Judge in the Court of Turin (
President of the SATURN Group of the CEPEJ
INFORMATION TECHNOLOGY AND
E-FILING
IN CIVIL LITIGATION MATTERS IN
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1.
The Use of Information Technology in Civil Litigation Matters in 2.
Main Features of the Italian Electronic Filing System in Civil Cases 3.
Pros and cons of the Italian Electronic Filing System in Civil Cases 4.
Effectiveness and Effects of E-Filing in Civil Litigation Matters in 5.
Rules and Guidelines for the Use of Information Technology in Civil
Litigation Matters in 6.
Security Issues |
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1. The Use of Information Technology
in Civil Litigation Matters in |
The use of technology in civil litigation matters in
The first one concerns what we call in my Country “informatica giuridica
documentale” (or “documentary legal IT”), that means the use of IT for the
purpose of retrieving laws, judgements, articles of legal doctrine and other
materials, to be found in legal data bases, consulted and used by jurists
(judges, lawyers, notaries, law professors, law students, law clerks, etc.) in
their work (writing judgments, drafting legal essays or books, preparing defences
in a trial, etc.). This kind of technology has been in use in
The second perspective concerns what we call in Italian “informatica
giudiziaria” (or “judicial IT”), which means the use of IT for assisting the
day-to-day work of the judges and of the judicial offices and staffs.
Within this field, a capital relevance assumed in these last years the
so called “processo civile telematico” project (which in English can be
translated into “On-line Civil Trial” or “Electronic Filing System in Civil
Cases”), developed by the Italian Ministry of Justice. This initiative aims at
increasing the availability of on-line services building a two-way data and
document interchange and application interoperability between all the external
users (in particular lawyers and judicial experts), all the Courts’ internal
users (staff and judges) and all the public administrations involved in civil
cases, implementing a high-security PKI (Public-Key Infrastructure)
architecture and adopting state-of-the-art technical standards, according to
the recently available Italian laws.
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2. Main Features of the
Italian Electronic Filing System in Civil Cases |
Main features of the Italian Electronic Filing System in Civil Cases are
the following ones.
a) for external users (lawyers and court experts) the possibility to:
· create, digitally
sign and transmit their own legal acts, submissions and documents to the
defined Court, through a high-security encrypted connection, receiving the
official timestamp by the Central System and the digital receipt of acceptance
by the Court;
· receive service of
acts and Court judgments from the Court at their certified e-mail addresses;
· get full access to
the information and the electronic acts, regarding their own civil cases, with
a wide range of searching criteria, information retrieval functions and
conceptual searches.
b) for judges and their staff, the possibility to:
· receive lawyers’
applications, submissions, acts and documents;
· manage and plan
duties, activities, hearings and documents related to the proceedings assigned;
· create, digitally
sign and transmit to parties’ legal acts (such as minutes of hearings) and
Court decisions (lite pendente,
provisional, final, etc.);
· set up a database
of local case law;
· analyze proceedings’
and documents’ data, thus enabling the judge to perform a case management
activity, checking the flow of incoming and outgoing cases, consistence of the
case load, compliance with time frames, etc., so to avoid the creation of undue
backlogs;
· for office clerks
to automatically insert and upgrade information on each step of the civil
procedures, thus avoiding manual data-entry and enabling automatic delivering
of official notifications to external users.
In particular, as far as the judge is concerned, every Italian judge is
equipped with a so called “judge’s console,” which is a software instrument,
installed on a laptop that allows:
· searching and
managing of all the assigned proceedings (usually using the names of parties
and/or the file official registry number);
· managing of a
personal and/ or group (section) agenda, and planning of all judge’s duties and
activities;
· receiving, viewing
and editing of all electronic files created by the judge him/herself;
· receiving and
viewing of all electronic files created and officially sent by the lawyers,
such as petitions, acts, submissions, documents, etc.;
· receiving and
viewing of all electronic files created and officially sent by Court’s experts,
such as the written expertise reports and annexed documents;
· defining and
creating legal acts (typically decisions and judgements of any kind) using
templates and model documents: similarly to the external user, it’s a Microsoft
Word embedded application which, after the choice from one of the available
models and automatic insertion of pre-defined text (according to the chosen
model), enables the judge (or his staff personnel) to complete the document directly
using Word and, once done, to automatically transform it to .pdf document;
· digitally signing
and transmitting the decisions to the Court’s staff, which has to “accept”
judges’ documents and officially deliver and serve them to the concerned
parties;
· (as already said)
analyze proceedings’ and documents’ data, thus enabling the judge to perform a
case management activity, checking the flow of incoming and outgoing cases, consistence
of the case load, compliance with time frames, etc. so to avoid the creation of
undue backlogs.
· Most of the
“judge’s console” functionalities are also available from outside the Court
(typically for home-work) using an external secure connection (though the Point
of Access specifically developed for this use by the Ministry of Justice) to
the Internet.
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3. Pros and cons of the
Italian Electronic Filing System in Civil Cases |
Pros and cons of the Italian Electronic Filing System in Civil Cases can
be summarized as follows.
Pros:
for professionals (lawyers):
· Time
and money saving. Useless trips to near or far-away Courts and queues at
several front-offices are now avoided, and a better employment of all human
resources is made available (however, never forget that, in
· Substitution
of physical front-offices and traditional paper-based access to files and
judgements.
for judges and judicial staff:
·
Online serving system of acts and judicial
decisions to lawyers: this is one of the fields in which the Italian Electronic
Filing System in Civil Cases has brought a dramatic improvement of the previous
system. Actually, before such reform, every time a lawyer did not show up
before the Court, it was very difficult to understand if he/she had been duly informed
of that hearing (with the consequence that, too many
times, useless adjournments were unavoidable).
Cons:
for professionals (lawyers), judges and judicial staff:
·
System is slow, it often breaks down; even
when it works, it is really time consuming. Personally, if I do not want to
waste my time, I have to use two PCs at the same time, in order to prepare on
the second computer the work that I will later send to the first one, whereas
this is still … thinking over my requests.
·
System is conceived in such a way to inform
and alert the judge of each and any event which takes place in the proceedings:
80% of them are events which do involve judge’s activity, but only have to do
with the staff (e.g. the lawyers paid the fees which must be paid for lodging a
petition with the Court; the file has been transmitted to the public fiscal
registry offices to pay taxes on the judgments rendered by the judge, the staff
sent a copy of an act to a lawyer, etc.).
·
System does not allow making a distinction
between events directly concerning the judge (e.g.: a petition made lite pendente for provisional measures
to be urgently given by the judge) and events not concerning the judge at all
(see the previous point). Therefore the judge has to click on the file each
time he/she receives information on a new event affecting the case, just in order
to painstakingly try to understand if this new event requires (or does not
require) an intervention by him/herself: the final result is clearly a
consistent loss of time for the judge.
·
System can be at times very cumbersome.
The official editing, signing and delivering procedure for judicial acts (such
as interim decisions, final judgments, etc.) is really complex and time
consuming: one has to click many times on different areas of the screen, to wait
for different replies from the system, to log in with the pw, to check for
possible mistakes of the automatic system, etc., whereas, before the
implementation of this current IT system, it was much easier to simply print
the decision and hand it over to the staff!
·
System has not been completely developed
yet; this means that for some kind of proceedings (e.g.: “Italian” injunctions,
European payment orders, etc.) it is o.k. and functional, as the entire
procedure is managed electronically; on the contrary, for ordinary proceedings
(which represent the bulk of Italian civil litigations) initial submissions of
lawyers must not necessarily be filed through the Electronic Filing System, but can be submitted in paper; this means, in practice,
that we can have (and in fact we do have in many cases) proceedings in which
the application (and the related documents: sometimes hundreds and hundreds of
pages) are on paper, whereas the following submissions (and documents produced
by lawyers at a later stage) are presented in the electronic system: which
creates a lot of confusion and losses of time for the judge.
·
In a nutshell: the Italian Electronic
Filing System in Civil Cases is requiring at present days, when compared to the
previous “traditional approach”, a much higher level of attention, culture,
effort, stress, fantasy and good will by judges, who are called now in Italy to
do also the job of the staff: my personal opinion is that what really triggered
the introduction of the Italian Electronic Filing System in Civil Cases was the
sudden understanding by the Ministry of justice that, in this way, they could
have the judges do (also) the job of the staff, so sparing the money to hire
new staff (what indeed the Ministry did, as the last public competitive
examination to hire judicial staff was held in 1997 !).
Further information
(in English) on the Italian Electronic Filing System in Civil Cases available
here:
·
https://pst.giustizia.it/PST/resources/cms/documents/eJustice_in_Italy_rev_May_2016.pdf;
·
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/TOL%20System_Report_Italy_28mag12%20.pdf.
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4. Effectiveness and Effects of E-Filing in Civil Litigation
Matters in |
The question in
Problem is that, in order to properly work, our system requires not only
the “good will” of judges, who must accept the idea of changing the way they
have been working for years or decades, but also the constant assistance of
technical staff, duly trained to solve all the possible problems which arise
from the use of this technology. It requires as well that the judge be assisted
also (what in Italy is absolutely not the case) by the “traditional” kind of
staff/clerks, who may help him/her in the preparation of cases: looking for
precedents and case-law, trying to summarize and very often to understand the
meaning of the hundreds and hundreds of (many times absolutely useless and
unreadable) pages of the lawyers’ submissions, select among the redundant
pieces of information provided by the IT system on each and any case, what are
those on which the judge is called to take a decision, etc.
It must be added that, despite the above mentioned and described compulsory
system of Electronic Filing System in Civil Cases, digital recording of court
proceedings is not yet foreseen in
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5. Rules and Guidelines for the Use of Information Technology in Civil
Litigation Matters in |
A very complex system of laws, by-laws and decrees have been issued in
these last years by the Italian Parliament, Government and Ministry of Justice,
concerning the above mentioned and described Italian Electronic Filing System
in Civil Cases. Just to get an idea one can have a look at web sites such as:
· http://www.processociviletelematico.it/normativa.html,
· http://www.studiocataldi.it/guide_legali/procedura-civile/il-processo-civile-telematico.asp,
· https://it.wikipedia.org/wiki/Processo_civile_telematico,
· https://pst.giustizia.it/PST/it/homepage.wp?request_locale=it.
Until the ’90s, judicial offices were forced to keep also a hard copy of
the electronic case tracking systems. The Ministerial decree DM 27 March 2000
was necessary to certify the full legality of electronic case tracking and
management systems when equipped with certain technical and procedural features
(Ministerial decree DM 24 May 2001). This did not change the traditional
approach to record of judicial offices. The registers have been partially paper
based or printed in hard copy for a long time.
When it became necessary to define the concept of electronic document
and to regulate in advance the electronic data interchange, particularly to
involve external users, a massive production of rules was started. In 1997 the
Presidential decree DPR 513/1997 introduced the concept of the electronic
document and digital signature that allowed the electronic exchange of
documents among public sector agencies, private organizations and the general
public. The first technical rules were introduced in 1999 with the Decree of
the Council of Ministers (DPCM 8 February 1999), which regulated the use of the
“strong” digital signature with a public key infrastructure (PKI), and set out
rules and standards for establishing certification authorities.
In 2000 the Parliament issued an act (Presidential Decree DPR 445/2000)
for reordering the entire related previous legislation (including the DPR
513/1997) regarding the documentation in the Public Administration. This act
seemed to be not applicable for regulating the justice sector. So the
Presidential Decree 123/2001 allowed the use of such electronic means for
civil, administrative, and fiscal proceedings. In 2002 the Legislative Decree D.Lgs.10/2002
changed the rules again embedding the European Directive 1999/93/CE provisions
that allows to use a “lighter” electronic signature instead of digital
signature (PKI). In addition the Presidential Decree DPR 196/2003, known as the
“Privacy Code”, was enacted. It heavily engraved on rules of access and
security. It meant to provide other specific ministerial regulations for the judiciary,
such as the new Ministerial Decree “Technical rules for electronic means in
civil proceedings (Ministerial Decree DM 14 October 2004).”
Again, Law L.15/2005 added new administrative procedures relating to
electronic transmissions. In the same year the Parliament enacted the so-called
“Code of Digital Administration” (D.Lgs.82/2005), which contains most of the
previous dispositions related to the use of electronic means in public
administrations. So it was necessary to enact other technical rules for the
document type definition (Ministerial Decree DM 15 December 2005). The
Legislative Decree D.Lgs.40/2006 also introduced the option of sending
documents from the external users to the court by certified mail (introduced
into the law with the Presidential Decree DPR 68/2005).
Art. 51 of Law L.133/2008 allowed as well court notifications and
service of judicial acts online. It was necessary to provide also a special
provision in order to apply these rules (certified e-mail for transactions and online
notifications: Decree 193/2009).
All such rules have subsequently been amended and updated by a
Ministerial Decree in 2011 (Ministerial Decree 21 February 2011 No. 44) and by
a Law Decree in 2012 (Law Decree 18 October 2012, No. 179), integrated and altered
by other legal provisions in 2015, which made compulsory, as of June 2014, the
online deposit of a number of legal acts for lawyers and judges.
These Italian rules on the Electronic Filing System in Civil Cases design
a very complex legal framework and not without any contradictions. Even the
jurists find it difficult to work in this tangled web of rules. Its own
complexity still replicates the cumbersome nature of the judicial proceeding
and legal system, one of the least efficient in
As I use to say, civil judges spend nowadays half of their time addressing
problems created to them by IT and the other half … tackling with IT related
issues raised by lawyers !
Possible security issues have been
tackled and solved while preparing and implementing the Italian Electronic
Filing System in Civil Cases, as above described.
Under the technical viewpoint a very
complex architecture has been implemented, in order to assure a maximum of
security.
Security components are placed in many different locations: local and
central; internal and external to the justice system.
These components consist in:
1. External Users Interface (EUI), the dashboard and a web service
through which layers and experts can interact with the system from the outside;
2. Access Point (PdA) that allows the connection between EUI (outside)
and the rest of the system (inside);
3. Central Gateway (CG) that manages the connections among the access
point for EUI, the civil justice domain, the court domain via RUPA (electronic
network for Public Administration) public network and RUG (electronic network
for Justice Administration) justice network;
4. Local Gateways (LG) that manages the connections among the CG via RUG
justice network, the court domain (Court Management Systems and documents repository)
and the Internal Users Interface;
5. Internal Users Interface (IUI) to be used by court staff, judges and
lawyers to perform their functions from inside the court. It is based on Court
interface for clerks, Judge Console a dashboard for judges, and the internal
station of web service for lawyers (see Figure below).
6. Each operator (lawyer, staff, judge) needs a personal smart card with
a personal identification number and password, in order to enter the system and
receive or provide data.
