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DIGITIZATION OF CIVIL LEGAL PROCEEDINGS IN THE RUSSIAN FEDERATION
DAMIR VALEEV, Kazan (Volga Region) Federal University (Kazan, Russia)
NIKITA MAKOLKIN, Kazan (Volga Region) Federal University (Kazan, Russia)
https://doi.org/10.17589/2309-8678-2021-9-4-158-175
This work is an analysis of legal trends in the administration of justice and the judicial system of the Russian Federation. Among the main trends, the authors observe an increase in the number of civil cases considered on the merits by both commercial courts and general jurisdiction courts. The authors also analyze some opportunities for increasing the level of integration of digital technologies in the legal environment of the Russian Federation. One of the triggers capable of catalyzing this process is the COVID-19pandemic. Moreover, the transformations in the administration of justice that require online court trials using the Internet are analyzed, and some foreign experience in implementing such a format of court trials is considered. The authors also assess in this article the impact of judicial reforms in 2019 on the dynamics of the administration of justice.
Keywords: judicial system; administration of justice; access to the courts; civilistic process; judicial protection; electronic justice.
Recommended citation: Damir Valeev & Nikita Makolkin, Digitization of Civil Legal Proceedings in the Russian Federation, 9(4) Russian Law Journal 158-175 (2021).
Table of Contents
Introduction
1. Literature Overview
2. Research
3. Discussion Conclusion
Introduction
Development of economic relations, small and medium business development,' the integration of globalization processes into all spheres of society, as well as the increase in the spheres of activities related to services, are becoming a trigger for the growth of potential disputes involving individuals and entities. At the same time, the need to generate business plans, as well as the need for protection against unconscientious counterparties, stipulate the need for forecasting of various costs. The forecast includes financial and temporary costs associated with the restoration and protection of their rights and legitimate interests. This need defines the necessity of increasing the level of openness and access to justice and also corresponds to a necessity for the analysis and judicial protection in the conditions of development of the digital economy.
This article analyses issues related to the transformation of the justice administration in the light of the increasing role and integration of digital technologies in the legal environment of the Russian Federation. Furthermore, it analyses statistical data indicating both the current state and level of load on the judicial system, as well as making it possible to predict further changes in these data subject to emerging trends. Quasi-legal statistical data are also analyzed. This makes it possible to consider the level of technological development through the use of many indicators of development. These indicators include: the number of internet users, the number of smartphone users and the number of holders of digital signatures. All these data will in turn indirectly indicate the level of access to justice and also illustrate, from a technical point of view, the possibility of the beginning of electronic judicial proceedings to the fullest extent.
Total such underexplored areas contribute to the relevance of the article, which results in the fact that this work is a complex research capable of indicating real trends in the development of the justice system based on statistical data.
Росстат впервые раскрыл долю малого и среднего бизнеса в экономике // РБК. 5 февраля 2019 г. [Rosstat Disclosed the Share of Small and Medium Businesses in the Economy for the First Time, RBC, 5 February 2019] (Sep. 2, 2021), available at https://www.rbc.ru/economics/05/02/2019/5c5948c59 a794758389cfdf7.
The relevance of the research undoubtedly determines its originality. it consists in the fact that in this work attempts have been made, for the first time ever, for a multifaceted evaluation of the activities of the judicial system in the context of the development of digital technologies and their integration into the processes of justice administration. Moreover, the originality is also determined by the fact that the authors have made attempts for assessment of the COVID-19 pandemic consequences. However, such researches have been isolated because of their legal nature.
The main purpose of this research is to study the current state of civil proceedings digitization processes in the Russian Federation through the prism of legal rules, law enforcement practice, and social phenomena. To achieve this goal, the authors of the research set objectives to study the current state of quantitative indicators of legal proceedings, as well as to forecast its development and make risk analysis based on this forecast. In addition, to achieve this goal, a diagnostic study of processes caused by the coronavirus pandemic and other social phenomena associated with the processes of digitization is conducted.
The research is conducted through a set of methods of scientific cognition, including abstract-logic method, comparison, analysis and synthesis, dialectical method, comparative method, formal-logic method, legal modeling, inductive and deductive methods.
1. Literature Overview
For the first time the term "electronic justice" came into general use only in 2007 and did not spark demates.2
The fact of coming of the term "electronic justice" into general use does not mean that there was no researches dedicated to the opportunities of "information technologies" in legal proceedings. The work of P. Gilles "Application of Electronic Technologies in Civil Proceedings Under the Novelties of the German Civil Procedural Code"3 was at the same time descriptive and focused on the opportunities of information technologies in the process. Also during this period, developments were being made to introduce the use of some elements of "electronic justice," such
2
Фишер Н. Электронное правосудие в Германии (критические замечания относительно внедрения информационных технологий в гражданское судопроизводство) // Российский ежегодник гражданского и арбитражного процесса. 2008. № 6. С. 630-643 [N. Fischer, Electronic Justice in Germany (Critical Remark on the Introduction of Information Technologies in Civil Proceedings), 6 Russian Yearbook of Arbitration and Civil Procedure 630 (2008)]; Федосеева Н.Н. Электронное правосудие в России: сущность, проблемы, перспективы // Арбитражный и гражданский процесс. 2008. № 9. С. 2-5 [Natalia N. Fedoseyeva, Electronic Justice in Russia: Essence, Problems, Perspectives, 9 Arbitration and Civil Proceedings 2 (2008)].
Гиллес П. Применение электронных технологий в гражданском процессе в соответствии с новеллами ГПК Германии // Российский ежегодник гражданского и арбитражного процесса. 2005. № 4. С. 451-458 [Peter Gilles, Application of Electronic Technologies in Civil Proceedings Under the Novelties of the German Civil Procedural Code, 4 Russian Yearbook of Arbitration and Civil Procedure 451 (2005)].
as the utility model patent No. 60749 (Russia, 2007) Automated System for Electronic Document Management in Court Proceedings. At the same time, during the stated initial period there was no research having applicable nature due to the weak penetration of "information" technologies into the procedural branches of law.
Practical implementation of certain elements covered by the category of"electronic justice" (adoption of the Federal Law of 27 July 2010 No. 228-FZ "On Amendments to the Arbitration Procedural Code of the Russian Federation," which establishes in many cases a necessity to use the internet, as well as adds an important clause, which runs "A lawsuit may also be filed in the commercial court by filling out a form posted on the official website of the commercial court" to the rule governing the form and content of the lawsuit), became a boost for scientific search4 and the practical results achieved through the introduction of the element of "electronic justice" became the basis for their further implementation in procedural sources of law.
At present, the elements of "electronic justice" have been introduced into all types of proceedings and are successfully functioning. The digitization of all procedural relationships indicates, among other things, a high doctrinal interest in the topic. Thus, since the beginning of 2018, the following works on electronic justice have been prepared:"identification of a Person (Party to an Arbitration Process) in Electronic Justice" (i. Smolenskii);"Basic Elements of Electronic Justice in the Arbitration Process" (T. Dyrkova); "Electronic Justice: Rather-Legal Analysis" (A. Shanin);"information Technologies in Court Proceedings" (A. Pavlichenko); "Trends of integration of information Technologies in Civilistic Process" (A. Khisamov); "Automation of Justice Administration: Reference to Three Faulty Judgments on Artificial intelligence" (P. Bravo-Hurtado);"Electronic Justice: Realities of Application in V.D. Shashin Tatneft, a Public Joint-Stock Company, Needs and Perspectives of Development" (D. Medvedev); "Development of Electronic Justice in Russia" (i. Denisov);"Procedural Fundamentals of Electronic Justice" (A. Kirillov); "impact of Electronic Justice on the issues of Jurisdiction of Civil and Administrative Cases" (E. Liubimova);"Electronic Justice: Reality or New Term? " (A. Bonner);"Electronic Justice as a New System in Public Administration" (K. Rybkina).
4 ОмаровМ.Д. Правовое регулирование информатизации судов общей юрисдикции Российской Федерации - необходимое условие перехода к «электронному правосудию» // Российская юстиция. 2014. № 6. С. 54-55 [Mukhtar D. Omarov, Legal Regulation of Informatization of General
Jurisdiction Courts of the Russian Federation Is a Necessary Condition of Transition to "Electronic Justice,"
6 Russian Justice 54 (2014)]; Курячая М.М. Электронное правосудие как необходимый элемент электронной демократиив современной России // Конституционное и муниципальное право. 2013. № 7. С. 52-54 [Marina M. Kuriachaia, Electronic Justice as a Necessary Element of Electronic Democracy in Modern Russia, 7 Constitutional and Municipal Law 52 (2013)]; Ярков В.В. Электронное правосудие и принципы цивилистического процесса // Закон. 2011. № 2. С. 44-50 [Vladimir V. larkov, Electronic Justice and Principles of the Civilistic Process, 2 Law 44 (2011)]; Булгакова Е.В. Электронное правосудие // Российский судья. 2013. № 7. С. 14-17 [Elena V. Bulgakova, Electronic Justice, 7 Russian Judge 14 (2013)]; Носков И.Ю. Внедрение электронного правосудия как важнейшее направление совершенствования судебной системы Российской Федерации // Современное право. 2011. № 10. С. 120-122 [Igor Yu. Noskov, Introduction of Electronic Justice as the Most Important Direction of Improvement of Judicial System of the Russian Federation, 10 Modern Law 120 (2011)].
Similar researches are also conducted by representatives of foreign doctrine, in particular, open judiciary in high courts: "Open Judiciary in High Courts: Securing a Networked Constitution, Challenges of E-Justice, Transparency, and Citizen Participation" (J. Cano et al.); eJustice law - Breakthrough for the electronic legal communication? Introduction of the obligation to use eJustice in the area of civil, criminal and administrative courts as well as law enforcement authorities (Jusletter IT); "The Digital Judiciary" (T. Braegelmann); "The Oxford Handbook of the Digital Economy" (M. Peitz & J. Waldfogel); "How Digital Justice Is Transforming the Courts and Legal Sector" (S. Bradford).
Therefore, various aspects of the use of "digital technologies" in the justice administration are being developed. At the same time, it can be stated that there is a lack of consistency in the researches disclosing the impact of the "digital technologies" on the transformation of procedural relations in general. Moreover, the above researches are not fully overall and do not disclose the existing inter-system and inter-sectoral links. At the same time, the ongoing transformations in the field of digital technologies are becoming a natural trigger for the further development of the justice system, which in turn requires a holistic view of the transformation of procedural relations.
2. Research
Some factors that exist today and have a direct impact on social relations, the functioning of a judiciary system, and justice administration cannot be taken into account, as their impact can only be assessed after time. Such factors should include the following:
• Judicial reform in 2019,5 which resulted in the establishment of courts of appeal and cassation general jurisdiction courts. This fact will be certainly a catalyst to increase the number of court sessions held via videoconferencing systems (hereinafter also referred to as VC). However, it is impossible to estimate and forecast this indicator since these courts have been formed more recently and the number of cases considered by them prevents forecasting.
• Extrapolation of experience in experimenting with the application of Earned Income Tax, a special tax treatment from four to twenty-three subjects. Expansion of territory for the performance of an experiment in the establishment of the so-called "self-employed" category of taxpayers can become an additional boost
For an overview see, e.g., «Процессуальная революция» и судрасходы по соглашению: как идет судебная реформа // Право.ш. 24 сентября 2019 г. ["Procedural Revolution" and Court Costs Under Agreement: How Court Reform are Carried Out, Pravo.ru, 24 September 2019] (Sep. 2, 2021), available at https://pravo.ru/story/214758/; Olga Pankova & Yuri Migachev, Justice in the Contemporary World, 7(1) BRICS L.J. 119 (2020); Sergey Nikitin & Malkhaz Patsatsiya, Summary Procedures and Optimization of Commercial Court Proceedings in Russia, 6(2) BRICS L.J. 108 (2019); Tatyana V. Sakhnova, Development of Simplified Procedures in Civilistic Process in the Context of Legislative Reforms, 13(1) Journal of Siberian Federal University. Humanities & Social Sciences 103 (2020).
to the occurrence of disputable legal relations and thus new judicial processes that exceed the scope of a used model of calculations. At the same time, an almost sixfold increase in the number of subjects, in the territory of which the experiment is performed, makes it difficult to forecast.
• Interruption and restriction of court proceedings from 19 March 2020 to 10 April 2020 due to the COViD-19 pandemic,6 subsequently extended to 30 April 2020,7 then prolonged to 11 May 2020,8 as well as the suspension of work of the Court for intellectual Property Rights to 30 April 2020, ended on '2 May 2020.9 This fact is controversial and its impact on forecasting of judicial protection in the conditions of digitization of society and the judicial system is difficult to assess. in terms of this article, this is due to the dual nature of the provisions of the Ruling of the Presidium of the Supreme Court of the Russian Federation and the Presidium of the Council of Judges of the Russian Federation of '8 March 2020 (hereinafter referred to as the Ruling). The Ruling simultaneously provides for consideration of only certain categories of cases, as well as suspension of personal reception of citizens in courts, which is "one side of the coin," which causes some "freeze" in consideration of cases. At the same time, on the other part, the Ruling provides that courts should initiate consideration of cases using videoconferencing, as well as submission of documents only to on-line reception services of courts or by Russian post. The combination of these factors will increase individual indicators considered in this research. The Ruling also provides that courts are recommended to consider cases and top-priority files including those on protection of citizens' constitutional rights to freedom and personal inviolability, protection of health and property (on applying, prolongation, cancellation or change of a measure of restraint; on protection of interests of a minor or a person duly declared as legally incapable in case of refusal of a legal representative of medical intervention necessary to save life; on administrative violations, which are provided for by paragraphs 3-5 of Article 29.6 of the Code of Administrative Offences of the Russian Federation; on gross disciplinary
6 Постановление Президиума Верховного Суда Российской Федерации, Президиума Совета судей Российской Федерации от 18 марта 2020 г. № 808 [Ruling of the Presidium of the Supreme Court of the Russian Federation and Presidium of the Council of Judges of the Russian Federation of 18 March 2020 No. 808] (Sep. 2, 2021), available at https://www.vsrf.ru/files/28814/.
7 Постановление Президиума Верховного Суда Российской Федерации, Президиума Совета судей Российской Федерации от 8 апреля 2020 г. № 821 [Ruling of the Presidium of the Supreme Court of the Russian Federation and Presidium of the Council of Judges of the Russian Federation of 8 April 2020 No. 821] (Sep. 2, 2021), available at http://vsrf.ru/files/28837/.
8 Постановление Президиума Верховного Суда Российской Федерации, Президиума Совета судей Российской Федерации от 29 апреля 2020 г. № 822 [Ruling of the Presidium of the Supreme Court of the Russian Federation and Presidium of the Council of Judges of the Russian Federation of 29 April 2020 No. 822] (Sep. 2, 2021), available at http://www.ssrf.ru/news/lienta-novostiei/37629.
9 Латухина К. Выход из выходных // Российская газета. 11 мая 2020 г. [Kira Latukhina, End of Stay-at-Home Days, Rossiiskaia Gazeta, 11 May 2020] (Sep. 2, 2021), available at https://rg.ru/2020/05/11/ vladimir-putin-obiavil-o-zavershenii-perioda-nerabochih-dnej-s-12-maia.html.
offences resulting in correctional custody of military personnel and on performance of the correctional custody; on securing a claim, etc.), consider cases according to summary and simplified procedure, cases, all the parties to which have submitted applications for consideration of the case in their absence, if their participation in the consideration of the case is not obligatory. Thus, in the short term, this fact may harm further prediction of the dynamics of the judicial defense, as well as precondition incorrect prediction, the development of which is one of the objectives of this research. Besides, this circumstance will become a factor that may reduce a Total Cases Considered indicator in the annual summary information published by the Judicial Department of the Supreme Court of the Russian Federation (hereinafter also referred to as the Judicial Department), since physical and time resources in the work of the judicial system will remain unchanged and the consideration of many cases will be postponed. For example, 410,799 sessions have been scheduled for April in commercial courts. This fact together with the prolongation of stay-at-home days to the end of April10 by the abovementioned Ruling and letter11 of the Head of the Economic Board of the Supreme Court of the Russian Federation, by which it is permitted to adjourn cases up to the end of stay-at-home days and not include them in the terms of consideration,12 allows saying that over the entire period of the stay-at-home days in the Russian Federation more than half a million cases will be adjourned just in the system of commercial courts, which will significantly increase the load on the judicial system and each judge. Thus, if the average monthly number of cases per judge of a commercial court was 65.8 cases per month in 2018, while in the courts tied up with cases most often this figure was even higher and reached 177.1 cases per month, which was observed in the Moscow Commercial Court.13 Accordingly, it could be said in that situation that an increase in workload was significant. However,
10 Указ Президента Российской Федерации от 2 апреля 2020 г. № 239 «О мерах по обеспечению санитарно-эпидемиологического благополучия населения в связи с распространением коронавирусной инфекции» // СПС «КонсультантПлюс» [Decree of the President of the Russian Federation No. 239 of 2 April 2020. On Measures for Sanitation and Disease Prevention in Connection with the Coronavirus Incidence, SPS "ConsultantPlus"] (Sep. 2, 2021), available at http://www. consultant.ru/document/cons_doc_LAW_349217/.
11 Пушкарская А. «Право на войне не работает». Как коронавирус повлиял на работу российских судов Русской службы BBC // ВВС. 6 апреля 2020 г. [Anna Pushkarskaia, Law Is Not Applicable at War. How the Coronavirus Affected Vessels of the Russian Air Forces, BBC, 6 April 2020] (Sep. 2, 2021), available at https://www.bbc.com/russian/features-52177053.
12 Clause 14 of the Ruling of the Plenum of the Supreme Commercial Court of the Russian Federation of 25 December 2013 No. 99 "On Procedural Periods" provides that the trial for the period exceeding a period fixed under the provisions of Article 158 of the Code of Arbitration Procedure of the Russian Federation is postponed if necessary subject to the relevant grounds and the period for which the trial has been postponed is not included in the period of consideration of the case fixed by paragraph 1 of Article 152 of the Code of Arbitration Procedure of the Russian Federation (para. 3 of Art. 152).
13 Пять лет экономического правосудия: нагрузка и практика // Право.ш. 25 декабря 2019 г. [Five Years of Economic Justice: Load and Practice, Pravo.ru, 25 December 2019] (Sep. 2, 2021), available at https://pravo.ru/story/215489/.
such changes in court statistics are one-off and their impact has yet to be assessed both in terms of quantitative and qualitative indicators.
• Declaration of a new type of coronavirus infection that is COVID-19'4 to be force majeure.15 According to clause 3 of Article 40' of the Civil Code of the Russian Federation, such circumstances are considered to be force majeure. Therefore, at present, we have witnessed a historic event, in which the above provisions of civil law are in force and widely applied in the litigation practice. On the other part, such a position of affairs may become an additional source of grounds for seeking judicial protection of rights and legitimate interests related to the impact of the coronavirus on the economy, which would not be violated in the normal way of things, which, in turn, in the short term, may harm forecasting of the dynamics of the judicial defense as well as precondition incorrect forecasting.
As previously stated, the last two circumstances are short-term and cannot have a strong impact on such research in the future. However, at present, and for this research, their impact is essential in terms of the reliability of its results.
At the same time, it should be noted that a new type of coronavirus infection that is COViD-19 may become a boost for the development of the justice system in the longer term. it is fair to say that the coronavirus epidemic and the measures taken to prevent it can catalyze the processes of automation and digitization of work processes, which began long before the pandemic but have now become highly relevant and necessary. These circumstances can boost the development of online services. At the same time, the development and integration of digital technologies will affect all spheres of life, including the justice administration, which will be certainly a new stage in its development.
The judicial protection of rights and legitimate interests is the quintessence of providing independent, impartial, and fair justice.16 The essence of judicial protection
14 For an overview see, e.g., Martin French & Torin Monahan, Disease Surveillance: How Might Surveillance Studies Address COVID-19?, 18(1) Surveill. Soc. 1 (2020); Paraskevas Nikolaou & Loukas Dimitriou, Identification of Critical Airports for Controlling Global Infectious Disease Outbreaks: Stress-Tests Focusing in Europe, 85 J. Air Transp. Mgmt. 1 (2020); Cato T. Laurencin & Aneesah McClinton, The COVID-19 Pandemic: A Call to Action to Identify and Address Racial and Ethnic Disparities, 7(3) J. Racial Ethn. Health Disparities 398 (2020).
15 Информационное сообщение Банка России от 17 марта 2020 г. «О мерах по обеспечению устойчивости экономического развития» // СПС «Гарант» [Bank of Russia Information Report of 17 March 2020 "On Measures to Ensure Sustainable Economic Development," SPS "Garant"] (Sep. 2, 2021), available at https://www.garant.ru/products/ipo/prime/doc/73651624/; Обзор: «Коронавирус как форс-мажор: что учесть юристам во время пандемии» // СПС «КонсультантПлюс» [Review on a Topic Coronavirus as a Force Majeure: What Lawyers Shall Take into Account During the Pandemic, SPS "ConsultantPlus"] (Sep. 2, 2021), available at http://www.consultant.ru/document/ cons_doc_LAW_348281/.
16 ВершининВ.Б. Судебная защита как комплексный институт российского права: автореф. дис. ... канд. юрид. наук [Vadim B. Vershinin, Judicial Protection as a Complex Institute of the Russian Law: Synopsis of a Thesis] (2011).
consists in the effective activity of both the court and the machinery of government for its guaranteeing. Its target is a full realization of the legal status of subjects of the right, restoration of their violated or disputed rights, freedoms and legitimate interests.17
By moving directly to consideration of court statistics, we note that this work was based on materials published by the Judicial Department of the Supreme Court of the Russian Federation.18 At the same time, the consolidated data for 2019 on the work of the judicial system of the Russian Federation published by the Judicial Department have not yet been made public as of the date of preparation of this article.
Table 1. The number of cases considered using videoconferencing systems
Year Commercial courts of constituent entities District courts19
Total cases considered at first instance, mln. Total cases considered with the use of video conferencing systems, mln. Total letters of request executed for convening video conferences, mln. Total cases considered at first instance, mln. Total cases considered with the use of video conferencing systems, mln.
2018 1,908 0,0056 (0,29%) 0,0321 3,362 0,0345 (1,02%)
2017 1,748 0,0053 (0,3%) 0,0299 3,542 0,0234 (0,66%)
2016 1,571 0,0055 (0,35%) 0,028 4,676 0,0172 (0,36%)
2015 1,531 0,008 (0,52%) 0,028 4,617 0,0089 (0,19%)
2014 1,425 0,0066 (0,46%) 0,0269 4,196 0,0062 (0,14%)
The above statistics show the reaching of an absolute level for cases considered in commercial courts of the entities using the VC in the process of consideration of cases at first instance. At the same time, relative indicators for this indicator are also in a state of stagnation for 3 years.
17 For an overview see, e.g., Dmitry Shandurskiy, Representative Actions in Russia, 6(1) Russian L.J. 100 (2018); Elena Salogubova & Alan Zenkov, Roman Law's Influence on Russian Civil Law and Procedure, 6(2) Russian L.J. 118 (2018); Mikhail Kleandrov & Irina Pluzhnik, The Range of Administrative Justice Specializations in Russia and the Other BRICS Countries, 5(2) BRICS L.J. 24 (2018).
18 For an overview see, e.g., Обзоры о деятельности судов // Судебный департамент при Верховном суде Российской Федерации [Reviews of Operation of Court, Judicial Department at the Supreme Court of the Russian Federation] (Sep. 2, 2021), available at http://www.cdep.ru/index.php?id=80; Elena Ostanina & Elena Titova, The Protection of Consumer Rights in the Digital Economy Conditions -the Experience of the BRICS Countries, 7(2) BRICS LJ. 118 (2020); Natalya Letova & Igor Kozhokar, Legal Status of a Child in Family Legislation of the Russian Federation and CIS: Comparative Legal Analysis, 7(3) Russian L.J. 82 (2019).
19 Only district courts are considered in the whole system of general jurisdiction courts, as information on the use of VC is published only regarding them.
Simultaneously, it should be noted that the absolute level of execution of letters of request for convening videoconferences by commercial courts of the entities is steadily growing. The average annual growth for the period from 2014 to 2018 was 4.28%.
Both relative and absolute quantitative indicators of cases considered in district courts at first instance with the use of VC are growing from 2014 to 2018. Thus, the average relative growth rate is 0.48 percent. Therefore, the following forecast for the number of cases to be considered with the use of VC (in millions) will be reasonable: 2019 - 0.0346, 2020 - 0.0348, 2021 - 0.0349, 2022 - 0.0351. However, if the trend of reducing the number of cases being considered in district courts is persistent, there will be an increase in statistical figures of the use of VC as compared to the number of cases considered.
Another indicator of the development of the judicial system in the context of the development of the digital economy is integration into the judicial system of a new way of notifying persons involved in civil proceedings via SMS. So, law administrators mean by SMS notification of parties to legal proceedings by the court through sending them SMS containing destination information, name, and address of the court, date, time and venue of a trial or information on the performance of certain procedural actions, which was evidenced in the Regulations on Organization of Notification of Parties to Legal Proceedings by SMS approved by the Order of the Judicial Department of the Supreme Court of the Russian Federation of 25 December 2013 No. 257. Therefore, today this method of notification is equal to the traditional method directly provided by Article 113 of the Civil Procedural Code of the Russian Federation: "... by registered letter with acknowledgment of receipt, court summons with acknowledgment of receipt, by telephone or telegram, by facsimile" and is also considered appropriate.
However, to assess the timeliness of this innovation, it is necessary to analyze the number of mobile devices held by users. So, as of 1 July 2001, the total number of mobile users in Russia was about 4.6 million20. The number of mobile devices grew to 179 per 100 people as of the end of 2013.21 As of 2020 the figure is 175 devices for every 100 people. This means currently there are about 256,116,000 telephones22 for
20 В России 4,6 млн человек имеют сотовые телефоны // РБК. 31 июля 2001 г. [In Russia, 4.6 Million People Have Cell Phones, RBC, 31 July 2001] (Sep. 2, 2021), available at https://www.rbc.ru/econom ics/31/07/2001/5703b43e9a7947783a5a365b.
21 Благовещенский А. Россия стала лидером по числу мобильников на душу населения // Российская газета. 13 ноября 2013 г. [Anton Blagoveshchenskii, Russia Became Leader in the Number of Cellphones per Capita, Rossiiskaia Gazeta, 13 November 2013] (Sep. 2, 2021), available at https://rg.ru/2013/11/13/ russia-mobile-site.html; Бродовская Е.В., Хуанг Т. Цифровое поколение: гражданская мобилизация и политический протест российской молодежи // Мониторинг общественного мнения: экономические и социальные перемены. 2019. № 5. С. 3-18 [Elena V. Brodovskaia & Toni Huang, Digital Generation: Civil Mobilization and Political Protest of Russian Youth, 5 Opinion Monitoring: Economic and Social Change 3 (2019)].
22 List of countries by number of mobile phones in use, Wikipedia (Sep. 2, 2021), available at https:// en.wikipedia.org/wiki/List_of_countries_by_number_of_mobile_phones_in_use#cite_note-9.
145,934,462 people. The above statistics show that today every person has a mobile phone and necessary technical equipment to be a fully valid party to a judicial process.
At the same time, the Arbitration Procedural Code, namely Article 121 of the Arbitration Procedural Code of the Russian Federation provides that
... after the parties to the case receive a ruling to accept a claim for court proceedings ... after the parties to the case obtain a judicial act regarding the case considered, they individually get information on the progress of the case with the use of any sources of such information and any means of communication.
However, it is necessary to understand that the main source of such information is KAD Arbitr, an Internet portal, and Moi Arbitr on-line service. Accordingly, it seems fair to say that to track the progress of a case, the progress of its consideration, and to read the full text of judicial acts it is necessary to have Internet access.
One of the methods of an impartial assessment of the integration of digital technologies in public relations is to study statistics on the number of Internet users. So, as of 30 June 2017, the number of Internet users amounted to 109 952 842 in Russia, which made 76.4% of the country's population then.23 In 2019, the number was already 116 million, and in 2020, the number of Internet users amounts to 116,353,942 people,24 which is 79.7% of the country's population at present.25,26 Therefore, a logical conclusion is that the degree of use of digital technologies by the population is increasing every year. A logical consequence of the above thesis is the conclusion that one of the aspects of increasing the level of integration is the increasing access and openness of justice, both for individuals and legal entities. An additional point is that national and domestic roaming was annulled in the Russian Federation on the initiative of the Federal Communications Agency supported by the
23 List of countries by number of Internet users, Wikipedia (Sep. 2, 2021), available at https://ru.wikipedia. org/wiki/%D0%A1%D0%BF%D0%B8%D1%81%D0%BE%D0%BA_%D1%81%D1%82%D1%80%D0% B0%D0%BD_%D0%BF%D0%BE_%D1%87%D0%B8%D1%81%D0%BB%D1%83_%D0%BF%D0%BE% D0%BB%D 1%8C%D0%B7%D0%BE%D0%B2%D0%B0%D 1%82%D0%B5%D0%BB%D0%B5%D0%B9_ %D0%98%D0%BD%D1%82%D0%B5%D1%80%D0%BD%D0%B5%D1%82%D0%B0.
24 Top 20 countries with the highest number of internet users, Internet World Stats (Sep. 2, 2021), available at https://www.internetworldstats.eom/top20.htm#links.
25 However, it is necessary to understand that these indicators do not cover situations, in which a person may have 2 or more devices providing Internet access. While, at the same time, the situations, in which a person does not have devices with Internet access, are also not taken into account. This fact indicates the existence of some errors.
26 Rebecca Eynon & Lars-Erik Malmberg, A Typology of Young People's Internet Use: Implications for Education, 56(3) Comput. Educ. 585 (2011).
President and the Government.27 At the same time, the four largest Russian mobile operators,28 which use bundle plans, have provided, in addition to the annulment of roaming for calls, automatic consumption of the internet traffic provided according to the tariff in any other region, other than the home one, without additional charges.29 Consequently, there are no access restrictions and no territorial differentiation of the parties to the process.
The aggregate of the above statistical data on the availability of mobile devices and internet coverage in the Russian Federation should be supplemented with the technical characteristics of mobile devices. So, according to the results of the study of demand for telecom devices over past ten years (2010-2019), the quantitative ratio of mobile phones and smartphones is steadily increasing in favor of the latter.30 This position of affairs makes it possible to say that the number of people with simultaneous access to the tracking of the case progress, in both commercial courts and general jurisdiction courts, comprises the large part of the population in the country as well as has modern technical means, which are an integral part of both digitization of society and development of the digital economy.
The level of integration of digital technologies in the life of society is also indicated in the statistics of users of Gosuslugi portal, which is steadily growing from one year to the next.
Table 2
Year 2012 2013 2014 2015 2016 2017 2018
Number of users of Gosuslugi portal, mln.31 3,6 6,9 13 22,5 40 65 86
30
Кривошапко Ю. Мир входящему // Российская газета. 2 июня 2019 г. [Yulia Krivoshapko, Peace to the Incoming, Rossiiskaia Gazeta, 2 June 2019] (Sep. 2, 2021), available at https://rg.ru/2019/06/02/v-rossii-otmenili-nacionalnyj-i-vnutrisetevoj-rouming.html.
В России больше нет внутрисетевого роуминга // Ведомости. 9 августа 2018 г. [There Is No More Intranet Roaming in Russia, Vedomosti, 9 August 2018] (Sep. 2, 2021), available at https://www. vedomosti.ru/technology/articles/2018/08/09/777725-net-rouminga.
Вильдяев Е. Что происходит с роумингом по России. Тарифы и услуги операторов // iPhones.ru. 19 июня 2018 г. [Evgenii Vildiaev, What Happens to Roaming in Russia. Tariffs and Services of Operators, iPhones.ru, 19 June 2018] (Sep. 2, 2021), available at https://www.iphones.ru/iNotes/mobile-roaming-russia-operators-06-19-2018.
Смартфоны (рынок России) // Tadviser. 23 июля 2021 г. [Smartphones (Russian Market), Tadviser, 23 July 2021] (Sep. 2, 2021), available at http://www.tadviser.ru/index.php/%D0%A1%D1%82%D0%B0% D1%82%D1%8C%D1%8F:%D0%A1%D0%BC%D0%B0%D1%80%D1%82%D1%84%D0%BE%D0%BD %D1%8B_(%D1%80%D1%8B%D0%BD%D0%BE%D0%BA_%D0%A0%D0%BE%D1%81%D1%81%D0 %B8%D0%B8)#.D0.A0.D0.B5.D0.BA.D0.BE.D1.80.D0.B4.D0.BD.D1.8B.D0.B5_.D0.BF.D1.80.D0.BE.D0.B4. D0.B0.D0.B6.D0.B8_.D1.81.D0.BC.D0.B0.D1.80.D1.82.D1.84.D0.BE.D0.BD.D0.BE.D0.B2_.E2.80.94_GfK.
Аудитория и статистика портала госуслуг // Tadviser. 5 апреля 2019 г. [Audience and Statistics of the Public Services Portal, Tadviser, 5 April 2019] (Sep. 2, 2021), available at http://www.tadviser.ru/index.p hp/%D0%A1%D1%82%D0%B0%D1%82%D1%8C%D1%8F:%D0%90%D1%83%D0%B4%D0%B8%D1 %82%D0%BE%D 1%80%D0%B8%D 1%8F_%D0%B8_%D 1%81%D1%82%D0%B0%D 1%82%D0%B8% D1%81%D1%82%D0%B8%D0%BA%D0%B0_%D0%BF%D0%BE%D1%80%D1%82%D0%B0%D0%BB %D0%B0_%D0%B3%D0%BE%D1%81%D1%83%D1%81%D0%BB%D1%83%D0%B3.
27
28
29
At the same time, and taking into account features to which verified users of Gosuslugi portal have access, as well as the unified system of identification and authentication (hereinafter referred to as USiA), these statistics are attractive for study in this article. So, the Order of the Judicial Department of the Supreme Court of the Russian Federation of 27 December 2016 No. 251 "On Approval of the Procedure for Submitting Documents to Federal Courts of General Jurisdiction in Electronic Form, including in the Form of an Electronic Document," the Order of the Judicial Department of the Supreme Court of the Russian Federation of 28 December 2016 No. 252 "On Approval of the Procedure for Submitting Documents to the Arbitration Courts of the Russian Federation in Electronic Form, including in the Form of an Electronic Document" and the Procedure for Submitting Documents to the Supreme Court of the Russian Federation in Electronic Form, including in the Form of an Electronic Document (approved by the Order of the Chairman of the Supreme Court of the Russian Federation of 29 November 2016 No. 46-P) provide that to have access to a personal account created in Moi Arbitr online service or on GAS Pravosudie webportal, identification and authentication with the use of a USiA individual's account is required. Accordingly, an increase in the number of users of this platform is an indirect proof of the fact that the number of persons using it for seeking judicial protection of violated rights and legal interests is increasing..
Table 3. Statistics of the use of GAS Pravosudie
Year Total cases Total cases Total cases Total cases Total
considered at considered at considered at considered at statement
first instance, first instance, first instance, first instance, of claims
mln. mln. mln. mln. filed via GAS
Regional District courts Justices of the General Pravosudie,
courts Peace jurisdiction mln.
courts
(general)
2018 0,0217 3,362 18,226 21,6097 0,6955 (3,2 %)
201732 0,0188 3,542 15,231 18,7918 0,283 (1,5 %)
GAS Pravosudie Internet portal is a relatively new platform, which provides an opportunity to file documents with general jurisdiction courts via the Internet. So, this platform launched in 2017 registered the millionth lawsuit already in 2019.33 That is, the absolute increase in the number of lawsuits every year exceeds 40%, while
32 Only this period is considered, as the GAS Pravosudie system was launched in 2017.
33 Куликов В. В российские суды подан миллионный электронный иск // Российская газета. 25 января 2019 г. [Vladislav Kulikov, The Millionth Electronic Claim Has Been Filed with Russian Courts, Rossiiskaia Gazeta, 25 January 2019] (Sep. 2, 2021), available at https://rg.ru/2019/01/25/v-rossijskie-sudy-podan-millionnyj-elektronnyj-isk.html.
the relative figures are 2.35% for 2 years. At the same time, the forecasting subject to the availability of such background data, is impossible, as this platform proved itself to be positive and the growth of the number of lawsuits is galloping. So, for example, the number of lawsuits should have been 0.9785 million in 2019 subject to an absolute increase of 40%, while the number of lawsuits exceeded 1 million in early 2019. Besides, the carried-out judicial reform also seems to be an objective trigger for the growth of the number of lawsuits filed in electronic form.
Moreover, it is necessary to mention another way of access to my account, that is the use of an enhanced qualified digital signature available to the user (hereinafter referred to as the EQDS) in case of filing documents in electronic form with general jurisdiction courts. However, it should be noted that this tool is paid and not the most common one. So, by the beginning of 2017, more than 3.5 million EQDS were provided in Russia. The average cost of the complete set of EQDS is 1,400 rubles. According to MarketsAndMarkets, the world market of digital signatures amounted to $662.7 million in 2016.34 This market is only developing, but according to SKB Kontur and infoteks internet Trust annual growth is 30%,35 which undoubtedly shows that the toolkit for seeking judicial protection has expanded and become more accessible.
At the same time, the authors draw attention to the fact that to implement these opportunities the availability of internet access is required, which was considered earlier. However, the development of this ecosystem contributes to reaching a new level of development of the information environment, the introduction of modern information and communication technologies in the judicial process, the transformation of ways of information dissemination, improvement of the technical equipment of courts, the effective functioning of court websites and state automated systems, which is directly provided by the Concept of information Policy of the Judicial System for 2020-2030.36 Nonetheless, it is important to understand
34 ЦБ и Минэкономразвития предупредили о коллапсе рынка электронных подписей // РБК. 21 июля 2017 г. [The Central Bank and the Ministry of Economic Development Gave Notice of the Collapse of the Electronic Signature Market, RBC, 21 July 2017] (Sep. 2, 2021), available at https://www.rbc.ru/ technology_and_media/21/07/2017/59721af29a794728e0a2d817.
35 Левашенко А.Д., Ермохин И.С., Коваль А.А. Перспективы правового регулирования крипто-экономики и ICO в России и других странах // Экономическая политика. 2019. № 14(5). С. 80-99 [Antonina D. Levashenko et al., Prospects of Legal Regulation of the Crypto Economy and ICO in Russia and Other Countries, 14(5) Economic Policy 80 (2019)]; Пантыкина М.И. Блокчейн и социальные концепции: экспозиция проблемного поля // Социологическое обозрение. 2019. № 18(1). С. 158-185 [Marina I. Pantykina, Blockchain, and Social Concepts: Exposure of the Problem Field, 18(1) Sociological Review 158 (2019)].
36 5 декабря 2019 года Советом судей РФ по итогам работы его комиссий одобрена Концепция информационной политики судебной системы на 2020-2030 годы с учетом замечаний и предложений // Совет судей Российской Федерации. 5 декабря 2019 г. [On 5 December 2019, the Council of Judges of the Russian Federation, Following the Results of the Work of its Commissions, Approved the Concept of the Information Policy of the Judicial System for 2020-2030, Taking into Account Comments and Suggestions, Council of Judges of the Russian Federation, 5 December 2019] (Sep. 2, 2021), available at http://www.ssrf.ru/news/lienta-novostiei/35630.
that at present only a set of measures is being implemented to provide access to the World Wide Web from anywhere in Russia, which is being implemented in the context of the creation of an information infrastructure under Digital Economy program.37 Accordingly, it is possible to say that the Russian Federation is steadily and systematically taking and implementing measures to improve the access to digital services, one of which is the electronic filing of documents. One of the actions taken to improve access to the courts was also an experiment in affording free access to socially important websites38 launched for the period from 1 April 2020 to 1 July 2020. The list of such sites includes social networks, some forums, mail and news aggregators, websites of TV channels, news agencies, online shops and classified sites, delivery services, cartographic services, bank sites, scientific sites, sites of museums and cultural institutions, as well as sites of the Government, Parliament, federal ministries and court files. The court files, in this case, mean GAS Pravosudie,39 the official website of the federal commercial courts of the Russian Federation,40 commercial case files,41 which is stipulated in the list42 in the annex to Order No. 148 of the Russian Ministry of Communications.
This position of affairs brings about the fact that digital reality places new demands on both legal science and law enforcement practice.
3. Discussion
So, a viable and potential way to develop the judicial system can be holding trials via VC, but not in the traditional sense given in court practice, but via WhatsApp, Zoom,
КодачиговВ. Путин пообещал быстрый интернет к 2024 году // Ведомости. 1 марта 2018 г. [Valery Kodachigov, Putin Promised High-Speed Internet by 2024, Vedomosti, 1 March 2018] (Sep. 2, 2021), available at https://www.vedomosti.ru/technology/articles/2018/03/01/752449-putin-poobeschal-bistrii-internet.
Приказ Минкомсвязи России от 31 марта 2020 г. № 148 «О проведении эксперимента об оказании гражданам на безвозмездной основе услуг связи по передаче данных и предоставлению доступа к информационно-телекоммуникационной сети «Интернет» на территории Российской Федерации для использования социально значимых информационных ресурсов в информационно-телекоммуникационной сети «Интернет»» [Order of the Ministry of Communications of the Russian Federation No. 148 of 31 March 2020. On Conduct of an Experiment in Provision of Free Communication Services for Data Transmission and Access to the Internet Information and Telecommunication Network in the Territory of the Russian Federation for the Use of Socially Significant Information Resources in the Internet Information and Telecommunication Network] (Sep. 2, 2021), available at https://digital.gov.ru/uploaded/files/prikaz-148-gv.pdf.
https://sudrf.ru
https://arbitr.ru
https://kad.arbitr.ru
Перечень отечественных социально значимых информационных ресурсов в информационно-телекоммуникационной сети «Интернет» [List of Domestic Socially Significant Information Resources in the Internet Information and Telecommunication Network] (Sep. 2, 2021), available at https://digital. gov.ru/uploaded/files/perechen-k-prikazu-148.pdf.
37
38
39
40
41
Microsoft Teams, Google Meat, Skype and other technical solutions available without going to court. For example, all courts are closed in California due to the coronavirus, except where some cases have to be considered promptly. Against this background, on 28 March 2020, the Government of the state unanimously supported temporary directives to introduce a system of remote justice administration. The courts will now use videoconferencing and telephone services for remote pleading, court reports, and interpretation during the proceedings. The remote justice administration will be used in criminal and juvenile cases first. This measure concerns indictments and preliminary hearings.43 Following in the footsteps of foreign colleagues, Russian courts have embraced this practice, namely the Commercial court of St. Petersburg and Leningrad Oblast began to hold trials via Skype on 20 April 2020.44 And then on 29 April 2020, the Supreme Court of the Russian Federation and the Council of Judges of the Russian Federation spoke about the possibility of holding trials using the videoconferencing system or web-videoconferencing system. However, it should be noted that the above tools have some shortcomings. One of them is that these systems are insecure and that conversations held via them are not confidential, as evidenced by scandals surrounding them, namely surrounding Skype.45 On the surface, this shortcoming may seem insignificant since all trials are held in public, except for those of which the holding in private is expressly provided by law, which is in line with the Universal Declaration of Human Rights.46 However, even if the cases are considered in public, uncontrolled distribution of data on the trial, on the progress of legal proceedings, personal data of persons who are parties to a case, and also other data including sums of money, which are not given in judicial acts, can prejudice rights and legitimate interests of persons who are parties to a case. The other shortcoming of these systems is that in case of using them without going to court, it is difficult to identify persons, who are parties to a case, which, in turn, is the basic purpose of their introduction. Therefore, such decisions appear to be reasonable, but they are
California chief justice says courts can hold video hearings amid coronavirus shutdown, The Sacramento Bee, 28 March 2020 (Sep. 2, 2021), available at https://www.sacbee.com/news/coronavirus/ article241596776.html.
В Арбитражном суде Санкт-Петербурга заседания будут проходить через Skype // npaBO.ru. 17 апреля 2020 г. [Trials Will Be Held via Skype in the Commercial Court of St. Petersburg, Pravo.ru, 17 April 2020] (Sep. 2, 2021), available at https://pravo.ru/news/220777/; Damir Kh. Valeev & Anas G. Nuriev, Digital Rights Management in a Procedural Relationship, 10(4) J. Sociol. Soc. Anthropol. 281 (2019).
Новый «1984-й»: люди возмущены тем, что их подслушивают голосовые помощники и даже... Skype // TexTerra. 13 августа 2019 г. [The New "1984": People Are Exasperated by Being Eavesdropped by Voice Assistants and Even... Skype, TexTerra, 13 August 2019] (Sep. 2, 2021), available at https:// texterra.ru/blog/novyy-1984-y-lyudi-vozmushcheny-tem-chto-ikh-podslushivayut-golosovye-pomoshchniki-i-dazhe-skype.html.
Art. 11, cl. 1: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. See Universal Declaration of Human Rights (Sep. 2, 2021), available at https://www. un.org/en/about-us/universal-declaration-of-human-rights.
43
44
45
not basic and do not meet all the requirements, which can be applied to the tools enabling to be a party to consideration of the case merits without going to court. So, it seems that one of the possible projects to increase the level of integration of modern technologies in the process of justice administration is opening up an opportunity of holding trials via the VC based on the GAS Pravosudie platform and Moi Arbitr on-line service, which can be considered as an element of enhancing the security of persons, who are parties to the case, as well as enables identification of a person via USiA. However, if we refer again to foreign experience, it is important to note the existence of online dispute resolution, which is a set of methods of dispute resolution with the use of internet technologies. Western lawyers and experts consider online dispute resolution to be an online equivalent of alternative dispute resolution methods, which include negotiation, mediation, arbitration tribunal, or a combination of these three elements. Russian scientists come up with similar ideas.47
Conclusion
Summarizing this research, it should be noted that any statistical calculation is associated with the existence of different variables that affect it. At the same time, the existing background data, as well as already identified variables and external factors indicate that 2019, 2020, and 2021 may become crucial and result in a fundamental review of the existing approaches to the entire civil procedure, and certain types of legal proceedings. For example, it seems possible to make certain types of proceedings online, such as fact-finding, a procedure to declare lost documents void and others that do not require the presence of parties, as well as reading of case files online, which already becomes common use today.48
However, it is only part of the prospects for the development of the judicial system in the Russian Federation. An indisputable thesis is that the administration of justice is traveling the path of increasing the level of transparency, the level of procedural economy, accessibility, and increasing the level of synchronization with the development of social relations and modern technologies, as well as increasing the level of judicial protection.
Acknowledgment
This paper has been supported by the Kazan Federal University Strategic Academic Leadership Program.
47 Lilia A. Sungatullina et al., Mediation as Alternative Dispute Resolution: Legal Analysis, Foreign Practice, and Perspectives in Russia, 7(6) Humanities and Social Sciences Reviews 826 (2019); Anastasia S. Arkhipkina et al., New in the Legislation on Conciliation Procedures in Russia: Judicial Conciliation and Mediation, 13(2) Journal of Siberian Federal University. Humanities & Social Sciences 167 (2020).
48 Арбитражные суды приняли более 300 000 актов за «нерабочую» неделю // npaBO.ru. 7 апреля 2020 г. [Commercial Courts Performed More Than 300 000 Acts Within a Stay-at-Home Week, Pravo. ru, 7 April 2020] (Sep. 2, 2021), available at https://pravo.ru/news/220273/.
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Information about the authors
Damir Valeev (Kazan, Russia) - Professor, Deputy Dean of the Law Faculty, Kazan (Volga Region) Federal University (18 Kremlevskaia St., Kazan, 420008, Russia; e-mail: valeev55@gmail.com).
Nikita Makolkin (Kazan, Russia) - Postgraduate Student, Faculty of Law, Kazan (Volga Region) Federal University (18 Kremlevskaia St., Kazan, 420008, Russia; e-mail: nikita.makolkin@gmail.com).
