Antiviral measures for the society: contactless justice

We will talk about judges in the nude, e-court, lawyer's EDS, online death sentences, endless patience of plaintiffs and their anonymous club, and will fantasize about android judges dreaming of electronic robes.

Judge without a robe

In April 2020, in the Brazil's Amapa state, a judge showed up shirtless with a bottle of drink, shocking everyone present. It should be mentioned though that the court hearing took place online and the “hero” switched off his camera very quickly and returned to the hearing, dressed appropriately for the judge. A video of this curious hearing appeared online and ended up on the New York Post's pages.

For ages, the litigation procedure was so regulated that it rather resembled a religious ritual. A wig, a long robe made of rabbit fur, and a gavel – all these attributes were aimed to inculcate the respect in a mere mortal who has come to the temple of justice. Yet now, in the modern civilized world, the court has turned into a public service for resolving disputes. In a competitive business environment, this service is losing its monopoly and is forced to compete with mediation, alternative non-state courts, and even with courts of other jurisdictions. The impartiality and professionalism of judges, the speed and cost of litigation, convenient access to justice have acquired a greater value than the architectural grandeur of temples of justice, the color of the judge's robe and the height of his wig.

The pandemic has catalyzed changes in this area as in many others.

Digital journey of the Ukrainian court

Ukrainian courts are also undergoing changes that occur not only during quarantine. Now it is hard to imagine that some 15 years ago you had to actually hunt for the information about new precedent decisions; and lawyers were primarily valued for their case law expertise in a particular field that could often be gained only from personal experience. As a correspondent for the judicial practice section in one specialized publication, the co-author of the article spent much time searching court decisions from various practitioners.

The Public Unified State Register of Court Decisions has already become a mundane resource, but its creation was an epoch-making innovation. It enabled many lawyers to learn from the most difficult cases and many entrepreneurs to find out a lot of new information about their business partners. The Register was launched in 2006 and marked one of the first publicity reforms in the post-Soviet space.

The next stage was the implementation of text messages to serve summons and a feature to create an email address to be used by citizens and businesses for communicating with the courts electronically. However, whereas text message summons have become common practice, the provision of electronic documents to the courts had to be postponed.

Then courts resorted to video conferencing. However, participation in such conferences was possible only from the premises of another court and required that a representative needing to take part in a court hearing submit a relevant application in advance, come to the court, and, in the courtroom in the presence of the secretary of the court hearing, be connected to the video conferencing hearing held in another court. For this purpose, video conferencing equipment was widely installed in courts, so today almost all courts in Ukraine have stationary VC equipment.

In December 2017, the procedural codes were amended to allow holding court hearings through video conferencing outside the court premises, directly from the office or home. However, it was envisaged that communication would take place only through the “electronic court”. The e-court was to become a system enabling the exchange of electronic documents with the court, access case materials, participate in court hearings, and many other things. So that this system could be launched, Ukrainian courts were equipped with video conferencing equipment and case materials were scanned.

The system was tested and planned to be put into operation on 1 March 2019. However, it appeared to lack stability, and the training of court staff and material support of courts were given insufficient attention. Therefore, the system implementation efforts came to a standstill.

We also tested the e-court system. The system allows the public to apply to the court electronically, but so far it has many drawbacks: it requires the use of its templates of procedural documents and has very limited ability to edit their texts; the parties to the case have access to only a few documents from the case materials; many courts refuse to accept applications via the e-court because the system has not yet been formally put in operation.

We hope that such a long period of test running of the e-court system will allow collecting all “bugs” and improving its interface and functionality.

“Eats shoots and leaves” online

The impossibility to work in a regular course during the quarantine drives the judicial authorities around the world to become more digitalized.

Law No. 540-IX adopted on 30 March 2020 allowed courts to temporarily, during the quarantine period, conduct court hearings through video conferencing outside the court premises, using own technical means. For this purpose, representatives may use either the system that is proposed by the State Judicial Administration and supports the authentication using an EDS of a lawyer as an individual (actually an easyCon communication program), or any other service (Skype, Zoom, Teams, etc.) upon the judge's permission.

In Ukraine, the quarantine regime did not restrict the work of the judicial authorities; however, many of them imposed their own restrictions. For example, judges postponed court hearings to later dates; the Cassation Court of the Supreme Court used a special box to accept documents; and the Kyiv District Administrative Court made the procedure for reviewing case materials more complex. At the same time, they were looking for ways to eliminate issues arising out of impossibility to ensure live communication with the representatives of the parties. To illustrate, in the Sixth Administrative Court of Appeal, we were asked to email our request for copies of the case file, with the copies of the requested materials to be emailed back in response.

Similar effects of the quarantine are being experienced around the world. In Florida, for example, Judge Dennis Bailey even published a guidance for lawyers explaining how to dress for and behave appropriately during online hearings. Singapore and Nigeria took things a step further: in May 2020, several death sentences were upheld at court hearings through video conferencing. Following these cases, Human Rights Watch argued that the use of the death penalty was unacceptable and the use of remote technologies, including Zoom, for sentencing was generally inhumane.

At any rate, but the undoubted advantages of video conferencing have already been appreciated across the world and there is a low likelihood that these practices will be abandoned after the quarantine is over.

New normal litigation

Despite all the difficulties, our quarantined courts have gone through a significant transformation by promptly ensuring the opportunity to hold court hearings online. The head of the State Judicial Administration of Ukraine recently stated that the e-court system allowing the exchange of electronic documents with the courts would resume its operation in June. We are closely monitoring the fulfillment of this promise.

It comes as no surprise that the technologies have come to stay in litigation; therefore, the next step will be conducting cases only in electronic form. This will enable a smooth exchange of electronic documents with the court and ensure a possibility to read the case file when needed, thus resulting in incredibly reduced financial and natural resources of both the parties to the process and the state. After all, sending several files with electronic documents saves much trouble of copying dozens of volumes of source documents, which is a common thing in tax disputes.

For example, in one of our pre-quarantine cases, the judge was astonished to see a disk with scanned written evidence and asked how to verify the EDS certifying these copies. The disk contained 2,500 pages of the client's source documents saved on the disk. The judge had to attach this data storage medium to the case file instead of requiring all these copies to be printed and certified with pen-in-hand signatures.
We do not require judges to quickly grasp all IT basics. That being said, the judicial branch must ensure that judges keep up with the pace of technology. For this purpose, it is necessary to organize relevant training and develop guidelines, in addition to applying the user experience method.

One of the main court digitization tasks is to make justice more accessible. Legal proceedings are still lengthy, inefficient and logistically complex. For example, together with our client—large foreign investor—we have been waiting for two and a half years for our cassation appeal to be considered in the Administrative Cassation Court within the Supreme Court. This court is snowed under small claims over social benefits, endless labor disputes between civil servants, and similar cases. We are heading towards a record long wait, but this is definitely not what the investor dreamed of – the company is now ready for any decision, be it good or bad but made. The speed of management decisions making and the predictability of the state are crucial for business.

To provide a wider access to justice, many countries worldwide are implementing online court systems. Back in 2007, the European Commission adopted a decision on the European Small Claims Procedure that regulates how to resolve cross-border claims that are within the value of €2000, arising in the EU. Similar systems are being developed and used in many countries—the United States, Canada, India, Australia—mainly for the needs of e-commerce and domain name claims; however, they are also used as a means of out-of-court settlement of other kinds of disputes.

Plaintiffs Anonymous Society and electronic robes for judges

Finally, the technologies are to solve one of the fundamental problems of litigation – the distrust of a judge or an arbitrator. The ability to consider disputes remotely eliminates the need for a judge to be physically present in the courtroom. If a judge hears a case from another city or the most remote point in the county, it will minimize the risk that he knows and meets the party, and may be biased. But what if the parties compete in court not only remotely but also anonymously? This will be a whole new level of impartiality, unknown to us today. We expect further advancement of the digital judicial reform in this area.

And if a judge is even not a human, but a robot? Will this take all court objectivity and impartiality issues off the table? What new procedural and ethical issues will challenge human and artificial lawyers and judges? There are many important issues on the agenda, and we will definitely explore these perspectives.

Source:  Ліга.Закон