Legal regulation of the distribution of cases in courts: content, implementation, problems and areas of improvement

Titova Irina Anatol'evna Postgraduate student of the Department of Organization of Judicial and Law Enforcement Activities of the Federal State Budgetary Educational Institution of Higher Education "Russian State University of Justice" 117418, Russia, Moskovskaya oblast', g. Moscow, ul. Novocheremushkinskaya, 69a i.a.titova@list.ru

The ongoing digitalization of the judicial system is currently one of the fundamental vectors and conditions for its development, ensuring the efficiency of courts at all levels and instances. Another bright innovation in the justice system was the introduction of an automatic system for the distribution of cases between judges in 2019.

On March 7, 2018, the President of the Russian Federation submitted to the State Duma Bill No. 426094-7, providing for the introduction of appropriate additions to the procedural codes (CPC RF ^[3], APC RF ^[4], CAS ^[5] and the Code of Criminal Procedure of the Russian Federation ^[2]). From September 1, 2019, these legislative provisions are subject to application.

The amendments also involve the formation of the composition of the court for the consideration and resolution of various kinds of cases in both criminal and civil, as well as arbitration and administrative proceedings using an automated information system that takes into account the specialization of judges and their workload. If it is impossible to form the composition of the court with the help of such an automated system – by other means.

Such a legislative initiative of our President should be recognized as relevant and topical, due to the objective need to rationalize the organization of the work of the entire judicial community as a whole, contributing to the development of the principles of independence and impartiality in the activities of a judge.

In addition, adherents of such innovations in the domestic judicial system refer to the positive aspects of its implementation and the high organizational component of the judicial staff, who are responsible for entering data on the electronic movement of the case, since the system itself, which distributes cases between judges, is guided only by the correct parameters entered in a timely manner. They emphasize the absence of a subjective factor in the distribution of cases. They point to an increase in the efficiency of the work of the courts and a significant reduction in time spent from the moment necessary for registering the case to transferring it directly to the judge for permission ^{[15, pp. 90-95; 11, pp. 208-212]}.

We see a different position in the context of the studied issues in the works of R.A. Akhmerov ^{[6, pp. 48-51]}, A.N. Dolzhenko ^{[8, pp. 47-63]}, indicating the low efficiency of the practical application of such a system. In support of their position, the authors cite the following judgments.

The first thing to pay attention to is the lack of legislative regulation of the forms and methods of control over the process itself and the results of such a distribution of cases.

Secondly, the authors consider it unacceptable that the very possibility of such an application of an automated system of cases in a particular court is made dependent on its availability as such or impossibility, i.e. by other means.

Moreover, what to do if there are only a limited number of judges of a certain specialization in the composition of a particular court, say only two. It turns out that the effectiveness of the automated distribution of cases in courts depends on the number of judges in a particular court, and is applicable only in "large" courts. In general, the authors' judgments are correct.

Let's consider the legislatively fixed mechanism of automated distribution of court cases in more detail.

The elements of the mechanism under study are:

- initial admission of the case to the court and its distribution;

- the possibility of subsequent redistribution of cases between judges;

- distribution of cases to be allocated to separate proceedings.

The electronically automated system of redistribution of cases is the only – the main way of forming the composition of the court at the initial receipt of the case. At the same time, a technical and legal analysis of procedural legislation (for example, Article 28 of the CAS of the Russian Federation; Article 14 of the CPC of the Russian Federation; Article 30 of the Code of Criminal Procedure of the Russian Federation) indicates the absence of norms fixing the features and consequences of the consideration of the case by a court formed without the use of such a system. This problem has been repeatedly raised by representatives of modern doctrine, characteristically pointing to such a legislative gap ^{[11, pp. 208-212]}.

To eliminate which we propose by supplementing the procedural codes in the relevant part with the following wording:

 "The consideration and resolution of the case by the composition of the court, formed in a different way, in addition to the automated system, presupposes its illegality. The exceptions are cases where it is impossible to use this system, of an objective nature and properties."

The next problem that I would like to draw attention to is the process of forming the judicial composition when redistributing cases between judges using an electronically automated system.

Here the general procedural rule is the immutability of the composition of the court. However, the legislator does not mention anything about how the composition of the court should be formed when redistributing the case.

We believe that such an omission should be made up by making changes to the procedural rules of the following content: "The replacement of the composition of the court (judge) in the process of considering and resolving the case must be carried out using an automated information system" (Part 3.1 of Article 28 of the CAS of the Russian Federation; Part 3.1 of Article 18 of the APC of the Russian Federation, Part 4 of Article 14 of the CPC of the Russian Federation; Part 1.1 of Article 30 of the Code of Criminal Procedure of the Russian Federation).

Also, in order to create a full–fledged procedural and legal mechanism, it is necessary to supplement the norms of the current legislation and the peculiarities of the formation of the composition of the court in the process of distributing cases allocated to separate proceedings, namely, Article 151 of the Civil Procedure Code of the Russian Federation, Article 136 of the CAS of the Russian Federation in parts 3.1 and 2.1, respectively, Article 239.1 with the second paragraph, which was repeatedly pointed out by representatives of modern legal doctrine. Among which should be mentioned the works of Yu.A. Tsvetkov ^{[14, pp. 91-107]}, T.N. Kazankov, E.V. Ekamasov ^{[10, pp. 11-13]}.

 Provisions in the following wording:

"In case of separation of the case into a separate proceeding, the composition of the court should be formed taking into account the requirements for the specialization of judges and a reasonable burden on them through the use of an automated information system.

If it is impossible to use it, it is allowed to form the composition of the court in a different order, excluding and not allowing any influence of interested persons in the outcome of the trial of the case on its formation."

No less problematic is the absence of legally legalized organizational rules that fix the automated procedure for the distribution of cases in the courts.

Supporting the position of such authors as A.A. Kuznetsov, V.D. Gritsenko on this issue, we propose to separate the rules of general or special purpose ^{[11, pp. 208-212]}.

The former should be applied on a national scale to all courts, the latter should be implemented within one single court.

Organizational rules of a general nature in their structural content should combine:

- certain types of specialization of judges;

- categories of cases under consideration;

- forms of participation of a judge in a distributed case;

- functions of an administrative judge.

The opinions of the majority of authors investigating this problem converge in its resolution through the adoption of the Law "On Judicial Burden". Which should provide criteria for determining the complexity of a particular category of cases, as well as the methodology itself for determining an adequate burden on judges ^{[7, pp. 177-196]}.

At the same time, the authors consider the factors determining such a "reasonable" burden on judges to be:

- directly the complexity of the case itself,

- forms and the role of the judge in its consideration,

- additional official duties or the position of a judge (for example, the position of the chairman of the court).

In addition, in our opinion, organizational rules of a general nature should also contain an exhaustive list of exceptional cases of refusal from automated distribution of cases and an algorithm of actions in such cases.

The analysis of modern legislative practice allows us to come to the conclusion that the fundamental factor of such a refusal is the "impossibility" of using it – an automated system. At the same time, the list of such cases itself forms a legal vacuum, as well as a "different order" of the distribution of cases.

At the same time, deviation from the main method of forming the composition of the court, in turn, requires thorough and proper justification, since otherwise entails the illegality of any court decision or sentence.

In this regard, we propose to agree with the judgments of A.V. Enyutin, who believes that absolutely any so-called "justified case" can be attributed to the impossibility of using an automated system, and a "different order" of the distribution of cases can be "manual" ^{[9, pp. 66-73]}.

At the same time, the precise definition of cases of deviation from the use of automated equipment and the very different procedure for the distribution of cases are of decisive importance in the application of automated systems for the distribution of cases in courts.

In our opinion, it is necessary to legislate the list of such cases due to the possibility (or impossibility) of using an automated system in a particular court. So, for example, they can include malfunctions (failures) in the operation of technical equipment, programs or the entire automated system.

An interesting suggestion seems to be the system of fixing this kind of circumstances indicated by Yu.A. Svirin. The author proposed drawing up an act signed by the chairman of the court on the impossibility of using an automated system. In this case, Yu.A. Svirin points out, cases should not be considered, except for their immediate resolution ^{[12, p. 16-20]}.

Based on the above judgments, we come to the conclusion that the legally established norms of automated distribution of court cases should not be absolute.

Focusing on the very number of judges and employees of a particular court (staff), its technical equipment, various options and methods of automated distribution of cases are possible.

From a legal point of view, it seems to us that the application of the information -distribution model proposed by A.P. Fokov for the distribution of cases in modular courts is correct and economically feasible. The author suggests using the so-called module - "templates of reasons" - the use of which will allow to establish criteria for the distribution of cases according to the needs of a particular court ^{[13, p. 2-6]}.

In addition, we propose, in order to create a "flexible" system for the distribution of cases, to include among the powers of the chairmen of district courts the approval of the rules for the distribution of cases in a particular court.

We believe that the unification and implementation of such "flexible" standards in the system of distribution of court cases will contribute to its optimization in the updated automated version, as well as adapt to unforeseen changes in the workload and specialization of judges in a particular judicial institution. Moreover, this method is quite applicable in small-scale courts.