Volume 12 - Issue 68
/ August 2023
33
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.68.08.3
How to Cite:
Teremetskyi, V., Boiko, V., Malyshev, O., Seleznova, O., & Kelbia, S. (2023). Electronic judiciary in Ukraine: Problems of
implementation and possible solutions. Amazonia Investiga, 12(68), 33-42. https://doi.org/10.34069/AI/2023.68.08.3
Electronic judiciary in Ukraine: Problems of implementation and
possible solutions
Π•Π»Π΅ΠΊΡ‚Ρ€ΠΎΠ½Π½Π΅ судочинство Π² Π£ΠΊΡ€Π°Ρ—Π½Ρ–: ΠΏΡ€ΠΎΠ±Π»Π΅ΠΌΠΈ впровадТСння Ρ‚Π° ΠΌΠΎΠΆΠ»ΠΈΠ²Ρ– ΡˆΠ»ΡΡ…ΠΈ Ρ—Ρ…
Π²ΠΈΡ€Ρ–ΡˆΠ΅Π½Π½Ρ
Received: June 5, 2023 Accepted: July 20, 2023
Written by:
Vladyslav Teremetskyi1
https://orcid.org/0000-0002-2667-5167
Viacheslav Boiko2
https://orcid.org/0000-0002-3505-4530
Oleksandr Malyshev3
https://orcid.org/0000-0002-5796-7808
Olha Seleznova4
https://orcid.org/0000-0001-5095-277X
Stella Kelbia5
https://orcid.org/0000-0002-1817-8160
Abstract
The purpose of the article is to study the
possibilities to administer judicial proceedings with
the use of information technologies at the current
stage of judicial reform in Ukraine. The research
methods are: formal and logical, analysis and
synthesis, comparative and legal, generalization,
forecasting, etc. The issue of the possibility and
expediency of introducing full-fledged electronic
justice in Ukraine in terms of the martial law has
been considered. The authors have characterized
the Strategy for the Development of the Justice
System and Constitutional Judiciary for 2021-2023
in the context of ensuring the development of e-
judiciary. The organizational and legal, financial
and technical problems on the implementation of
the Electronic Court and the Unified Judicial
Information and Telecommunication System have
been defined. The authors have characterized the
factors that must be taken into account while
adopting a law on the effective regulation of remote
and electronic justice in terms of the martial law or
the state of emergency. It has been emphasized that
1
Doctor in Law, Professor, leading research scientist of the Department of International Private and Comparative Law, Academician
F.H. Burchak Scientific Research Institute of Private Law and Entrepreneurship, National Academy of Legal Sciences of Ukraine,
Kyiv, Ukraine. WoS Researcher ID: Y-1755-2018
2
Ph.D. in Law, Associate Professor, doctoral student of the Scientific Institute of Public Law, Kyiv, Ukraine. WoS Researcher ID:
JEF-8477-2023
3
Ph.D. in Law, postdoctoral fellow, Koretski Institute of State and Law of the National Academy of Sciences of Ukraine, Kyiv,
Ukraine. WoS Researcher ID: K-2937-2017
4
Doctor in Law, Associate Professor, Head of the department of professional and special legal disciplines, Private Higher Educational
Institution Β«Bukovinian UniversityΒ», Chernivtsi, Ukraine. WoS Researcher ID: V-6649-2019
5
Ph.D. in Law, Associate Professor, dean of the law faculty of the Bukovyna University, Private Higher Educational Institution
Β«Bukovinian UniversityΒ», Chernivtsi, Ukraine. WoS Researcher ID: JEP-2662-2023
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the main indicator for the effective functioning of
remote justice should be maintaining a balance
between ensuring the right to access to justice and
ensuring the safety of court proceedings
participants.
Key words: access to justice, electronic court,
electronic office, information technologies, unified
judicial information and telecommunication
system, electronic document, electronic evidence.
Introduction
Access to justice covers a complex of human
rights (the right to a fair trial, the right to an
effective remedy, etc.), an integral part of which
is the right to justice through various means and
forms of electronic justice that is important for
certain groups of the population, who have
certain restrictions, who are in special conditions
or live on a territory with a special legal regime
(persons with disabilities, victims of crime,
prisoners, persons in custody, martial law or state
of emergency, etc.).
Introduction of the martial law in Ukraine related
to the military aggression of the Russian
Federation influenced on all the functioning
spheres of Ukrainian society. In particular, the
access of citizens to justice has become much
more difficult. There are frequent cases of
impossibility for judges and other court
proceedings participants to be in courtrooms due
to air alarms, blackouts, etc. Besides, many
courts do not have the conditions to ensure at
least minimal protection from shelling. Some
courts are located in emergency buildings or
located near strategic facilities, police stations,
military units, etc. Holding court hearings in such
premises does not guarantee the safety of visitors
(LB.ua website, 2022).
The problem of ensuring the safety of court
proceedings participants and timely hearing of
cases under such conditions brought up the issue
of the possibility of using modern information
technologies during judicial proceedings, in
particular, the execution of all procedural actions
through electronic means of communication with
the appropriate identification and security
mechanisms (Filatov, 2017, p. 8). Besides,
Ukraine has recently demonstrated significant
results of digital transformation in the field of
public service provision.
Therefore, it is offered to solve the difficulties
associated with access to justice in this case by
building fully functioning subsystems
β€œElectronic Court” and β€œElectronic Office”
(Kibenko, 2023), by making amendments to the
procedural legislation in terms of simplifying the
interaction between the population and the court
and by creating appropriate technical capabilities
in the courts themselves (in particular, in terms
of requirements for the form of procedural
documents that are sent to the court in electronic
form, at least during a certain β€œtransitional
period”, guaranteeing the possibility of
participating in the court hearing in
videoconference mode, etc.) (Verkhovna Rada of
Ukraine, 2023, p. 99).
Therefore, clarification of the issue regarding the
possibility and expediency of introducing full-
fledged electronic justice in Ukraine is currently
relevant and needs to be resolved. Herewith, the
success of the modern stage of judicial reform in
Ukraine depends on its proper scientific and
practical solution. At the same time, it should be
remembered that online services provided by
judicial agencies, remote court hearings and
video conferences, as well as the further
development of digital justice must always be
carried out in accordance with the fundamental
rights and principles of a fair trial (CEPEJ, 2020,
principle 5).
Given the above, the purpose of the article is a
thorough study of the possibility of
implementing judiciary by using modern
information technologies, in particular, by
studying the effectiveness of the mechanisms for
the implementation and full functioning of the
β€œelectronic court” at this stage of the judicial
reform in Ukraine in terms of the military
aggression of the Russian Federation.
Literature Review
The issue of improving public relations in the
sphere of judicial administration in Ukraine has
recently become quite popular. It is related to the
judicial reform aimed at finding optimal and
effective mechanisms for the functioning of the
judicial system. Special attention is paid to the
Teremetskyi, V., Boiko, V., Malyshev, O., Seleznova, O., Kelbia, S. / Volume 12 - Issue 68: 33-42 / August, 2023
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development and implementation of new or
additional means of ensuring a person’s access to
justice. The implementation of electronic justice
by using various forms and means, which is
important in terms of the martial law in Ukraine,
is among such means.
The scientific and theoretical basis of this
research is the works of modern Ukrainian
lawyers from various branch disciplines, focused
on the problems of access to justice at the current
stage of judicial reform in Ukraine, as well as
focused on debatable issues of the introduction of
the latest information technologies in this area.
Thus, the authors of the article studied and used
the works of Ukrainian scholars, focused on: the
characteristics of reformation processes in the
sphere of justice in Ukraine, as well as problems
that arise during the implementation of the main
provisions of the Strategy for the Development
of the Justice System and possible ways to
eliminate them (Bandurka et al., 2023); on the
analysis of the availability of justice within
Ukrainian administrative judicial system, its
specific features in terms of the martial law and
the possibilities of its improvement due to the
implementation of European standards into the
legislation of Ukraine (Krupchan et al., 2023); on
the research of existing judicial and extrajudicial
methods of applying to compensate for damages
caused by armed conflicts on the example of
Ukrainian legislation (Onishchenko et al., 2023,
pp. 522-537).
Scientific and expert, analytical and legal
publications of leading Ukrainian lawyers have
been also used while writing the article, which
are posted on well-known analytical and news
websites (for example, LB.ua Website, 2022;
Sudovo-yurydychna hazeta Website, 2022b;
Sudova vlada Ukrainy; High Council of Justice),
etc.
Methodology
The object of the research is public relations in the
sphere of justice administration in Ukraine. The
subject matter of the research is the analysis of the
problems for implementing electronic justice in
Ukraine and forming authors’ suggestions for their
solution within the scientific and practical plane.
The regulatory basis of the research is: the main
provisions of the Strategy for the Development of
the Justice System and Constitutional Judiciary for
2021-2023, which relate to the introduction of
digital technologies during the administration of
justice in Ukraine; draft laws on the implementation
of judicial proceedings in terms of the martial law
or the state of emergency, in particular, focused on
the introduction of remote judicial proceedings in
terms of the martial law in Ukraine; certain
provisions of the Concept for reforming the court
system with the aim of improving the access to
justice, prepared by the Research Service of the
Verkhovna Rada of Ukraine; draft Resolution of the
Verkhovna Rada of Ukraine β€œOn approval of the
list of tasks and projects of the National
Informatization Program for 2023”; other national
and international regulatory legal acts that regulate
legal relations in the field of electronic justice.
Generalization of the practice of the Supreme
Court, analysis of the position of the High Council
of Justice in the context of the researched issues in
the article, political and legal journalism, etc.
constitute the information and empirical basis of the
article.
The methodological basis of the article is a set of
general scientific and special methods of
scientific cognition that relate to the subject
matter of the research. Thus, the dialectical
method is applied to the general characteristic of
electronic justice as an additional mean of
ensuring access to justice. The methods of
abstraction and generalization were used to find
out the specifics of the implementation of full-
fledged electronic justice in Ukraine in terms of
the martial law. The methods of analysis and
synthesis made it possible to identify
organizational and legal, financial and technical
problems associated with the implementation of
the Electronic Court and the Unified Judicial
Information and Telecommunication System and
to summarize the information regarding
understanding. Modeling and forecasting
methods made it possible to determine the ways
to improve the implementation of remote and
electronic justice in terms of the martial law or
the state of emergency. The comparative and
legal method was used to generalize the
experience of different countries in solving the
issue of the physical location of judges, the
secretary of the court session and other
participants in the proceedings during the remote
hearing of the case. The method of analysis and
generalization made it possible to draw
conclusions based on the conducted research.
Results and Discussion
Electronic judiciary as an additional mean of
ensuring access to justice
The following factors are current obstacles to
improving access to justice in Ukraine, in the
context of the effective functioning of electronic
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judiciary: the slow development of digitalization
of judicial proceedings, new online platforms for
resolving disputes, as well as organizational and
legal, financial and technical problems with the
implementation of the Electronic Court and the
Unified Judicial Information and
Telecommunication System (hereinafter –
UJITS).
The Chairman of the Supreme Court V. Kniaziev
defined the main tasks for the judicial power for
the next five years at the solemn meeting of the
Plenum of the Supreme Court on December 15,
2022. Digitization of justice was called one of
those tasks (Sudova vlada Ukrainy website,
2023). At the same time, the insufficient level of
implementation of digital technologies in the
administration of justice is recognized as the
main problem in the Strategy for the
Development of the Justice System and
Constitutional Judiciary for 2021-2023
(hereinafter referred to as the Strategy) (Decree
of the President of Ukraine No. 231/2021, 2021),
which necessitates further improvement of the
functioning of judicial power and the
administration of justice in Ukraine.
The Strategy is currently the legal basis for
judicial reform in Ukraine. According to clause
4.1 of the Strategy improving access to justice
can be ensured through the development of
electronic justice taking into account world
standards in the field of information technologies
by:
βˆ’ introduction of the possibility of online
hearings of certain categories of cases
regardless of the location of the parties and
the court and other electronic judicial
services;
βˆ’ introduction of modern electronic record
keeping in the court, electronic case
management, electronic communications
with the court, the judge’s office and the
office of a proceedings participant;
βˆ’ improvement and development of the
official web portal of the judicial power of
Ukraine for obtaining information about
courts and cases (proceedings) with regular
updates of court statistics (Decree of the
President of Ukraine No. 231/2021, 2021).
It should be noted that the introduction of an
electronic system to ensure the movement of
materials through court authorities in a paperless
form (UJITS) was provided by the Law of
Ukraine β€œOn Amending the Commercial
Procedural Code of Ukraine, Civil Procedural
Code of Ukraine, Code of Administrative
Proceedings of Ukraine and other legislative
acts” dated from October 3, 2012 No. 2147-VIII
(Law of Ukraine No. 2147-VIII, 2017). The main
purpose of the adoption of the specified Law is
the gradual introduction of the tools of
β€œelectronic justice”, in particular, giving any
person the opportunity to apply to court, pay a
court fee, participate in the case hearings and
receive the necessary information and documents
by electronic means, standardizing the procedure
for providing and researching electronic
evidence, etc. (Filatov, 2017, p. 3).
The UJITS according to the provisions of the
current procedural codes in Ukraine was
supposed to operate in 2017. However, the
specified system actually started working only in
January 2019. According to the plan, it should
gradually ensure the automation of the lion’s
share of proceedings taking place in courts:
document circulation, in particular between
participants in cases, centralized storage of
materials, automated distribution of cases, video
conferencing, collection and processing of
statistical data, etc. It was planned that 8 out of
18 modules of the system would start working in
a test mode in March 2019. However, only three
were fully operational as of 2021 for some
reasons, namely: the subsystem β€œElectronic
Office”, β€œElectronic Court”, as well as the
videoconferencing module (LB.ua website,
2023).
D. Maslov, who is the Chairman of the
Committee on legal policy of the Verkhovna
Rada of Ukraine, noted that the processes of
introducing electronic justice are the priority in
the field of judicial reform for 2023. However,
the Ruling of the Cabinet of Ministers of Ukraine
dated from December 23, 2022 No. 1191-r,
which approved the Action Plan for 2023
regarding the transfer of public services to
electronic form (Ruling of the Cabinet of
Ministers of Ukraine No. 1191-r, 2022), does not
provide for some reason the transfer of executive
documents into electronic form and the full-
fledged launch of the UJITS.
We would like to note that the digitalization of
the judicial branch of power involves the
implementation and full functioning of electronic
justice. At the same time, in accordance with the
Order of the Head of the State Judicial
Administration of Ukraine O. Salnikova dated
from January 13, 2023, which approved a new
edition of the Anti-Corruption Measures Plan in
the State Judicial Administration of Ukraine
entitled β€œTasks and measures for the
implementation of the principles of the anti-
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corruption policy of the State Judicial
Administration of Ukraine” (Order 14, 2023) the
main changes in the digitalization of the judicial
branch of power will come only in 2024-2025. At
the same time, full-fledged electronic justice
should start working only at the beginning of
2025. Until now, the following measures have
been gradually introduced:
1) the implementation of the Unified State
Register of Executive Documents is planned
by August 2023, taking into account the
architectural requirements for further
application of data array technologies;
2) it is provided by December 2023:
βˆ’ development of software and introduction of
technical equipment necessary to ensure the
formation and maintenance of judges’ files
(file of a candidate for the position of a
judge) in electronic form in the UJITS;
βˆ’ creation and implementation of the
electronic procedural record keeping system
as part of the UJITS;
βˆ’ implementation of the Unified State Register
of Executive Documents as part of the
UJITS;
3) provision of data exchange and technical
possibility of the interaction between the
Automated System of Executive
Proceedings and the Unified State Register
of Executive Documents until February
2024;
4) preparation and approval of the Provision
that determines the procedure for
functioning of the subsystem by March
2024, which ensures the formation and
maintenance of judges’ files (file of a
candidate for the position of a judge) in
electronic form in the UJITS (the SJA – is
co-executor);
5) development and approval of the Regulation
on the UJITS by June 2024 by the State
Judicial Administration of Ukraine, which
determines the procedure for the functioning
and application of all subsystems (modules).
Therefore, the UJITS is currently not working
properly. The COVID-19 pandemic, military
aggression of the Russian Federation against
Ukraine, as well as corruption among the
employees of the State Judicial Administration of
Ukraine were among the objective obstacles that
prevented the full functioning of electronic
justice in Ukraine (Bandurka et al., 2023, p. 65).
The last factor led to the need to:
1) conducting a technical audit of the UJITS
aimed at obtaining specific
recommendations regarding the further
development of the electronic justice
system, in particular the unification of the
UJITS with the system of executive
proceedings and with the systems of law
enforcement agencies;
2) transferring the processes of creating
electronic justice to the Ministry of Digital
Transformation of Ukraine;
3) coordinating the specified processes by the
Committee on Legal Policy of the
Verkhovna Rada of Ukraine
(Sudovo-yurydychna hazeta website,
2022a).
It should be noted that more than 4 years have
passed since the launch of the UJITS. The system
is partially outdated during this time and no
longer fully meets the current needs of users:
some of its modules do not interact well with
each other, have problems with updates, because
they were developed at different times and by
different contractors. Therefore, there is
currently an urgent need to conduct a full-fledged
independent audit of the UJITS. It should not
only determine the technical capabilities of the
existing system and the functional needs of users,
but also plan further actions on the path of
digitalization of court processes in Ukraine
(LB.ua website, 2023).
A positive step in this direction is the draft
Resolution No. 9523 β€œOn approval of the list of
tasks and projects of the National Informatization
Program for 2023” registered by the Cabinet of
Ministers of Ukraine on July 24, 2023 in the
Verkhovna Rada of Ukraine (Draft Resolution
No. 9523, 2023). The Government suggests to
the Verkhovna Rada of Ukraine to adopt a new
Resolution instead of the current one, where to
establish the list of tasks in details related to the
digitalization of justice. At the same time, we are
talking about the allocation of a specific amount
for the informatization of the justice system
within the limits of expenditures provided in the
Law of Ukraine β€œOn the State Budget of Ukraine
for 2023” (Law of Ukraine No. 2710-IX, 2022).
The role of remote justice in ensuring the
safety of court proceedings participants in
terms of the martial law
The aggression of the Russian Federation against
Ukraine has been going on for over one and a half
year. As a result, part of the territory of our
country was under occupation, and millions of
citizens were forced to move to other regions of
Ukraine and abroad. Despite this, as well as
under the introduction of the martial law, the
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agencies and institutions of the justice system
continue to work, and the courts continue to
administer justice.
The legislator has been recently trying to offer
the Ukrainian society such amendments to the
national legislation that would allow the
introduction of effective mechanisms for the
implementation of justice in terms of the martial
law or emergency situations. First of all, it is
about maintaining a balance between ensuring
the right of access to justice and ensuring the
safety of participants in court proceedings.
The Ukrainian Parliament has tried three times to
regulate the implementation of remote justice at
the legislative level since the full-scale invasion.
However, the first draft Law of Ukraine dated
from May 24, 2022 No. 7404 β€œOn Amending the
Code of Ukraine on Administrative Offenses
Regarding the Implementation of Judicial
Proceedings in Terms of the Martial Law” was
rejected on August 16, 2022 (Draft Law of
Ukraine No. 7404, 2022). The second draft Law
was rejected by the Verkhovna Rada of Ukraine
on July 1, 2022 (Draft Law of Ukraine No. 7316,
2022). The third draft Law is only at an
intermediate stage of its development and review
and has many comments (Draft Law of Ukraine
No. 8358, 2023).
Such a slow state of solving the outlined problem
is related to some fears that the introduction of
remote justice may lead to an increase in abuses
by judges, negatively affect the compliance with
the requirements of public hearings of cases, as
well as increase the risks of disruption of court
sessions due to technical problems of
communication means, etc. (Sobol, 2023, p. 11).
At the same time, the idea of introducing full-
fledged remote justice finds its support both
among the experts and among the majority of the
country’s population. Besides, the European
Commission for the Efficiency of Justice
(CEPEJ) of the Council of Europe noted that
further expansion of remote justice meets the
needs of modern times, since it gives the judicial
system the opportunity to act where a complete
shutdown of the courts would be the alternative
(CEPEJ, 2022, p. 4). In addition, the CEPEJ
emphasized in its previous report that ensuring
the safety of all employees of the justice system,
as well as court visitors, should be a priority.
Employees must be able to work remotely and be
provided with the necessary secure IT equipment
(CEPEJ, 2020).
As one knows, the Constitution of Ukraine does
not directly regulate the format of remote justice,
but it does not contain its prohibitions either. At
the same time, Part 3 of the Art. 129 of the
Constitution of Ukraine specifies that β€œOther
principles of judiciary may also be determined by
law” (Law of Ukraine No. 254k/96-VR, 1996).
According to the opinion of the Administrative
Court of Cassation as part of the Supreme Court,
it means that the list of principles for judicial
proceedings can be specified at the legislative
level, in particular detailed or supplemented by
new provisions that meet the needs of modern
times that they do not conflict with the
Constitution of Ukraine. Judges of this court
insist on the introduction of a remote format of
judicial proceedings, at least during the martial
law (Sudovo-yurydychna hazeta website,
2022a). The High Council of Justice also
supported the need for the earliest possible
introduction of remote justice during the war
(High Council of Justice website, 2022).
There is already a positive experience of using
the latest information and communication
technologies and other technical innovations in
Ukraine like in many world countries due to the
global pandemic of COVID-19 while hearing
various categories of cases in courts. However,
such factors and problems must be taken into
account when adopting the law for the effective
regulation of remote and electronic justice in
terms of the martial law or the state of
emergency.
The use of communication means (mobile
network, Internet resource, etc.) by court
proceedings participants may be impossible (for
example, due to the damage to power lines,
communication lines, hacker attacks, power
outages, the presence of a person in the area of
hostilities or on temporarily occupied territory,
which does not ensure free and uninterrupted
access to the Internet or the availability of mobile
communications). Therefore, the ability to timely
receive or familiarize with the relevant call or
message through a telephone message, SMS, etc.
can become significantly more difficult.
Besides, access to the Register of Court
Decisions has been limited for almost a year in
order to prevent threats to the life and health of
judges and court proceedings participants. And in
case of detection of cyber threat signs, access to
the Register or certain decisions there may be
restricted at any time. Therefore, the
implementation of the practice of mandatory
notifications (summons, notices, etc.) on the
official web portal of the judicial power of
Ukraine is impractical (Apparatus of the
Supreme Council of Ukraine, 2023, pp. 3-4).
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Further expansion of remote (online) hearings,
including the remote participation of judges,
court secretaries, witnesses and experts and the
admission of new forms of recording court
hearings, as well as giving the court the
opportunity to make decisions in electronic form
or to publish them on court websites is possible
and expedient, if the remote hearings meet the
basic requirements that guarantee its fairness
(CEPEJ, 2022 p. 4-5). At the same time, we note
that the possibility of conducting dispute
resolution in the mode of videoconference
outside the court premises by using its own
technical means cannot adequately protect
against the transpiration about the progress and
results of dispute resolution with the
participation of the judge (Apparatus of the
Supreme Council of Ukraine, 2023, p. 7).
Indicative in this aspect is the decision of the
Criminal Court of Cassation as part of the
Supreme Court, which annulled the decision of
the Court of Appeal in the case of seizure of
property, during the hearing of which the Court
of Appeal allowed the defence attorney of one of
the accused to participate in the hearing by means
of a telephone call (The Supreme Court of
Ukraine, 2023). Returning the case for a new
hearing, the Criminal Court of Cassation noted
that the Court of Appeal did not make a decision
regarding the participation of the defence
attorney in the mode of videoconference, as it is
required by the Criminal Procedural Code of
Ukraine.
It is necessary to decide on the issue of the
physical location of judges, the secretary of the
court session and other participants in the
proceedings during the remote hearing of the
case. To accomplish this, the experience of
different countries in solving this issue should be
studied. Thus, the physical presence of the judge
in the court premises is required in some
countries, in others it is not required. Some
countries find intermediate solutions, such as
requiring the presence of only the chairman of
the panel of judges (CEPEJ, 2022 p. 4).
Therefore, Ukraine, taking into account the
positive international experience, should regulate
the issue of physical absence of judges in the
court premises during the remote hearing of cases
at the legislative level, provided that such hearing
meets the basic requirements that guarantee its
fairness.
In accordance with the requirements of Recomm
endation CM/Rec (2010)12 of the Committee of
Ministers of the Council of Europe (Council of
Europe, 2010), judges must be provided with the
information necessary to take appropriate
procedural decisions, if such decisions have
financial consequences. In particular, it is about
granting judges the right of direct access to
automated information and telecommunications
and reference systems, registers, data banks, the
holders (administrators) of which are state
agencies or local self-government agencies
(Decree of the President of Ukraine
No. 231/2021, 2021).
Besides, the possibility of remote access of
judges to the document management system
should be introduced, in case if the access to this
system is ensured by using the judge’s own
qualified electronic signature. The appropriate
procedure and conditions for remote access must
be approved by the State Judicial Administration
and agreed by the High Council of Justice
(Explanatory notice 47d9/1-2023/4698, 2023,
p. 3).
It is also important to prescribe in details the
procedure of remote judicial proceedings in the
new Law, i.e. a clear algorithm of actions both
for judges and court proceedings participants.
It should be noted that the position regarding the
administration of justice by judges during
military aggression outside the court is actively
supported by the High Council of Justice. The
main argument is the need to ensure the safety of
judges, staff of court apparatus and court
proceedings participants. Moreover, the High
Council of Justice insists on the importance of
the immediate settlement of this issue in the
legislation of Ukraine, since several disciplinary
complaints are currently pending against judges
who administered justice in this way (High
Council of Justice website, 2022).
The Law of Ukraine No. 3200-IX regarding
mandatory registration and use of electronic
offices within the Unified Judicial Information
and Telecommunication System for the
participation in court proceedings (Law of
Ukraine No. 3200-IX, 2023) came into force on
June 29, 2023. At the same time, the Law states
that defence attorneys, notaries, state and private
enforcement employees, arbitration managers,
judicial experts, state authorities, other state
agencies, local self-government agencies, and
other legal entities must register their electronic
offices in the Electronic Court.
Registration and use of the electronic office is
free of charge; an electronic digital signature and
a little time are required for the registration. The
electronic office is the only one, regardless of the
jurisdiction and instance of the court, where you
40
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participate in the case. The court will currently
apply the procedural consequences to the new
categories of persons specified in the Law and to
the case participants, who were obliged to
register their electronic offices in the UJITS since
2017, but have not yet done so. The
consequences are the following: the court does
not consider, but leaves it motionless or returns
the procedural documents submitted by them. It
also concerns cases, when the interests of such
persons are represented by a defence attorney.
Therefore, the gradual transition from the paper
form of the exchange of procedural documents
between the court and court proceedings
participants to the electronic form significantly
simplifies the access of citizens to justice, saves
time and money for the participants, speeds up
the consideration of cases, makes it possible to
carry out all procedural actions through
electronic communication means with
appropriate identification and security
mechanisms, etc.
Conclusions
The introduction of electronic justice is an
important component of judicial reform in
Ukraine. Herewith, the functioning of the
β€œElectronic Office” and β€œElectronic court”
subsystems, as well as the videoconference mode
are additional means of ensuring access to
justice. Ensuring the access to justice, which
became much more difficult during the war, and
the potential reduction of state expenditures on
financial and technical support for judicial power
depend on its full-fledged implementation.
The main purpose of introducing electronic
justice should be to establish a process of
operational exchange of information in electronic
form between judicial institutions, court
proceedings participants, as well as other state
agencies in order to ensure fair and impartial
justice in Ukraine. At the same time, it is
important to ensure the maximum dissemination
of information about court hearings,
generalization of case-law, other legal
information by overcoming the existing gap
between a person and the court.
We believe that the full functioning of electronic
justice is possible only after the end of the war
during the post-war reconstruction of Ukraine. A
significant part of the population of Ukraine due
to military actions and other objective factors (for
example, the lack of proper telecommunications
equipment in certain regions of Ukraine, the low
level of financial support of part of the country’s
population) does not currently have access to the
specified electronic resource. Therefore, the
implementation of this procedural mechanism as
mandatory one, in particular the execution of all
procedural actions through electronic means, is
premature and objectively impossible at this
stage of judicial reform. In practice, it may lead
to violations of the rights of court proceedings
participants and violations of the principles of
transparency and openness of the legal process.
The authors of the article stand on the position of
the need to accelerate the introduction of the
latest information technologies as important and
effective tools for the organization of judicial
proceedings. To accomplish this, we should
increase the funding for the development of
additional electronic measures to ensure the
access to the court (in particular, the β€œElectronic
Court” system, means of conducting remote
court hearings, etc.). At the same time, the
priority should be to ensure cyber security and to
protect personal data.
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