Abstract
This contribution deals with the use of new technologies for the service of notice in its widest sense, which includes the filing of pleadings, the service of documents, and the notification of judicial decisions. The author analyzes some national regulations on e-service, as well as the practice at some international courts, in order to focus on the main challenges raised by the use of electronic judicial communication: (1) the way technical aspects can have repercussions over procedural safeguards and the need to count on reliable and secure systems, which can give proof that service has taken place and at what moment; (2) the possibility of a compulsory use of electronic-notification mechanisms, as well as the possibility of using them to serve the document commencing the proceedings; (3) the scope and requisites of a potential international electronic service of documents, under the example of some recent European procedures. The author emphasizes the idea that e-Justice is made up of tools at the service of Justice, amongst which are included electronic communications: but those tools should never dictate the development of the purpose they serve and it would also be intolerable that the legitimate exercise of rights, or that their proper legal protection, should be precluded or hindered by the deficiencies of the software tools available to the courts.
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Notes
- 1.
Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee, “Towards a European e-Justice Strategy”, 30 May 2008, COM(2008) 329 final (pp. 4–5).
- 2.
According to the definition given by the European Commission in its Communication: “The e-Justice approach uses ICT to improve citizens’ access to justice and to make legal action more effective, the latter being understood as any type of activity involving the resolution of a dispute or the punishment of criminal behaviour” (p. 3). The European Parliament, in its Resolution of 18 December 2008 with recommendations to the Commission on e-Justice [2008/2125(INI)], states that “e-Justice has a broad definition including, in general, the use of electronic technologies in the field of justice”. The Council, in its Multi-annual European e-Justice action plan 2009–2013 (OJ C 75, 31 March 2009), talks about “the use of information and communication technologies (ICT) in the field of justice”.
- 3.
See also M. Taruffo, “Orality and Writing as Factors of Efficiency in Civil Litigation,” vol. 1, in Oralidad y escritura en un proceso civil eficiente – Oral and written proceedings: Efficiency in Civil Procedure, ed. F. Carpi and M. Ortells, 202 (Valencia: Universitat de València, 2008).
- 4.
A quick overview on the case-law of the European Court of Human Rights offers many examples in the judgments delivered in cases like Goddi v. Italy (9 April 1984); Brozicek v. Italy (19 December 1989); Hennings v. Germany (16 December 1992); Pérez de Rada v. Spain (28 October 1998); Tsironis v. Greece (6 December 2001); Somogyi v. Italy (18 May 2004); Hermi v. Italy (28 June 2005); Strizhak v. Ukraine (8 November 2005); Examiliotis (no. 2) v. Greece (4 May 2006); Díaz Ochoa v. Spain (22 June 2006); Gregorio de Andrade v. Portugal (14 November 2006); Popova v. Russia (21 December 2006); Ern Marina Sanayi ve Ticaret A.S. v. Turkey (3 May 2007); Da Luz Domingues Ferreira v. Belgium (24 May 2007); Blandeau v. France (10 July 2008); Almeida Santos v. Portugal (6 October 2009); Société Anonyme Thaleia Karydi Axte v. Greece (5 November 2009); or Popovitsi v. Greece (14 January 2010).
- 5.
In Austria, which is without doubt the leading country in this area, it is estimated that the use of their system for the electronic filing of pleadings (ERV) results in a saving equivalent to 133 jobs. Furthermore, the use of the ERV-Rückverkehr – which allows the courts to serve documents on the parties – allowed a saving of 3.6 million euros in postage in 2008, according to information supplied by the Ministry of Justice at http://www.justiz.gv.at/internet/html/default/2c9484852308c2a60123708554d203e7.de.html;jsessionid=20BD802BA25B15B66F6DD7433A013172 [03.02.2011].
- 6.
The workflow of the Conference was envisaged to encourage the participation of all interested academics, who were invited to contribute to the drafting of a national report in response to the questionnaire I prepared at the time. Unfortunately no national report has been received in relation to this subtopic. Although it was not my intention to provide a systematic and exhaustive description of the electronic communication systems existing in each State, this situation has conditioned the structure and content of this general report: I shall restrict myself, initially, to describing the normative development that has taken place in certain States, in order to then go on to identify the main problems which, in view of the rules that have been examined, seem to arise in respect of electronic notification when it comes to the right to a fair trial.
For a more thorough and still recent (2007) overview, see J. Walker and G. D Watson, New technologies and the civil litigation process. Common Law – General Report; E. Jeuland, Nouvelles technologies et procès civil. Rapport général pour les pays de droit civil; A. Landoni Sosa, “New information technologies in civil procedure. Synthesis report”, in the context of the XIII World Congress of Procedural Law and published in Direito Processual Comparado (orgs. A. Pellegrini Grinover and P. Calmon) (Rio de Janeiro, 2007). See also S. Amrani-Mekki, “El impacto de las nuevas tecnologías sobre la forma del proceso civil”, Vol. 1, in Oralidad y escritura en un proceso civil eficiente – Oral and written proceedings: Efficiency in Civil Procedure, ed. F. Carpi and M. Ortells (Valencia: Universitat de València, 2008).
- 7.
See the information provided by the Austrian Ministry of Justice at http://www.justiz.gv.at/internet/file/2c9484852308c2a601230eeed6f60127.de.0/folder_justiz-online_mai2008_+deutsch+v+1.0_neu.pdf [03.02.2011].
- 8.
According to the Austrian Ministry of Justice, in 2008 over 85% of initial applications for orders for payment (Mahnklagen) and over 65% of enforcement applications (Exekutionsanträge) were filed electronically: in total (together with the rest), 3.1 million applications were filed using this system. Also in 2008, the courts served 3.9 million notices on the parties using electronic means. See
- 9.
The ERV was created in collaboration by the Ministry of Justice, the Bundesrechenzentrum, the Österreichische Rechtsanwaltskammer and Telekom Austria.
- 10.
Text available at http://www.jusline.at/Elektronischer_Rechtsverkehr_(ERV).html
- 11.
The Austrian regulation of notification is scattered. General directions and some specific rules are to be found at the Zivilprozessordnung (ZPO, §§ 87 a 121). However, § 87 (1) ZPO refers in general terms to the Notification Act (Zustellgesetz), applying to service done by public bodies and courts, http://www.bmvit.gv.at/telekommunikation/post/recht/downloads/zustellg_konsolidiert.pdf). Section 3 (§§ 28-37a) of the Zustellgesetz deals with electronic notification when made by public administrations, not by courts [§ 28 (2)]. For these, reference is made to the Gerichtsorganisationsgesetz, http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen%26Gesetzesnummer=10000009, §§ 89a–89l. They don’t include, however, a detailed regulation of the electronic service procedure, but only a general provision allowing any judicial notification to be made by electronic means and a reference to lower administrative rules [§ 89b (2) GOG], among which the one regulating ERV.
- 12.
- 13.
However, the regional Governments will decide at what courts and from what moment it will be possible to use it.
- 14.
See “Member States’ national projects relevant for the e-Justice portal – Reply from the German delegation”, Council of the European Union – Working Party on Legal Data Processing (e-Justice), Doc. 7628/09 Add 11 JURINFO 26.
- 15.
The EGVP has proved its worth in judicial practice and is used in supreme federal courts and in all Länder – particularly in high-frequency procedures (court registers, commercial registers and order-for-payment procedures). Since 1 January 2007, all registration processes relating to the commercial register, which has a good one million businesses on record, have been conducted via EGVP. In 2008, more than 772,000 incoming and 205,000 outgoing communications were transmitted to and from the participating courts and authorities. By May 2009, use had increased sharply; in April 2010, the system was transmitting over 280,000 communications. There were then more than 30,000 registered users (courts, authorities, citizens, above all lawyers and notaries).
- 16.
Through the Décret nº 2005–1678, 28 December 2005 (Journal Officiel de la République Française, 29 December 2005), in force on 1 July 2008. For a recent overview on e-Justice in France, see “Dossier – Le procès civil à l’épreuve des nouvelles technologies”, Procédures, nº 4, avril 2010, pp. 6–45.
- 17.
- 18.
Décret nº 2009–1524, 9 December 2009: the court will only accept documents sent to it by electronic means, except when it is impossible for fair reasons; and any communication or summons from the court will also be served on the parties’ representatives by electronic means (Art. 930-1 I CPC).
- 19.
- 20.
- 21.
- 22.
- 23.
Where the authenticity of decisions, documents, orders, or reports filed or served by electronic means can only be acknowledged or verified by way of direct examination, they may nonetheless be filed in electronic format by way of digitalized images; but they must be filed in their original paper format should any party, or the court, or the State Prosecutor’s Office so request.
- 24.
Act 41/2007 (7 December 2007) and Real Decreto 84/2007, de 26 de enero, sobre implantación en la Administración de Justicia del sistema informático de telecomunicaciones Lexnet para la presentación de escritos y documentos, el traslado de copias y la realización de actos de comunicación procesal por medios telemáticos, http://www.boe.es/boe/dias/2007/02/13/pdfs/A06239-06244.pdf.
- 25.
- 26.
A general explanation at Demócrito Reinaldo Filho, Comunicação eletrônica de atos processuais na Lei nº 11.419/06 (2007), en, http://jus2.uol.com.br/doutrina/texto.asp?id=9750 [03.02.2011].
- 27.
- 28.
- 29.
Regarding the technical specifications, the e-mail message must contain the name, telephone number and e-mail address of the sender and should be in plain text or rich text format rather than HTML. Correspondence and documents may be sent as either text in the body of the e-mail, or as attachments (however, documents required to be in a practice form must be sent in that form as attachments). Attachments must be sent in a format supported by the software used by the specified court to which it is sent. The length of attachments and total size of e-mail must not exceed the maximum which a particular specified court has indicated that it can accept. This information is listed on the Court Service website.
- 30.
The online forms service will assist the user in completing a document accurately but the user is responsible for ensuring that the rules and practice directions relating to the document have been complied with. Transmission by the service does not guarantee that the document will be accepted by the specified court.
- 31.
EWS users must ensure that all forms, documents, schedules and other attachments filed at court are in PDF format. They also must use the PDF forms which have been created by Her Majesty’s Courts Service specifically for Electronic Working. If they wish to file any document which has not been created specifically for Electronic Working, before filing that document they must convert the document to PDF format and attach the document to the multi purpose form for that case which has been created specifically for Electronic Working.
- 32.
Doc. 9083/07 JURINFO 13 and Doc. 9573/07 JURINFO 17). The contents of the study can be read at http://register.consilium.europa.eu/pdf/en/07/st09/st09083.en07.pdf [03.02.2011] (main study) and at http://register.consilium.europa.eu/pdf/en/07/st09/st09573.en07.pdf [03.02.2011] (Study Part II: Comparative Analysis).
- 33.
See Doc. 13759/09 JURINFO 112 (13 October 2009).
- 34.
See Doc. 7355/10 EJUSTICE 28 JUSTCIV 43 (12 March 2010), including a list of questions prepared by the Presidency to structure the discussions, http://register.consilium.europa.eu/pdf/en/10/st07/st07355.en10.pdf. Some countries have already submitted their answers (Spain, Italy and Poland).
- 35.
- 36.
According to the Practice Directions relating to direct actions and appeals – Use of technical means of communication, a copy of the signed original of a procedural document may be transmitted to the Registry as an attachment to an electronic mail to the email address ecj.registry@curia.europa.eu, http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-02/ins_prat2_2009-02-09_16-15-31_502.pdf.
- 37.
According to the same Practice Directions, documents should be scanned at a resolution of 300 DPI and, wherever possible, in PDF format (images plus text), using Acrobat or Readiris 7 Pro software.
- 38.
The Practice Directions also state that the signed original must be sent without delay, immediately after the despatch of the copy by e-mail, without any corrections or amendments, even of a minor nature. In the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodgment of the signed original will be taken into consideration.
- 39.
See also the Notes for the guidance of Counsel in written and oral proceedings before the Court of Justice of the European Communities (February 2009: http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/txt9_2008-09-25_17-37-52_275.pdf) [03.02.2011] and the Practice Directions relating to direct actions and appeals – Use of technical means of communication.
- 40.
Issued by the President of the Court on 22 September 2008, http://www.echr.coe.int/NR/rdonlyres/C3F78149-F39D-48E9-B348-99C86FFDD273/0/SecuredDocumentsDecember2008.pdf [03.02.2011].
- 41.
There are only a few exceptions: (a) All written communications in relation to a request for interim measures shall be sent simultaneously through the secured site and by fax; (b) Attachments, such as plans, manuals, etc. which may not be comprehensively viewed in an electronic format may be filed by post; (c) The Court’s Registry may request that a paper document or attachment be submitted by post.
- 42.
Approved by the Court during its LXXXV Regular Period of Sessions in November 2009, http://www.corteidh.or.cr/reglamento.cfm.
- 43.
Adopted by the judges of the Court on 26 May 2004, Fifth Plenary Session, The Hague, 17–28 May 2004 [Official documents of the International Criminal Court, ICC-BD/01-01-04], http://www.icc-cpi.int/NR/rdonlyres/B920AD62-DF49-4010-8907-E0D8CC61EBA4/277527/Regulations_of_the_Court_170604EN.pdf [03.02.2011].
- 44.
E-mail notification is not possible when personal service is required, and this happens with the following documents: (a) Warrants of arrest; (b) Summonses to appear; (c) Documents containing the charges; and (d) Such other documents, decisions or orders ordered by the Chamber to be notified by way of personal service.
- 45.
See, generally, the Judgment of the European Court of Justice, Lancray v Peters und Sickert (C-305/88) [1990] ECR I-02725.
- 46.
See the Judgments of the European Court of Justice Klomps v Michel (166/80) [1981] ECR 01593 and Mærsk Olie & Gas 14 (C-39/02) [2004] ECR I-09657.
- 47.
And I shall recall that Article 81.2 f) of the Treaty on the Functioning of the European Union allows the European Parliament and the Council to “adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States”.
- 48.
There are two important decisions of the European Court of Justice interpreting Regulation No 1348/2000: Leffler (C-443/03) [2005] ECR I-09611, regarding the possibility of the sender to remedy a faulty service –on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands–; and Weiss und Partner (C-14/07) [2008] ECR I-03367, clarifying that it is not necessary to provide a translation of documentary evidence attached to the claim, when those documents have a purely evidential function and are not necessary for understanding the subject matter of the claim and the cause of action. Besides, and this time concerning the interpretation of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, reference must be done to the recent Judgment Kyrian (C-233/08) [2010], stating that the addressee of an instrument permitting enforcement must receive the notification of that instrument in an official language of the Member State in which the requested authority is situated.
- 49.
It is clearly permitted in France, Slovenia, Cyprus, Estonia and Finland. In Slovakia and in the Czech Republic, if the application is filed without advanced electronic signature, the original copies of the forms must be sent no later than 3 days after submission. Austria permits using the WebERV –open to any person and company–, but doesn’t admit e-mails. In the Netherlands the electronic submission of applications for a European Order for Payment is permitted, as long as this is provided for in the court’s procedural rules, but currently none of the courts provides for this possibility. Germany is currently working on the development of an IT system which should make it possible to submit European payment order applications and objections electronically, but it doesn’t seem to be available so far. The situation is similar in England and Wales, in Northern Ireland and in Scotland.
- 50.
According to the European Judicial Atlas in Civil Matters, this kind of electronic filing is clearly permitted in the following countries: Portugal, France, Cyprus, Slovenia, Estonia and Finland. In Austria only WebERV can be used, but not e-mail. In the Netherlands the electronic submission is legally possible, but in practice it is not available. In Germany an electronic submission of the claim is only possible in the regions of Brandenburg, Bremen and Hesse. In Slovakia and in the Czech Republic, if the claim is filed without advanced electronic signature, the original copies of the form must be sent no later than 3 days after submission. England and Wales, Northern Ireland and Scotland are currently working on the development of an IT system which should make it possible to submit the claim electronically, but it doesn’t seem to be available so far.
- 51.
See the Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee, “Towards a European e-Justice Strategy”, 30 May 2008, COM(2008) 329 final; the Resolution of the European Parliament of 18 December 2008 with recommendations to the Commission on e-Justice [2008/2125(INI)]; and the Council’s Multi-annual European e-Justice action plan 2009–2013 (OJ C 75, 31 March 2009).
- 52.
That’s what happens in Belgium, the Netherlands, Hungary, Denmark, Finland, Estonia, the Czech Republic and Cyprus; Latvia and Malta accept requests sent by e-mail if they are also sent by ordinary mail; Germany accepts e-mail only for informal communications.
- 53.
This happens in Portugal, France, Malta, Greece, Slovakia, the Czech Republic, Latvia, Estonia, Finland, Scotland and Ireland. There is no match with the countries mentioned in the precedent footnote!
- 54.
See the Resolution of the European Parliament (Recommendation 2, section 2).
- 55.
Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (OJ L 348, 24 December 2008).
- 56.
- 57.
- 58.
- 59.
In that sense, see the Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee: Towards a European e-Justice Strategy, 30 September 2009 (Doc. INT/457, 1455/2009, section 4.3).
- 60.
Lawyer Partners A.S. v. Slovakia (16 June 2009).
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Inchausti, F.G. (2012). Electronic Service of Documents National and International Aspects. In: Kengyel, M., Nemessányi, Z. (eds) Electronic Technology and Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 15. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4072-3_8
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