Pandemic: A Catalyst for Innovation and Digitalization in Criminal

Justice

Lev Vladimirovich Bertovsky

, Inna Aleksandrovna Ryzhkova

and Sergey Aleksandrovich Ryzhkov

Moscow State University named after M.V. Lomonosov, Moscow, Russia

Internal Security of the Russian Guard Moscow, Moscow, Russia

Chamber of Advocates of the Samara Region, Moscow, Russia

Keywords: Digitalization of Criminal Justice, Legal Proceedings in a Pandemic, and Innovative Technologies in the

Criminal Process, Covid 19 Pandemic and Innovation, Legal Consequences of a Pandemic.

Abstract: The COVID-19 pandemic is an impetus for digitalization and informatization of the entire state system and

criminal justice, in particular. State authorities urgently had to switch to digitalization, increasing the

electronic document flow. However, civil servants faced many challenges. The legislation was not ready for

such force majeure circumstances. The issue of the safety of storing personal information during the transition

to digitalization of the criminal process remains problematic. Currently, an urgent need has arisen, based on

the experience gained and the experience of foreign countries, in the creation of an effective, systematic

legislative framework for digitalization, the introduction of innovative technologies at all stages of the

criminal process. Despite the conservatism of the Russian criminal process, today one cannot do without

modern achievements of scientific technology, with the help of which it is necessary to develop the possibility

of remote production of investigative actions, while observing the guarantees of the rights of participants in

criminal proceedings. Avoiding the huge flow of computerized information in the production of criminal

cases, and at the same time ensuring the transparency of the criminal process, will help the creation of a single

database of criminal cases on the blockchain principle.

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INTRODUCTION

The COVID-19 pandemic, which has swept the

whole world as an unexpected test of statehood in all

its manifestations, has not spared criminal

proceedings either. Practice has shown that the

readiness of criminal proceedings for widespread

digitalization in Russia is at an insufficient level.

Under the threat of the spread of infection, judicial

and law enforcement agencies were forced to hastily

move to a different level of interaction in a remote

format. There was an urgent need for the formation

and recognition of the digital justice system, under

which L.V. Bertovsky offers to understand “the

activities of the court, the persons involved in the case

and other participants in the process, as well as the

enforcement bodies of judicial decisions, regulated by



https://orcid.org/0000-0002-2835-288X

https://orcid.org/0000-0001-7524-4091

https://orcid.org/0000-0003-1680-4364

the norms of procedural law, in resolving legal cases,

where the key factor is digital data, their processing

and use of the analysis results, which are compared

with traditional forms of legal proceedings, they can

significantly increase its efficiency” ( L.V. Bertosky,

2021).

Human values are being modified, filled with new

meaning. It is very difficult to comply with

international norms governing human rights in a

pandemic, some rights contradict others. At present,

the right to freedom comes into conflict with the right

of everyone to health. Everyone has to sacrifice their

comfort for the sake of general safety in the face of

force majeure.

International rules allow restrictions on some

human rights and freedoms for the sake of the safety

of the life of the nation, however, such restrictions

Bertovsky, L., Ryzhkova, I. and Ryzhkov, S.

Pandemic: A Catalyst for Innovation and Digitalization in Criminal Justice.

DOI: 10.5220/0011119000003439

In Proceedings of the 2nd International Scientiﬁc and Practical Conference "COVID-19: Implementation of the Sustainable Development Goals" (RTCOV 2021), pages 267-272

ISBN: 978-989-758-617-0

267

shall not be arbitrary, they are introduced in

accordance with the law, and must be justified.

There is no doubt that the COVID-19 pandemic

poses a large-scale threat to the health of the

population of the whole world, which justifies the

restriction of certain rights and freedoms: restriction

of freedom of movement, quarantine, isolation.

However, restrictions shall not contradict the rights to

respect for honor and dignity, to privacy, and to

access to information. Criminal proceedings must be

transparent.

On March 16, 2020, a UN group of experts "urged

states not to abuse security measures in response to

the coronavirus outbreak". Experts warned that for

some government and law enforcement agencies,

emergency powers could be very attractive. “To

prevent such over-empowerment from becoming

entrenched in legal and political systems, health

restrictions must be narrowly targeted and as light as

possible”. (COVID-19: UN Experts said States shall

not abuse emergency measures to restrict human

rights, 2020)

2 PURPOSE

To consider the theoretical aspects of digitalization of

Russian criminal justice and the practical possibilities

of using modern technical means in the context of the

COVID-19 pandemic and, based on the findings,

develop theoretical provisions aimed at improving

criminal justice by introducing modern technical

advances.

3 METHODOLOGICAL BASIS

As the main research methods, a set of general

scientific research methods were used: analysis of

theory and practice, synthesis, dialectical method and

special scientific methods: comparative legal,

statistical, specific sociological methods,

interviewing.

4 RESULTS

Based on the accumulated global and domestic

experience, it is necessary to introduce digitalization

at all stages of the criminal process in order to reduce

the time frame and increase efficiency.

However, the digitalization of criminal

proceedings shall be regulated by the Code of

Criminal Procedure of the Russian Federation; not to

violate constitutional and criminal procedure

principles; ensure the transparency and accessibility

of the criminal process. The state is obliged to

guarantee the prevention of leakage of information

about the private life of a person by providing legal

remedies. The procedure for use of electronic

documents in criminal proceedings, regulated by Art.

474.1 of the Code of Criminal Procedure of the

Russian Federation concerns judicial proceedings

only. It is necessary that the preliminary investigation

also be accessible - it is not so difficult to create the

official websites of the preliminary investigation

bodies in the information and telecommunication

network "Internet". Certain steps in this direction

have already been taken. It is necessary, especially in

the conditions of a pandemic, that a petition,

application, complaint can be submitted in the form

of an electronic document signed by a person, with an

electronic signature. At the request of the participants,

it is possible to conduct a preliminary investigation in

a face-to-face and remote format.

5 DISCUSSION OF THE RESULTS

During a pandemic, there is a direct dependence of

the availability of legal proceedings on modern

technologies. At the beginning of the pandemic, legal

proceedings in Russia were in question, a gap in the

legislation was discovered in the event of force

majeure, as a result of which citizens could not get

into government institutions and courts, due to

quarantine measures. Post offices were not available

either. Digital services came to the rescue.

Difficulties arose not only in the domestic

proceedings, but also with the applications submitted

to the European Court, since the borders were closed.

In many countries, most of the court proceedings have

been converted to videoconferencing, otherwise there

is no way to organize social distance indoors.

Despite the decline in crime noted by experts at

the beginning of the pandemic, crime has now

changed its "vector". Criminal groups are using the

coronavirus to scale up their activities.

Technologically advanced criminals are seizing new

zones of influence, including producing counterfeit

ventilators or coronavirus tests (T.N. Moskalkova,

2021). The protection against criminal encroachment

of the critical information infrastructure of the state

raises special concerns. One of the ways to solve the

problem is to introduce high technologies into

modern legal proceedings (L.V Bertovsky, 2021).

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Online crime is on the rise amid the pandemic.

The pandemic is a test of the effectiveness of power

at all levels. In many countries, police officers not

only maintain order, but are also the only ones who

come into contact with members of the community.

As a result, trust in law enforcement agencies turns

out to be significant for the effectiveness of the state.

It is important that state control over the private life

of citizens in a pandemic shall not develop into total

control after its end. Citizens do not feel safe.

Using digital technology to combat the spread of

Covid-19, states are enforcing quarantine measures.

However, initiatives to track the location of mobile

phone users are of particular concern as privacy

information is not sufficiently secure.

T.N. Moskalkova notes that in order to improve

legal regulation and strengthen guarantees for the

protection of human rights and freedoms, it is

necessary to pay attention to the issues of

digitalization of justice, conducting "electronic

criminal cases", and etc. (T.N. Moskalkova, 2020).

The criminal process is often associated with

measures of coercion (search, examination), invasion

of privacy, thus affecting fundamental human rights.

Therefore, the criminal procedure is constantly in

need of improvement and the introduction of

innovative technologies (Report of the Ombudsman

in the Russian Federation for 2019)

It seems that the fear of total surveillance pushes

citizens not to seek medical help, due to the transfer

of data to law enforcement agencies and not wanting

to get into the police base.

In the context of digitalization of criminal

proceedings, it is necessary to fulfill a number of

conditions:

 digitalization of criminal procedural actions

should be regulated by the Criminal Procedure

Code of the Russian Federation;

 constitutional and criminal procedural

principles shall not be violated;

 it is necessary to ensure the transparency of the

criminal process;

 digital litigation shall be available to all

participants in a particular process and, under

normal conditions, be conducted with the

consent of the interested parties;

 the state is obliged to guarantee the prevention

of leakage of information about the private life

of a person, a ban on illegal surveillance;

 digital technologies shall be applied under the

supervision of the competent authorities and in

the event of human rights violations, remedies

are required.

The digitalization of criminal proceedings is also

necessary for the more “vulnerable” participants in

the process: persons who are in custody. In prisons

and detention centers, viruses spread instantly, as

there is a large crowd of people in a confined space,

and food and medical care leaves much to be desired.

In many states, during the pandemic, measures were

taken to free prisoners who did not pose a danger.

Therefore, the king of Bahrain, Hamad bin Isa al-

Khalfa, pardoned 901 prisoners "for humanitarian

reasons and against the background of the current

situation". In Italy, authorities have allowed inmates

to use e-mail and Skype for family contact and

educational purposes, and have announced plans to

place prisoners under house arrest for less than a year

and a half (Human Rights Watch materials on

COVID-19, 2020). The Russian Supreme Court has

recommended that courts consider parole

applications without delay.

The pandemic has become an impetus for the

informatization of the justice system. The courts in a

hurry had to switch to digitalization, increasing the

electronic document flow. For the first time, the

Supreme Court held a meeting of the Plenum in an

online format (official website of the Supreme Court

of the Russian Federation).

During the COVID-19 pandemic, the number of

cases considered by Russian courts in 2020 increased

compared to last year. The need for electronic

resources has grown, and the number of requests in

the SAS "Justice" portal has exceeded 3 billion

requests. More than 2 million documents have been

electronically filed with federal courts of general

jurisdiction, more than doubling the indicators of

2019 (The Year since COVID-19: How the Judiciary

and State Overcome the Challenges of the Pandemic,

2021).

Video conferencing within the framework of the

GAS "Justice" system involves connecting the

participants to the meeting remotely, but from other

state institutions — courts, pre-trial detention centers,

prisons and colonies, since being in them allows to

identify a person.

Remote participation in the court session is also

possible from other places, but the process of

participation must be accompanied by the

introduction of biometric authentication technology

of the participant in the court session in the face and

voice through the portal of state services into judicial

activity. As practice has shown, the district courts

were not ready for remote consideration of cases.

Since the end of March, some meetings begin to be

held using instant messengers, such as Whatsapp or

Skype, in which it is impossible to identify the

Pandemic: A Catalyst for Innovation and Digitalization in Criminal Justice

269

participants in the process and guarantee the security

of data transmission (Baeva, Smirnova, Shedov,

2020).

Some human rights defenders oppose the use of

modern technologies, who believe that legal

proceedings through video conferencing are carried

out with serious shortcomings: unstable

communication, poor sound and image quality, and

also deprive the confidentiality of the lawyer's

communication with the client (Marakulin, 2020).

If the courts were able to adapt to the conditions

of the pandemic, taking into account the legislative

consolidation of videoconferencing, the production of

investigative actions in these conditions was called

into question. From an anonymous conversation with

representatives of the investigating authorities, it

became clear that the investigators had to face many

problems. The investigators were charged with

ensuring the "anti-covid" safety of the participants in

investigative actions with the help of personal

protective equipment. Investigators were given

gloves and masks; at the entrance to the building, the

temperature of employees and visitors is checked.

However, absence of witnesses for fear of becoming

infected complicates the conduct of investigative

actions. The solution to some of the problems of

citizens' appeal was the possibility of contacting the

department remotely, through websites. It became

more difficult for investigators to conduct

investigative actions with defendants in custody. The

prosecutor's office gave instructions on the speedy

transfer of criminal cases to the court, the persons

involved in the investigation were taken into custody.

However, in the current conditions, it becomes more

and more difficult to do this, due to the restrictions in

pre-trial detention centers. From a conversation with

representatives of the investigating authorities, it

became known that all investigative actions are

carried out through glass, lawyers and investigators

are allowed at different times, according to the

schedule. The biggest problem for investigators was

the observance of procedural deadlines.

In the recommendations of the Supreme Court of

the Russian Federation to suspend proceedings in

cases that do not belong to the category of urgent

cases, there is no list of categories of cases, which led

to different interpretations of the Resolution of the

Supreme Court of the Russian Federation of March

18, 2020. Some courts began to hold court sessions

by video call in WhatsApp, Skype, but there are no

such rules in the RF Criminal Procedure Code

(Information Bulletin of the Criminal Law Practice

and Procedure of the Infralex Law Firm, 2020).

L.M. Volodina in her research notes that the

procedural terms at the preliminary investigation are

extended with a "reserve", and the terms for

consideration of complaints and petitions are

violated. Wherein, the preliminary investigation

authorities refer to the responses of the Supreme

Court of the Russian Federation in the Review on

certain issues of judicial practice related to the

application of legislation and measures to counter the

spread of a new coronavirus infection (COVID-19) in

the territory of the Russian Federation, No. 1,

published on April 21, 2020 (Volodina, 2020).

There is also a lack of a single international legal

act regulating the mechanism of interstate relations in

a pandemic (Moskalkova, 2021). A unified

international approach to the execution of requests for

legal assistance with the use of modern technologies

will not only reduce the time frame, but will raise

international cooperation in the field of criminal

proceedings to a new qualitative level (Gladysheva,

2019).

The positive practice of introducing innovations

into the criminal process of other countries is

described by N.V. Spesivov and A.A. Titov. They

note that Kazakhstan maintains an electronic register

of digitized criminal cases; in the USA and Germany,

an electronic document circulation is also conducted,

in Germany the defender receives digitized materials

of the criminal case for early acquaintance (Spesivov,

Titov, 2020). In China, in Beijing since 2019,

artificial intelligence, as a judge of the virtual court of

the city, is considering some categories of civil cases

(Bertovsky, 2021).

Other authors also see the expediency of the

transition of Russian legal proceedings from a simple

written form to an electronic one, as well as the

implementation of interaction of all participants in the

criminal process in a remote format (Andreeva,

Zaitsev, Kudryavtseva, 2020).

P.S. Pastukhov offers to completely abandon

paper-based recording of investigative actions and

use only records of progress and results made with the

help of special equipment. (Pastukhov, 2015). To

implement the task of digitalizing legal proceedings,

several conditions must be met: solving the problem

of staffing and organizing the education system;

conducting scientific research, changing current

legislation, modernizing infrastructure and

strengthening information security (Bertovsky,

2021).

At present, an information and analytical system

for ensuring the activities (ISOD) of the Ministry of

Internal Affairs of Russia has been created, which

united most of the divisions, a system of electronic

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passports of a criminal case has been experimentally

introduced, provided the possibility of entering

scanned and other copies of procedural documents in

criminal cases and materials of checks of reports of

crimes into the electronic database (Electronic

passports of criminal cases, 2021).

According to the provisions of the state program

"Digital Economy of the Russian Federation", it is

planned that by 2024 the number of state authorities

that have broadband access to the Internet (at least

100 Mbit/s) shall become 100 percent (National

program adopted in accordance with the Decree of the

President of the Russian Federation of May 7, 2018

No. 204 "On National Goals and Strategic Objectives

of the Development of the Russian Federation for the

Period up to 2024" and approved on December 24,

2018 at a meeting of the Presidium of the Council

under the President of Russia for Strategic

Development and National Projects).

Execution of investigative actions using

information and technical advances can lead to a large

amount of information accumulated on media.

Absence of bureaucracy and transparency of the

criminal process can be ensured by creating a single

database of criminal cases on the blockchain

principle. “Blockchain is a distributed database with

no storage devices connected to a common server.

The main principles of this technology for collecting

and storing information is the transparency of

operations, with the impossibility of changing by

persons who do not have access" (L.V. Bertovsky,

2017).

In 2016, the Code of Criminal Procedure of the

Russian Federation was supplemented with a number

of provisions regulating the design of procedural

actions in a typographic, electronic or other way

(Article 474 of the Code of Criminal Procedure of the

Russian Federation). Howeve, the procedure for

using electronic documents in criminal proceedings,

regulated by Art. 474.1 of the Code of Criminal

Procedure of the Russian Federation concerns only

judicial proceedings. It is essential that the

preliminary investigation also be available. A

petition, application, complaint can be submitted in

the form of an electronic document signed by a person

with an electronic signature. At the request of the

participants, it is possible to conduct a preliminary

investigation in a face-to-face and remote format.

6 CONCLUSIONS

The pandemic accelerated the digitalization of legal

proceedings, for which the system was not fully

prepared, no regulations were developed that would

regulate in detail the “safe” transition of criminal

proceedings to the electronic environment, which

would not violate the constitutional rights of the

individual. The study identified the problems of

preliminary investigation and trial in a pandemic,

which allow remote participation of any participants

in the process; the analysis of the activities of the

Supreme Court of the Russian Federation and its

impact on legal proceedings in the country has been

carried out.

On the basis of the investigated positions of

procedural scientists on the problem under study,

recommendations are offered for improving the

theory and law enforcement practice in emergency

conditions, which will help to guarantee the

constitutional rights of participants in criminal

procedural relations.

Analyzing criminal proceedings in a pandemic,

we can conclude that the judicial stage is more

"advanced" in comparison with the pre-trial stage of

the criminal process. The courts did not immediately,

but gradually were able to adapt in the conditions of

force majeure associated with the pandemic and

began to use modern digital technologies in their

activities.

The pandemic has accelerated events, but the

accumulated experience requires careful analysis in

order to correct shortcomings in the work and for

further practical use in the conditions of "security" of

human rights, the level of information protection,

It was recommended to create official websites of

the preliminary investigation bodies on the Internet,

through which you can quickly submit a petition,

application or complaint. At the request of the

participants, it is possible to conduct a preliminary

investigation in a face-to-face and remote format.

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