, the need to create special legislation excluding the profiling of judges is being discussed.

The first and most striking example is the relatively new law adopted in France prohibiting judicial analytics based on court decisions. According to this act, a ban has been introduced for analyzing the decisions of specific judges and court secretaries, a requirement of anonymity has been introduced for any party named in the case; a penalty of up to five years in prison has been established if a party is caught applying any kind of analytics to identifiable decisions of a judge <60>. This act applies to academic research, corporate legal technologies, the general public, conducting profiling of judges in relation to any type of publicly available judicial information.

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<59> Loi 2019-222 du 23 mars 2019 de programmation 2018 - 2022 et de pour la justice [Law 2019-222 of March 23, 2019 on the programming and reform for justice], : JOURNAL OFFICIEL DE LA [J.O.] [OFFICIAL GAZETTE OF FRANCE], Mar. 24, 2019, p. 15 - 16; Jenkins K.C. Making Sense of the Litigation Analytics Revolution // A.L.I. 2017. Vol. 1. P. 4; Davies B. Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used to Predict Arbitration Claims and Outcomes // Pepp. Disp. Resol. L.J. 2022. Vol. 22. P. 321.

<60> France Bans Judge Analytics, 5 Years in Prison for Rule Breakers, ARTIFICIAL LAW.

 

Please note that the French Law on Justice Reform does not prohibit the analysis of trials as such, when only the judicial body is analyzed. Analytics are allowed when it is not related to the personality of a particular judge. The law on Justice Reform was designed to limit the profiling of judges in order to avoid "dubious correlations", ensure the security of the judiciary, impartiality, which can cause serious judicial problems, and in order to prevent the transformation of "judicial tourism" (forum shopping) into a widespread legal strategy.

It is necessary to deepen our knowledge about the context and the possibility of systems accessing sources other than the information reflected in judicial acts and other documents related to the case materials. In this regard, the experience of China's online courts is interesting, where the court receives the necessary evidence directly from digital platforms (for example, Alibaba). This system is not extended to all types of disputes, but it is effective for those cases when initially all documents and transactions take place within a single digital platform connected to the nodes of the court. At the same time, this situation demonstrates to us that the desire of the state to ensure the speed and objectivity of the consideration of cases using big data analysis and artificial intelligence technologies puts the courts in a certain dependence on development companies. In the absence of special requirements, it will be difficult to ensure that the necessary information, evidence on the basis of which a particular court decision is made, is kept unchanged for a sufficient time. The example of the French law also makes it necessary to pay attention to the fact that the availability of data in open form, both complete and incomplete, can lead to distortions of various kinds when predicting court decisions. Therefore, it is worth considering the development of rules for the collection, storage and analysis of data for the purpose of using them in predictive justice. Judges and lawyers in China have already faced problems with judicial analytics. Zhou Yuyong <61> argues that the algorithms used to predict sentences and case outcomes have limited effectiveness, partly because many algorithms use common analytical tools that have not been adapted for use in the legal system.

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<61> Zhou Youyong , Zhineng Jishu Qudong Xia de Susong Fuwu Wenti ji Qi Yingdui Zhi Ce [The Litigation Service Issues and Methods of Addressing them under Intelligent Technologies], DONGFANG FAXUE [E.L. REV.], 2019, 5, 14 - 15.

 

Liu Yanhong notes that "compatibility between different subsystems, efficient connection, data sharing and coordinated interactive work procedures between different subsystems, as well as the efficiency of a data exchange system based on big data of court decisions, can guarantee the effective operation of the entire smart court system" <62>. And statistically significant value judgments and forecasts in digital justice can be achieved through accurate interpretation of the internal functional mechanisms of judicial big data, mass aggregation of fragmented data and their structured processing, as well as systematic identification of correlations between different modules <63>. Proper storage and use of existing judicial big data, as well as the rational implementation of transparency of the algorithms used in court proceedings, are the key to ensuring the independence of the judiciary in digital justice.

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<62>

<63> Kraft T.J. Big Data Analytics, Rising Crime, and Fourth Amendment Protections // U. Ill. JL Tech. & Pol'y. 2017. P. 249.

Transparency here means that the judicial system, as a person exercising digital justice, understands all the mechanisms of the relevant algorithms, and does not mean publishing the source codes of the algorithms to a third party.

 

3.3. Limits and risks of digital openness of justice

 

The openness of the courts and the accessibility of justice are closely intertwined with transparency and are considered as democratic instruments for the administration of justice by neutral courts. Openness, transparency of justice, prompt informing of interested persons is achieved by posting various information in the Internet space <65>. It is generally recognized that the openness of justice to society reduces the likelihood of error, guarantees the independence of the court, and contributes to the growth of its authority among citizens and other branches of government <66>.

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<65> See: Openness and accessibility of justice in arbitration courts of first instance: theory and practice.

<66> Sukhov O.G. Some aspects of the transparency of justice in civil law disputes in the light of judicial and legal reform in Russia // Civil law. 2009. N 6. P. 23.

 

The openness of the judicial system and the transparency of justice are achieved in various ways <67>: by ensuring the transparency of the judicial process, the announcement and publication of court decisions on specific cases, making public the very mechanism of the judicial system.

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<67> Vdovina E. The development of the principle of transparency in civil and arbitration proceedings // Arbitration and civil procedure. 2009. N 10. pp. 8-12.

 

The introduction of digital technologies into the justice system makes it possible to ensure the transparency of legal proceedings, ensuring the accessibility of the judiciary for public acquaintance and discussion, control; publicity of legal proceedings; public knowledge and announcement of judicial acts <68>. The use of various digital technologies makes it possible to automate the notification of the parties and the public about the time and place of the trial, and remote participation in court sessions, and by posting electronic copies of court procedural documents on the website.

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<68> Kuzmina M.A. Some aspects of the transparency of justice in civil cases in the light of judicial and legal reform in Russia // Arbitration and civil procedure. 2007. N 2.

 

Article 134 of the CPC of the People's Republic of China provides that the consideration of civil cases by the people's courts is conducted in public, except in cases where it is a matter of state secrets or personal life, or when the law provides otherwise. In China, according to the "Dissenting Opinions on the creation of three judicial Transparency Platforms" in 2016, in which two more online platforms were introduced along with the database of court decisions, interested parties are given the right to access files of unfinished cases and provide the parties with the opportunity to monitor the status of execution of court decisions <69>. Measures aimed at increasing the transparency of the judicial system require the courts to immediately provide important information to the parties to the judicial process about the course of the trial and enforcement procedures <70>. A feedback mechanism has been established through which parties can criticize the management of the court and the handling of their cases, as well as a follow-up mechanism to analyze and eliminate the unsatisfactory work of judicial personnel. These measures are aimed at introducing a more interactive approach to the transparency of the judicial system, which can help overcome the general shortage of "computer transparency". All court hearings in courts of all levels in China must be recorded on video and stored in a database <71>. Some of these videos have become publicly available on the China Open Trial Network online platform, which now also includes live video broadcasts from court hearings <72>.

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<69> (Several opinions of the SPC on promoting the creation of three platforms for transparency of the judicial system), No. 14, November 28, 2013.

<70> (Several provisions on the active adoption by the people's courts of supervision in the course of judicial proceedings and law enforcement activities by the parties involved), July 15, 2014 // http://legbbs.com.cn/archiver /?tid-219566.html.

<71> Xu Xin, Huang Yanhao and Wang Xiaotang (Annual Report on China's Judicial Reform for 2015), (Tribune of Political Science and Law) 2015, 04(3): 31(3), 31(3), 104 - 19.

<72> (Zhou Qiang: actively promote the broadcasting of court hearings to comprehensively increase the transparency of the judicial system), September 27, 2016; (China Open Trials Network).

 

With regard to the Russian unified systems for ensuring the digitalization of justice, scientists note that, "on the one hand, the unified electronic justice system is more consistent with the constitutional content of the principle of access to justice, since it facilitates the user to work with it and search for information, allows you to build this access to information on uniform rules," but, on the other hand, "in all legal systems, there is a problem of the limits of the openness of the court, due to the conflict between the right to access information about the activities of the court, on the one hand, and the right to personal privacy or respect for private life" - on the other hand <73>. The transparency of the process leads to the vulnerability of privacy.

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<73> Gritsenko E.V., Yaluner Yu.A. The right to judicial protection and access to court in the context of informatization and digitalization: the significance of the experience of common law countries for Russia // Comparative Constitutional Review. 2020. N 3. pp. 97-129.

 

By virtue of art . 14 of the Law on Access to Information on the information resources of courts, information about cases in court is disclosed: registration numbers of cases, their names or the subject of the dispute, information about participants in the trial, information about the passage of cases in court, as well as information about the issuance of judicial acts based on the results of the consideration of cases (scheduled for a hearing indicating the date, time and place of the court session, reviewed, postponed, suspended, terminated, a settlement agreement was concluded, the application was left without consideration, otherwise, taking into account the specifics of the relevant legal proceedings). The texts of judicial acts are also subject to publication. However, only the final decision on the case is brought to public attention, and not its full dossier, which is criticized by lawyers <74>.

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<74> Shumova K.A., Nakhodnova A.D. Problems of ensuring the principle of transparency and openness in civil proceedings // Arbitration and civil procedure. 2018. N 8. pp. 8-12.

 

At the same time, a comparison of constitutional norms on the openness of justice (Articles 123 of the Constitution of the Russian Federation), on the right to access information (Articles 29 of the Constitution of the Russian Federation) and privacy (Articles 23, 24 of the Constitution of the Russian Federation) leads to the correct conclusion that "the policy of information openness pursued by the judiciary is faced with the need ensuring information security, involving the introduction of prohibitions and restrictions" <75>. The legislation contains rules on exceptions to access to information related to personal data, to court decisions containing state secrets, and other legally protected secrets (Article 15 of the Law on Access to Information; paragraph 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 2012 No. 61 "On Ensuring Transparency in the Arbitration process"). In a number of cases, the posting of court decisions on the Internet is completely excluded.

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Vinokurova M.Y. Openness of justice in the context of ensuring information security of the judicial system // Court Administrator. 2017. N 1. pp. 52-56.

 

But even in the absence of a specific name and surname of the participant in the dispute in the case, we must remember that we are still dealing with Big Data. The overall result of the digitalization of justice is the growing importance of the case file, which contains every piece of information relevant to the defendants in the case, along with all other materials. In fact, it must be borne in mind that the documents and all other materials contained in the dossier are not internal official documents that help a particular official organize his activities, but rather sources of information on which both the initial and the revised decision is based."<76> Although the accuracy of the information contained in the dossier is not indisputable, it has significant weight in the information market. The flip side of judicial transparency will be that the database of court decisions increases the pressure on individual judges in terms of standards of legal justification, job evaluation and countering unlawful interference in judicial work.

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<76> Damaska M.R., Fisher S. The Faces of Justice and State Authority // The Faces of Justice and State Authority. Yale University Press, 1995.

 

The researchers draw attention to the fact that the concept of judicial transparency is also closely related to the accountability of courts <77>. At the same time, not every measure that increases transparency also leads to increased accountability. Jonathan Fox distinguishes between "transparent" and "opaque" transparency. While "full transparency" refers to reliable information about the effectiveness of an institution, "opaque transparency" means information that does not disclose the actual conduct of an institution in practice. Although court decisions may conceal the true moral, political or economic motivation of the decision, they usually contain an accurate statement of the content, as well as the factual and legal justification of the court decision and, therefore, represent an active dissemination of reliable information about the activities of the State. Fox believes that a clear requirement for disclosure by the courts allows for soft forms of accountability under strict public control, if transparency is used not only for simple data retrieval, but also for the purposes of systematic analysis <79>. Thus, it is the pressure exerted by the direct colleagues of judges in the legal field and the decisions of higher courts that will stimulate efforts to strengthen the position of the courts.

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<77> Ahl B., Sprick D. Towards Judicial Transparency in China: The New Public Access Database for Court Decisions // China Information. 2018. Vol. 32 (1). P. 3 - 22.

<78> Fox J. The Uncertain Relationship Between Transparency and Accountability // Development in Practice. 2007. Vol. 17 (4 - 5). P. 663 - 671.

<79> Ibid. P. 668.

 

At the same time, in the context of online litigation, some scholars in China see a relationship between publicity, face-to-face and ceremonial trials. Attention is drawn to the fact that online courts do not have the face-to-face and ceremonial required for traditional trials. Since the participants in the process do not display their entire body three-dimensionally in the field of view of the other party, there is a risk that the information expressed by their language and actions cannot be fully transmitted to the other party in real time. Thus, the relevant traditional principles of judicial proceedings will be affected, such as the principle of immediacy of judicial proceedings, the principle of personal presence of the parties and the principle of debate of the parties. On the other hand, due to the lack of ceremony and a solemn atmosphere in the court session, the parties may cease to be in awe of the process, as well as disregard procedural law <80>.

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<80>

 

From our point of view, face-to-face activity should not be limited to being "on the spot". It seems that the rigid restriction of physical presence in the judicial process can be solved through online court sessions on high-definition video in real time; as well as the requirement of publicity does not deny the possibility of meeting the public's need to control the judiciary through electronic and visual methods. The atmosphere of online court proceedings may be relatively free, but the parties are still governed by the rules of judicial conduct. We agree with Chinese researchers that any form of legal proceedings has a certain historical background and an appropriate theoretical basis. And in the case of real conditions, it is necessary to develop and break up the appropriate judicial mechanism and methods of judicial proceedings <81>. The advent of online litigation technology means that the physical space of traditional courtrooms has been breached, and participants in the process can interact in new ways. The system of procedural rules created on the basis of traditional judicial proceedings should be changed.

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<81>

 

4. Conclusions

 

The analysis shows that the change in public relations regulated by law not only requires adjustments at the level of procedural law, but also involves the creation of rules for the development and application of technologies through the establishment of technical standards and requirements. The importance of legal changes in parallel with the development of technology is obvious. The simple introduction of automation of procedures in court proceedings can lead to a violation of the fundamental principles of the administration of justice. At the same time, it is not easy for algorithmic decision-making to achieve absolute objectivity and accuracy, and in the face of complex and difficult cases, artificial intelligence can contribute to formal justice, which does not guarantee the achievement of substantive justice. Therefore, it is necessary not only to rationally look at the problems associated with judicial artificial intelligence and the use of other digital technologies, but also to create adequate rules for the inevitable transformation of the role and functions of the court, adding a new vector of understanding technical factors to ensure the principles of justice.