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/ November 2022
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DOI: https://doi.org/10.34069/AI/2022.59.11.3
How to Cite:
Kryvosheina, I., Zhornokui, V., Kronda, O., But, I., & Oleh, P. (2022). Digitalization of the activities of the ECtHR in civil and
commercial proceedings and the problems of their enforcement: international legal experience. Amazonia Investiga, 11(59), 35-42.
https://doi.org/10.34069/AI/2022.59.11.3
Digitalization of the activities of the ECtHR in civil and commercial
proceedings and the problems of their enforcement: international legal
experience
Цифровізація діяльності ЄСПЛ у справах цивільного та господарського
провадження та проблеми їх примусового виконання: міжнародно-правовий досвід
Received: November 15, 2022 Accepted: December 15, 2022
Written by:
Inha Kryvosheina4
https://orcid.org/0000-0003-3630-2257
Valentyna Zhornokui5
https://orcid.org/0000-0001-7706-8538
Olha Kronda6
https://orcid.org/0000-0002-8039-1763
Illia But7
https://orcid.org/0000-0001-7887-3504
Oleh Panfilov8
https://orcid.org/0000-0003-1736-1649
Abstract
The article is devoted to the study of the foreign
experience of digitalization of the activities of
judicial bodies in civil and commercial
proceedings and the digitalization of the
activities of the ECtHR. The researchers
analyzed the role played by digital technologies
in the context of the implementation of judicial
proceedings and enforcement of law decisions.
The purpose of the work is the study of the new
technological reality, including the functioning
of the ECtHR and the consideration of cases in
the field of economic and civil proceedings by
such a court in conditions of digitalization, the
analysis of problematic issues of the
implementation of decisions of jurisdictional
bodies, as well as a detailed examination of the
international legal experience of digitalization of
the judiciary and execution services. The object
of the study is the social relations related to the
digitalization of the activities of judicial bodies
and enforcement bodies. The subject of the study
4
Ph.D., Associate Professor of the Intellectual Property and Information Law Department of the Educational and Scientific Institute
of Law at Taras Shevchenko National University of Kyiv (Ukraine).
5
Ph.D., Associate Professor of the Department of Legal Support of Entrepreneurial Activity and Financial Security, Kharkiv National
University of Internal Affairs (Ukraine).
6
Ph.D. in Law; Associate Professor at the Intellectual Property and Information Law Department of the Educational and Scientific
Institute of Law at Taras Shevchenko National University of Kyiv, Ukraine.
7
Ph. D., Associate Professor of Department of Civil Procedure of National University «Odesa Law Academy» (Ukraine).
8
Ph. D., Associate Professor of Department of Administrative and Financial Law of National University «Odesa Law Academy»
(Ukraine).
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is the international legal experience of
digitalization of the activity of the ECtHR in civil
and commercial proceedings, as well as
problematic issues of enforcement. The research
methodology consists of such methods as formal-
logical, analysis, synthesis, abstraction,
induction and deduction, historical, systemic,
sociological-legal, and comparative-legal. As a
result of the conducted research, it has been
proven that the further digitalization of the
ECtHR will allow to significantly improve the
consideration of cases and ensure access to
justice for a wider range of people.
Keywords: European Court of Human Rights,
digitalization, civil proceedings, commercial
proceedings, international cooperation.
Introduction
The introduction of the latest technologies is a
long process, which carries many unknown
challenges and questions for society. Digital
technologies have provided unlimited
opportunities for governmental and non-
governmental structures to control and manage
people's consciousness and behavior through
informational influences. State bodies use
digitalization to facilitate work, reduce
administrative apparatus, and improve the level,
speed, and overall efficiency of service provision
and implementation of their activities.
In turn, the implementation of digital
technologies has a number of risks and threats,
which can affect the level of information security
and human rights on the Internet. Therefore, the
digitalization process involves an institutional
transformation, which covers both the proper
legal regulation of the introduction of digital
tools and the proper protection of information
and human rights on the Internet from possible
cyber threats.
The conditions of the Covid-19 pandemic and
global digitalization have opened up new
opportunities for interaction, for online
communication, including in the field of justice.
On the one hand, the quarantine affected the
sphere of justice by disrupting the normal work
of courts and decision enforcement bodies, and
on the other hand, it created a field for innovation
in this sphere. Thus, despite the quarantine, the
number of court cases did not decrease, and in
some categories - even increased. In particular,
the number of civil (divorce or marriage) and
economic cases (debt collection, termination of
contracts) has increased.
The above-mentioned circumstances created all
the conditions for the introduction of digital tools
for the administration of justice and access to
justice for people and organizations. Therefore,
the states faced the issue of reforming the judicial
system by introducing digital tools, recording
court sessions, and online participation. This also
applies to international courts. For example, the
ECtHR is also forced to change its activities in
accordance with the new reality. At the same
time, the ECtHR must clearly take into account
the provisions of the Convention on the
Protection of Human Rights and Fundamental
Freedoms (Council of Europe, 1950).
Therefore, without the introduction of digital
technologies, sustainable socioeconomic growth
is impossible, and therefore it is important to
analyze the already existing tools, risks, and
effects arising from the digital transformation of
the judicial system and the execution of decisions
in foreign countries, in order to introduce better
and expedient experience, based on internal
prerequisites in Ukraine and in international
courts.
Theoretical Framework or Literature Review
The issue of digitalization of judicial proceedings
and enforcement of decisions was considered by
a number of scientists.
The basic aspects of digitalization and their legal
support are analyzed in detail in a group
monograph edited by Yefremova (2021). Thus,
the monograph highlights separate studies on
current areas of legal support for digital
Kryvosheina, I., Zhornokui, V., Kronda, O., But, I., Oleh, P. / Volume 11 - Issue 59: 35-42 / November, 2022
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sovereignty, identified aspects of intellectual
property law in the context of digital
competence, legal regulation of digital platforms
and current issues of data processing and
circulation in digital infrastructures, the latest
approaches to the regulation of digital
information services, reveals competitive
advantages and competitiveness of digital
enterprises.
Makushev investigates the peculiarities of
enforcement proceedings in foreign countries
(Makushev, 2022). The work concludes that the
system of enforcement bodies has its own
characteristics from country to country
depending on a combination of various factors,
the main place among which is the degree of
influence of the state on the system of
enforcement proceedings. At the same time, in
general, three types of systems are distinguished:
public, private and combined. However,
regardless of the subject composition, the main
goal of any executive proceeding remains the
restoration of violated human rights and the
implementation of state policy in the field of
justice. The author summarizes that in every
country, regardless of which of the above types it
belongs to, there must be an effective system of
enforcement of court decisions, without which
justice cannot be achieved, and court decisions
will remain declarative.
The decision in the Regent 47 case against
Ukraine and its significance for the development
and independence of arbitration in Ukraine in the
era of digitalization was analyzed by V.I.
Nahnybida. and A.V. Nahnybida (2021). The
ECtHR decided whether there is a possibility to
enforce the decision of the International
Commercial Arbitration at the Chamber of
Commerce and Industry of Ukraine. Some
important conclusions concerning the
fundamental principles of the organization and
operation of international commercial arbitration
and arbitral proceedings were formulated by the
ECtHR.
Nikiforova (2021) investigated a number of
problematic aspects of the implementation of
ECtHR decisions in Ukraine, analyzing the
«Petukhov v. Ukraine» case. In particular, she
noted the issue that in the decision «Petukhov v.
Ukraine No. 2» dated March 19, 2019, the Court
established a violation of Article 3 of the
Convention due to the fact that in Ukraine there
are no real grounds and mechanisms for
reviewing the sentences of those sentenced to life
imprisonment deprivation of liberty and
recognized that Ukraine, given the systemic
nature of the problem, should reform its life
sentence review system, examining on a case-by-
case basis whether long detention was justified
and allowing lifers to know what they need to do,
that their petitions for release be considered and
under what conditions.
Osarchuk (2021) drew attention to the main
problems of proper implementation of decisions
of the European Court of Human Rights in
Ukraine. Including the need to establish the
location of the debt collector and to establish this
provision normatively, in the aspect of paying
compensation to the debt collector, which
currently does not meet European requirements,
thereby depriving citizens of Ukraine of
receiving compensation.
The role and place of ECtHR decisions in the
Ukrainian judicial system were analyzed by
Pavlyukovets (2020). Chumak (2016)
investigated the foreign experience of legal
regulation of certain issues of enforcement of
decisions of jurisdictional bodies. The role of the
EU court in the formation of European law
enforcement practice is considered by Shabalin
(2020).
Zorzi (2020) explored the new possibilities of the
post-modern world for the administration of
justice. The researcher notes that now, more than
ever is the time for justice system leaders to reach
out to each other across borders to share
experiences, best practices, and capacity, and
collaborate on innovation.
The experience of the digitalization of justice in
Azerbaijan was analyzed by Melis (2022). The
author noted that the digital transformation of the
functions of the judiciary over the past few years
has allowed for increase productivity - it is
possible to process approximately three times
more cases compared to courts that rely on paper
documents; increase efficiency – judges not only
consider more cases but also do it faster, saving
time on each case by about two months; increase
transparency - court sessions are recorded. In
turn, equipment and programs, necessary to
increase transparency allowed for remote
hearings, a game-changer during the COVID-19
pandemic as it allowed courts to continue
operating.
In his work, Voorhoof (2022) analyzes the
practice of the ECtHR in the context of the
application of Article 10 of the ECHR (freedom
of expression). The author concludes that the
judicial practice of the ECtHR allowed to
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increase the degree of protection of the right to
freedom of expression online.
The impact of another article of the Convention
for the Protection of Rights and Fundamental
Freedoms on the digitalization process was
further explored by Özgür Heval Çɪnar (2021).
The author examined Article 8 of the European
Convention on Human Rights, its historical
origins, definition, and scope, and the current
practice of the ECtHR in light of current events
in the digital world.
Equally important is the study of Bachelet
(2022). The author draws attention to the fact that
the protection of human rights and democratic
space in the era of digital technologies has
become extremely important. At the same time,
the protection of the right to participate is central
to the protection of democracy.
As we can see from the above analysis of the
literature, the issue of digitalization of the
judicial system and the problem of execution of
decisions arouse interest among scientists and
practicing lawyers. However, unfortunately, the
international legal experience of digitalization of
the activity of the ECtHR in civil and commercial
proceedings, as well as during the execution of
decisions, remains insufficiently researched,
although it is quite relevant. This necessitates a
more detailed study and research of the relevant
issues.
Methodology
By using the formal-logical method,
digitalization in the field of civil and commercial
proceedings and the execution of decisions are
determined by a formally justified, logically
structured, and clearly fixed system of rules,
which is built using the principle of
subordination and non-contradiction of norms.
The purpose of this method is to determine the
content and essence of digitalization, by
systematizing provisions and ideas that
determine the features of this process and, in
general, the order of its implementation.
The use of the analysis method consists of the
fact that the subject of research is divided into
parts, each of which is investigated separately.
However, the analysis does not make it possible
to know the object in general. For this, a
synthesis is used, with the help of which the
connections and interaction of the structural
elements of legal responsibility are renewed.
Therefore analysis and synthesis helped to
comprehensively investigate the international
legal experience of the digitalization of the
ECtHR in civil and commercial proceedings and
the problems of their enforcement as a legal,
systemic phenomenon and to study the
relationship of its structural elements.
Abstraction as a formal-logical method is one of
the main and important for the study of the
international legal experience of the legal
regulation of digitalization, which involves
delimiting general features and properties from a
specific subject and separating them from all
other features. Thus, abstraction makes it
possible to isolate the experience of a single
country from others, as well as to find out its
essence.
The methods of induction and deduction were
used in the process of scientific knowledge of the
features of digitalization in the field of judicial
proceedings and enforcement of decisions.
Induction made it possible to learn from
individual facts to general statements about
digitalization, and with the help of deduction, its
research was carried out by going from the
abstract to the concrete, from the general to the
particular.
It is impossible to study the stages of
development of digitalization and its legal
regulation without using the historical method of
cognition. Thus, it is important to study legal
phenomena in close connection with the history
of the country, since the current state of legal
phenomena directly depends on the legal past.
The historical method of cognition made it
possible to reveal the meaning of phenomena on
the basis of available facts and analogies to form
broad generalizations and draw historical
parallels. Therefore, with the help of the
historical method, it became possible to
investigate digitalization in the field of judicial
proceedings and the execution of decisions of
various countries through the prism of its origin
and development, which characterizes its
essence.
An important method of the conducted research
is the systematic method, with the help of which
it is possible to carry out a comprehensive study
of digitalization, taking into account the fact that
it exists in a system of a state-legal nature. With
the help of the system method, the relationship
between digitalization and other processes
affecting the judicial system and the system of
execution of decisions was clarified.
A sociological and legal method was also used
for a comprehensive study of the international
legal experience of digitalization of the ECtHR's
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activities in commercial and civil cases since any
social phenomenon is important to determine by
analyzing the specific features of other, similar
phenomena. Therefore, the key to a thorough
understanding of digitalization is taking into
account the sociological and legal context of the
specified problem.
In addition to the methods mentioned above, this
research used the comparative legal method,
which is one of the general scientific comparative
methods. Thanks to the application of this
method, the processes, and phenomena that
affect digitalization were understood, and a
comparison of the practical use of digitalization
in various spheres of social life was made.
Results and Discussion
In the modern conditions of the development of
social relations, the justice system and the
execution of decisions of jurisdictional bodies
face new challenges related to the digitalization
of proceedings both at the national and
international levels.
The heads of the justice bodies must effectively
implement access to justice activities, using
collaboration with various actors to ensure that
they quickly adapt to the situation, meeting the
needs of the people. Justice leaders must
effectively implement access to justice, using
multi-stakeholder collaboration to adapt quickly
to a situation, such as Covid-19 or martial law, to
meet people's needs.
In particular, the European Commission
proposed key principles of digital
transformation: placing people and their rights at
the center of digital transformation; support of
solidarity and inclusiveness; ensuring freedom of
choice online; promoting participation in the
digital public space; increasing security,
protection and empowerment of people;
promoting a sustainable digital future (European
Commission, 2022). This also indicates the need
for the courts to take into account the general
principles of the transformation of digital
technologies.
International experience shows that courts with
digital technologies and open justice are able to
respond to challenges faster and more efficiently,
turning crisis phenomena into an opportunity to
increase their accountability and evaluate their
effectiveness. Let's consider the international
experience of digitalization of court activities in
civil and commercial processes in more detail.
Table 1.
Digitalization in some countries of the world. Comparative characteristic.
Country
Experience in implementing digital elements
United Kingdom
Implemented HMCTS in the era of modernization of courts and tribunals 1) is and conducting hearings online. One of the main functions of this program
to ensure the automation of court cases and online consideration of certain
categories of court cases. islative simplification of formal procedures in civil proceedings, which 2) Leg
made it possible to introduce online services in the court system and, thus, to
simplify and speed up the consideration of relevant categories of cases
, 2020).European Bank(
Canada
The British Columbia Civil Dispute Resolution Tribunal (CRT) has been
The peculiarity of this organization is that it is not a state body, . established
consists of specialists who do not have the status of a judge and considers
h up to 5 thousand dollars. Disputes are processed online minor disputes wort , 2020).European Bankwith a shortened procedure (
Australia
an online registry and an online -Provides for the operation of two services ation forms for ccourt. The registry allows you to submit more than 80 appli
civil cases, receive court documents by email, check documents submitted for
a specific case and pay court costs online. In turn, the online court provides a
concrete solution for legal practitioners and professional litigants to conduct
ases online. This allows users to make a specific request or agree or oppose a c
request made by another party after the case is listed. Users can also attach
2020) European Bank,documents or send messages through the system (
Estonia
Estonia introduced a single automated system for judicial document
management back in 2005. It was created for use by all participants in the trial
and provides opportunities for consideration of any category of cases. In fact,
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in the world to introduce a system of automating Estonia was one of the first 2020) European Bank,(court procedures.
Malta
Malta's strategy envisages digitalization in the provision of services, including
in the field of justice. In particular, the launch of the Gustizzja portal is
foreseen, which will serve as a transition portal for integration with various
on system, as well as with European -through a single signnational portals ice online, where all portals. The portal will serve as the front window of Just
information about digital services and their interrelationships will be
rove the means of electronic available. In addition, it is envisaged to imp
search of court practice, to provide lawyers with full access to case materials
)Ministry for Justice and Governance, 2022(
Singapore
Singapore became one of the first countries in the world to introduce online
(Zorzi, 2020). e judiciaryservices in th
Romania
Romania is not one of the leading countries in the world in terms of the
introduction of automated systems in the field of justice, however, the recently
sessions also helps the record court -granted opportunity for courts to audio
participants in the process to properly exercise their rights in the field of
justice (Zorzi, 2020).
Croatia
Audio recordings and audio/video recordings are available, but not yet fully
020).implemented in daily court practice (Zorzi, 2
Malaysia
Courts in Malaysia are obliged to make audio and video recordings of the
court proceedings and also to transcribe them (Zorzi, 2020).
It is also worth noting that due to the
conservatism of the judicial system, during the
last decade, the Scandinavian courts have
gradually modernized and introduced digital
technologies. Denmark is a leader among other
Scandinavian countries in matters of court
automation, however, the Baltic countries, first
of all Estonia, which was mentioned earlier, are
significantly ahead of even Denmark in terms of
digitalization (The Nordic Council and the
Nordic Council of Ministers, 2022).
Thus, despite the fact that the courts remain to a
certain extent conservative in their procedures, it
is evident that today's challenges force more and
more countries to introduce various
technological solutions in the field of justice in
order to simplify court procedures, enhance the
judicial process and improve the state of
protection of rights and freedoms its citizens
(The Pew Charitable Trusts, 2021).
The same applies to the digitalization of the
ECtHR's activities to ensure human rights. For
example, recently the ECtHR is paying more and
more attention to the digital rights of citizens and
the need to protect information on the Internet as
a necessary component of human rights (EDRi,
2022).
We will conduct an analysis of foreign
experience to generalize the positive and
negative aspects of enforcement systems of other
states and consider the feasibility of using
positive experience in the conditions of the
modern development of the system of
enforcement of decisions in Ukraine with the aim
of improving it.
Taking into account the characteristic features
and forms of redistribution of power in the field
of enforcement, it is advisable to distinguish
between centralized and decentralized systems of
executive proceedings. Accordingly,
centralization and decentralization affect both the
possibilities of digitalization and the efficiency
of decision-making. Centralized systems of
executive proceedings were formed in the
Republics of Armenia, Belarus, and Kyrgyzstan,
as well as in Sweden, Finland, Spain, and others.
Under this model of executive proceedings, an
organizationally independent body authorized in
the field of enforcement, with a vertically
integrated management structure, is created.
Decentralized systems of executive proceedings
provide that certain functions of the state
regarding the execution of court decisions can be
transferred to private persons. Such systems
operate, for example, in the USA, Canada,
France, and other countries. The decentralized
enforcement systems have different departmental
subordination of bodies and officials who carry
out enforcement, and differentiation of
departments that perform licensing, control, and
supervisory functions. In such countries as
Lithuania and Estonia, the institute of private
bailiffs was introduced instead of the institute of
state executors, which turned out to be
ineffective. In Estonia, the status of a bailiff is
defined as an independent person who holds a
public legal position and performs his official
duties as a person of a free profession on his own
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behalf and under his own responsibility
(Osarchuk, 2021).
If we compare the effectiveness of the
mechanisms of the enforcement systems that are
used in the world, it should be noted that the most
effective of them are those that function in
countries where the population has a high level
of legal culture, respect for the law, where
complex systems of interaction between state and
self-regulatory organizations (state, banks, and
collective agencies) are founded. In addition, a
high level of legal culture promotes openness to
the latest technologies and their use in the
execution of decisions (forwarding of documents
and attachment of accounts).
Thus, as can be seen from the above analysis of
the literature and experience of foreign countries,
digitalization is an important component of
ensuring human rights, especially in conditions
of the technical impossibility of access to justice
and execution of decisions.
Conclusions
Thus the research of the international legal
experience of digitalization of the activity of the
ECtHR in civil and commercial processes and the
problems of their enforcement, the following
conclusions can be drawn:
1. Digitalization in courts is aimed at
increasing legal certainty, strict compliance
with deadlines, reducing costs, and using
automation when performing complex
procedures.
2. Countries introducing tools for the
automation and digitization of the judicial
process should rely on those models that
have proven themselves well in the world.
First of all, this concerns the clear work of
processing the entire array of documentation
that enters the automated system, as well as
compliance with the norms of procedural
legislation during online hearings.
Therefore, jurisdictions with advanced
online court systems have strengthened their
evidence-based functions for thorough
statistical reporting and changed their model
accordingly.
3. Adopting digital technologies not only helps
keep courts open but also improves
participation and helps users resolve
disputes more effectively.
4. Based on the results of the examination of
the systems of enforcement agencies of
foreign countries, it should be summarized,
that in every country, regardless of which of
the above types it belongs to, there must be
an effective system of enforcement of court
decisions, without which justice cannot be
achieved, and court decisions will remain
declarative.
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