Platforming justice: China's Experience and the Future of the world's judicial systems
The creation of platforms for the administration of justice in the context of the coronavirus pandemic is accelerating and requires immediate solutions to emerging problems. In Russia, work is underway to legalize online justice, starting with the wider use of various means of communication for conducting processes and ending with the introduction of digital platforms using distributed registry and artificial intelligence technologies.
Keywords: end-to-end digital technologies, digital platform, online justice, digital justice platform.
In connection with the spread of the Covid-2019 pandemic and the widespread spread of remote work for security and value specialists, the question of the possibility of using remote access to interact with authorities, including courts, is proposed. In this situation, courts around the world are increasingly beginning to consider disputes using video conferencing technology.
Russia has long been talking about the need to ensure the accessibility of justice by expanding the use of electronic and information technologies. This area is considered by the judicial system as a primary task, for which the informatization of courts takes place <2>. Among the measures to digitalize justice in Russia are:
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<2> Federal Law No. 262-FZ of December 22, 2008 "On Ensuring Access to Information on the Activities of Courts in the Russian Federation" // SZ RF. 2008. N 52 (Part I). Article 6217; Federal Law No. 220-FZ of June 23, 2016 "On Amendments to certain legislative acts of the Russian Federation regarding the use of electronic documents in the activities of judicial authorities" // Rossiyskaya Gazeta. 2016. June 29; Order of the Judicial Department under the Supreme Court of the Russian Federation dated December 25, 2013 N 257 "On approval of the Rules for the organization of notification of participants in court proceedings by SMS messages".
- obtaining information in electronic form both about the activities of the court and about a specific case;
- technical and software support of the trial (video conferencing, devices for the study of electronic evidence, recording of the court session, as well as the exchange of information and documents between participants in the process and the court, ensuring the security of information stored in the systems);
- electronic interaction of courts with public authorities.
At the same time, in the case of restrictions imposed in various regions of Russia in connection with the spread of the pandemic, many problems and certain gaps have been identified in regulating the mechanisms of interaction between courts and participants in the process using technical means.
Trends in the digitalization of judicial proceedings in Russia
One of the sensational cases may be the situation with the consideration of a case using a messenger. In the Sverdlovsk region, the first court session with the possibility of a video call in the WhatsApp messenger has ended (published on March 30, 2020 in case No. 5-40/2020, user ID dokumenta 66RS0038-01-2020-000380-15 <3>). The judge closed the Simba cafe in Nevyansk for 45 days for violating legislation in the field of sanitary and epidemiological welfare of the population (Article 6.3 of the Administrative Code of the Russian Federation). The establishment continued to serve visitors, despite restrictions for restaurants and catering establishments introduced in the region since March 28. Bailiffs sealed the entrances to the cafe.
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The one who heard called Burnous a discussion in a precessional environment, since, from the very beginning, he was one of the most popular in the world. WhatsApp messenger does not comply with the established procedure for viewing administrative management cases. The literal interpretation of art. 29.14 The Administrative Code of the Russian Federation leads to the conclusion that a judge has the right to resolve the issue of considering a case by using video conferencing systems, but only using video conferencing systems of courts or - for persons in places of detention or places of deprivation of liberty - video conferencing systems of relevant institutions. For example, apparently, within the framework of the law, the way out for criminal proceedings was the use of video conferencing in a situation where the accused in Mari El "appear" before the court via video conferencing directly from the detention center building: the accused can take part in the trial without leaving the walls of the detention center <4>.
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At the same time, in essence, in the field of civil and arbitration proceedings, according to the fair statement of E.A. Nakhova, at the same time, detailed legal regulation in this area is necessary, which is currently absent <5>. Most researchers agree that today in Russia it is impossible to talk about the legality of electronic legal proceedings <6>, basing their conclusions on the fact that such legal proceedings are not provided for in Article 118 of the Constitution of the Russian Federation.
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<5> See: Nakhova E.A. Problems of the use of electronic evidence in civil procedure and administrative proceedings // Law. 2018. N 4. pp. 81-90.
<6> Zarubina M.N., Pavlov A.A. On procedural realities and potential possibilities of using electronic evidence in the civil process // Bulletin of Civil procedure. 2019. N 1. Pp. 205 - 222.
To solve the growing procedural problems, amendments to the CPC of the Russian Federation, the APC of the Russian Federation and the CAS of the Russian Federation have been sent to the Government and the Supreme Court of the Russian Federation, designed to radically simplify citizens' access to video justice (Draft federal law "On Amendments to Article 1551 of the Civil Procedure Code of the Russian Federation, Article 1531 of the Arbitration Procedure Code of the Russian Federation and Article 142 of the Code of Administrative Procedure Of the Russian Federation in order to improve access to justice in electronic form" <7>).
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The bill proposes to allow participants in civil, arbitration and administrative proceedings to participate in court sessions remotely, using personal means of video conferencing. The requirements for the software, technical and other characteristics of personal video conferencing equipment, the procedure for checking them for compliance with these requirements, as well as the procedure for connecting personal video conferencing equipment to video conferencing systems of ships must be established by the Government of the Russian Federation <8>.
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The draft law establishes the specifics of the participation of persons in a court hearing through the use of a video conferencing system. The person participating in the case is obliged to send to the court an application for participation in the court session using personal means of video conferencing (it is possible to do this through the "Unified Portal of state and Municipal Services (functions)", a single portal). At the beginning of the process, such persons are obliged to log in through a single portal at the time of connection to the video conferencing system and at the same time independently ensure both the technical possibility of timely connection to the video conferencing system at the opening of the court session and a stable connection that allows for the uninterrupted operation of personal video conferencing facilities. The complete or partial impossibility of using personal means of video conferencing by the participants in the process, regardless of the material and technical equipment of the court or the state of communication networks at its location, is not an obstacle to the consideration of the case. The evidence submitted to the court is sent by the parties to each other in advance.
The advantages of conducting dispute resolution remotely have long been known and are not disputed by the participants in the process. This includes reducing the cost of the process due to the lack of need to spend money on travel, and accommodation at the meeting place, reducing time costs, facilitating access to justice for people with difficulties such as serious illness or physical disabilities who cannot easily get into the courtroom, due to problems with transport links, etc.
Experience in creating remote justice mechanisms in the UK and the USA
However, Russia is not the only country where the problems that have arisen are being solved. Foreign countries are also facing the challenges of a new reality for the first time.
On March 27, 2020, the first online hearing was held in Britain: the Court of Appeal heard the first complaint against the conviction, when all those involved appeared remotely from different places. Andrew Thompson, a lawyer from the Red Lion firm of the Chamber, who participated in the court hearing, said that he was present at the hearing of the case, sitting at his kitchen table in Suffolk. The world's legal response to the coronavirus has proved that necessity is indeed the mother of invention. The outbreak has caused the closure of more than half of courthouses and tribunals in England and Wales and the suspension of new jury trials. To keep track of some cases, hearings in Magistrate's Courts, the High Court, the Court of Appeal and the Supreme Court were conducted completely remotely, with judges, lawyers, witnesses, interpreters and journalists making phone and video calls <10>.
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<10> Baksi S. coronavirus can change courts forever: the remote control for the administration of justice is likely to be cheaper, more convenient and faster // Thursday, April 02, 2020, 12: 00 am British Summer Time, times.
It should be noted that in Britain, Professor Richard Susskind, a member of the Society of Computers and Law, who devoted his now popular research to this issue, has long advocated the active introduction of modern technologies into the judicial system. Based on the findings, English lawyers are implementing his ideas in the Remote Courts Worldwide Internet project, which allows the global legal community to share their experience in developing remote justice in the context of the coronavirus pandemic ("Remote courts around the world" <12>). This portal is maintained by the Computer and Law Society, the British Legal Services Commission and Her Majesty's Courts and Tribunals Service (HMCTS). In recent years, the project to promote and develop an online court for England and Wales has been a major part of the $1 billion ship modernization program at HM Courts and Tribunals Service. Her Majesty's Courts and Tribunals Service itself has issued guidelines governing the conduct of remote meetings: "HMCTS telephone and video listening during the coronavirus outbreak" <13>. The Rules of Procedure provide that the decision on how to hold a hearing on the case remains with the judges, justices of the peace or a panel who will determine the best way to defend the interests of justice. When considering the appropriateness of using technology, judges will take into account the nature of the issues at hand during the hearing, the needs of participants, as well as any issues related to public access or participation in the hearing. It has been established that when holding conferences over the phone, participants in the debate will use the BTMeetMe program. The British courts will conduct video conferences through the Skype for Business program at HMCTS. At the same time, the participants in the process will not need any special equipment, except for a phone and additional tools such as headphones, speakers, etc. Interestingly, according to the Instructions, on the day of the hearing, all participants should be in a quiet place where they cannot be overheard. A recording of the hearings is conducted and its storage is ensured.
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<11> Susskind R. Online Courts and the Future of Justice. 2019 by Oxford University Press, USA.
<12> Lawyers and HMCTS launch remote hearings resource.
<13> Guidance HMCTS telephone and video hearings during coronavirus outbreak: Guidance on how HMCTS will use telephone and video technology during the coronavirus (COVID-19) outbreak. Published 18 March 2020. Last updated 27 March 2020.
In the USA, video conferencing has been implemented so far only in California, Texas and New York. Here, the judicial system is less centralized, so issues of this kind are under the jurisdiction of the state leadership. On March 28, 2020, the California State Government supported interim directives to introduce a remote justice system in the region. Courts will now use video conferencing and telephone communication for remote presentations, court reports and interpretation during the proceedings. First of all, remote justice will be used in criminal and juvenile cases (bringing charges and holding preliminary hearings) <14>. And this is despite the fact that before the outbreak of the epidemic, the use of video conferencing in California was prohibited. In the state of Texas, the remote justice system is guided by the Zoom platform and broadcast on YouTube channels in order to remotely conduct court hearings and broadcast them live on the Internet <15>.
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<14> California chief justice says courts can hold video hearings amid coronavirus shutdown. March 28, 2020.
<15> Judges Rush to Learn Video Conferencing as Shelter-In-Place Orders Spread Across Texas Metros.
China's Internet Court Proceedings
The urgent attempts of various States described above to resolve the issue of the possibility of conducting court sessions remotely cannot be compared with the achievements of Chinese jurists in this field.
In 2017, during the 36th session of the Central Committee of the Communist Party of China for Deepening Reforms, the country's first court specializing in Internet-related cases was opened in the Chinese city of Hangzhou in the eastern province of Zhejiang <16>. Today, such Internet courts operate in Beijing, Guangzhou and Hangzhou. According to the Provisions of the Supreme People's Court of China on a number of issues related to the consideration of cases by Internet courts, adopted at the 1747th session of the Judicial Committee of the Supreme People's Court on September 3, 2018 and effective from September 7, 2018. in order to regulate the judicial activity of Internet courts, protect the legitimate rights and interests of the parties and other participants in the judicial process, ensure fair and effective consideration of cases in accordance with the Civil Procedure Legislation of the People's Republic of China, the Law of the People's Republic of China on Administrative Proceedings and other laws, as well as in the light of the actual judicial work of the people's courts, the following updated rules.
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The online court hears cases online, and the reception, service, mediation, exchange of evidence, pre-trial preparation, trial, adjudication and other judicial references related to the case are usually completed online. Although this does not exclude the possibility, at the request of one of the parties or, as necessary, to consider the case, to make a decision on completing part of the judicial links offline (offline).
A feature of Chinese online justice is its standardization in connection with the set of cases under consideration related to the digital environment. By virtue of Article 2 of the Regulations, these courts have the right to consider:
- disputes arising in connection with the signing or execution of purchase and sale agreements through e-commerce platforms;
- disputes over contracts for the provision of services on the Internet, which are concluded and executed on the network;
- disputes over loan agreements that are simultaneously concluded and executed on the Internet;
- disputes about copyright or related rights to works first published or distributed on the Internet;
- disputes over the right to domain names on the Internet, including contractual disputes in this area;
- disputes arising in connection with the violation of personal rights, property rights and other civil rights and interests of other persons on the Internet;
- court cases related to the public interests of the Internet initiated by the Prosecutor's office, as well as disputes arising in connection with administrative acts adopted by administrative bodies in relation to the management of Internet information services, trade in goods on the Internet and the management of related services;
- and some other online civil disputes and administrative cases.
The jurisdiction of the Internet court under Chinese law is determined by the place of conclusion of the contract, which is actually related to the dispute. If an e-commerce operator or network service provider, in particular, enters into a jurisdiction agreement with the user in the form of standard provisions, it must comply with the provisions of laws and judicial interpretations in relation to such standard provisions.
By virtue of Article 5 of the Regulations, the Internet Court creates an online judicial platform as a special platform for the consideration of cases by the court, as well as for the parties and other participants in court proceedings to carry out judicial activities. At the same time, it is established that any judicial activity carried out through the judicial platform has legal force.
The case-related data required for the consideration of cases in the Internet court must be provided by e-commerce platform operators, network service providers and relevant government agencies and entered on the judicial platform. This data is subject to online verification, real-time recording and is monitored by the security department of the Internet Court. In the future, the parties have the right to upload and import evidence, including electronic data, into the judicial platform, or electronically process offline evidence by scanning, copying, duplicating or other means. Accordingly, the entire document flow, identification, duplicates of business licenses, powers of attorney, identification of legal representatives and other materials of the trial, as well as documentary evidence, expert opinions, audit protocols and other evidentiary materials that are processed electronically by technological means and then submitted by the parties and other participants in the trial, after passing the Internet examination -The vessels are considered to meet the formal requirements for the originals. If the opposing party raises any objections to the authenticity of the above materials and has reasonable grounds for doing so, the Internet court requires this party to provide their originals. The storage and use of case-related data by the judicial platform must comply with the provisions of the Law of the People's Republic of China on Cybersecurity and other laws and regulations.
When conducting the process through a digital judicial platform, participants authenticate their identity using online means such as comparing identity certificates and licenses, biometric identification or certification on a single state identity authentication platform, and receive special accounts to log into judicial platforms. Actions performed on judicial platforms registered using special accounts are considered actions performed by authenticated persons themselves, with certain exceptions.
Within seven days after that, a decision is made to accept the case for consideration by the Internet court. By means of mobile phone numbers, fax numbers, e-mail addresses and instant messaging accounts provided by the plaintiff, the defendant and the third party are notified of the association of cases and identity authentication through the judicial platform, and the procedure for consideration of the dispute on the merits begins. The defendant and a third party receive information on the case, receive and submit materials of the trial, as well as carry out judicial activities through the judicial platform.
The Parties have the right to raise any objections to the authenticity of electronic data. The Internet Court examines and evaluates the authenticity of the process of generating, collecting, storing and transmitting electronic data, taking into account whether hardware and software environments, such as the computer system on which electronic data is created, collected, stored and transmitted, are safe and reliable, whether the essence and time of electronic data generation are indicated, and also, is the content shown clear, objective and accurate, and have the means of storing and storing electronic data been determined, as well as whether the methods and means of storing them are appropriate, etc.
The Internet court confirms the electronic data submitted by the interested party, provided that the authenticity of the electronic data can be proved using an electronic signature, a trusted timestamp, hash value verification, blockchain or any other technological means of collecting evidence, fixing or protecting against unauthorized access, as well as through certification on the collection and storage platform electronic evidence.
The meeting itself is held via video link. Judges, judicial assistants, court clerks, parties and other participants in the proceedings, in particular, confirm mediation agreements, transcripts, electronic official certificates and other materials of the trial through online confirmation, electronic signatures or other online methods. Electronic transcripts can be created synchronously using speech recognition technologies through mediation, evidence exchange, litigation, peer review, and other judicial references. Electronic transcripts, after verification and confirmation online, have the same legal force as written transcripts. Actually, the whole case is formed synchronously with the consideration of the dispute through the judicial platform. Upon completion of the dispute, the Internet court draws up an electronic certificate. This electronic service certificate has the legal force of confirming a court decision.
China's experience shows that legal proceedings in the Internet environment become natural and justified when the disputed legal relations themselves have developed or have taken place in this digital environment. This is due to the speed of development of such relations, often at a small cost to the dispute itself and the lack of motivation of the participants in the process to spend time and effort on complex procedures.
It should be noted that essentially the same conclusion was made by experts during a foresight session on the problem of "Transformation of Law in the Digital Age", conducted by the Department of Business Law of the Faculty of Law of Lomonosov Moscow State University with the Institute of State and Law of the Russian Academy of Sciences and the Baltic Federal University <17>. The opinion was formulated that for cases of violation of rights related to the digital environment, including the rights to digital assets, it is necessary to form rules that legitimize the early provision of protection of rights on the Internet using similar virtual technologies, for example, by recognizing the force behind the decision of an oracle arbitrator. The conclusions of the experts who proposed this conclusion as a trend for the long term are partially confirmed by the current situation with the acceleration of the transition to remote dispute resolution using digital technologies.
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<17> Sannikova L.V., Kharitonova Y.S. Transformation of law in the digital age: a look into the future // State and Law. 2019. N 9.
Justice as a digital platform
Professor Richard Susskind called for the development of a "standard, adaptable global platform for online courts" that can be deployed to strengthen access to justice worldwide. In China, today, in many categories of cases, the filing of a lawsuit, the initiation of a case and other judicial procedures will be carried out through the court's website. The hearings and the announcement of the verdict will be carried out via video transmission <19>. Her Majesty's British Courts and Tribunals Service is increasing the resources of the cloud video platform. This should make it possible to hold remote hearings for any courtrooms that have the necessary equipment. Moreover, access to such a meeting can be obtained through any laptop or video device. There are access points in courts, prisons and police stations. In places of temporary detention in Russia, under the conditions of the pandemic, a transmission reception mechanism has been organized, in which relatives of the accused can use a special online service on which they form and pay for a parcel without leaving home <20>. Russian researchers are analyzing the possibilities of automating decision-making processes in the arbitration court using artificial intelligence technologies. For example, to calculate the losses caused in corporate disputes <21>. It is already possible to use digital technologies based on a platform approach through the Internet services "My Arbitrator" or GAS "Justice" in simplified (Chapter 29 of the APC of the Russian Federation, Chapter 21.1 of the CPC of the Russian Federation) and writ (Chapter 29.1 of the APC of the Russian Federation, Chapter 11 of the CPC of the Russian Federation) productions.
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<18> Susskind R. Online Courts and the Future of Justice. 2019 by Oxford University Press, USA.
<19> China launches first Internet court in e-commerce hub. 2017-08-18 13:23:05.
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<21> Andreev, V.K., Laptev, V.A., Chucha, S.Yu. Artificial intelligence in the electronic justice system when considering corporate disputes // Bulletin of St. Petersburg University. Right. 2020. N 1. pp. 19-34.
All these circumstances seem to indicate the platformization of justice, that is, the creation of such Internet resources on which all the main procedural actions legalized by the state in law are performed. This trend makes it possible to ensure the accessibility, openness and transparency of justice, as well as significantly speed up and simplify the work of the courts, strengthening trust in the judiciary as a whole.