Artificial Intelligence and the Judicial system of Ukraine: results of cooperation in the past year

Document text

Bernaziuk Ian

Judge of the Administrative Court of Cassation,

Supreme Court of Ukraine

Doctor of Law, Professor,

Honored Lawyer of Ukraine

ARTIFICIAL INTELLIGENCE AND THE JUDICIAL SYSTEM OF UKRAINE:

RESULTS OF COOPERATION IN THE PAST YEAR

This year comes to an end for the judicial system with mixed feelings of anxiety and optimism. The system remains intact and has made significant contributions to the victory and future dynamic development of the State, but there are still many plans ahead in this direction.

For me, as well as for the vast majority of my colleagues, 2024 has been a defining year in terms of artificial intelligence technologies and will be remembered vividly. AI has evolved from something distant and fantastic to a real and everyday assistant in all areas of life where fast, objective, and professional information processing is required.

This year, 14 different educational meetings (lectures, training, seminars) on AI issues were held on the platform of the National School of Judges of Ukraine, where about a thousand colleagues were able to exchange hundreds of questions and answers and go through the first path from getting acquainted with new AI capabilities to exchanging real-life hacks for lawyers (link). It was a truly invaluable experience of teamwork.

It is worth noting that many colleagues were able to publicly present their thoughts and experience related to the field of AI in the justice system during 2024, in particular Rasim Babanly ("Artificial Intelligence in Judicial Proceedings: Opportunities, Risks and Limits of Application" - link), Nataliya Blazhivska ("Digital Transformation of Judicial Proceedings: Experience and Conclusions for Ukraine" - link 1, link 2), Viktor Horodovenko ("Artificial Intelligence and Technologies Can Significantly Help Judges in Their Work, but Not Replace Them — CCJE Opinion" - link), Serhiy Kozyakov ("Can the Implementation of Artificial Intelligence Become Part of Judicial Reform?" - link), Yehor Krasnov ("Application of Information Technologies and Possibilities of Using Artificial Intelligence in Judicial Proceedings" - link), Vasyl Krat and Ihor Holubovsky ("Artificial Intelligence and Judicial Proceedings" - link), Vasyl Krat (Artificial Intelligence and Judicial Proceedings - link), Halyna Yurovska and Viktor Horodovenko (“Judge and Artificial Intelligence: Advantages, Challenges, Threats” — link 1, link 2).

In my opinion, the justice system in 2024, in interaction with AI, will be remembered for three important events:

Statement of the Supreme Court's position on the use of AI by participants in the judicial process (resolution of the Judicial Chamber for considering cases on corporate disputes, corporate rights, and securities of the Economic Court of Cassation dated 08.02.2024 in case No. 925/200/22 (link).

Statement of the position of the Congress of Judges of Ukraine regarding the use of AI by judges (Code of Judicial Ethics dated 09/18/2024 (link).

Approval by the All-Ukrainian Public Organization "Association of Lawyers of Ukraine" and inclusion on 12/26/2024 by the National Qualification Agency of the Professional Standard "Judge" in the Register of Qualifications (link).

I

The position of the Supreme Court regarding the use of AI by participants in the trial, given the incredible interest in it, was almost immediately highlighted on the Court's website (link): "Appealing to the "position" of the artificial intelligence system "ChatGPT" in an application for clarification of the ruling of the court of cassation is a manifestation of disrespect for judges and an abuse of procedural rights. Artificial intelligence can be a useful and auxiliary tool in the field of justice, but cannot replace the role of judges.

The procedural opposition by a party to a case, relying on the conclusions of an artificial intelligence system that lacks a regulatory framework and a scientifically substantiated basis for use in legal reasoning, creates concerns regarding its impact on the authority of the Supreme Court, its judicial practice, and public trust in the judiciary. Judges and lawyers share the fundamental obligation to comply with procedural norms and principles of fair trial. Lawyers, recognizing the Supreme Court's role in a democratic society, must exercise professional responsibility and cooperate with the Court to discourage the filing of frivolous lawsuits. Intentional or negligent abuse of court resources, including the use of artificial intelligence without a proper understanding of its capabilities as a basis for contrasting its conclusions with the conclusions of the court, can undermine trust in the judicial system. Such behavior is contrary to the purpose of the right to access to justice.”

The separate opinion of Judge Anna Vronska to the aforementioned ruling of the Judicial Chamber for consideration of cases on corporate disputes, corporate rights, and securities of the Cassation Economic Court (link) was reduced to the fact that: "The answers generated by AI "ChatGPT", in order to substantiate his position, considering the content of the application, the arguments and arguments presented in it, the Applicant did not show disrespect for the Court and did not question its conclusions, on the contrary - he sought to clarify individual conclusions on the issues on which the Supreme Court expressed its opinion. The application does not contain any humiliating, offensive, or other negative statements, a frank demonstration of disrespect for the Court, etc. In itself, a reference to information generated using AI technologies, in the absence of other justified circumstances that would indicate the person's unconscionable procedural actions, cannot be recognized as an abuse of procedural rights."

In her post, Yulia Kurylo (link) expressed her own position on the use of AI by participants in the trial: “The authority of the Supreme Court, which is so emotionally defended in its ruling, has nothing to do with the phenomenon of artificial intelligence. It is built on a high level of expertise, consistency, and the ability to explain its decision, on ethics and humanity. Lawyers do not need artificial intelligence to notice contradictory conclusions, unequal application of legal norms, or bias and outright playing to please a certain category of participants in the process, for example, due to “state interests”. The analysis and criticism that lawyers publicly express regarding the texts of court decisions, including those of the Supreme Court, is a natural consequence of professional activity, which involves joint responsibility with judges for ensuring that the law helps our country develop, and ordinary people and businesses feel that their interests are protected.”

The importance of the position of the Supreme Court, formed in the resolution of 08.02.2024 in case No. 925/200/22, is confirmed by its use in subsequent court practice and a number of scientific studies: Basista I.V. “Artificial Intelligence: Rules of Use, Prospects, Risks and Threats, Applicability for Criminal Proceedings” (link), Nagnybida V. “Prospects for the Use of Artificial Intelligence in the Resolution of International Commercial Disputes” (link), Poda R.V., Kernoz N.E. “Artificial Intelligence in Ukrainian Court Decisions” (link), Pushkareva N. “Prospects for the Application of Artificial Intelligence in Ukrainian Justice” (link), Sklyarenko I.V. “Modern Prospects for Replacing Judges in Civil Proceedings with Artificial Intelligence Technology” (link), Udovenko Zh.V. and Basista I.V. “The use of artificial intelligence in criminal proceedings: illusion or reality” (link), Shevchuk O.V. “Professional ethics in the application of artificial intelligence technologies by participants in the judicial process” (link).

II

Personally, for me, the most important event of 2024 in the justice system related to AI was the implementation of Article 16 of the Code of Judicial Ethics into the legislation of Ukraine, according to which it is determined that "The use of artificial intelligence technologies by a judge is permissible if it does not affect the independence and impartiality of the judge, does not concern the assessment of evidence and the decision-making process, and does not violate the requirements of the law."

For the importance of understanding this norm, one should take into account the provisions of Part One of Article 58, Part One of Article 127, and Parts One and Three of Article 129 of the Law of Ukraine "On the Judicial System and the Status of Judges", according to which issues of ethics of judges are determined by the Code of Judicial Ethics, which is approved by the Congress of Judges of Ukraine upon the proposal of the Council of Judges of Ukraine; the organizational forms of judicial self-government are meetings of judges, the Council of Judges of Ukraine, and the Congress of Judges of Ukraine; the highest body of judicial self-government is the Congress of Judges of Ukraine; the Congress of Judges of Ukraine adopts decisions that are binding on all bodies of judicial self-government and all judges.

The Chief Justice of the Supreme Court, Stanislav Kravchenko, has repeatedly spoken publicly on this issue: “I support the changes made to the Code of Judicial Ethics. This document should serve as a dynamic framework for judicial ethics, as ethical conduct is crucial for maintaining the judiciary's authority and public trust. It is true that now in Ukraine the issues of the use of artificial intelligence are being discussed more and more actively because the whole world is talking about it today. The only question is to what extent the capabilities of AI can be used in the administration of justice. Our position on this is firm and boils down to the fact that AI can be another assistant to a judge, but, of course, it cannot replace a judge. Therefore, the mentioning of the possibility of using AI by a judge with certain reservations in the Code of Judicial Ethics is rational and, obviously, will push us to use this tool as much as possible as an assistant in performing routine tasks (link). “If the issue of using AI in the process of preparing a draft decision is essentially quite debatable because in this aspect AI cannot replace a judge, then regarding the use of IT products in the process of resolving organizational issues, in particular the distribution of cases, the opinion of the conference participants was unanimous: this undoubtedly has a great future, and these approaches to organizing work should be implemented today” (link).

III

The third important event related to the adaptation of the justice system to the new reality, caused by the rapid development of AI, is the official introduction of the Professional Standard "Judge" in Ukraine (link). As stated in this Standard: "The name of the document confirming the professional qualifications of a person: the decision of the High Qualification Commission of Judges of Ukraine on confirmation of the ability of a judge (candidate for the position of judge) to administer justice in the relevant court (based on the results of the qualification assessment); the submission of the High Council of Justice to the President of Ukraine on the appointment of a judge (based on the results of consideration of the recommendation of the High Qualification Commission of Judges of Ukraine)."

A feature of this Standard is that a separate requirement for a judge is defined as "Digital Competence", which covers six separate components of such competence and requires the judge to have the following skills and abilities: identify and use computers and mobile devices to solve work tasks, change application settings; administer online services; search, filter and verify data; analyze, interpret and evaluate data, information and digital content; apply appropriate formats to create certain digital content; use digital communication tools; distribute data and exchange data; display and use digital identity; adhere to certain cyber hygiene, protection and security measures, including recognizing unlicensed applications; use data across multiple environments and digital tool services.

Conclusions

The interaction of the Ukrainian justice system with artificial intelligence (AI) technologies in 2024 confirmed the relevance of such cooperation and the potential to improve the efficiency of judicial processes. The results, such as training lawyers, the use of AI tools, and the analysis of their limitations, became important steps in the digital transformation of justice.

The Supreme Court and the Congress of Judges of Ukraine have formulated important positions on the use of AI, emphasizing that it is an auxiliary tool that does not replace the role of a judge. These decisions have set ethical and procedural boundaries for the use of AI in the judicial system, which contributes to preserving the independence of judges and protecting the principles of fair justice.

The integration of digital competencies into the Professional Standard “Judge” is a key step in preparing the justice system for the challenges of the future. This standard outlines the requirements for a modern judge, including knowledge of digital technologies, cyber hygiene, and the effective use of AI, which is the basis for the further development of justice in Ukraine.