Virtual Courts - a solution for the justice system?
(Co-authored by: av. Alexandru Gosa Photo credits: Joe Gratz / Flickr - http://j.mp/1SPGCl0)
Can you imagine a court hearing where the judge is in Bucharest, the plaintiff and his lawyer in Berlin and the opposing party in Timisoara? The judge starts the dedicated app, declares the hearing open, and the court, the parties and any witnesses can hear and see each other and debate the case, and in the end the court stays in the case.
Such a scenario is entirely plausible when we are talking about the justice of the future and the rapid pace at which technology is evolving every day, given the many advantages it offers, not only for litigants, but also for the other players in the justice system, whether we are talking about magistrates, lawyers or the court support system.
Considered since ancient times as a sacred place where justice takes place, the courtroom is gradually opening its doors to new technologies by embracing modern techniques to facilitate access to justice and the smooth conduct of the judicial process.
Whereas initially the issues discussed in court were recorded only in the court clerk's notebook, today court hearings are audio-recorded and the parties can request to obtain the recordings. Electronic submission of documents is also now possible, with some courts having a dedicated internet portal for this purpose.
The possibility for lawyers to take evidence, including hearing witnesses, mitigates against the principle of non-membership that governs civil proceedings. Also, in criminal proceedings, the taking of evidence can take place by remote means, e.g. the hearing of witnesses or of the accused, which can also take place by videoconference. Could such situations be the first steps towards the implementation of virtual courts?
How would a virtual court session work?
A virtual court hearing would mean that each of the parties to a trial would have the possibility to connect to a specially created platform accessible via the internet and that discussions between the court and the parties would take place via videoconference.
The parties would be able to upload documents to the platform in real time so that they could be received and analysed by the other participants during the hearing itself. At the same time, through the interface functions, the judge would control the conduct of the hearing, giving the floor to the parties and listening to them in the traditional legal order, and finally declaring the proceedings closed for the decision.
Of course, all these facilities can be adapted and improved following continuous consultations with the actors involved in the implementation of the act of justice and beyond, but also through dialogue with States that are at a more advanced stage on this subject.
Examples of good practices already adopted
The first virtual court hearings have already taken place: for example, in China (Hangzhou), a pilot programme is being run for e-Commerce disputes in which the actual court hearings are held by videoconference and the parties' representatives can be identified by facial identification software[1]. At the same time, the parties can choose the extent to which they want their dispute to be resolved in the first phase online or offline, and the appeal phase is always conducted according to the traditional method, directly before the judges.
In the UK, such a virtual trial has also taken place, in a low-value case, where a fee of £1,200 is being contested, and the parties are extremely pleased because they have been able to avoid substantial costs and obtain a solution in a much shorter time[2].
Compatibility with national legal provisions
The question arises to what extent such technical means of the future would be compatible with the specificity of national procedure and in particular with certain principles governing civil procedure, such as publicity and non-disclosure.
With regard to publicity, Article 127 of the Constitution enshrines the public nature of court hearings. However, the same text allows for the establishment by law of certain attenuations or even exceptions to the principle of publicity.
The European Court of Human Rights has also held that the publicity of the proceedings of the judicial bodies referred to in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms is intended to protect the persons subject to the proceedings against a secret justice which escapes public scrutiny[3]. However, the Strasbourg Court has also held that this requirement must not be interpreted literally but according to the specific features of the proceedings in a particular case[4].
We believe that in the context of the organisation of "virtual courts", the principle of publicity could be maintained and perhaps even broadened if the general public were able to follow the hearing at least by audio transmission.
Moreover, the legislator had already envisaged that in certain situations the trial would no longer take place in open court. For example, the procedure in chambers is not open to the public and was conceived for reasons of speed of justice, "given that the existence of chambers and courtrooms will allow a large number of cases to be heard at the same time". However, the application of this procedure has been postponed[5] and may even be abolished[6] due to the lack of the necessary infrastructure. In this context, the implementation of virtual court hearings for certain types of cases could be an effective solution to compensate for the current administrative shortcomings.
With regard to the principle of non-missimplicity regulated by Article 16 of the Code of Civil Procedure, it ensures that all evidence is directly before the judge, who must be able to ascertain directly, by his own means, the relevant factual content, so that a virtual trial could be considered to violate this obligation. However, the principle of non-missimilarity does not automatically preclude the taking of evidence by videoconference, and in this regard the European Court of Human Rights has found in a judgment that "the participation of the applicant in the hearing of the appeal by videoconference did not place the defence in a substantially disadvantaged position in relation to other parties to the proceedings and that the person concerned had the opportunity to exercise the rights and faculties inherent in the notion of a fair trial, as enshrined in Article 6 of the Convention, a provision which was not violated."[7]
7] Moreover, there are situations where the law expressly provides for exceptions to the principle of non-mimissibility, such as in the case of transfer, in the event of the admissibility of an application for abstention/recusal, in which cases evidence may be preserved, and in the case of the taking of evidence by lawyers in property disputes[8], these exceptions being based on reasons of speed and efficiency in the administration of justice.
We conclude that there should be no incompatibility between such a trial procedure and the fundamental principles of civil procedure.
Conclusion
Virtual court hearings could ensure greater speed in the administration of justice, lower costs for both litigants and courts, and easier access for litigants to court services, given that more and more people are now using the internet.
In terms of practical application, virtual hearings could be suitable, for example, for the trial at first instance of low-value, low-complexity disputes or where the parties give their prior consent to such proceedings.
On the other hand, from a logistical point of view, not all courts in Romania would be ready at this moment to embrace the new method, given that, unfortunately, even the electronic file has not yet been implemented in all regions. However, the implementation of virtual courts would be a real step forward for 21st century justice and, why not, at some point, an inevitable reality.
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[1] The dedicated internet platform can be accessed at https://www.netcourt.gov.cn/portal/main/en/index.htm
[3] Case AGVPS- Bacău v Romania (Application No 19750/03, Judgment of 9 November 2010, available at http://ier.ro/sites/default/files/traduceri/cedo-19750-03.pdf;
[4] Pretto and Others v. Italy, Judgment of 8 December 1983 available at http://echr.ketse.com/doc/7984.77-en-19831208/view;
[5] The investigation of trials in chambers has been successively extended until 31 December 2020 due to the lack of the necessary infrastructure;
[6] See draft law no. 346/2018 proposing to amend Article 240 of the Civil Procedure Code. The draft is available at http://www.cdep.ro/pls/proiecte/upl_pck2015.proiect?idp=17146;
[7] See E.E.C.O., case M. V. v. Italy, para. 76, Judgment of 29 June 2006, available at http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-77246&filename=001-77246.pdf&TID=thkbhnilzk;
[8] This procedure was introduced for the first time by GEO 138/2000, in the explanatory memorandum specifying that "the parties interested in establishing the true facts as soon as possible and in good faith, will have the legal possibility of taking evidence through their lawyers, under the operational control of the courts". The background note is available at http://www.cdep.ro/proiecte/2004/400/10/9/nf419.pdf.