Towards e-Justice: European and National Experiences

Technology can increase the efficiency and transparency of the justice system and make it easier for individuals to access justice. However, it also risks undermining access to justice for some (e.g., those without the Internet) if it completely replaces traditional processes.

The term ‘e-justice’ encompasses a wide range of initiatives, including the filing of online lawsuits, the provision of online information (including case law), the use of video hearings and conferences, and the ability of judges or other decision-makers to access information electronically. E-justice consists of the use of technology, information, and communications to improve citizens’ access to justice and effective judicial action involving the resolution of disputes or the imposition of criminal sanctions.¹

In recent years, the flag of technological innovation has often been waved as a solution to the many problems plaguing justice administrations. The COVID pandemic has encouraged the use of IT in court proceedings and the discovery of the benefits associated with it². E-filing and integrated e-justice platforms through which data and documents are exchanged, as well as electronically managed court proceedings, are becoming the standard for case processing. The administration of justice is thus being converted from paper to digital media.

Information and Communication Technology (ICT) applications are seen as tools that inherently produce positive results once they are introduced into a justice system. Moreover, increasing pressure requires that these benefits be exploited. As the European Commission stated in relation to the public sector as a whole, “The availability of innovative technologies such as social networks has increased the expectations of citizens in terms of responsiveness when accessing all kinds of services online. (…) There is clearly a need to move towards a more open model of design, production and delivery of online services, taking advantage of the possibility offered by collaboration between citizens, entrepreneurs and civil society. The combination of new technologies, open specifications, innovative architectures and the availability of public sector information can deliver greater value to citizens with fewer resources”³.

Unfortunately, these positive visions are matched by a much less positive reality. In the judicial system, ICT innovation comprises a complex interplay of technological, institutional, organizational, and normative components, according to recent study⁴. It is becoming apparent that the technological-institutional systems that are developed in the context of e-justice must not only be technically functional, but also institutionally, organizationally, and normatively compatible with judicial processes.

This blog post discusses the development of e-Justice in the EU and its Member States with practical examples of the main tools used so far. It also highlights the problems that have arisen from the use of e-Justice, particularly in relation to human rights such as the right to a fair trial. Finally, some solutions for a better implementation of these innovative systems at the national level are highlighted.

I. The relation between human rights and e-justice

Under Council of Europe law, the European Convention on Human Rights (ECHR) does not impose specific requirements on e-justice, but the implementation of e-justice initiatives is subject to the rules on access to a court and the right to a fair trial under Article 6 of the ECHR⁵.

A clear example of this is the case of Lawyer Partners a.s. v. Slovakia⁶, in which the plaintiff, a limited liability company, sought to file more than 70,000 civil lawsuits to collect debts. Given the large number of claims, it recorded them on a DVD and sent them to the court with an explanatory letter. Although domestic law permitted the filing of claims in this manner, the court refused to register them on the grounds that it did not have the necessary equipment. An appeal to the Constitutional Court was dismissed because it had been filed outside the statutory two-month period.

The European Court of Human Rights (EctHR) noted that the company’s complaints and supporting documents, if printed, would have filled over 40 million pages. Under these circumstances, the choice of filing method could not be considered unreasonable. Domestic law provides for the electronic filing of lawsuits, and the plaintiff company could not be faulted for availing itself of this option. The court’s refusal to register their actions was a disproportionate restriction on their right of access to the court.

II. New tools for e-justice

With the help of technological progress and social change through the information and knowledge society, new tools are emerging in the field of e-justice. However, the judiciary is often seen as a conservative actor, traditionally highly formalized, with rigid roles for legal actors. The judiciary has an aura of formality that does not offer many opportunities to take into account the citizens’ point of view. It is usually a field for legal experts, lawyers, prosecutors and academics in law. E-justice is an essential part of e-administration in the judiciary to shape a modern public administration of justice, and openness in public service is becoming more and more a key concept.

In the age of knowledge society, a public institution dealing with law needs to promote its judgments, especially through technological channels such as its public website, which may include some useful tools for searching text documents. Courts and many justice agencies around the world have some means of accessing judgments, orders, or jurisdictional declarations so that attorneys and domestic relations staff can read them. In the following sections of this blog post, the main e-justice tools developed by the EU and its member states will be analyzed in order to understand the benefits they offer, the problems they can cause, and some practical solutions.

II.a European e-Justice Portal

The EU’s “electronic one-stop shop in the area of justice,” the European e-Justice Portal⁷, currently allows individuals to file cross-border small claims or payment orders electronically, in accordance with relevant EU secondary legislation. However, that is not the only thing the Portal can do. In general, it helps people, companies, lawyers and judges find answers to legal questions.

A German travelling in Spain needs a lawyer. An Italian entrepreneur wants to search the Hungarian land register. A Finnish judge has a question about the French court system. On the European e-Justice Portal, answers to all of these queries are available in 23 official EU languages. With more than 30,000 pages of content, the portal offers a wealth of information and links to laws and practises in all EU countries.

In accordance with Regulation (EC) No. 861/2007⁸, the European e-Justice Portal can also be used to make claims in the European Small Claims Procedure. This procedure aims to improve and simplify procedures in civil and commercial matters involving claims that do not exceed €2,000. It is a written procedure – unless the court deems an oral hearing necessary. It sets deadlines for the parties and the court to expedite the process and applies to both monetary and non-monetary claims. A court decision issued under this procedure must be automatically recognised and enforced in another member state.

II.b Evidence by videoconference

The development of videoconferencing and hearings, as described in the portal, can also help facilitate justice⁹. For example, the European Supervision Order¹⁰ allows EU Member States to issue surveillance orders releasing suspects or defendants in pre-trial detention for surveillance in their country of residence. Article 12 (4) provides that telephone and video conferencing may be used if the issuing Member State is required by national law to hear the suspect before modifying the surveillance measures or issuing an arrest warrant. The use of videoconferencing for hearings is also encouraged by other EU instruments, as described later in this blog post.

The possibility of taking evidence by videoconference has been enthusiastically promoted by EU Member States and is now legally allowed not only in civil and commercial cases, but also in criminal cases. In this regard, the Council’s recommendations on cross-border videoconferencing state:

“Videoconferencing is a useful tool which has great potential not only at national level but also in particular in cross-border situations involving different Member States and even third countries. In cross-border cases smooth communication between the judicial authorities of the Member States is crucial. Videoconferencing is one possible way of simplifying and encouraging such communication.” ¹¹

When trying to use the tool of videoconferencing, various difficulties may arise. For example, there is the problem of finding the right contact point in another Member State, the language problems among the judicial officers organising the videoconference, or the lack of the same technical standards in all Member States. An important source of secondary EU law on this issue is regulation 1206/2001¹², which was recently replaced by regulation 2020/1783¹³.

Regulation 1206 does not define “videoconference” or “teleconference.” Both qualify as “communications technology”, but Regulation 1206 does not mention other types of technologies. However, as we know, there are several messaging applications, such as Whatsapp or other applications that also offer video calls: Skype, for example, offers teleconferencing services with good sound and picture quality. The most appropriate interpretation of Regulation 1206 is that it provides flexibility to ensure an efficient taking of evidence regardless of the means.

The requirements for taking evidence by videoconference or similar technology include certainty about the identity of the persons involved in the taking of evidence, interaction between them, and the preservation of the rights of the parties, which is ensured by the presence of a judge.

In order to facilitate cooperation between judicial authorities in different EU countries and to make full use of videoconferencing for taking evidence in another EU country, the European Judicial Network in Civil and Commercial Matters (EJN civil)¹⁴ has produced a series of fact sheets. These contain practical information on rules, procedures and technical possibilities in various EU countries.

The EJN civil facilitates and supports relations between national judicial authorities through contact points in each Member State, helping to facilitate cross-border cases. This cooperation between authorities aims to assist persons involved in cross-border civil and commercial cases.

In addition to EU secondary legislation, consideration should also be given to initiatives taken by individual European states to support and expand the use of e-Justice at the national level.

II.c Tools in the UK: You be the judge

The UK Ministry of Justice was recognized at the International Visual Communications Awards for an interactive guide to help people understand judgments – “you be the judge.”¹⁵ This tool makes justice more accessible by familiarising people with court procedures outside the actual courtroom.

You be the Judge is owned by the Department of Justice and is no longer available. However, the Sentencing Council is considering the possibility of developing a revised version.

You be the Judge is an interactive online sentencing tool that puts you in the judge’s chair. You choose from eight real court cases, hear the facts of the case and the aggravating and mitigating factors, and then decide on the sentence. You also get to see how your sentence compares to the judge’s sentence in the real case. Finally, you are invited to give your opinion on the sentencing again after the case is closed.

Justice Minister, Jeremy Wright said:

“No two cases are the same and this can make the way criminals are punished difficult for the public to understand. Sentencing is a complicated task and can be a very difficult job. It has to balance a number of issues including the law, the full facts of the case, and the aggravating and mitigating factors”

“That’s why the ‘You be the Judge’ website is so important, it gives the public a chance to be the judge in real criminal cases, to better understand how sentencing decisions are made and to help people see how punishments are decided”¹⁶

This tool is also important because of the information it provides. Looking at all of the choices that users of the website made between 2010 and 2012, we find that 39% of all user experiences resulted in the user choosing the same sentence as the judge, 16% resulted in the user choosing a more severe sentence than the judge, and up to 45% resulted in the user choosing a less severe sentence than the judge¹⁷. This means that users chose three times as many less severe sentences as more severe sentences.

However, there were also some critical observations¹⁸ about this tool archived by the UK Government. For example, while the judges, prosecutors, lawyers, legal advisors, and court clerks depicted in the scenarios are male, female, and of different ethnic backgrounds, all of the defendants are white, male, and under 40.

II.d Tools in England: MCOL

Money Claims Online (MCOL)¹⁹ is a successful online translation of the paper-based process developed in England in recent decades. It consists of an online portal for initiating simple court proceedings. It is an alternative to the traditional method of filing a civil lawsuit, although this has also been simplified in recent years.

If a lawsuit is filed at the very last minute, an online monetary claim can buy valuable additional time. A paper claim form sent to the court with the fee takes time to reach the processing centre by mail. So to be safe, you should mail it before the deadline. Online monetary claims are available 24/7, so a claim can be filed online until the twelth hour on the last day of the statute of limitations. However, registration is required, which can slow down the process of issuing a claim.

Other limitations influence the proper functioning of MCOL. For example, “statute of limitations” claims generally must be brought before a court before a certain date. As a general rule of thumb (and in all circumstances, you should seek advice on the statute of limitations date for your particular claim), you have six years to file a lawsuit for breach of contract or other claims.

In addition, the “Claim Details” section, which explains what the claim is about and the amount claimed, is limited to a maximum of 24 lines of 45 characters and a total of 1080 characters. This leaves very little space indeed. This often results in short and poorly worded details of the claim being packed into the application. It is better to avoid this, as a lack of detail can affect the prospects of success in court. One tool to which the MCOL is often compared is the Possession Claim Online (PCOL²⁰), which was developed in Wales in a similar way to the MCOL.

II.e Tools in Wales: PCOL

The PCOL project was launched in 2006 to increase automation and make the processing of possession claims more efficient. Often, individuals need to file a claim against another party to settle a commercial debt, such as rent owed by tenants to a landlord. To ensure that this payment is made, it may be necessary to write a letter to the person you may be making a claim against, setting out all aspects of your potential claim, such as payment dates. The letter will usually state that if payment is not made by a certain date, you will take the case to the district court. Thanks to PCOL, individuals can file a claim against another person through a special website. When you use Possession Claim online, you can initiate the process at a time that is convenient for you, meaning you do not have to go to court to initiate it. You will also be automatically assigned a hearing date in the correct court. This avoids unwanted administrative costs incurred by filing your case in the wrong court.

The designers of Possession Claim Online have used several technological components developed in MCOL. For example, the screen models and the payment engine are the same. Unlike the offline process, the value of the property and the amount of the monetary claim issued must not exceed £100,000. In fact, the online service has some restrictions similar to the ones that apply in MCOL.

The system offers PCOL and MCOL users the possibility to use both the online and offline procedures at any stage of possession and money claim cases. This confirms the commitment of the Judiciary of England and Wales to optimise the accessibility of judicial services. However, viewed from a different angle, this point creates an amazing paradox. On the one hand, policies in the judiciary aim to make procedures faster, simpler, and less expensive through the use of ICT capabilities. On the other hand, the incomplete dissemination of ICT skills and the commitment to accessibility of court services limit a complete transfer of traditional court proceedings to digital media and will continue to do so in the future.

II.f Tools in France: e-Barreau

As in other Member States, France has taken an important step in developing a system for the electronic filing and exchange of documents between lawyers and the ordinary courts in the administration of justice. The system, called e-Barreau²¹, is intended as an electronic equivalent to traditional procedures and as a way to do the same things more efficiently using new electronic tools. This system transfers all traditional objects and activities into a digital format. At the beginning, for the actors who promoted the development of the new system, the problems seemed to belong only to the normative and technological spheres. Normative, since the rules of procedure were to allow and regulate the use of the new electronic means instead of the old paper-based means (such as electronic documents and digital signatures). Technological, as it was necessary to find or develop technologies that were suitable to meet the normative requirements.

When Parliament passed legislation allowing the use of electronic tools that mimicked the paper-based process, the only problem seemed to be a “technical” one. However, it soon became apparent that nothing was as simple as it seemed. The real challenge in developing the e-justice system was not in finding, assembling, and producing technological tools, but in creating the governance network of relevant organizational actors needed to successfully support and implement the innovation. The challenge was also to find ways to motivate users to actively participate in the creation of the new service, which could not function without them.

The possibility of making the use of e-Barreau mandatory for appellate courts has been discussed, but this cannot be done until the system has already been legitimized and accepted by a significant number of lawyers. At the same time, not all legitimacy problems have been solved yet. Assuming that electronic filing will also become mandatory in the first instance, this decision raises concerns about equal access to justice and the right to a fair trial, as guaranteed by Article 6(1) of the European Convention on Human Rights, especially when it comes to litigants representing themselves without a lawyer.

The current evolution of the system leads us to foresee a future with further struggles, the search for compromises, and the creation of new governance networks that will perhaps allow for further integration and progress in French e-justice efforts.

II.g Tools in Italy: the Online Civil Trial

Similar to the e-Barreau system in France, the “processo civile telematico”²² (which translates to “online civil trial” in English) developed by the Italian Ministry of Justice is one of the most important e-government projects in Italy. The main task of the system is to allow interoperability between an enormous number of external users (such as lawyers), and the internal users of the courts (like judges or private parties), through a highly secure infrastructure that guarantees the reliability of transmissions, authenticity, integrity, non-repudiation and confidentiality.

Thanks to this system, lawyers (as defendants) have online access to reliable and up-to-date information managed in the court management system, as well as to legal acts and documents stored in the file system. The same service is also available for applications, so that these types of users can have their own software automatically synchronized with the courts’ information and documents. This service makes it possible to significantly reduce access to the courts and save time and personnel for both external users and clerks.

Similar to their attorneys, citizens and private companies can also access the information managed by the court management system and the legal files and documents stored in the file system as stakeholders. In the near future, they will also be able to file legal documents electronically with the relevant court and receive notices and decisions from the courts when required by law.

A particular aspect of the online civil process is the introduction of a certified mail system (PEC, acronym for “Posta Elettronica Certificata”), applicable to all public administrations and citizens. In summary, these rules and specifications provide that postal messages receive an official delivery confirmation in order to obtain certainty about the delivery and its exact time. Both messages and delivery receipts are digitally signed by the sender’s provider and the recipient’s provider to ensure authenticity, non-repudiation, and integrity.

PEC providers are authorized by the “Agenzia per l’Italia Digitale”²³ (which can be translated as “Agency for Digital Italy”), the supreme authority for ICT in Italy, which also supervises providers to ensure compliance with the rules, particularly with regard to security.

The development of the online civil trial also required a strict integration of the different actors and institutions at the local level: courts, software houses, lawyers and their bar association²⁴. The implementation of the architecture also required better integration between the central level (the ICT department of the Ministry of Justice) and the local level (each court system and software house). This complicated web of relationships brings into play a number of independent organizations and technological systems. It also gives 165 local bar associations, which are neither necessarily motivated nor sufficiently wealthy, the key role in connecting internal and external actors. In summary, in this case, as in the others explained above, some contradictions and problems can be found with regard to a uniform adaptation of e-justice tools at the national level.

III. Problems with e-justice

Not everyone can have access to technological developments, so it is necessary that they coexist with traditional systems. The ECJ has confirmed that procedures that are accessible only by “electronic means” may make it impossible for some people to exercise their rights.

For instance, in Rosalba Alassini v. Telecom Italia SpA²⁵, the ECJ addressed four related references for preliminary rulings from the Giudice di Pace di Ischia, which concerned clauses under which an attempt at out-of-court settlement was a mandatory condition for the admissibility of certain disputes before national courts. The clauses had been enacted under the Universal Service Directive²⁶. The ECJ examined whether these mandatory references were compatible with the principle of effective judicial protection.

In considering this point, the ECJ also noted that the exercise of the rights conferred by the Universal Service Directive might be impossible or excessively difficult in practice for certain persons – in particular those without Internet access – if the dispute resolution procedure were accessible only by electronic means.

It is possible to identify other critical areas in the use of e-justice²⁷. First, there is the standardization of procedures, as there is a need to standardize procedures so that they can be managed by the system, as also highlighted in another blog post on the Just Access website²⁸. There is also the issue of digitizing workflows. There is a need to adapt workflows to the benefits and requirements of technology, which is also referred to as re-engineering. In fact, court procedures that work well in a paper-based environment, such as serving a document by certified mail, are pointless if the procedures are digitized. At a minimum, this means being aware of the impact of digitization on all users and, ideally, actively involving users in the development and deployment of the technology. An e-justice platform that is ignored by lawyers who prefer to exchange petitions in the traditional way is worthless.

IV. Conclusion

As has been shown in the analysis of the concrete instruments of e-justice in various European states, e-justice promotes the realization of almost all components of the right to a fair trial, such as the fairness of the proceedings, the right to a public hearing, and a reasonable duration of the proceedings. In particular, access to justice improves when it is possible to file procedural documents to initiate a trial online using electronic resources, the fairness and publicity of the trial are ensured by the possibility of broadcasting court hearings on the Internet, and the reasonable duration of a trial is realised by reducing the time lost in filing, transmitting, and processing evidence and by ensuring the appearance of litigants in court.

However, the development of ICT in the field of justice seems to be more complex than previously thought. Rapid success in the technical and even organisational areas is no guarantee of success. In some countries, the broader normative and institutional context plays a greater role than in others, and the exit from the experimental phase can become a never-ending struggle. Sharing experiences and resources for the development of ICT in the justice sector is the fundamental key to developing systems that are both technologically and organizationally functional, but also normatively and institutionally integrated into the broader network in which justice systems operate.

To solve the problems caused by the new introduction of e-justice, three main solutions should be highlighted²⁹. First, a unified and centralized software for case management and distribution in all courts is needed. Second, the population should be gradually introduced to this new system by providing direct support to people who have difficulties accessing justice in this way. Finally, spreading awareness about these new tools is essential for their proper functioning. Although national systems in many ways provide citizens with faster and easier access to justice, these new tools are useless if citizens do not know of their existence. National governments should promote the new e-justice tools that are in line with our human rights and national law in order to create a comprehensive mechanism for access to justice for all.