Ensuring the rights of citizens to judicial protection and fair trial with the help of the state automated system "Justice"

Seleznev Andrey Valerievich PhD in History Director of the KGB SB "Edelweiss Family Center", teacher of the branch of the Moscow Psychological and Social University in Krasnoyarsk 660049, Russia, Krasnoyarskii krai, g. Krasnoyarsk, ul. Surikova, d. 6, kv. 34 seleznev.andrey.val@gmail.com Other publications by this author

Lyutykh Oleg Yurevich PhD in History Associate Professor, Department of Economics and Management, Krasnoyarsk State Pedagogical University named after V.P. Astafyev 660049, Russia, Krasnoyarskii krai, g. Krasnoyarsk, ul. Ady Lebedevoi, 89 lyutyh.oleg@yandex.ru

The problem of ensuring the rights of citizens to access Russian judicial proceedings through the state automated system "Justice" (hereinafter – the GAS "Justice") is significant in connection with the general trend of digital transformation of public authorities and the service approach to the administration of justice. Sanitary and epidemiological restrictions imposed as a preventive measure and prevention of the spread of a new coronavirus infection have accelerated the introduction of remote technologies into the work of Russian courts. In this regard, the issues of legal regulation and law enforcement practice of the digital transformation of Russian justice are in the field of view of the legal community.

Thus, the research of I.A. Aleshkova, O.H. Molokaeva, O.N. Diordieva, G.T. Ermoshin, V.F. Borisova is devoted to the issues of theoretical understanding of the legal nature of electronic justice ^{[1, 2, 3, 4, 5, 6]} et al .

The use of modern information technologies in legal proceedings is studied in the works of O.I. Andreeva, V.V. Ivanov, A.Yu. Nesterov, T.V. Trubnikova, A.V. Anosov, G.V. Grib, I.O. Tyunis, S.V. Zuev, E.S. Popova, A.M. Smirnova, Yu.A. Tikhomirov ^{[7, 8, 9, 10, 11, 12, 13]}, etc.

At the same time, the issue of using the GAS "Justice" as a tool for the realization of citizens' rights to judicial protection and fair trial with the help of modern information technologies has not been adequately reflected in legal studies. Most researchers consider the GAS "Justice" as one of the elements of the system of electronic services implemented to ensure the functioning of the main administrative and technological processes of judicial proceedings at a new technical level.

The purpose of this study is a theoretical understanding of the issue of the introduction of electronic justice in the Russian Federation and the development of recommendations for improving the mechanisms for the implementation of the rights of Russian citizens to judicial protection with the help of the GAS "Justice".

Within the framework of the study, it is expected to solve the following tasks:

1) to determine the specifics of the legal regulation of the administration of electronic justice in the Russian Federation with the help of the GAS "Justice";

2) to consider the issue of the legal regime of the functioning of the GAS "Justice" in terms of ensuring the rights of citizens to access to legal proceedings in the Russian Federation;

3) analyze the functionality of the GAS "Justice" for the implementation of the procedural rights of Russian citizens;

4) to develop practical recommendations for improving the legislation regulating the implementation of the electronic justice system and the functioning of the GAS "Justice".

The object of this study is the procedural legal relations arising during the use of the GAS "Justice" in the conduct of legal proceedings in the Russian Federation.

The subject of the study are the norms of substantive and procedural law regulating the activities of courts and judicial bodies, ensuring the realization of citizens' rights to judicial protection through the GAS "Justice", and law enforcement practice for organizing access to legal proceedings using automated information systems.

In this study, the main method of scientific cognition is the comparative legal method, and methods of analysis, synthesis, system-structural method and modeling method were also used.

The novelty of the study was that the authors critically analyzed the norms of substantive and procedural law of the Russian Federation regulating the functioning of the GAS "Justice", and conducted a comparative analysis of automated information systems for the support of judicial proceedings in Russia. The result of this study was the author's recommendations on improving the Russian legislation regulating the judicial process, aimed at expanding the opportunities of citizens to exercise their rights to judicial protection with the help of the GAS "Justice".

Speaking about the legal value of the institution of protection of citizens in court, we understand that justice is a functional and institutional category of the judiciary, which is enshrined in a variety of normative legal acts. The federal target program "Development of the judicial system of Russia for 2013-2024" states: "The judicial system as a mechanism of state protection is of great importance in any legal state. Acting as a public arbitrator, she simultaneously protects all areas of activity regulated by law. The judicial system ensures the inviolability of the foundations of the constitutional system, protecting the rule of law, the unity of the economic space, property and non-property rights of citizens and legal entities, and also guarantees freedom of economic activity ..." ^[14].

Justice is one of the areas of law enforcement and state activity of the court. It is also one of the most important powers, the exercise of which is related to the functioning of the judiciary. It occupies a central place in the system of law enforcement and in the composition of the powers of the judiciary. In addition, it is worth considering that access to justice is recognized as the basic constitutional right of citizens of our country. The general right to access to justice, namely to judicial protection of human and civil rights and freedoms, as well as to appeal to interstate bodies, is enshrined in the Constitution of the Russian Federation.

Thus, part 1 of Article 45 of the Constitution of the Russian Federation declares the duty of the state to protect the legitimate interests of citizens, and part 2 of the same article gives citizens the right to protect their rights and freedoms in all ways not prohibited by law ^[15]. Both an individual and a legal entity can count on this protection, which is also indicated by the basic law of our country.

Considering international acts of law, it is necessary to indicate article 8 of the Universal Declaration of Human Rights ^[16], as well as article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ^[17], which enshrines the right of everyone to unhindered access to justice.

At the same time, it should be noted that if the right to judicial protection, as such, is enshrined at the constitutional and legal level in various norms of substantive and procedural law, then the right to judicial protection using remote information and telecommunication technologies is enshrined in Russian legislation as an alternative opportunity to perform certain procedural actions during the administration of legal proceedings, to which this includes the submission of procedural and non-procedural documents in the form of an electronic document, remote familiarization with the materials of the court case and remote participation in the court session, but if technically possible.

If we consider the problem of ensuring citizens' access to legal proceedings using remote information and telecommunication technologies through the prism of the hierarchy of regulatory legal acts regulating this issue, we will see the following picture.

At the level of a special Federal law, the right of citizens and organizations to access information about the activities of courts in the Russian Federation is enshrined ^[18].

At the same time, the right to send applications and complaints to the court, to present evidence in the form of electronic documents, to participate remotely in court sessions is enshrined only in certain codified normative legal acts of the Russian Federation regulating the procedural rights and obligations of participants in legal proceedings in the branches of Russian law.

On the one hand, such logic of the federal legislator is understandable. The specifics of arbitration, civil and criminal proceedings require special approaches to regulating the implementation of the right to electronic legal proceedings. On the other hand, the absence of a special federal law establishing universal approaches to ensuring the right of citizens to participate in electronic court proceedings reduces the legal regulation of this issue to servicing the needs of the judicial system itself, and not the rights and interests of citizens.

In fact, the use of information and telecommunication technologies to ensure the rights of citizens to judicial protection is conceptually considered in Russian legal proceedings as the use of auxiliary technologies to provide state and municipal services to citizens in electronic form in the administration of justice ^[19].

It is worth noting that the legislator has not yet decided on the information and telecommunications architecture of digital justice. Federal Law No. 440-FZ of December 30, 2021 "On Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter – Federal Law No. 440 of December 30, 2021) establishes alternative ways to implement the right of citizens to access justice using information and telecommunication technologies.

The main way of carrying out procedural actions in accordance with Federal Law No. 440 of December 30, 2021 is the use of the federal state information system "Unified Portal of State and Municipal Services (Functions)" ^[20].

At the same time, the Regulation on Federal State Information Systems providing the Provision of state and Municipal services (Functions) in Electronic Form, approved by the Decree of the Government of the Russian Federation No. 861 dated 24.10.2011 (ed. dated 30.04.2022), provides only those services that can be applied to the implementation of electronic justice: electronic filing of applications and tracking their consideration identification of an individual, receipt of notifications, simple and qualified signature of electronic documents ^[21], that is, the specified system can actually play only an auxiliary service role for performing certain procedural actions specified in Federal Law No. 440 of December 30, 2021 and the amendments it made to the rules of procedural law.

At the same time, in accordance with Federal Law No. 440 of December 30, 2021, it remains possible to file claims, complaints, submissions and other documents provided in the process, as well as if there is a technical possibility of familiarizing with the case materials in electronic form and remotely participating in the court session using videoconferencing systems (VCS) and Web-conferences on the Internet information and telecommunications network through an information system determined by the Supreme Court of the Russian Federation and the Judicial Department at the Supreme Court of the Russian Federation (hereinafter - the Judicial Department).

Comparing the legal norms regulating the functioning of various Russian automated and information systems with automated and information systems subordinate to the Supreme Court and the Judicial Department, it is necessary to note the difference in conceptual approaches to the legal regulation of these public relations. For example, the state automated system "Elections" and the state information system of housing and communal services were created on the basis of federal laws ^{[22, 23]}, in which the purpose and procedure for the functioning of these automated information systems are determined by the legislator. While the state automated system "Justice" was created as a result of the implementation of measures to informatize the activities of courts of general jurisdiction and the Judicial Department within the framework of the Federal Target Program "Development of the Judicial System of Russia" for 2002-2006" ^[24], and put into operation in accordance with the departmental order of the Judicial Department ^[25], and this means that the authority to determine the goals and objectives of digital transformation when creating these systems is determined internally by the judicial corporation.

The preamble of the Federal Law "On the State Automated system "Elections" states that the use of this automated system "is one of the guarantees of the realization of the rights of citizens of the Russian Federation" to information about elections and referendums ^[22]. In the order of the Judicial Department regulating the procedure for the operation of the GAS "Justice" ^[26], it is noted that this system is intended "to form a unified information space of federal courts of general jurisdiction, bodies of the judicial community, bodies of the Judicial Department system."

In our opinion, the federal legislator, by transferring to the Supreme Court of the Russian Federation and the Judicial Department the authority to determine information systems that will provide access to justice using digital technologies, solves several tasks:

1) formally emphasizes the special role of the Supreme Court of the Russian Federation and its bodies in the digital transformation of the judicial system;

2) records the already established practices for the creation and operation of departmental automation systems of judicial bodies, as well as the created electronic architecture and infrastructure;

3) trusts the judicial authorities to make a decision on the terms and stages of integration of information systems and services of arbitration proceedings with the automated system for ensuring the activities of courts of general jurisdiction of the GAS "Justice".

In general, this approach allows the judicial system to introduce new elements of electronic justice in a planned manner, in accordance with its own internal vision of the situation. At the same time, the same approach leads to a shift in the goals and objectives of the digital transformation of the judiciary from guaranteeing citizens' rights to access justice through the use of information and communication technologies to solving managerial tasks to ensure the activities of the judicial system itself through the introduction of digital technologies.

We believe that in order to guarantee citizens' rights to digital justice, the legislator himself must determine the goals and objectives, and most importantly, the tools that will ensure citizens' access to justice using automated and information systems, having developed and adopted the relevant federal laws.

In addition, it is necessary to amend the procedural codes of the Russian Federation, which will transfer information and communication technologies from alternative ways of conducting legal proceedings to the main ways in the administration of justice, guaranteeing the rights of citizens to access judicial protection. The development and adoption of the Federal Law "On the State automated system "Justice" should unify approaches to the use of information and communication technologies in the administration of justice in our country.

Another important issue of ensuring the rights of citizens to judicial protection and fair trial with the help of the GAS "Justice" is the issue of expanding the rights of citizens to access various modules of the system around the clock.

At the moment, the GAS "Justice" is a complex multi-level system with an extensive structure. The automated system includes 26 functional, supporting and technological subsystems ^[26]. Of these, 16 subsystems contain information that can be described as "for internal use": "Administrative management", "Organizational support", "Finance", "Financial control", "Personnel", "Public relations", "Material and technical resources", "International legal cooperation", "Real estate", "Judicial Community", "Management and control of functioning", "Maintenance and maintenance", "Personnel training", "Display of information for collective use", "Information security", "Communication and data transmission". And 10 subsystems of the automated system are a repository of information of public interest: "Law", "Judicial records management and statistics", "Bank of judicial decisions (judicial practice)", "Forensic examination", "Document flow and citizens' appeals", "Departmental statistics of the Judicial Department", Information and reference subsystem", "The Internet portal of the GAS "Justice", "Judicial statistics of the Judicial Department", "Videoconference communication". The use of these subsystems makes it possible to successfully solve all the tasks listed above and carry out complex automation of court records management.

At the same time, the persons participating in the case and other participants in the trial are limited in the rights of access to information that is available to users of the automation systems of the GAS "Justice" (judges, employees of the Judicial Department).

Of course, the restriction of access rights directly to the state, or other corporate, automated system is an important element of ensuring its information security. However, in our opinion, the information subsystem "the Internet portal of the GAS "Justice", which ensures the interaction of the judicial system with participants in the proceedings, should provide access to all socially significant information contained in the GAS "Justice".

The main service that ensures the interaction of a citizen with the information subsystem "Internet portal of GAS "Justice" is the personal account of the service "Electronic Justice" (hereinafter - the Personal Account), access to which is provided through the section "Submission of procedural documents in electronic form" on the official website of the court of the Internet portal of GAS "Justice" in information and telecommunication network Internet ^[27].

Identification and authentication of a person in the personal account of the Electronic Justice service is carried out at the choice of a party, or another participant in the process, using a confirmed account of an ESIA individual, or using an enhanced qualified electronic signature ^[26]. Such a mechanism for confirming the identity of the applicant is universal, does not create additional administrative barriers when submitting procedural and non-procedural documents to the court.

The following sections are available in the Personal Account: "Submit an appeal", "History of appeals", "Cases", "Support", "Personal profile".

The presented functionality does not allow the Personal Account to become a single platform for the realization of the rights of the parties, or other participants in the process, to carry out all procedural actions that, in accordance with the current norms of procedural law, can be carried out remotely, electronically and digitally. Thus, the functionality for notifying about court sessions, providing a virtual hall for participation in a court session through a videoconferencing, or a web conference, a quick message exchange service, including for providing documents during a court session held remotely (chat), is implemented by GAS "Justice" through other tools and services, which is essential reduces their availability to the participant of the trial.

It is worth noting the technical limitations of providing information on the sections of the Personal Account. So, in the "History of requests" section, the current status of the sent request is not always displayed correctly. There are cases when the statuses "registered", "transferred to the judge", other statuses are not assigned to documents in the Personal Account, although the actual document flow is on them, and they are considered in court.

In the "Cases" section, documents received from other parties or participants in the process are not displayed, court documents are formed only in the first instance, and documents of the court of appeal and cassation instance are not displayed in the Personal Account. Access to the documents of the court of first instance is granted after the satisfaction of the relevant petition for a period established by the court.

All identified barriers affecting the realization of citizens' rights to access justice with the help of the GAS "Justice" are both technical and conceptual in nature, which requires measures to improve the legal regulation of issues of digital transformation of Russian justice.

Conclusions and suggestions:

1. The state automated system "Justice" is an information system that allows the implementation of certain procedural rights of the parties and other participants in the judicial process. At the same time, the main purpose of creating this system is to provide informatization, electronic and digital support of administrative and basic production processes of the judicial system, which is reflected in the architecture and infrastructure of this system. The realization of citizens' rights to access to justice in electronic and digital form with the help of the GAS "Justice" is largely a secondary service that is developing as a by-product of the overall digital transformation of the judicial system.

2. In order to improve the legal regulation of citizens' access to Russian justice through remote information and communication technologies, including through the GAS "Justice", in our opinion, it is necessary:

- to consolidate the principles of digital transformation of Russian justice in a special federal law, or to expand the subject of legal regulation of Federal Law No. 262-FZ of 22.12.2008 "On ensuring access to information on the activities of courts in the Russian Federation", followed by the phased implementation of the established principles in the norms of procedural law;

- adopt the Federal Law "On the State Automated system "Justice", which will enhance the legal status of the system and consolidate the rights of citizens to access justice with the help of this automated system.

3. The personal account of the "Electronic Justice" service of the GAS "Justice" Internet portal is currently not functional enough. It is necessary to take measures, both legal and technical, so that it transforms into a universal platform for citizen interaction with the judicial system, which will provide, on the principle of "one window", access to all socially significant information accumulated, processed and stored in the GAS "Justice", will allow to implement all procedural actions, rights and obligations of the parties and other participants in the trials.