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DOI: https://doi.org/10.34069/AI/2022.58.10.18
How to Cite:
Tsybulska, O., Prytuliak, V., Shcherbak, S., Verba, O., & Kozhevnikova, A. (2022). Digitalization of the ECtHR activities in
inheritance cases and in compulsory enforcement of jurisdictional decisions: International-legal aspect. Amazonia Investiga, 11(58),
168-176. https://doi.org/10.34069/AI/2022.58.10.18
Digitalization of the ECtHR activities in inheritance cases and in
compulsory enforcement of jurisdictional decisions: International-legal
aspect
Цифровізація діяльності ЄСПЛ у справах про спадкування та в ході примусового
виконання рішень юриздикційних органів: міжнародно-правовий аспект
Received: November 1, 2022 Accepted: November 30, 2022
Written by:
Olha Tsybulska72
https://orcid.org/0000-0001-5534-4917
Valerii Prytuliak73
https://orcid.org/0000-0003-2490-0225
Svitlana Shcherbak74
https://orcid.org/0000-0002-9969-3817
Olha Verba75
https://orcid.org/0000-0001-9254-9575
Alisa Kozhevnikova76
https://orcid.org/0000-0002-5808-2411
Abstract
Global challenges and the change in people's
usual way of life during the pandemic have
shown that it is digital technologies that can
expand the possibilities of humanity. Their
improvement and expansion of their scope is a
priority for many states of the world. Therefore,
global digitalization has covered all spheres of
social life, including justice and the activities of
decision-enforcement bodies. In particular, at the
37th plenary meeting of the European
Commission on the Efficiency of Justice of the
Council of Europe (CEPEJ), unity was
demonstrated on the need for further
development of tools concerning the
digitalization of justice. Due to this, it is
important to analyze the features of the
digitalization of justice on the example of the
activities of the European Court of Human
Rights (hereinafter referred to as the ECtHR)
regarding inheritance cases and pay attention to
the international legal aspect of this issue. The
purpose of the work is to study the international
72
Ph. D., Associate Professor of the Department of International and European Law of National University «Odesa Law Academy»,
Ukraine.
73
Ph. D., Associate Professor of the Department of Civil Procedure of National University «Odesa Law Academy», Ukraine.
74
Ph. D., Associate Professor of the Department of Administrative and Information Law of Sumy National Agrarian University,
Ukraine.
75
Ph.D., Associate Professor of the Department of Civil Law Disciplines, Institute of Law, Lviv State University of Internal Affairs,
Ukraine.
76
Graduate student of the Department of Administrative and Information Law of the Sumy National Agrarian University, Ukraine.
Tsybulska, O., Prytuliak, V., Shcherbak, S., Verba, O., Kozhevnikova, A. / Volume 11 - Issue 58: 168-176 / October, 2022
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legal aspect of digitalization of the activity of the
ECtHR in inheritance cases and in the course of
enforcement of decisions of jurisdictional bodies.
The research methodology includes the
dialectical method, historical-logical,
comparative-legal, formal-legal, statistical,
systemic-structural, modeling, and sociological
methods. The authors summarized that the
digitalization of justice is reflected in the
activities of the ECtHR, including inheritance
cases. The authors also highlighted the
problematic issues of regulation of the
implementation of digitalization tools for the
administration of justice in some countries and
problematic issues of digitalization of
enforcement of court decisions.
Keywords: digitalization, European Court of
Human Rights, enforcement of court decisions,
jurisdictional bodies, judicial proceedings.
Introduction
In modern conditions of the development of
social relations, more and more spheres of social
life are moving online. Internet banking,
investments, communication with family and
friends, work communication - more and more
everyday things are solved with the help of
information technologies and the use of the
Internet. The administration of justice using
information technologies is no exception. Such
transformations are taking place both at the
national level - the digitalization of proceedings
at the level of national courts, and at the
international level - the digitalization of the
activities of international judicial bodies, for
example, such as the ECtHR.
The decree of the President of Ukraine "On the
Strategy for the Development of the Justice
System and Constitutional Judiciary for 2021-
2023" defines the problem as the insufficient
level of implementation of digital technologies in
the administration of justice (Decree 231/2021,
2021). In order to implement the specified
strategy and solve problematic issues, digital
tools are being implemented in Ukraine, in
particular, in inheritance cases. In particular, an
electronic notary system is being implemented
(notarial documents with a QR code, the
authenticity of which can be checked using a QR
scanner in the Diya application) (Ministry of
Justice of Ukraine, 2022). Also, a number of
changes affected the digitization of inheritance
(Chernivtsi Regional Military Administration,
2022).
At the same time, digitization is also taking place
in the international legal system, the ECHR, and
in the course of enforcement of decisions. Thus,
the modern era of enormous technological
development, especially digital, confronts legal
systems with rapid and colossal changes. Among
the challenges faced by legal systems is that
technological development is faster than the
development of the regulatory framework; the
rules are different in different states; not all
consequences can be predicted; international
jurisprudence is developing, but not fast enough;
for the most part, the highest European judicial
system sets minimum standards; a phased
approach should be used; the issues differ in the
relationship between authorities and individuals
and yet often overlap (European Court of Human
Right, 2021a).
During the pandemic, electronic communication
has allowed the judicial and enforcement systems
to continue operating largely as normal. Digital
justice offers real opportunities to improve the
quality and efficiency of justice, but it can also
pose a potential risk to the rule of law and the
protection of human rights. Non-human elements
in judicial decision-making can create
opportunities for efficiency, but also certain
risks. For this purpose, the Council of Europe
started working on the topic of artificial
intelligence and started issuing a number of
program documents, recommendations,
declarations, guidelines, and other legal
documents on this topic (Council of Europe,
2021). In addition, the ECtHR is working on the
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digitization of its activities in the era of
digitalization, including identifying problematic
issues through the discussion of different points
of view and the exchange of opinions on ways to
overcome the complexity that the protection of
human rights on the Internet represents for the
judicial system (Council of Europe, 2019b).
In view of the above, the study of the
international legal aspect of digitization of the
activity of the ECtHR in inheritance cases and in
the course of enforcement of decisions of
jurisdictional bodies are relevant and necessary.
Theoretical Framework or Literature Review
In the article Kovbas and Krayniy (2020)
considered the problematic points of the
imperfection of the mechanism of execution of
court decisions. The authors draw attention to the
fact that at the current stage of Ukraine's
development, the quality of enforcement of
decisions demonstrates the level of effectiveness
of the legal regulation mechanism. The level of
education of citizens in the spirit of respect for
the law, and the legal value of decisions made on
behalf of the state directly depends on such
activity. Amendments to the legislation by
introducing coercive measures to ensure the
execution of court decisions will contribute to the
implementation of decisions of jurisdictional
bodies and increase citizens' trust in the
institution of the execution of court decision.
Chepurny (2022) analyzed the issue of
digitalization of executive proceedings.
Digitization in probate cases in the context of
digital existence after death is reviewed by
Agarwal and Nath (2021). The authors analyzed
the concept of digital inheritance and pointed out
that in the process of digital inheritance, digital
media are transferred to beneficiaries in the form
of rights and digital assets, understanding the
rights that exist in the beneficiaries after the
death of the person. As the concept of digital
inheritance is quite new, substantial legal
frameworks have yet to be established to address
post-death issues. It is for this reason that
websites drive user actions. The authors believe
that a comprehensive legal agreement is needed
to address this important issue of digital heritage.
In the work of Zhurkina, Filippova, and
Bochkareva (2021), based on the example of the
analysis of the legislation of the USA, Great
Britain, Japan, Singapore, and some other
countries, conclusions were drawn about the
main principles and features of the use of
information technologies in the civil process and
their correlation with the principles of traditional
civil justice. Based on the results of the study, the
authors put forward several theoretical and
practical proposals for improving legislation in
the field of the use of information technologies in
civil proceedings.
Some features of digital heritage litigation were
explored by Giada Russo and Giovanni Gigliotti
(2021). The authors analyzed court practices
regarding digital heritage.
Aniţei (2017) discusses concepts such as the 5G
Revolution, Robolution, Fintech, Insurtech,
BitCoin, VR (Virtual Reality), Blockchain, and
Digital Heritage, which are the topic of almost
every international congress, seminar, and
debate, but it is not entirely clear that what will
happen to these digital products in the event of
death. If a collection of books or a collection of
vinyl records can be inherited by someone's
heirs, it is not so clear and obvious when it comes
to digital products and services.
Donald, Gordon and Leach (2012) also studied
the digitalization of the ECHR. Individual
inheritance cases considered by the ECtHR are
examined in the work of Tsavousoglou (2019).
Clemens J. (2022) analyzed the features of the
impact of digitalization on the legal system.
The role of the ECHR in the development of
international human rights is considered in the
work of Viljanen (2005). The European Court of
Human Rights plays various roles in the
international network of human rights
instruments, but it has not always been at the
forefront of these developments. In some cases, a
conservative approach to new trends was
observed, and the Court tried to find a
compromise, rather than new radical and
complex turns. It depends on whether there are
new treaties or whether a different emphasis
should be placed on the material of international
and comparative law.
Digital tools in inheritance in the European
Union were studied by Nemeth, and Carvalho
(2017). Thus, the authors emphasize that the law
of inheritance is an integral part of civil law since
it is the way by which the property, rights, and
obligations of the testator pass to one or more
persons by will or by operation of law and today,
the law of inheritance continues to deny evolving
phenomena and family structures that have given
rise to probate substitutes. Today, a new set of
challenges has come to the fore due to legal
issues related to digital and electronic data that
almost all citizens, regardless of age and place of
residence, leave behind after death.
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Digital heritage in the context of legislative
reform in Italy was reviewed by Patti, and
Bartolini (2019). Inheritance issues in the
Netherlands were analyzed by Berlee (2017).
Further, the features of digitization in inheritance
cases in Estonia were analyzed by Mikk and Sein
(2018). Moreover, Maurits S. Berger (2020)
analyzes the decision in Molla Sali v. Greece.
From the above analysis of the literature, it can
be concluded that the issue of digitalization of
justice and enforcement of decisions arouses
interest among scientists, as well as research on
the digitalization of the inheritance process.
However, the issue of the international legal
aspect of digitization of the ECtHR's activity in
inheritance cases and the course of enforcement
of decisions remains insufficiently researched
and requires a deeper analysis.
Methodology
The dialectical method is the basis for the
conducted study of the international legal aspect
of digitization of the activity of the ECtHR in
inheritance cases and in the course of
enforcement of decisions. This method made it
possible to form the philosophical essence of the
research object. Through the dialectical method
of learning the study of digitalization of the
activity of the ECtHR in inheritance cases, the
objective regularities of judicial activity, as well
as the international legal regulation of the
implementation of digital tools for the
administration of justice and in the course of
enforcement of decisions, are revealed. The
dialectical method determines the approach to
the researched objects, phenomena, and factors
as a certain element of a complex system of using
special knowledge, substantiating the
methodological basis for the application of other
general scientific and branch research methods.
To analyze the historical development of
digitalization of the activities of the ECtHR in
inheritance cases and in the course of
enforcement of decisions, the historical-logical
method was used. The specified method made it
possible to understand how historical conditions
affect the implementation of information
technologies in the field of justice, as well as
what legislative regulation is necessary for
effective regulation of the implementation of
digital tools for the administration of justice.
To compare the provisions of the legislation,
normative legal acts, and guiding provisions of
the legislation of Ukraine and foreign countries,
the comparative legal method was used. In a
general sense, the comparative legal method is
the study of the legal systems of different states
by comparing the legal norms, institutions,
principles, etc. of the same name and the practice
of their application. The use of the comparative
legal method is necessary during the study of
world experience, and knowledge of digital-
constitutional-legal phenomena in the context of
existing concepts of legal understanding. At the
current stage of domestic development, the
method is particularly relevant at the beginning
of legal reforms. And it is achieved primarily by
comparing the regulatory system of different
countries. With the help of the specified method,
an objective assessment of the place and role of
the experience of each country in the
development of the digitalization of justice and
in the course of enforcement of decisions is also
simplified.
The formation of the conceptual apparatus and
conceptual approaches to the digitalization of the
activity of the ECtHR in inheritance cases and in
the course of enforcement of decisions took place
with the help of a formal legal method. Thus, this
method helped define digitization in the field of
justice, the concept of inheritance and cases, and
the concept of enforcement of decisions of
jurisdictional bodies.
The statistical method was used to analyze the
quantitative and qualitative indicators regarding
the digitization of the ECtHR's activity in
inheritance cases and in the execution of
decisions.
Determining the structure of the process and
tactics of digitalization of the ECtHR's activities
in cases of inheritance, in case of compulsory
execution of decisions, as well as the ratio of their
elements became possible with the help of the
system-structural method.
The modeling method was used to develop,
forecast, and identify situations that arise during
the digitalization of the activities of the ECtHR
in inheritance cases and during the execution of
decisions of jurisdictional bodies. In particular,
this method helped to understand what
problematic issues may arise in the digitalization
of justice.
Results and Discussion
The European Court of Human Rights plays an
important role as a developer of legal doctrines
of human rights. Moreover, the ECtHR has
repeatedly noted the need to take into account the
special nature of the court's activity, taking into
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account the agreement on the collective
protection of rights and fundamental freedoms
and its general spirit. The activities of the ECtHR
are related to the maintenance and promotion of
the ideals and values of a democratic society.
Digitization permeates all spheres of a person's
life, reflecting on his position. Digitization also
affected the activities of the European Court of
Human Rights in such a category of cases as
inheritance.
With this in mind, we will, first of all, consider
the international legal regulation of digitization
in inheritance cases in foreign countries.
The Netherlands:
According to Dutch civil law, any property can
be inherited. Digital assets are no exception to
this rule (Berlee, 2017).
Italy:
Italy has begun the process of introducing
digitization tools at the legislative level to
address heritage issues and address digital
heritage issues, taking into account the
provisions of the EU General Data Protection
Regulation (GDPR) (Berger, 2020).
Poland:
Polish legislation focuses on the regulation of
inheritance relations, mainly those digital assets
that have economic value or contain personal
information.
Estonia:
The Estonian Law on Inheritance and the
provisions of the Civil Code governing law do
not make any exceptions for digital assets, so
they are inherited according to the general rules
(Mikk & Sein, 2018).
Considering the peculiarities of digitization and
the introduction of digital tools during
inheritance in foreign countries, it is worth
paying attention to how this procedure is carried
out in the activities of the ECtHR.
The use of digital technologies creates serious
issues such as risks to privacy due to massive and
uncontrolled data processing, the uncontrolled
spread of hate messages and other offensive
forms of expression online, new forms of
cybercrime and sexual violence against children,
or the use of the Internet for terrorist purposes
and to sow mistrust and fear (Council of Europe,
2019b).
The European Court of Human Rights draws
attention to the fact that more and more cases
contain digital elements, and therefore there are
peculiarities regarding the consideration of such
cases (European Court of Human Rights, 2022).
Moreover, on March 16, 2022 Convention 108+
and the related work of the Council of Europe on
data protection were presented as one element
that can contribute to solving the problems of
human rights related to digital developments. in
partnership with the Ministry of State responsible
for human rights and relations with the
Parliament of Morocco. ICESCO works to
provide innovative solutions to human rights
challenges related to digital technologies and to
develop a legal framework to protect these rights
in the digital space (Council of Europe, 2021).
The main issues of digitization of the ECtHR's
activities are mainly focused on three main
topics: the protection of freedom of speech and
privacy in the digital environment, as well as the
consequences of big data and the determination
of jurisdiction in the World Wide Web (Council
of Europe, 2019a). The Council of Europe started
working on the topic of artificial intelligence ten
years ago and has intensified its efforts in the last
five years. During this period, various bodies or
committees of the Council of Europe issued
several policy documents, recommendations,
declarations, guidelines, and other legal
documents on this topic (European Court of
Human Rights, 2021b).
Thus, it can be argued that the digitalization of
the activity of the ECtHR in inheritance cases
plays an important role on the agenda, and the
international community seeks to form a unified
approach to the digitalization of the justice
system and the consideration of cases in the field
of inheritance, including digital heritage.
Let's consider in more detail the features of
digitalization in the course of the enforcement of
decisions.
The era of digital technologies requires the
integration of electronic digital tools into the
activities of bodies and persons who carry out
enforcement of court decisions and decisions of
other bodies, the scope, and capabilities of which
do not stand still. Over the past 10 years, Ukraine
has made significant progress in the field of
digitization and automation of processes, in
particular, electronic registers have been created
- the Automated System of Enforcement
Proceedings (ASEP), the Unified Register of
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Debtors, the "Action" service and the "Electronic
Court" portal. The parties to enforcement
proceedings can familiarize themselves with the
materials of enforcement proceedings and pay
the debt thanks to the DIA application, and the
ASEP itself has innovative capabilities, in
particular, it carries out the automatic distribution
of funds.
It seems that the prospects for the further
modernization of the executive process in the
field of information technology should be
determined taking into account the trends in the
development of European enforcement
standards, adaptation to which may affect the
domestic executive process because digitization
as a global phenomenon cannot but transform
executive procedures at a time when the right to
of executive documents is recognized all over the
world as a factor in the development of a social
and sustainable economy and a guarantee of legal
security.
This is the Global Code of Digital Enforcement
presented by the International Union of Judicial
Officers (UIHJ) at the 24th International
Congress in Dubai in November 2021
(International Union of Judicial Officers, 2021).
For Ukraine, the provisions of the Global Code
of Digital Enforcement need to be studied,
because it provides not only for the
dematerialization of enforcement procedures but
also for the use of methods and methods of
enforcement concerning digital assets, including
the mechanisms of enforcement against debtors'
cryptocurrency. At the same time, it should be
noted that the national legislation already
provides for some mechanisms used during the
enforcement of decisions, such as the automated
seizure of the debtor's funds, electronic auctions,
etc.
The Code also contains best practices to be
applied in the enforcement process, such as the
use of artificial intelligence or blockchain
technology. Thus, artificial intelligence should
help public and private executors evaluate the
proposed algorithm or sequence of executive
actions for a certain type of executive document
or executive proceeding and enforcement
measures against the debtor. It is also planned to
establish a procedure for passing resolutions on a
step-by-step basis in the ASEP. ASEP will
prompt the procedure for issuing resolutions, and
prohibit the issuance of those resolutions that are
procedurally prohibited. In certain categories of
penalty, it will be prohibited to issue resolutions
that are not procedurally provided for by such a
category. The use of blockchain technology is
also key for both public enforcement agencies
and private enforcement agencies, as well as for
the debt collector and debtor, to set up an
automated enforcement process, especially when
payments are made in cryptocurrency. Even
more recent is the seizure of crypto-assets, the
search for access to them, and the procedure for
the seizure of crypto-assets.
The latest digital technologies are aimed at
improving executive procedures and increasing
the efficiency of execution, contactlessness and
social orientation, which are currently the
challenges of the time. At the same time, their
application must be carried out in compliance
with the guarantees of human rights in the
executive process, as well as in compliance with
the "ethical principles of the use of digital
technologies", such as respect for human dignity,
non-discrimination, and respect for personal
data.
One of the goals for the restoration of Ukraine,
which was announced in Lugano, is the
digitization of executive proceedings. At present,
some steps have been taken in Ukraine to digitize
the enforcement of decisions of jurisdictional
bodies, but unfortunately, they are not enough. In
particular, it is important to take measures for the
electronic seizure of funds in the debtors' bank
accounts, because this will significantly affect
the ability to execute decisions. On the one hand,
relevant legislative changes were adopted in
2018, but, unfortunately, they turned out to be
insufficient. In today's realities, in the system of
executive proceedings, there is "electronic
correspondence" instead of the real functioning
of the system of automated electronic seizure of
funds. Yes, the decision to write off the blocking
of funds is made by a responsible employee of
the bank, and its internal information system only
informs about the need to do so. Automatic
debiting of funds from the seized account occurs
when a bank employee sends a payment request
in paper form with a stamp and signature.
Moreover, the inconvenience of the system of
confiscation of funds affects the citizen as well.
In particular, an effective automated system
should provide for the urgent debiting from the
debtor's accounts of the number of funds
indicated in the document, after which the debtor
could use the remaining money without any
blocking or restrictions. And in case of illegal
withdrawal of funds – to appeal such withdrawal.
However, in today's realities, the executor blocks
all the debtor's accounts, and the debtor will be
able to use them only after a long procedure of
unblocking the accounts. To date, to resolve this
issue, the Verkhovna Rada of Ukraine is
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considering a draft law, which provides for
mandatory for all banks, the automatic debiting
of funds simultaneously with the seizure of the
account and the exclusion of the human factor to
avoid abuses, however, the seized account of the
debtor - an individual will be kept unblocked the
number of funds in the amount determined by the
legislator, based on one calendar month
(Chepurny, 2022).
Such a digital system of enforcement of decisions
is effective. This is confirmed by international
experience.
1. Portugal. A mechanism of electronic seizure
of funds was introduced, as a result of which
the efficiency of the execution of decisions
increased 20 times.
2. Croatia Electronic seizure of funds
introduced. The Financial Agency (FINA)
deals with the blocking and write-off of
seized debtors' funds. All outstanding paper
documents were processed and entered into
the electronic system (Chepurny, 2022).
The issue of automation of executive
proceedings should be resolved by the Ministry
of Justice of Ukraine, through the regulatory
settlement of the issue of mandatory connection
and participation of banks, as well as through
their real participation in a full-fledged
automated system. At the same time, it is
necessary to adopt several regulatory and legal
acts and actively connect banks to participate in
such digitalization. And, of course, to avoid
situations of abuse by private and state actors in
this area, it is necessary to ensure the mechanism
of the actors' responsibility for the abuse of
rights.
Summarizing the above, it is worth noting that in
the EU countries, the digitalization of the justice
system and in the course of enforcement of the
decisions of jurisdictional bodies is aimed at
increasing the uniformity of legal issues in the
EU member states. Therefore, for example, in the
ECLI system, any document must contain several
mandatory elements, such as the country code,
reference to the legal act, the name of the court
that made the decision, the serial number, and
also contains a set of metadata for accessibility
and accurate citation decisions of European and
national courts of EU member states (Zhurkina,
Filippova & Bochkareva, 2021).
Conclusions
As a result of the conducted study of the
international legal aspect of digitization of the
activities of the ECtHR in inheritance cases and
the course of enforcement of decisions of
jurisdictional bodies, the following conclusions
were drawn.
1. Digitization of the activities of the ECtHR
and in the course of the enforcement of
decisions is on the agenda of the
international community, and the task of the
ECtHR is to form a unified approach to the
digitization of the justice system and the
consideration of cases in the field of
inheritance, including digital heritage.
2. The use of digital technologies creates
serious problems, such as risks to privacy
due to massive and uncontrolled data
processing, the uncontrolled spread of hate
messages and other offensive forms of
expression online, new forms of cybercrime
and sexual violence against children or the
use of the Internet for terrorist purposes and
to sow distrust and fear.
3. Digitization of ECtHR activities and during
the enforcement of decisions aims to reduce
costs (on the one hand, digitization is a rather
expensive process due to the costs associated
with the acquisition of modern scanning and
digitization technologies, but it saves
thousands of hours of search time and also
reduces the need for storage space and a lot
of personnel); improve image quality;
control of confidential information.
4. Issues related to digitalization during the
enforcement of decisions are solved by the
automation of executive proceedings,
including the regulation of the seizure of
debtors' funds and the full participation of
banks in the automated system of executive
proceedings. In addition, to avoid situations
of abuse by private and state actors in this
area, it is necessary to ensure an effective
mechanism of accountability of actors for
abuse of rights.
Concerning further scientific directions of
research, it is important to analyze in more detail
the features of the digitalization of justice and the
system of enforcement of decisions in European
countries, as well as to single out the problematic
issues of this transformation.
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