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DOI: https://doi.org/10.34069/AI/2024.76.04.10
How to Cite:
Najafli, E., Ponomarov, S., Koverznev, V., & Ivanov, A. (2024). European legal standards of digitalization of the
judiciary. Amazonia Investiga, 13(76), 113-127. https://doi.org/10.34069/AI/2024.76.04.10
European legal standards of digitalization of the judiciary
ЄВРОПЕЙСКІ ПРАВОВІ СТАНДАРТИ ДИГІТАЛІЗАЦІЇ СУДОВОЇ ВЛАДИ
Received: February 3, 2024 Accepted: March 27, 2024
Written by:
Emin Najafli1
https://orcid.org/0000-0003-2551-5871
Sergiy Ponomarov2
https://orcid.org/0000-0003-0263-9089
Vadym Koverznev3
https://orcid.org/0000-0003-4228-1368
Andrii Ivanov4
https://orcid.org/0000-0001-8066-7734
Abstract
The article reveals the content of the concept of
European legal standards in the area of
digitalization of the judiciary adopted as
mandatory or as recommendatory typical legal
principles and norms fixed (contained) in
common sources of law (acquis communautaire)
of the European legal system. They are the
minimum legal requirements for the organization
and implementation of e-justice for the EU
member states. The application of these
standards takes place in the course of their
implementation by national laws of both the EU
member states and states that are guided by the
legal values of the EU and/or seek to acquire EU
membership, like Ukraine.
The normative basis, goals and principles of e-
justice in the EU are thoroughly analysed. The
key positions on the digitalization of the
judiciary, which are set out in the EU legal
documents containing the relevant legal
standards, are defined. Attention is drawn to the
fact that the main elements of e-justice,
implemented in Ukraine under the influence of
1
Ph.D. in Law, doctoral student of the Kharkiv National University of Internal Affairs, Honorary Consul of the Republic of
Kazakhstan in Kharkiv, Poltava and Sumy regions, President of Kharkiv Diplomatic Club, Kharkiv, Ukraine. WoS Researcher ID:
JSS-4991-2023
2
Doctor in Law, Head of the Department of State Regulation in the Field of Communication Services, State Service of Special
Communications and Information Protection of Ukraine, Kyiv, Ukraine. WoS Researcher ID: JTO-9417-2023
3
Doctor of Law, Professor, Senior Research Worker V. Mamutov Institute of Economic and Legal Research of the NAS of Ukraine,
Kyiv, Ukraine. WoS Researcher ID: DAF-7532-2022
4
Candidate of Technical Sciences (Ph. D.), Deputy Director of the Department of State Regulation in the Field of Communication
Services, State Service of Special Communication and Information Protection of Ukraine, Kyiv, Ukraine. WoS Researcher ID:
CVI-7067-2022
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European standards, can be considered the
following: (i) conducting electronic office work,
centralized storage of cases and other procedural
documents in a single database; (ii) exchange of
documents and information; (iii) electronic
method of determining a judge (judge-
rapporteur) to consider a particular case; (iv)
using information and communication
technologies to investigate electronic evidence;
(v) trial participation in the hearing via
videoconference; (vi) adoption and publication
of judicial acts in electronic form.
Keywords: digitalization, judiciary, e-court, e-
justice, rule of law, implementation, legal
standards.
Introduction
Expanding the boundaries of the availability of
justice to the population, as well as combining
the availability of justice with openness in the
activities of the judiciary, overcoming the
problem of unjust decisions of the court,
increasing the level of public confidence in the
court as an institution of state power and
reducing the burden on the courts are becoming
increasingly obvious, universal and influential
factors that encourage different states to take
large-scale steps to digitalize the judiciary,
considering digitalization almost a panacea in
adapting the judiciary to the challenges of the
digital age.
Solving complex and multifaceted problems of
digitalization of the judiciary is seen as possible
and necessary in Ukraine due to such direction of
modernization of its organization and activities
as implementation of European standards of
judiciary digitalization, which gradually acquire
the importance of legal standards in connection
with the activities of the relevant European
institutions in this direction. Moreover, such
implementation is not optional, but imperative
direction of reforming the judicial system of
Ukraine in the direction of its in-depth
digitalization in connection with the
constitutionally proclaimed in Ukraine strategic
course towards European integration (Law of
Ukraine No. 2680-VIII, 2019). So, the strategic
course of the Ukrainian state to join the European
Union requires further development of the
judicial system, “taking into account the best
international standards and practices” with the
“implementation of international standards and
best practices of the Council of Europe and the
European Union”. And, therefore, it determines
the “development of electronic legal proceedings
taking into account world standards in the area of
information technology” (Decree of the President
of Ukraine No. 231/2021, 2021) to ensure that
the Ukrainian judicial system acquires signs of
independence, fairness, transparency and
efficiency of its functioning.
Theoretical Framework
The interaction of information and
communication technologies (ICT) with the
judicial system naturally led to an urgent need for
“new legal concepts, standards, procedures,
legislative strategies and system design and
planning” (Council of the European Union,
1992). It is no coincidence that in European
jurisprudence approaches to analysing the
actions of the its institutions, aimed at using
artificial intelligence in the area of justice in all
its potential, are becoming increasingly common
(Covelo de Abreu, 2019, p. 3-48; Kengyel,
Nemessányi, 2012; Silveira, & Abreu, 2018;
Storskrubb, 2017, p. 271-302). And e-justice is
positioned not just as a certain set of public
services provided by courts to citizens and legal
entities in digital format, but as a specific set of
legal values that represent, support and
implement the judicial authorities in practical
interaction with other subjects of law during the
Najafli, E., Ponomarov, S., Koverznev, V., Ivanov, A. / Volume 13 - Issue 76: 113-127 / April, 2024
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jurisdictional process (Lupo, 2019, p. 77-113).
At the same time a kind of consensus has
developed in the European scientific literature on
the existence of a controversial impact of e-
justice on the rights of the parties, as well as on
the effectiveness of judicial proceedings
(Koshman, 2022, p. 74). Thus, along with the
significant advantages of e-justice, there are
numerous risks of excessive “digitalization” of
the judiciary. It may encroach on the right of
everyone to judicial protection, lead to a
restriction of citizens’ access to justice as a result
of belonging to socially vulnerable segments of
the population, digital illiteracy or limiting the
availability of new ICT. The technical
unpreparedness of courts and judges to
implement and use ICT for the administration of
justice have risks of disruption of access to courts
electronic systems by unauthorized persons. Also
it may cause the emergence of numerous other
problems: organizational, security and with
human rights.
Methodology
The study of European standards for the
digitalization of the judiciary determines the use
of a methodology that involves a combination of
general-philosophical, general-scientific, and
special-scientific methods.
The dialectical method was also used to analyse
doctrinal approaches to the definition of the term
“European standards of digitalization of the
judiciary” as the primary, starting concept in this
study.
The general-scientific methods used in this study
were methods of analysis and synthesis, as well
as a system-structural method. The method of
analysis made it possible to fit the digitalization
of the judiciary into the pan-European trend of
building a digital democracy based on the model
of good governance, correlate this digitalization
with the requirements of ensuring access to
justice, transparency of the judiciary, ensuring
the effectiveness of the rule of law in the area of
justice. Using the method of synthesis, the
authors managed to formulate conclusions about
the interdependence of the Ukrainian experience
of digitalization of the judiciary from the
consideration and application of European
standards of such digitalization; to identify the
constructive elements of such standards that
require implementation in the Ukrainian law-
making and law enforcement practice.
The special-scientific methods were formal-
legal, hermeneutical, historical-legal and
comparative. In particular, the formal-legal
method made it possible to find out the
substantive characteristics of European legal
standards for the digitalization of the judiciary,
the content and orientation of regulatory legal
acts in the area of judicial digitalization in
Ukraine. The hermeneutical method used in the
interpretation of scientific concepts and
normative terms from the area of digitalization of
the judiciary (e-justice, standards of the judiciary
and legal proceedings, standards of digitalization
of the judiciary, etc.). The historical-legal
method made it possible to show the
digitalization of the judiciary as a continuing
legal process in real time, which has an
unfinished character, structure, features, its own
dynamics in Ukraine and in the EU. This process
is marked by its own specifics of the emergence
and deployment in the current time and space.
The use of the comparative method is determined
by the specifics of the subject of this research. It
involves a large-scale comparison of European
legal standards with the relevant legislative
efforts in the area of digitalization of the
judiciary in Ukraine. This method made it
possible to find out the basic, model nature of
European legal standards in this area, to prove the
relevance of bringing them in line with the
rapidly developing Ukrainian legislation on e-
justice over the past 10–15 years.
Results and Discussion
Understanding the essence of European legal
standards for the digitalization of the judiciary
Recently, in Ukrainian jurisprudence, theses on
the urgent need for the implementation of
European standards of the judicial system and
legal proceedings in the judicial system are
increasingly being substantiated (Atamanchuk,
2019, p 109-116; Holubieva, Andronov, & But,
2021; Izarova, 2018, p. 55-61). It is also noted
that in the process of implementation of
European standards in the sphere of procedural
and legal regulation of judicial proceedings of
Ukraine, it is necessary to take into account the
peculiarities of system connections of the
Ukrainian procedural legislation, the dynamics
of changes in European models of procedural
regulation of judicial proceedings (Dehtiar,
Pechena, 2022, p. 107). These scientific
conclusions reflect the objective needs of the
development of the Ukrainian judicial system in
organic unity with the key trends and patterns of
development of the EU judicial systems.
First of all, European legal standards are
minimum legal requirements formulated
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sufficiently generally. They act as principles of
legal regulation of relevant spheres of public life
(Kliuchkovskyi, 2020, p. 37).
European legal standards are a kind of regional
international legal standards (Stemkovska, 2021,
p. 45-46). They include elements such as the
general principles of EU law and EU common
values related to human rights, the environment,
economic issues, etc. A classic example of their
consolidation is the European Convention on
Human Rights 1950, where they are formulates
as principles (Khaustova, 2016, p. 34).
It is clear that the content of these standards is
differentiated depending on the scope of
application. In particular, it can be argued about
European legal standards in the area of judicial
system and legal proceedings. First of all, the
scientific literature has formed the following
opinion about these standards. They appear as
common, typical principles and norms that are
fixed in the main sources of law of the European
legal system and they are the minimum legal
requirements for the judicial systems of the EU
member states (Luts, 2004, p. 175). These
standards are binding or advisory i.e. correspond
to the paradigm of coexistence of “hard” and
“soft” law in the EU legal system (Khaustova,
2016, p. 34). Their implementation provides for
consolidation in national legislation,
development and improvement of the judicial
system, taking into account their application in
the practice of the judicial authorities of the state
(Paskar, 2021, p. 118-121). Starting standards
are: (i) an access to justice; (ii) a fair trial
covering the right to an adversarial process; the
right to equality of parties; the right to be
represented in court; the right to oral hearing; the
right to fair proof; the right to a reasoned court
decision; (iii) a public trial, including a public
announcement of the judgment; (iv) a trial within
a reasonable time; (v) a trial by an independent
and impartial court established on the basis of the
law (Izarova, 2015, p. 12).
In the course of the formation and development
of e-justice within the EU, a system of certain
legal standards for the digitalization of the
judiciary has been developed. It is significant
both in terms of the further development of e-
justice within the EU member states and in the
states implementing European integration in
order to gain full membership.
It is important that for Ukraine the
implementation of European legal standards is
not a matter of free discretion of its state
institutions, despite the fact that Ukraine is not
formally a member of the EU. Instead, the
obligation of such implementation follows both
from the point of view of a number of
international legal obligations assumed by
Ukraine: in accordance with the Association
Agreement with the EU, 2014 and constitutional
fixation of the strategic state course, 2019, aimed
at Ukraine’s full membership in the EU. In
addition, their implementation in court
proceedings is relevant, since in this way the
democratic development of Ukraine and the
construction of a rule of law state are ensured
(Babenko, 2021, p. 353). It includes a national
model of e-justice relevant to European legal
experience.
If we analyse the European legal standards in the
area of digitalization of the judiciary from the
point of view of the ratio of mandatory and
recommendation standards, we should take into
account that in general the whole system of
European standards of the judiciary and the status
of judges consists of two groups: (i) generally
recognized European standards, i.e. mandatory
European standards; (ii) special European
standards in the area of the judicial system and
the status of judges (advisory standards)
(Babenko, 2021, p. 353).
If we analyse the meaningful and formal-legal
consolidation of European standards of
digitalization of justice, we will come to the
following conclusions. Firstly, these standards
have a predominantly advisory nature. It follows
from the names of the documents where they are
contained – conclusions, recommendations,
resolutions, etc., as well as directly formulated in
the legal documents of the EU institutions, in
particular, as “general guidelines” (Council of
the European Union, 1995; Council of the
European Union, 2001a), “principles and
guidelines” (Council of the European Union,
2001b; Council of the European Union, 2003a;
Council of the European Union, 2003b),
“guidelines” (Council of the European Union,
2001b). Secondly, European standards of
digitalization of justice in contrast to the
minimum standards of civil procedure in the
European Union approved by the Resolution of
the European Parliament (2015/2084 (INL) of
July 4, 2017 (Council of the European Union,
2018), do not have a single, unified source of
consolidation (they are contained in the
conclusions of the Consultative Council of
European Judges, resolutions of the
Parliamentary Assembly of the Council of
Europe, the Committee of Ministers, documents
of the European Commission for the Efficiency
of Justice, as well as in some other acts that laid
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the foundations for the formation and
development of European policy in this area.
Thirdly, the standards tend to combine the
definition of the principles of ICT application in
judicial activity with the elements of policy
planning in the area of digitalization of the
judiciary (approved by the European e-justice
Strategies and Action Plans 2008 (Council of the
European Union, 2008), 2014–2018 (Council of
the European Union, 2013), 2019–2023 (Council
of the European Union, 2019b), 2009–2013
(Council of the European Union, 2009a),
2014–2018 (Council of the European Union,
2014), 2019–2023 (Council of the European
Union, 2019a).
Regulatory framework for e-justice in the EU
As of today, a number of normative legal acts of
the Council of Europe that contribute to the
formation of e-justice in the EU have been
adopted. They are5:
Recommendation No. R (84) 5 of the Committee
of Ministers to member states on the principles
of civil procedure designed to improve the
functioning of justice (adopted by the Committee
of Ministers on 28 February 1984 (Council of the
European Union, 1984);
Recommendation No. R (92) 15 of the
Committee of Ministers to member states
concerning training, research and training in the
area of law and information technology on 19
October 1992 (Council of the European Union,
1992);
Recommendation No. R (95) 11 of the
Committee of Ministers to member states
concerning the selection, processing,
presentation and archiving of court decisions in
legal information retrieval systems (adopted by
the Committee of Ministers on 11 September
1995) (Council of the European Union, 1995);
Recommendation Rec (2001)2 of the Committee
of Ministers to member states concerning the
design and re-design of court systems and legal
information in a cost-effective manner (adopted
by the Committee of Ministers on 28 February
2001) (Council of the European Union, 2001a);
Recommendation Rec (2001)3 of the Committee
of Ministers to member states on the delivery of
court and other legal services to the citizen
5 Below is an approximate, but not complete list of legal
documents in the area of digitization of the judiciary issued
by the EU institutions. At the same time, we have singled out
through the use of new technologies (adopted by
the Committee of Ministers on 28 February
2001) (Council of the European Union, 2001b);
Opinion No. 2(2001) of the Consultative Council
of European Judges (CCJE) for the attention of
the Committee of Ministers of the Council of
Europe on the funding and management of courts
with reference to the efficiency of the judiciary
and to Article 6 of the European Convention on
Human Rights on 23 November 2001 (CCJE,
2001);
Recommendation Rec (2003)14 of the
Committee of Ministers to member states on the
interoperability of information systems in the
justice sector (adopted by the Committee of
Ministers on 9 September 2003) (Council of the
European Union, 2003a);
Recommendation Rec (2003)15 of the
Committee of Ministers to member states
archiving of electronic documents in the legal
sector (adopted by the Committee of Ministers on
9 September 2003) (Council of the European
Union, 2003b);
Recommendation CM/Rec (2010)12 of the
Committee of Ministers to member states on
judges: independence, efficiency and
responsibilities (adopted by the Committee of
Ministers on 17 November 2010) (Council of the
European Union, 2010);
Opinion No. (2011)14 of the CCJE “Justice and
information technology (IT)” (on 7–9 November
2011) (CCJE, 2011);
Guidelines on how to drive change towards
Cyberjustice of the European Commission for
the Efficiency of Justice (CEPEJ) (adopted by
CEPEJ on 7 December 2016) (CEPEJ, 2017);
European ethical Charter on the use of Artificial
Intelligence in the judicial systems and their
environment (adopted by European Commission
for the Efficiency of Justice (CEPEJ) on 3–4
December, 2018) (CEPEJ, 2018);
Guidelines of the Committee of Ministers of the
Council of Europe on electronic evidence in civil
and administrative proceedings (adopted by the
Committee of Ministers on 30 January 2019)
(Council of the European Union, 2019c);
documents according to the criterion of their strategic
importance for the development of the principles of e-justice
in Europe and Ukraine.
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Toolkit for supporting the implementation of the
Guidelines on how to drive change towards
Cyberjustice (adopted by CEPEJ on 13–14 June
2019) (CEPEJ, 2019);
European Commission for the Efficiency of
Justice (CEPEJ) Declaration “Lessons Learned
and Challenges Faced by the Judiciary During
and After the COVID-19 Pandemic” on 10 June
2020 (CEPEJ, 2020);
Council of the European Union Conclusions
“Access to justice – seizing of opportunities for
digitalization” (adopted on 14 October, 2020)
(Council of the European Union, 2020);
Guidelines of the Committee of Ministers of the
Council of Europe on online dispute resolution
mechanisms in civil and administrative court
proceedings (adopted on 16 June 2021) (Council
of the European Union, 2021);
Regulation (EU)2022/850 of the European
Parliament and of the Council of 30 May 2022 on
a computerized system for cross-border
electronic exchange of data in the area of judicial
cooperation in civil and criminal matters
(e-CODEX system) (Council of the European
Union, 2022), etc.
A separate group of documents containing legal
standards in the area of digitalization of the
judiciary are acts of a strategic (both judicial and
procedural) nature, namely, European e-justice
Strategies and Action Plans approved by the
European Commission in 2008 (Council of the
European Union, 2008), 2014–2018 (Council of
the European Union, 2013), 2019–2023 (Council
of the European Union, 2019b), 2009–2013
(Council of the European Union, 2009a),
2014–2018 (Council of the European Union,
2014), and 2019–2023 (Council of the European
Union, 2019a).
Without pretending to be exhaustive, we will
consider some key positions on the digitalization
of the judiciary set out in EU legal documents
with relevant legal standards.
In accordance with Appendix I to
Recommendation No. R (95) 11 of the
Committee of Ministers to member states
concerning the selection, processing,
presentation and archiving of court decisions in
legal information retrieval systems (Council of
the European Union, 1995), along with
expanding access to justice, it is said about (i)
qualitative improvement of the justice system
itself by ensuring the unity of judicial practice;
(ii) removing the elements of stiffness, that is,
giving it the dynamism and flexibility necessary
for the current pace of social and legal
development; (iii) expanding the scope of
informing society about judicial activities.
In the Appendix to Recommendation Rec
(2001)2 of the Committee of Ministers to
member states concerning the design and re-
design of court systems and legal information in
a cost-effective manner (Council of the European
Union, 2001a) the issue of the ICT development
strategy in courts was first raised. Thus, it was
essentially recognized for the first time that the
process of digitalization of the judicial system is
of strategic importance for its further
development.
The guidelines contained in Recommendation
Rec(2001)3 of the Committee of Ministers to
member states on the delivery of court and other
legal services to the citizen through the use of
new technologies were important for the human
orientation of the use of ICT in judicial
procedures: (i) it should be as easy as possible to
communicate with the courts and other legal
organisations (registries, etc.) by means of new
technologies; (ii) electronic information about
the court procedures should be available to the
public and disseminated using the most widely
available technologies (currently the Internet),
the state should, whenever possible, guarantee
the authenticity and integrity of the information
disseminated by it to the public or to private
sector suppliers; (iii) all legal information
systems should be constructed in a user-friendly
manner including effective assistance
components in order to allow even the occasional
user to achieve sufficient retrieval results; the
user is entitled to expect that officially printed
legal materials are also available in an electronic
form (Council of the European Union, 2001b).
Recommendation Rec (2003)14 of the
Committee of Ministers to member states on the
interoperability of information systems in the
justice sector recognized “that information
technology has become indispensable for
efficient functioning of the justice system,
especially in the light of the increasing workload
of the courts and other justice sector
organisations” (Council of the European Union,
2003a). It contained general requirements for the
content of the strategy of digitalization in the area
of justice. Such a strategy should, among other
things, provide: stage-by-stage computerisation
of the justice system; the establishment of
communications infrastructure, including e-mail
facilities; the development of an integration
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strategy to allow for system-to-system
communication; the harmonisation of
information to the extent needed; the
establishment of an integrated system for data
collection and statistical analysis; the
introduction of a common management
information system; the establishment of
common internal information registers; the
development of standard software for databases.
In accordance with Recommendation CM/Rec
(2009)1 of the Committee of Ministers to
member states on electronic democracy
(e-democracy) (Council of the European Union,
2009b), adopted on 18 February 2009, the
elements of e-justice are informative court
websites, national and international portals, the
development of online “case tracking” systems,
the use of videoconferencing techniques and
standards for the electronic exchange of
information. E-justice is an important aspect of
e-democracy and its main aim is to improve the
efficiency of the judiciary and the quality of
justice. E-justice performs the following
functions: (i) to improve the quality of judicial
services for people and businesses by using ICT;
(ii) to speed up court proceedings, enhance
general service quality and improve
transparency; (iii) to provide access to legal and
judicial information for the public.
Aims of e-justice in the EU
Opinion No (2011)14 of the Consultative
Council of European Judges (CCJE) for the
attention of the Committee of Ministers of the
Council of Europe on justice and information
technology (IT) indicates that the introduction of
ICT in courts should not harm the authority and
staffing of the judicial system; ICT must be
suitable for the judicial process, and for all
aspects of a judge’s work; judges should not be
subject, for reasons solely of efficiency, to the
imperatives of technology and those who control
it. The introduction of e-justice should be subject
to human-oriented goals: (i) such justice should
not be perceived by users as a purely technical
process without its fundamental function of
protecting human rights; (ii) the administration
of justice cannot become fully automated without
the participation of the human factor; (iii) legal
proceedings, first of all, should contain the
human factor, since here we are talking about real
people and their disputes resolution; (iv) the
human factor is most important in assessing the
behaviour of the parties and their witnesses in the
hearing, which is the component of the judge’s
work; (v) the role of ICT should remain confined
to substituting and simplifying procedural steps
leading to an individualised decision of a case on
the merits; (vi) ICT cannot replace the judge’s
role in hearing and weighing the factual evidence
in the case, determining the law applicable and
taking a decision with no restrictions other than
those prescribed by law (CCJE, 2011).
In Resolution “Equality and non-discrimination
in the access to justice” the Parliamentary
Assembly of the Council of Europe expressed the
view that judicial reforms implemented in a
number of EU member states, accompanied by a
reduction in the number of judicial bodies,
should be compensated by the development of e-
justice. This trend should not be used to the
detriment of people who do not have access to
the Internet (Parliamentary Assembly of the
Council of Europe, 2015a).
The Parliamentary Assembly of the Council of
Europe Report “Access to justice and the
Internet: potential and challenges”, 2015, stated
that Member States should continue to invest in
the development of safer, more effective and
more accessible online dispute resolution and
ICT application. At the same time, they should
continue to assess the successes and potential
risks of online dispute resolution and ICT in
terms of access to justice, and keep an eye on
developing technologies and their use in online
dispute resolution and courtroom procedures
(Parliamentary Assembly of the Council of
Europe, 2015b).
Principles of digitalization of the judiciary in the
EU and their importance for the development of
the judiciary in Ukraine
Based on an analysis of the practice of European
states in the digitalization of the judiciary, the
European Commission for the Efficiency of
Justice adopted the Guidelines on how to drive
change towards Cyberjustice (adopted by CEPEJ
on 7 December 2016). The following guidelines
are important: (i) the modernization of the justice
system should begin with the establishment of
clear goals (improving the quality of justice); (ii)
ICT should be seen as a means and not as a goal
of judicial reform; (iii) the introduction of
cyberjustice and its tools should be guided by the
court, not by technology; (iv) technology
developers should strive to better understand
justice and cooperate with judges and court staff;
(v) ICT should promote judicial values
(impartiality, independence, legal certainty,
accessibility), not violate guarantees and
procedural rights, in particular, such as the right
to a fair trial (Paskar, 2020, p. 100-101;
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South-Eastern Interregional Department of the
Ministry of Justice (Dnipro), n.d.).
A key act in establishing and consolidating the
principles of cyberjustice was the European
ethical Charter on the use of Artificial
Intelligence in the judicial systems and their
environment (CEPEJ, 2018), “which was the first
step of the European Commission on the
effectiveness of justice to promote the
responsible use of artificial intelligence in the
European judicial system in accordance with the
values of the Council of Europe” (Order of the
Cabinet of Ministers of Ukraine No. 1556-р,
2020). Based on its analysis, the following
principles can be attributed to the basic principles
of artificial intelligence in legal proceedings: (i)
respect for fundamental human rights (the
introduction of artificial intelligence within, in a
manner and in order not to violate fundamental
human rights guaranteed at the international and
national levels); (ii) non-discrimination
(preventing the development or intensification of
any discrimination between people or groups of
people); (iii) quality and safety (court decisions
and the data used in them must be protected and
in a safe technological environment); (iv)
transparency, impartiality and fairness (in the
case of using artificial intelligence to ensure the
absence of the human factor (to prevent human
intervention)); (v) user control (guarantees a high
level of autonomy, user awareness, etc.)
(Karmaza, Fedorenko, 2021, p. 22). As the first
international document that at the European level
settled the issue of introducing ethical principles
for the use of artificial intelligence in legal
proceedings, this Charter has acquired historical
significance and points to global transformations
in all spheres of public life and the final transition
of mankind to the information and digital era
(Paskar, 2020, p. 101).
In 2019, the Committee of Ministers of the
Council of Europe adopted an important
document on the application of electronic
evidence in court proceedings – Guidelines of the
Committee of Ministers to member states on
electronic evidence in civil and administrative
proceedings (Council of the European Union,
2019c). This document defines electronic
evidence as any evidence derived from data
contained in or produced by any device, the
functioning of which depends on a software
program or data stored on or transmitted over a
computer system or network. The basic
principles of using electronic evidence are also
defined (Chvankin, 2021, p. 66-68).
In 2019, the European Commission for the
Efficiency of Justice approved the Toolkit for
supporting the implementation of the Guidelines
on how to drive change towards Cyberjustice
(CEPEJ, 2017), which contains an executive
summary of the key guidelines and principles on
how to drive change towards cyberjustice; a
roadmap to support the design and the
management of an IT strategy in a justice system;
an executive outline to support the building of a
Case Management System (CMS) with a user
perspective; a checklist on the different steps and
actions to be taken while designing, developing
and implementing an IT project within a justice
system; a grid for evaluating the different
dimensions of an IT project. These documents
were prepared in order to fully support the
judicial authorities of the Council of Europe
member states in the effective management of
digital transformation processes in the area of
justice. Their main goal is to facilitate the
understanding of the main principles and steps
for the introduction of e-justice in the judicial
system, described in more detail in the
Guidelines on how to drive change towards
cyberjustice, as well as to clearly define the
measures necessary for the implementation of
various IT projects of this kind and to help
government agencies in solving problems related
to the implementation of e-justice (Yurydychna
Hazeta, 2019).
Important for deepening the processes of
digitalization of the judiciary were the Council of
the European Union Conclusions “Access to
justice – Seizing of Opportunities for
Digitalization” (Council of the European Union,
2020). Noting that the further digitalization of the
judicial systems of member states has enormous
potential to continue to facilitate and improve
citizens’ access to justice throughout the EU, the
Council of Europe proposes to encourage EU
member states to make greater use of digital tools
for promoting swift, convenient, secure, trusted
and widespread access to the justice system;
digital solutions should, where possible, be
developed for the entire course of judicial
proceedings. The Council of Europe stresses
nevertheless that employing digital technologies
and means of electronic communication should
not undermine the right to a fair hearing, in
particular the right to equality of arms and the
right to adversarial proceedings, the right to a
public hearing, including in certain cases the
right to an oral hearing in the physical presence
of the affected party, as well as the right to
appeal. The Council of Europe recognises
nonetheless that it is necessary to retain
traditional non-digital processes and, where
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available, physical helpdesks, alongside the new
digital forms so as to provide citizens who cannot
yet fully participate in technological
developments with effective legal protection and
access to justice. The use of digital technologies
in the justice sector must meet with the latest
standards for information and cyber security and
fully comply with privacy and data protection
legislation. The use of artificial intelligence tools
should not interfere with the powers of judges to
make decisions or the independence of judges (a
court decision should always be made by a
person and cannot be delegated to an artificial
intelligence tool).
The set of tools for the digitalization of the
judiciary is defined in the Communication from
the Commission to the European Parliament, the
Council, the European Economic and Social
Committee and the Committee of the Regions
“Digitalization of Justice in the European Union.
A toolbox of opportunities” (European
Commission, 2020). It is emphasized that in
order to achieve a fully-fledged area of freedom,
security and justice, it is important that all
member states work towards reducing the
existing digitalisation gaps, fragmentation
between national justice systems and leverage
the opportunities available under the relevant EU
funding mechanisms. The tools of the proposed
toolbox are categorised as follows: (i) financial
support for member states to use the potential for
creating long-term impact; (ii) legislative
initiatives to set the requirements for
digitalisation in order to promote better access to
justice and improved cross-border cooperation,
including in the field of artificial intelligence;
(iii) IT tools which can be built upon in the short
to medium term and used in all member states;
(iv) promotion of national coordination and
monitoring instruments which would allow
regular monitoring, coordination, evaluation and
exchange of experiences and best practices.
Guidelines of the Committee of Ministers of the
Council of Europe on online dispute resolution
mechanisms in civil and administrative court
proceedings
The Guidelines of the Committee of Ministers of
the Council of Europe on online dispute
resolution mechanisms in civil and
administrative court proceedings (16 June, 2021)
are of great importance for the digitalization of
the judiciary in terms of online dispute
resolution. They provide the following
principles: online dispute resolution mechanisms
(ODR) should be accompanied by reliable
guarantees of human rights; ODR should be
easily understood, affordable and user friendly so
that it can be used comfortably by as many
people as possible; parties should be informed
about how ODR operates, how to file an
application, how to monitor progress of the
proceedings and how to access decisions; use of
ODR should not be disadvantageous to the
parties or give unfair advantage to one of the
parties; ODR should be designed and
implemented in accordance with internationally
recognised technical standards, in order to allow
its use by as many people as possible with as
much autonomy as possible; participation in
ODR proceedings should not prejudice an
individual’s right to participate effectively in the
proceedings or their right to an effective remedy;
ODR proceedings should ensure an independent
and impartial adjudicative process; parties to
proceedings involving ODR should have
knowledge of the materials in the case file,
including those submitted by the other parties;
they should have access to these materials and
sufficient time and means to acquaint themselves
with their contents (Council of the European
Union, 2021).
Some features of the introduction of European
legal standards in the area of digitalization of the
judiciary in Ukraine
Comprehensive implementation of European
legal standards in the area of digitalization of the
judiciary in Ukraine is an important and urgent
task at the present stage of Ukrainian judicial
reform.
Such implementation took place in Ukraine in the
context of two dominant courses of legal policy
that replaced one another. According to the first
course, that lasted until 2014 (before the
ratification of the Association Agreement
between Ukraine and the EU), European
standards of digitalization of the judiciary in
Ukraine were used chaotically and haphazardly,
without implementation at the strategic legal
level. After 2014, especially after 2019, when the
course towards European integration of Ukraine
was fixed at the constitutional level, these
standards acquired a legally binding meaning and
began to be implemented systematically. It was
confirmed by their fixation at the level of two key
strategic documents in the area of judicial reform
– the Strategy for Reforming the Judiciary,
justice and related legal institutions for 2015–
2020 (Decree of the President of Ukraine
No. 276/2015, 2015), and the Strategy for the
Development of the Justice System and
Constitutional Justice for 2021–2023 (Decree of
the President of Ukraine, No. 231/2021, 2021).
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The latter directly involves the implementation
of international standards and best practices of
the Council of Europe and the European Union
in the area of the judiciary and legal proceedings.
For sure it extends to the concept of an e-court,
which is mentioned in both strategies among the
key legal innovations.
For the implementation of the Strategy for the
Development of the Justice System and
Constitutional Justice for 2021–2023, the
Concept of the Informatization Program for
Local and Appellate Courts and the Project for
Building a Unified Judicial Information and
Telecommunication System for 2022–2024
(UJITS) (Order of the State Judicial
Administration of Ukraine No. 178, 2022) were
also adopted. This Program identified the main
directions for improving access to justice:
creation of conditions for intensifying the
introduction of information technologies in the
courts’ activities, bodies and institutions of the
justice system; ensuring the automation of their
work; the development of e-justice according to
the world standards in the area of information
technology; e-justice integration into the national
e-governance infrastructure.
Digitalization of the judiciary in Ukraine occurs
with a certain delay compared to the EU as the
starting point is the adoption of the Law of
Ukraine “On Access to Court Decisions” (Law of
Ukraine No. 3262-ІV, 2005). For the
implementation of its provisions the Decree of
the President of Ukraine “On the Concept of
Improving the Judiciary to Establish a Fair Trial
in Ukraine in Accordance with European
Standards” (Decree of the President of Ukraine
No. 361/2006, 2006) was adopted where the
issues of forming an e-court in Ukraine were
raised for the first time (Smokovych, 2020, p. 44;
Shcherbliuk, 2021, p. 157). In accordance with
the Decree, the State Judicial Administration in
2005 developed and approved the Concept of the
Unified Judicial Information and
Telecommunication System. The main purpose
of its creation and functioning is information and
technological support of justice on the principles
of balance between the need of citizens, society
and the state in the free exchange of information
and the necessary restrictions on its
dissemination (Politanskyi, 2020, p. 37-38; State
Judicial Administration of Ukraine, 2022).
In addition, in Ukraine such digitalization
unfolded without fixing its essence, goals, tasks,
directions, etc. at the strategic legal level. The
Concept of the Unified Judicial Information and
Telecommunication System was not able to
provide legal level, as it concerned only a
fragmentary issue and did not consider the
digitalization of the judiciary as a complex legal
process. Even the adoption of the Strategy for
Reforming the Judiciary, justice and related legal
institutions for 2015–2020 and the Strategy for
the Development of the Justice System and
Constitutional Justice for 2021–2023 did not
significantly change the situation. In these acts
the issues of digitalization of the judiciary were
mentioned in passing, in the context of other
issues of judicial reform and the development of
judicial institutions. Thus, the lack of a strategic
level of legal planning for the digitalization of the
judiciary in Ukraine, which persists until now,
contradicts the European standards of judicial
digitalization and provokes chaotic and
unsystematic legal decisions in this area. It
testifies to frequent adjustment of judicial and
procedural legislation by the Verkhovna Rada of
Ukraine and does not provide predictability and
gradual process of organizational and legal
changes that occur during the digitalization of the
judiciary in Ukraine.
Conclusions
European legal standards for the digitalization of
the judiciary are typical principles and norms that
are fixed in the main sources of law of the
European legal system and are the minimum
legal requirements for the judicial systems of the
EU member states. They are divided into those
that are binding and those that are advisory in
nature. It corresponds to the paradigm of
coexistence of “hard” and “soft” law in the EU
legal system.
European standards of digitalization of the
judiciary are guidelines for the national
legislator, which are aimed at qualitative
improvement of the justice system itself by
ensuring the unity of judicial practice; removing
the elements of stiffness, that is, giving it the
dynamism and flexibility necessary for the
current pace of social and legal development;
expanding the scope of informing society about
judicial activities.
The direct benefit of the European standards of
digitalization of the judiciary for the
improvement of the judiciary and the judicial
system of Ukraine is that they guide the national
legislator on the regulation of judicial procedures
that take into account the importance and
necessity of (i) arrangement of different
jurisdictions courts with the latest means of
communication (both with other judicial
institutions and parties in the trial); (ii) providing
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of available and reliable information on litigation
in electronic form; (iii) designing all legal
information systems of the court in a user-
friendly way, including effective components of
assistance, so that a random user can receive
sufficient search results; the user has the right to
expect that officially published legal materials
are also available in electronic form.
At the same time, European standards of
digitalization of the judiciary through the
Guidelines on electronic evidence in civil and
administrative proceedings guide the national
legislator in Ukraine to formalize the concept of
“electronic evidence”, relying on its definition
introduced in the EU, as well as the principles of
using electronic evidence.
Equally important and useful for the
development of legal proceedings and the
judicial system in Ukraine is the definition in the
European basic principles of artificial
intelligence in legal proceedings, which should
be incorporated into the relevant procedural
codes of Ukraine that determine certain forms of
judicial proceedings.
The main elements of e-justice, implemented in
Ukraine under the influence of European
standards, can be considered as follows: (i)
conducting electronic office work, preserving
cases and centralized storage of procedural and
other documents in a single database; (ii)
exchange of documents and information (sending
and receiving documents and information, joint
work with documents) in electronic form
between the courts, participants in the trial; (iii)
receipt of court summons, notices, decisions,
information on the date and place of
consideration of the case by electronic means of
communication; (iv) electronic method of
determining the judge (judge-rapporteur) to
consider a particular case; (v) using ICT to
investigate electronic evidence; (vi) participation
of trial parties in the hearing via
videoconference; (vii) audio and video recording
of court hearings; (viii) adoption and publication
of judicial acts in electronic form; (ix) transfer
for execution and enforcement of court decisions
in electronic form; (x) electronic system of
personnel management, financial and accounting
in courts; (xi) electronic system of judicial
statistics; (xii) electronic archives and e-court
library. Therefore, on the formal side, there may
be an impression of consistent implementation of
European standards of digitalization of the
judiciary in Ukraine. However, careful analysis
shows that this conclusion is premature, despite
significant normative and organizational work in
this direction. Thus, until now, Ukraine has not
formed a unified information space for courts,
bodies and institutions in the justice system. The
existing information and communication
infrastructure of courts, bodies and institutions in
the justice system requires significant
improvement and optimization, reducing budget
expenditures for its maintenance. The key task of
ensuring the availability of information for trial
parties and the maximum transparency and
openness of the justice system for society has not
been solved for the digitization of the judiciary.
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