Digitalisation of justice in the European Union is on the way !

I.              Main principles of the Communication from the European Commisson, Digitalisation of justice in the European Union - A toolbox of opportunities

It seems that we all agree on the objective and challenges of digitalisation of justice in the European Union.

The access to justice and cooperation between Member States must respect fundamental rights, fair trial and take into account numerical fracture.

Also, the use of electronic file in criminal, commercial and civil procedure should be more developed and digitalised. The Communication Digitalisation of justice in the European Union - A toolbox of opportunities showed different levels of progress among the Member States. Indeed, out of the 28 Member States, there are generally no more than 10 that are digitalised in a domain.

As far as digitalisation was based on voluntary initiative, this lack of coordination has led to the creation of various IT tools within European Union. As a consequence, the interoperability is not guaranteed yet between Member States.

There are 5 points to highlight :

1. Making the digital channel the default option in EU cross-border judicial cooperation

The digitalisation of justice systems must adapt to the tools that already exist in each Member State and make them able to collaborate with other independent countries systems in order to facilitate communication and transfers.

However, some Member States are still not technically capable or just refuse to verify electronic signature from other countries, in particular because of the lack of services and trusted third party certified by the eIdas regulation.

The Communication Digitalisation of justice in the European Union - A toolbox of opportunities required Member States to accept communication in cross-border procedures, and to guarantee the effective application of the eIDAS regulation with :

• Acceptable electronic identification and signature and appropriate assurance levels ;
• Qualified signatures have the same legal effect as a handwritten signature.

The Communication required a trusted communication channel but few questions remains in practice about :

• ? Provide a basis for the processing of personal data, within the meaning of the GDPR and others relevant EU instruments ?;
• ? Ensure that any electronic access points established for use by the general public cater for persons with disabilities ?.

2. Artificial intelligence (AI)

AI coordination in the European Union could ensure interoperability between solutions. But it needs to has a framework and standards safeguards :

• ? The possibility to identify the use of AI (Principle of identification) ;
• Non-delegation of the judge's decision-making power (Principle of non-delegation) ;
• The possibility for the parties to verify the data input and reasoning of the AI tool (Principle of transparency) ;
• The possibility for the parties to discuss and contest AI outcomes (Principle of discussion) ;
• The neutrality and objectivity of AI tools (Principle of neutrality) ?.

However, the Communication Digitalisation of justice in the European Union - A toolbox of opportunities raised two more difficulties :

• The use of datas in order to train machine learning technologies must be in full compliance with GDPR ;
• Risks of biased outcomes and potential discrimination.

3. Better IT tools for access to information through the interconnection of registers

The Communication Digitalisation of justice in the European Union - A toolbox of opportunities highlighted that registers and databases are less quickly digitalised than the rest of the systems. For example, interested parties encounter real technical difficulties in accessing information online. This undermines the efficiency of digitalisation.

Moreover, the Communication requires to use videoconferencing “where permissible by law” in order to facilitate judicial proceedings.

However, it seems that there are many risks to such a use (fair trial, defence rights, quick court hearing, technical arrangements, lack of specific safeguards).

The Communication also required to pursue establishment of electronic registers and database which are keys for interoperability.

4. My e-Justice space

The Communication wants to facilitate access to national electronic services provided the relevant administrations by this e Justice space.

Sufficient safeguards must be guaranteed to avoid abuses or use without legal representatives.

5. The digital criminal justic

Finally, the Communication Digitalisation of justice in the European Union - A toolbox of opportunities highlighted digital criminal justice in order to facilitate investigation and exchange of information in UE.

II.             The electronic signature and the digital transmission of judicial documents

Relying on qualified electronic identities and signatures according to the eIdas regulation is an idea to welcome. However, at this point, few problems are retained such as the technical inabilities of authorities in verifying electronic signature in each Member States.

The eIdas Reglementation shows its limits. Even if the reglementation has established different types of signatures, certifications and guarantees, finally the coordination and national technical specificities of the States still remains the principal point.

Indeed, only few Member States have registered electronic delivery services, qualified preservation services or qualified validation services. Moreover, their solutions are independent from each other.

It shows that creating interoperability with objective standards and the same signature levels must be a priority.

Concerning, the digital transmission of judicial documents, accept communication in cross-border procedures and making the use of paper an exception is to welcome.

As a consequence, standardised forms for exchange of information is fundamental as current paper cooperation has a lot of deficiencies (cost, environment, data protection) as far as intial use of paper and same trial rights are guaranteed.

III.           Impact Assessment

For French lawyers, a plateform already exists (RPVA) and that the European Commission should ask each Member States Bars for advices in order to get the best of them. The possibility to mutualise the use and the electronical signature in the same tool would be a timesaver and more efficient for lawyers as far as security is guarantee.

However, for example, German and Spanish also have their electronic communication systems for lawyer and quite a number of Bar e-services linked to that system. E-filing is even compulsory without exceptions.

As a consequence, interoperability should be the focus of attention.

Recommendations made in 2007 by the CCBE about the development of electronic signature is interesting to establish the progress that has been made :

• Guidelines for e-signature projects and for using electronic signatures by legal professionals affirm that Member States must find ? successfull qualified existing signature ?. This is acutally the case (France, Germany, Spain…)

Moreover, eIdas european reglementation is providing ? proper underlying legal documentation for the scheme (signature policy, certificate practice statement, certificate policy) ?.

The certificate must also be reliable. At this point eIdas encourage third parties to be certfied and efficient IT tools are existing.

The sensibilisation of lawyers towards their own national systems is encouraged in the Bars.

Finally, ? e-Signature projects should not be dealt with in an isolated way, and that they should be incorporated in a global “paperless office” approach ? is the actual preoccupation.

• Technical standards for interoperability of electronic ID cards is an interesting base to review signature standards and security through identification, authentification, operational requirement such as certification, technical security controls.

The Public Key Infrastucture (PKI) seems to be the main system for a secure signature.