The article ‘e-Justice is on Active Mode Again – 7 Years Later’ (LIBRe Stories, 12.08.2016) presented the chronological order of regulating e-Justice until the promulgation of the amendments in the Judiciary Act from 09.08.2016; while the article ‘e-Justice in Legislative Norms’ (LIBRe Stories, 19.08.2016) compared the legal rules proposed under (1) ‘Updated Information Systems for Better Service. Regulation of e-Justice’ Project, 2008-2009; (2) e-Justice Concept, 2012; (3) the draft amendment of the Judiciary Act (JA), 17.06.2016, which entered into force with (4) the Judiciary Act, last amendment and supplemented State Gazette, edition 62 of August 9, 2016. The author did not discuss the e-Justice implementation deadlines and they are the main focus in the present publication.
A comparative table (in Bulgarian only) of the terms for introducing the envisaged legislative, organizational and technological measures gives an idea of the level of consistency the legislature has in this direction as well as the evolution of the legislative norms and the detailisation of the specific measures.
In relation to the regulatory measures, an interesting fact is the discrepancy between the draft regulations, respectively, of the Judiciary Act (SG. 62 of 2016) and the e-Justice Concept from 2012 which provides intermediate stages of developing legislation in connection with (1) the performance of procedural actions for the needs of the notary and security industries that have remained outside the scope of regulation’s first stage, where possible; and registration reform of the judicial authorities’ acts and legally relevant records of the circumstances surrounding the acts of the judiciary; and (2) managing the registry reform of the security registry production and conversion of all records kept by the courts on various legal entities in electronic registers (NGOs, law firms, religious organizations, political parties, etc.); and adapting regulations concerning the handling of classified information in the context of e-Justice. Considering the overall reform of the judiciary, it is expected these measures to be taken alternatively by the Ministry of Justice and/or the Supreme Judicial Council. Indication of this tendency is the already undertaken efforts regarding the amendments to the NGOs Act (publ. State Gazette, edition 74 of September 20, 2016, effective from January 1, 2018).
As far as the organizational arrangements are concerned, it can be concluded that there are no details on the measures as specified in the e-Justice Concept in 2012. At the same time, the assumption that the measures under the Concept will be implemented within their scope considering they are a necessary stage of the development of technological tools, can be extracted indirectly.
As far as the technological measures are concerned, it is essential for the respective authority to undertake the introduction of the concept of a unified e-Justice portal, like the Unified Portal for e-Governance, and the progressive development of its functionality with respect to the current legislation and its future developments, the development of a unified information system for the courts and the upgrade of the unified information system for the Prosecutor’s Office and the investigation service. It should be noted that the equivalent of the latter, namely the Unified Information System of the General Prosecutor of Bulgaria (Prosecutor's Office) has existed for more than 10 years and even though it is still evolving, it has established itself as an effective tool for the work of the Prosecutor's Office. Despite the fact that the Unified Information System for Fighting Crimes in Bulgaria is not specifically affected by the amendments to the JA, according to the e-Justice Concept and taking into account the technological development it should be amended for the purpose of making certified statements and taking procedural actions in electronic form in criminal proceedings.
In this regard, one should specifically pay attention to the explicit text of the e-Justice Concept: “Implementation of e-Justice in the criminal proceeding in all its possible forms - in terms of the criminal proceeding and relations related to the implementation of sanctions, it is too early to proceed to conducting proceedings electronically in full scope, before the judiciary establishes practice in the exercise of procedural rights in electronic form area. After acquiring sufficient practice and solving the issues identified during the enforcement of the previous stages, it is possible to proceed with the comprehensive reform of the criminal procedure law.”
----
According to the version of the Judiciary Act from August 9, 2016, the implementation terms for the e-Justice are as following:
Secondary legislation on the implementation of the latest version of the Judiciary Act are to be adopted or brought into conformity with this Act within six months of its entry into force, or no later than February 9, 2017. This includes the rules of Art. 360f, para. 1, Art. 360i, Art. 360k and Art. 360t of JA and the definition of the acts under Art. 360o, para. 3 JA.
The provisions of Art. 360o-360t, regulating the activities carried out by the courts in the register of judicial acts set out in Art. 360n JA, also enter into force six months after the promulgation of the law in the State Gazette (§ 229 pt. 2, JA), being August 9, 2016.
The plenum of the Supreme Judicial Council should provide interoperable exchange of electronic files, documents and other information between the information systems used by the judicial bodies within two years from the entry into force of this Act.
In addition, within three years from the entry into force of amendments to the JA:
The judicial authorities can carry out actions provided for in Art. 360g para. 1-5 (ensuring that the statements and the acts submitted to the judicial authorities on paper, as well as all documents and information on paper, are to be entered in the information systems of the judicial bodies by taking electronic image in a form and manner allowing their recreation) if there is technological and technical preparedness of the relevant authority and decision of the plenum of the Supreme Judicial Council.
The judicial authorities keep the documents submitted to them on paper, following a procedure established by the plenum of the Supreme Judicial Council.
The judicial authorities can make certified statements subject to the provisions of this Act, issue regulations and perform all the other statutory proceedings in electronic form when the plenum of the Supreme Judicial Council has adopted a decision determining which of them can be done in that manner and has affirmed the necessary technological capacity.
The judicial authorities may maintain websites, providing the possibility of conducting proceedings and certification statements in electronic form; the actions set out in Art. 360c, para. 2 pt. 1-3 (declaring the certification of statements in electronic form; conducting proceedings in electronic form; delivery of messages and summons) could be made via the unified e-Justice Portal following a decision of the plenum of the Supreme Judicial Council and in case the appropriate functionality is provided.
The plenum of the Supreme Judicial Council and the Minister of Justice can ensure an exchange for one or various administrative bodies, entities performing public functions and organizations providing public services by setting the starting point of the exchange via their coordinated decisions.
The plenum of the Supreme Judicial Council, after consultation with the Minister of Justice, develops a unified centralized information system for the courts.
Until the development and launching into operation of the unified information system for the courts, keeping the register of judicial acts is to be provided by the plenum of the Supreme Judicial Council; the objective being in six months’ term from the entry into force of this Act, the plenum of the Supreme Judicial Council to set the acts under art. 360o, para. 3 („acts that reveal secrets protected by the law and the reasons for them, as well as other acts, defined by the plenum of the Supreme Judicial Council are not to be published in the register“).
The Unified Information System for the Prosecutor’s Office should be brought into compliance with this law.
After the expiry of the three years term, the investigation services are obliged to use this system to carry out proceedings in electronic form and provide certification of statements.
All cases filed in paper form within three years from the entry into force of this Act shall be completed under the previous rules; and there shall be no procedural actions taken in electronic form by the parties with respect to these cases. In case of decisions of the plenum of the Supreme Judicial Council under § 216 para. 1 pt. 1 and 3 (“the judicial authorities may carry out actions provided for in Art. 360g, para. 1-5 in case of technological and technical capacity of the relevant authority and decision of the plenum of the Supreme Judicial Council”, and “the judicial authorities are allowed to make certification of statements subject to the provisions of this Act, issue statements and perform all other statutory proceedings in electronic form when the plenum of the Supreme Judicial Council has determined with a decision which of them can be carried out in this manner and made sure there is technological capacity to do so”) the judicial body keeps solely electronic files.
If the judicial authority’s taken the electronic image of pending or closed cases within three years from the entry into force of the JA, the relevant authority may provide access to them for reference purposes only.
---
Even before the adoption of the amendments to the Judiciary Act (adopted on July 27, 2016, published on August 9, 2016), with Protocol № 27/07.07.2016 the plenum of the Supreme Judicial Council formed (a) a Working Group involving members and experts of the Supreme Judicial Council, representatives of the Supreme Court of Cassation, Prosecutor’s Office of the Republic of Bulgaria and the Ministry of Justice, experts from the regional and the district Courts and external experts with the necessary technical knowledge, experience and qualifications; having the task to prepare an Ordinance under Art. 360t of draft law amending the JA with regard to keeping, storing and access to the register of the judicial acts within the period under paragraph 192 of the transitional and final provisions of the Amendment of the JA; and (b) a Working Group involving members and experts of the Supreme Judicial Council, representatives of the Supreme Court of Cassation, Prosecutor’s Office of the Republic of Bulgaria and the Ministry of Justice, experts from the regional and the district Courts and external experts with the necessary technical knowledge, experience and qualifications; with the task of drafting rules on the matters referred to in Art. 360f, para. 1 of the draft law amending the JA. As a result, the Professional Training and Information Technologies Commission (acc. Protocol №26/13.07.2016 and Protocol №28/27.07.2016) took measures to implement the decisions of the plenum. As of today, however, there is no public information on whether the Working Groups have started their work and who are their members.
For the moment, the plenum of the Supreme Judicial Council did not focus its attention on the obligations under Art. 360i and 360k JA, but given the scope of the rules of art. 360f, we can reasonably assume that the working group is going to affect the procedures for keeping, storing and accessing electronic files and the manner of storage of evidence and evidence materials in the e-cases as well as the procedure for the use of digital signatures and electronic identification by the judiciary bodies.
--
With regards to the initiatives of the Supreme Judicial Council for fulfilling the obligations assumed under the Judiciary Act, we should take into account the possibilities for funding the development of the technological tools for the implementation of e-Justice in relation to implementing the Updated Strategy for Continuation of the Judicial Reform and the Strategy for Introduction of e-Governance and e-Justice in the Justice Sector 2014 to 2020. The projects should indicate as a performance deadline December 31, 2018, which gives hope for complying with deadlines established by the Judiciary Act; especially considering the fact that the realization of the major technology projects in the judiciary through the program period 2014-2020 will rely heavily on funding under the Operational Program “Good Governance” 2014-2020.
The big question is once again: Are the judicial bodies able to meet such short deadlines?
This publication is originally written in Bulgarian language and most of the sources lead to texts in Bulgarian. In case of any questions on the English translation of the publication or the cited sources, do not hesitate to contact the team of LIBRe Foundation at:
office@libreresearchgroup.org.
All publications and comments published on the LIBRe Stories platform can be quoted in other websites or in articles in the press subject to the condition of identifying the author, the publishing date and their source (URL address of the publication in question).
- Terms for introducing e-Justice (legislative)
- pdf, 657 KB
