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Introducing the concept of ‘E-justice’ in Europe:

How adding an ‘E’ becomes a modern challenge for

Greece and the EU

By

NAPOLEON XANTHOULIS

Napoleon Emm. Xanthoulis has worked at the cabinet of European

Commissioner for the Environment as well as the „Centre of Governmental

Policy‟ at Panteion University of Social & Political Sciences in Athens –Greece- and

holds an MA on „National and European Administration‟.

Currently, he is a trainee at Pappas & Associates, Attorneys At Law in

Brussels and LLB student at the University College London's (UCL) Law

Faculty. Since 2010, Napoleon is the vice-president of the UCL Student Human

Rights Programme and member of the editorial boards of the academic publications

UCL Jurisprudence Review and UCL Human Rights Review.

He has published several articles on law and policy of the EU and on

administrative reform and European Governance. He can be reached at

napoleon.xanthoulis.09@ucl.ac.uk or xanthoulis_n@yahoo.com

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Following the recently developed ideas of e-governance and e-democracy, it appears

inevitable that eventually the concept of “e-justice” will rise as well. Adding an „E‟ in front of these

concepts introduces the use of information and communication technologies (ICT) to certain fields.

If this is the case, we have to ask: Which field or fields does „e-justice‟ apply to? The obvious

answer would be „the field of justice‟. But this area requires further definition. E-justice could refer

to 3 separate areas: a) Crime prevention (e.g. electronic criminal records), b) administration of

justice (e.g. judicial proceedings) and c) law enforcement (e.g. electronic surveillance of convicts).

This article shall show that in the European sphere the concept of e-justice has been mainly

developed in justice administration, with a number of exceptions. To define „e-justice‟, we must

first agree on how to define „justice‟; or at least what we should call „justice‟ in order to apply such

policy -e-justice.

In the European sphere, e-justice is a policy aiming to improve and modernize the delivery

of justice in two categories of litigations. On the one hand, there are litigations completed internally

in the national judicial orders1 and on the other, cross-border litigations. Today, its is estimated that

more than 10 million people are involved in cross-border litigations in Europe.

At this point to understand the need to introduce the concept of e-justice it might be useful,

to give some evidence from within EU Member-States' judicial systems2. That judicial

administration services, as well as judges and prosecutors in all of the EU member-states are using

1 Detailed information on national data is described in: Velicogna M. (2007), Use of Information and

Communication technology in European Judicial systems, CEPEJ Study N° 7 (Strasbourg).

http://www.ccbe.org/fileadmin/user_upload/NTCdocument/Etudes7TIC_enpdf1_124686624

2.pdf. More illustrative figures can also be found in Council of Europe, „CEPEJ Report on European Judicial Systems

– Efficiency and quality of justice‟, Edition 2008(data 2006), pp. 84 et seq.

https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&Instr

anetImage=1041073&SecMode=1&DocId=1314568&Usage=2 2 For more information on features see the Report by the Council Working Party on Legal Data Processing (E-

Justice) No. 10393/07 JURINFO 21 of June 5th

2007.

http://register.consilium.europa.eu/pdf/en/07/st10/st10393.en07.pdf

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PC‟s, internet and e-mail communication is already a step in the right direction. In addition, almost

all member-states manage registers electronically. However, only half of the EU member-states

have technical standards for electronic communication and have implemented full electronic access

to case files. Moreover, the use of electronic methods of communication, (such as teleconference),

in court proceedings is very limited and where it is adopted the rate is consistently lower than 10%.

The figures simply show that Member-states have a long way to go.

The following are a few examples of measures that constitute the core elements of a modern

e-justice policy: the electronic process of procedures, the digitalization of document exchange

between citizens and judicial administration, the electronic monitoring and access to the progress

of cases, to archives and registries, as well as the use of teleconference in judicial proceedings.

The benefits of reforming judicial systems in this direction can be identified at different

levels, from citizens involved in a court procedure, to lawyers, judges, prosecutors and finally court

civil servants3. The most important of these benefits is “time saving”. Indeed, for a number of

procedures physical interaction between a civil servant and a citizen is not needed. Similarly,

documents can be exchanged outside regular office hours through electronic mails. Additionally,

disabled persons are ensured better access to court proceedings. Also, reduced stationary

consumption and fuel consumption to and from courts promotes environmental protection. Finally,

these reforms contribute to the speedy the delivery of judgments and judicial proceedings in

general.

1. The Policy

Two debated methodologies can serve to introduce elements of e-justice. Policies could be

formed following a so-called „gradual approach‟. This means dealing with problems as they arise.

Alternatively, e-justice could be implemented as a result of broader strategic planning, that aims to

reform substantial elements within the EU and national judicial orders.

Initially, e-justice, as an EU policy, gained specific significance primarily as a tool under the

Justice and Home Affairs policy, targeted at unifying records, and accessing information in criminal

law cases. (Although, today it is generally accepted that e-justice should be implemented

3 see also Politis D., Pasteriadou N., (eds), „Recent advances in court computerisation and legal databases : first

steps towards e-Justice‟, Centre for International and European Economic Law, Ant. N. Sakkoulas, Athens, 2003

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horizontally in all possible areas). Secondly, it developed as a tool to improve the effectiveness of

the EU's judicial system through measures such as online access to case-law, or introduction of

electronic procedures such as submitting applications to the court through online procedures.

However, in the present framework, e-justice has gained a much broader value. Its mission goes

beyond the application of a number of selective measures. The increasingly integrated internal

market and the growing mobility within Europe has hugely increased the number of cross-border

litigations and produced further challenges regarding language diversity, distance and non-

familiarity with different national legal systems4.

The first systematic appearance of the term „e-justice‟ at EU-level, was identified in 2007, in

a number of Council‟s working documents, even though some initiatives had already appeared since

2003. The Commission Communication entitled “Towards a European e-Justice Strategy”5,

published in May 2008, is considered as a milestone in acknowledging the concept of e-justice. As

the first solid attempt to introduce the concept of e-justice it was a response to “the need to improve

justice, cooperation between legal authorities and the effectiveness of the justice system itself”. One

of this document's very successful observations was that e-justice is a specific field under the more

general umbrella of e-government, -as mentioned above-, the latter being understood as the

application of Information and Communication Technologies (ICT) to all administrative procedures.

It appears that the member states agreed that the implementation of e-justice requires a

systematic and coordinated planning strategy and not fragmented state interventions6. In March

2009, the Council adopted a more detailed multi-annual action plan7 on what we shall call from

now on: “European E-Justice”. The objectives are: a) improved access to information in the field of

justice, both for European and member-state legislation and case law, b) the dematerialisation of

cross-border judicial and extrajudicial proceedings through electronic means of communication, c)

4 See also European Parliament response on the Commission‟s action plan for European e-justice of December

18th

2008 (A6-0467/2008)

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-

0637&language=EN#BKMD-34

5 COM(2008) 329 final

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0329:FIN:EN:PDF 6 Christos A. Kliosis, “Introduction to the concept of e-justice”, Dikaiorama, Vol. 21

http://www.dikaiorama.gr/show_afieromata.asp?ids=75 7 OJ 2009/C 75/01 of 31.3.2009

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:075:0001:0012:EN:PDF

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simplifying and encouraging communication between judicial authorities and Member States and d)

the establishment of a European e-Justice Portal, which will provide access to the entire European

e-Justice system, (i.e. to European and national information websites and/or services). This last

ambitious goal -delayed for an indeterminate period of time, beyond its 2010 deadline,8- is planned

to allow interchange of cross-border data and documents and inter-operability between internal and

external users of the Member-States' courts.9 It would be very interesting to see how translation,

private data, access verification, e-signature and other obstacles will be tackled.

One important issue, yet to be addressed by the Commission, is upon which legal bases the

EU will establish its competence to implement policy measures on e-justice. The existing published

EU documents (communications, recommendations and action plans) do not include any reference

to this matter, since they do not have any binding legal effect. This leads us to investigate whether

legitimate arguments can be found in articles that are used in closely related policies (e.g. e-

government, cooperation in administrative affairs etc). More specifically, art. 26 TFEU (ex. art. 14

EC) provides that the “Union shall adopt measures with the aim of establishing or ensuring the

functioning of the internal market”. In addition, art. 170 TFEU (ex. art. 154 EC) can also be used to

apply measures on realising communication and information networks connecting national judicial

services and providing information on national legislation through the European e-justice portal.

Finally, art. 74 TFEU (ex. art. 66 EC) grants the Commission power to “adopt measures to ensure

administrative cooperation between the relevant departments of the Member States”. Except for the

oft-cited art.26 TFEU, the aforementioned articles are theoretically insufficient to grant the

commission the required competences allowing it to pass binding legislation. However, at the

moment, EU actions do not extend outside the framework of guidelines, communications or action

plans and focus almost entirely on to cross-border litigations.

Despite the ambitious targets set by the EU, in practice, the implementation of e-justice, in

national judicial proceedings, depends primarily on the member states' goodwill. At national level

numerous projects are helping connect litigants proceed with their cases more effectively and link

8 See the Council‟s press release No. 10630/10 Presse 161 of Council‟s meeting of 3-4 June 2010

http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/114900.pdf 9 For a short presentation of the EU-justice portal goal see

http://www.euregov.eu/workshop/presentations/02.pdf .

For the technical aspect of the EU e-Justice portal see the EC document of February 4th

2009

http://www.ccbe.org/fileadmin/user_upload/document/E-

Justice_Portal/05_03_2009/English/EN_Portal_Description_of_Services.pdf

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them with the courts. These projects aim to provide information on judicial proceedings, legislation

and cases through the use of online computing systems, and introduce fully electronic court

procedures and electronic recording of hearings.

Several active organisations are concomitantly establishing significant projects to promote

the exchange of legal information across Europe (e.g. Association of Councils of State10

, the

common portal of the EU Supreme Courts' national case law11

and the recent „Effectius‟12

initiative). In 2010, EU funding research projects will offer grants of a total of 5.000.000 € to

support the extended use of electronic tools in justice systems.

2. E-justice and human rights

A few years ago, the idea of introducing e-justice to member-states could only take the form

of a recommendation or a policy guideline. Neither of these has any binding effect. However, a

recent judgment of the European Court of Human Rights (ECHR) found that a state may, under

specific conditions, be found liable if it fails to introduce measures of e-justice.

The ECHR ruled against Slovakia for failing to create the appropriate infrastructure

regarding the submission of applications through electronic procedures, even though the national

Code of Civil procedure provided it since 2002.13

In this decision it was held that, if submitting an

application electronically is necessary due to objective circumstances, a limitation imposed by the

state may violate article 6(1) ECHR14

, meaning the fundamental right of access to justice and the

right to fair trial15

. The state's behavior was found to be “a disproportionate limitation on the

applicant’s right to present his case to a court in an effective manner”.16

It is my opinion that such a

10

www.juradmin.eu 11

www.network-presidents.eu

12

www.effectius.com 13

Article, Kostsas Ap. Koutsoulelos, “Crime…and punishment”, Dikaiorama, Vol. 21

http://www.dikaiorama.gr/show_afieromata.asp?ids=74 14

Art. 6(1) “In the determination of his civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal

established by law”.

15

ECHR decision, ibid., para. 52

16

Ibid. 55

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case constitutes a showcase for the interpretation of article 6(1) ECHR. Combining the court's

obligation to receive applications through electronic means (e.g. DVD) with the fundamental right

of access to justice could be used as a „Trojan horse‟ by other lawyer‟s associations in the Council

of Europe's member-states to force governments toward further reforming the framework of e-

justice.17

As a result of the coming into force of the Lisbon treaty, the EU Charter of Fundamental

Rights has binding legal effect equal to that of the treaties. If the EU courts were willing to follow

the above ECHR jurisprudence, then EU institutions could be held liable for failing to provide the

necessary technological infrastructure for judicial procedures. As such, member states would be

violating the rights of access to justice and fair trial, which are protected under article 47(2-3) of the

Charter of Fundamental Rights of the EU18

.

3. Introducing e-justice in the Greek Judicial system

When a citizen enters a courtroom in Greece, they are not surprised if the judge appears, at

first glance, absent. Indeed, the members of the court often sit behind huge piles of papers: the case-

files of today‟s hearings -mostly-! For transactions between public entities and citizens as well as

for internal civil service procedures in Greece, paper has a symbolic power and customary legal

role. In such an administrative environment it might seem impossible to introduce elements of e-

justice.

In a recent reply19

to a parliamentary question, the Greek Minister of Justice, clarified that

69.000.000.00 € have been set aside for the introduction of new computer systems in departments

under his jurisdiction for the period from 2007 to 2013. This policy's aim is to gather more funds

from EU sources since there are still fundamental obstacles within the Greek judicial system. For

example, citizens in Greece are still obliged to pay a fee in order to gain access to the printed

official journal. (There is no direct public access to a digital version). That a citizen can have free

17

Case of Lawyer Partners A.S. v. Slovakia No.471/16.06.2009

18

Art. 47(2) “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and

impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and

represented.” Art. 47(3) “Legal aid shall be made available to those who lack sufficient resources in so far as such aid

is necessary to ensure effective access to justice”.

19

Ministry of Justice - Office for Transparency and Human Rights, Document No. 109/23.12.2009

http://www.lawyersvoice.gr/media/apantisi_ypourgou.pdf

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access to the legislation of another state, but not to his own, is highly paradoxical. This is true

nowhere else in the EU. France, Germany and the United Kingdom offer their citizens free access to

all their national legislation and jurisprudence20

. Nevertheless, there are a few examples of best

practice in some European countries. The most recent one is Croatia, which managed to introduce a

variety of modern reforms on e-justice as key priority elements.21

There are a few signs indicating that the Greek legal culture has entered the path toward

modernization. In 2008, the Greek Parliament passed Law No. 3659/200822

on “Improving and

speeding up the proceedings in the ordinary administrative courts, and other regulations”.

According to article 42(1) “The court decisions and orders, the reports, the applications and any

other document which is addressed to the courts or published by them, can be sent and transferred

through the use of electronic means. In similar ways it is possible to pay the court fees and any

other fees…”. Furthermore, paragraph 2 provides the use of teleconference in certain cases since

“…it is permitted to question witnesses, experts and parties, without their physical presence in the

court room...with simultaneous transmission of image and sound inside the court room”. Finally,

paragraph 4 promotes keeping electronic records of the court's work, subject to the verification that

“the existence of the proper technical infrastructure” permits it. Although this law has been in force

for two years, no further administrative act has been passed to specify and implement the detailed

measures of these provisions. Following the previously presented ECHR judgment, the Greek state

could be found liable for failing to implement measures that should be provided by legislation.

These kinds of legal provisions should, without doubt, be welcomed as a first step in the

correct direction. However, e-justice should be part of a general, systematic strategic planning,

organized at governmental and addressed at national level. Individual initiatives, even of the best

intentions, would not be sufficient to implement such a policy. Implementing e-justice, would need

careful legal reforms. A more organized plan should include amendments to certain specific laws,

such as the codes of judicial procedures and the introduction of either ministerial decisions or

presidential orders. Such legal acts could provide the necessary legal bases upon which more

detailed and specialized administrative procedures could be introduced. In addition to these

20

Article, Dimitri Peirouni , “Concerning e-justice”, Ta Argolika, Thursday July 16th 2009, p.12

21

The official e-Croatia program http://www.e-hrvatska.hr/sdu/en/e-hrv.html

22

(ΦΕΚ) OJ No. A‟ 77/7 May 2008

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measures, selective steps should be taken to ensure the protection of digitalized private data and

address issues related to their access and their use by public officials. Finally, it should not be

forgotten that e-justice is an interdisciplinary policy area and that its effective planning and

implementation would require the cooperation of experts from many different subjects: lawyers,

political scientists, economists, accountants and computer engineers.

Recently, a group of young lawyers promoted, through a number of actions, the inclusions

of elements of e-justice within the judicial system. Their proposal includes e-processing of all

applications submitted to the judicial and administrative services, the introduction of e-certificates

provided by courts secretaries, land registries and other services as well as e-access and (remote?)

control of the archives. Clerks and paralegals -among other judicial employees- would be promoted

from paper-filled storeroom guards to effective electronic systems managers. Moreover, time and

space would be saved, further reducing the parties' entering judicial procedures private and public

expenses. Finally, the digitalization of documents would contribute to reducing transportation of

citizens, which often can be difficult and expensive, especially in remote areas. Also the amount of

paper used will be cut. As such, e-justice can be seen as an eco-friendly public policy23

. To achieve

these goals in the Greek judicial system, two initial actions could be suggested: (a) To uncover and

evaluate the effectiveness of e-justice policies in EU members states and select specific models that

can be used in accordance with the overall European e-justice action plan and (b) specify, according

to the special needs in Greece, which primary documents can be digitalized and what procedures

that can be electronically processed.

4. Conclusions

Justice is primarily a matter of national concern and also a value the EU stands for. E-justice

is a vital policy and an equally crucial tool to modernize and improve the delivery of justice across

Europe, whether at national, supranational or cross-border level. Today, effective justice cannot be

discussed without considering e-justice. E-justice no longer constitutes a privileged policy only

found in certain western-European states. On the contrary, it has gained legally enforceable status,

the absence of which leads to violation of fundamental human rights.

23

Article, Ioanna Fotiadi “Promoting e-justice in Greece”, Kathimerini, 10/06/2009

http://wwk.kathimerini.gr/kath/edition/2009/10-06-2009.pdf

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E-justice activities offer an ambitious perception of the concept of justice in Europe. Today,

citizens, businesses, the judicial estate, courts and other authorities are not simply recipients of legal

information. E-Justice should allow them to engage with one another directly. Moreover, there is a

broad consensus that e-justice matters are not confined to certain legal fields. E-Justice can affect

many areas of civil, criminal and administrative law. Therefore, it has an even more crucial

horizontal relevance in the context of European cross-border proceedings.

Overall, e-justice should not constitute just a painkiller for the already exhausting daily

judicial procedures, but an effective tool towards safeguarding fundamental human rights: a duty

that should be shared by each member-state as well as the EU.