On August 9, 2016 amendments to the Judiciary Act were promulgated, being finally adopted by the National Assembly on July 27, 2016. A curious fact is that all past scandals surrounding the discussion of the law and its controversial texts, distracted the general public from the adoption of provisions related to certification statements, issuing acts and performing all the other procedural actions stipulated by the law in electronic form. In other words - the legal basis for a long-awaited e-Justice.
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The first project of the Supreme Judicial Council (SJC) in the field – Updated Information Systems for Better Service. Regulatory Framework of e-Justice (2008 – 2009), provided the initial push through:
1) Draft of an Amendment to the Judiciary Act
The project created the necessary procedural rules which would be applicable to civil, criminal and administrative process. To ensure flexibility and gradualness while switching to work with electronic documents, procedural rights were stipulated to be able to be exercised after a decision by the Supreme Judicial Council and in the presence of technological capability of the relevant judicial authority. There were requirements to the judicial authorities in terms of interfaces and how procedural rights should be exercised electronically; rules were established, identifying persons in the digital environment; rules were created on acceptation of procedural statements by the parties, keeping electronic files, issuance of documents in electronic form and other general aspects related to the exercise of procedural rights by the parties and by the bodies of the judicial system.
Creation of a secondary legislation framework was stipulated in order to regulate the format requirements for electronic documents, interface requirements for electronic statements, design requirements regarding the public interface on the websites of the bodies of the judicial authorities, etc. An obligation was established of creating a unified e-Justice portal through which would enable citizens to have access to exercise their procedural rights before all judiciary bodies, as well as certifying the statements made by those bodies.
For regulating the terms, the order and the policies for acquisition, usage, renewal and termination of digital signature certificates in the judicial bodies, a law-making delegation was established in order to create a regulation, an ordinance by the Supreme Judicial Council. Again in a secondary legislative act, ordinance of the Supreme Judicial Council, it was established that there should be regulation of the use of electronic documents and digital signatures in the electronic documents exchange between the judicial system bodies by guaranteeing information security and interoperability. The Supreme Judicial Council was assigned powers to change the rules of procedure of the various organs of the judiciary in order to implement simultaneous operation of electronic and paper files.
The amendment of the e-Government Act suggested a framework regulating the activities of the judicial bodies regarding certification of statements (i.e. administrative services by the judicial authorities). It was believed that the rules of the e-Government Act were fully applicable; respectively, relevant amendments to this Act were introduced expanding its scope of regulation to certification of electronic statements by the judicial bodies.
2) Draft Ordinance on Certifying Digital Signatures in the Judicial System
The Ordinance laid down the rules for acquisition, usage, renewal and termination of digital signature certificates in the judiciary system. The rules and the control on the use of digital signature certificates guarantee the prevention of fraud in electronic statements made by the judicial bodies and proper and lawful exercise of their powers for the purposes of the electronic documents.
3) Draft Ordinance on Procedural Acts in Electronic Form
The Ordinance was drafted in pursuance of Art. 360l of the Judiciary Act and Art. 12 para. 4 of the e-Governance Act (see p. 1 above). The Judiciary Act enabled the use of electronic documents and digital signatures in the judiciary, and accordingly, subject to certain conditions, the possibility of taking procedural actions in electronic form. In connection with these new possibilities the Judiciary Act set an obligation for the judicial bodies to use uniform rules, procedures, technology and functional parameters in providing opportunities for taking procedural actions in electronic form and certifying statements in electronic form.
The proposed draft regulations didn’t enter into force after the grant agreement was over, even though public hearings were held and the coordination procedure with key departments.
The next step was the formation of two working groups in 2012 to prepare changes in the legislation, allowing the implementation of electronic summons in the civil and administrative process and developing a concept of e-Justice. By adopting the concept with a decision of the Council of Ministers from 21.11.2012, the principles, objectives and phases for the introduction of e-Justice in Bulgaria were established, but the real action seems to have remained in the background - either because of lack of funding, will, expertise, or due to a combination of all that. The concept of e-Justice positions it as a key element of the reform in the judicial system - by making full use of the information technologies to ensure efficiency and transparency of the judiciary and convenience for all parties. It describes in details the possibilities procedural rights to be exercised in electronic form, securing the organization of the work with electronic files, certification of statements made by the judicial authorities and the exchange of electronic documents between the judicial bodies, at one hand, and between them and the administrative authorities, the entities performing public functions and the organizations providing public services, on another; as essential prerequisites (respectively, the earliest stages) of the development of e-Justice. At the same time, their actual implementation was delayed until (at least) their normative guarantee through the amendments to the Judiciary Act and the Civil, Administrative and Criminal Procedure Codes.
In the period 2013-2015 the Supreme Judicial Council completed two projects: (1) “e-Justice - Research and Development of Unified Communication and Information Infrastructure and a Single Electronic Portal of the Judiciary”, implemented with the financial support of Operational Program “Administrative Capacity,” financed by the European Union through the European Social Fund, operating under grant contract № 13-33-2/27.12.2013; and (2) “Support for the Supreme Judicial Council regarding the Capacity Building and Improvement of the Efficiency of the Judicial System,” financed by Program Area 31 “Increasing the Capacity Building and Cooperation in the Judicial System” under the Norwegian Financial Mechanism. Each of them partially implemented separate elements of the of the e-Justice Concept, including analytical work in this area - analysis development and drafting proposals for detailed coverage of the main work requirements related to e-Justice in connection with the realization of the Concept and the base requirements for a single information system of courts; development and implementation of a single portal of e-Justice; and preparation of a framework proposal for legislative changes to introduce electronic summons in the criminal and administrative process in accordance with the provisions of the e-Governance Act. In practice, however, despite the realization of these project activities, there was still no legislation in place to legally ensure e-Justice in accordance with the strategic documents.
In 2015 a new working group was set up at the Ministry of Justice to examine the e-Justice Concept and the 2012 projects for amendment of the legislation which projects were prepared on the basis of the Concept and which were making possible the implementation of the Concept (the laws for amendment of the Judiciary Act, the Civil Procedure Code, the Criminal Procedure Code, the Administrative Procedure Code) and, if necessary, to update and amend the draft legislation in consistency with the gradual implementation of the Concept and the accompanying strategic documents containing the commitments of Bulgaria related to the EC’s initiatives in the justice field, considering the rights and responsibilities of the relevant structures in the justice area; as well as the funding opportunities at national level.
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Until a few weeks ago – after nearly seven years, seven ministers of justice,two terms of the Supreme Judicial Council, a Strategy for the Introduction of e-Governance and e-Justice in the Justice Sector 2014- 2020, and a new program period 2014-2020, we were still talking about e-Justice as a right, not an obligation of the citizens, and we were anticipating the laying of these foundations with amendments to various laws which regulate the major groups of relations in the organization of the judicial bodies. Today they are available.
With minor changes in the original texts proposed by the e-Justice Concept, the Judiciary Act (last amendment and supplemented State Gazette, edition 62 of August 9, 2016):
outlines the range of public relations regulated by the Judiciary Act (JA) - procedural actions and certification of statements in electronic form are to be conducted in compliance with the JA and the procedural actions in electronic form are to be taken under the respective procedural laws (art. 360a JA);
introduces the requirement all information systems used by the judicial authorities to be approved by the plenum of the Supreme Judicial Council in coordination with the Minister of Justice and the Director of the e-Government State Agency; regarding the single time standard established by an ordinance of the Council of Ministers as per the e-Governance Act, as the time of the occurrence of facts of legal or technical matter is registered and attested in the format: year, date, hour, minute and second, taking into account the time zone (art. 360b JA);
strengthens the normative concept of a single e-Justice portal - an information system which provides an opportunity for requesting certification of statements made in electronic form, taking procedural actions in electronic form, delivering messages and summons, and accessing the supported by the judicial authorities digital files and electronic public records, including free and public access to records and statistics which are established by a law or any other piece of legislation; the JA also considers the possibility for dynamic expansion of the functionality of the portal and obliges the judicial authorities to maintain websites in the single e-Justice Portal (Art. 360c-360d JA);
provides that the plenum of the Supreme Judicial Council, after consultations with the Minister of Justice and the Director of the e-Government State Agency, is to adopt by-laws, which specify requirements to the websites of the judicial authorities, the technical requirements for procedural actions and certification of statements in electronic form and the ways they are made and the forms and technical requirements that need to be fulfilled by electronic documents sent to and from the judicial authorities, as well as how the citizens and the organizations file them, the formats of the scanned documents and other electronic evidence stored in electronic files, methods of electronic payment of state fees, costs and other obligations towards the judicial authorities, technical requirements for consumer, machinery and other interfaces of the information systems used by the judicial authorities, and the e-mail addresses, which can be used for sending electronic statements by the judicial bodies depending on the certain ways used with regard to procedural actions and certification of statements (Art. 360f JA);
ensures that statements and acts submitted to the judicial authorities on paper, as well as all documents and information on paper, is to be entered in the information systems of the judiciary by taking electronic image in a form and manner enabling their recreation; and ensures consistency in the regime of electronic and paper files, as well as simultaneous operation of electronic and paper documents (Art. 360g JA);
governs the regime of creating, maintaining, storing and accessing electronic files, taking into account that the organization and procedure for keeping, storing and accessing electronic files and the manner of storage of evidences as well as the internal circulation of documentation and storage of other information processed by the judiciary, should be determined by an ordinance adopted by the plenum of the Supreme Judicial Council after consultation with the Minister of Justice (Art. 360h-360i JA);
regulates the use of digital signatures and electronic identification in the judicial system, prescribing that the Supreme Judicial Council should determine it issuing an internal regulation on the use of digital signatures and electronic identification by the judicial authorities (Art. 360k JA), including the conditions, the terms and policies on acquisition, use, renewal and termination of digital signature certificates, respectively, of electronic identification in the judicial bodies;
regulates the exchange of electronic files and electronic documents between the judicial authorities - automatically and electronically, in terms of interoperability and information security (Art. 360l JA); as well as the automated exchange of electronic documents between the judicial bodies and entities performing public functions, organizations providing public services and administrative bodies under the e-Government Act, and the provision of internal electronic administrative services by the professionals and the administrations of the judicial bodies (art. 360m JA);
regulates the keeping, storage and access to the register of judicial decisions - an electronic database, containing the acts which conclude proceedings before the appropriate authority or which are subject to a separate appeal, prescribing that the adoption of secondary legislation to clarify these texts is to be derogated to the plenum of the Supreme Judicial Council and the Minister of Justice (Art. 360n-360t JA).
Secondary legislation on implementation of the law is to be adopted or brought into conformity with this Act within six months of its entry into force.
Within three years of JA’s amendments’ entry into force:
the judicial authorities may take the actions provided for in Art. 360g para. 1-5 (ensuring that all statements and acts submitted to the judicial authorities on paper, as well as all documents and information, are to be entered into the judiciary information systemс by taking electronic images in a form and manner allowing their recreation) once the relevant authority has technological and technical capacity and there is a decision of the plenum of the Supreme Judicial Council;
the judicial authorities keep the documents submitted to them on paper, in an manner determined by the plenum of the Supreme Judicial Council;
the judicial authorities are allowed to make certification statements subject to the provisions of the JA, to issue regulations and perform all other statutory proceedings in electronic form when the plenum of the Supreme Judicial Council has established with a decision which of them can be made in this way and affirmed the technological capacity to do so;
the judicial authorities are allowed to maintain websites that provide the possibility of taking procedural actions and making certified statements in electronic form; the actions set out in Art. 360b, para. 2 pt. 1-3 (declaration of making certified statements in electronic form, taking procedural actions in electronic form,; delivery of messages and summons) can be performed via the integrated e-Justice portal, following a decision of the plenum of the Supreme Judicial Council and if the appropriate functionality is affirmed;
the plenum of the Supreme Judicial Council and the Minister of Justice can ensure exchange for one or various administrative bodies, entities performing public functions and organizations providing public services, by setting the starting point of providing the exchange with their coordinated decisions;
the plenum of the Supreme Judicial Council, after consultation with the Minister of Justice, is to develop an unified centralized information system for the courts.
The centralized information system for the Prosecution Office should be brought into compliance with the JA within three years from its entry into force. After this period pre-trial authorities are obliged to use this system to take procedural actions in electronic form and make certification statements.
Until the development and putting into operation of the unified information system for the courts the register of judicial decisions is to be provided separately by the plenum of the Supreme Judicial Council. In 6 months after the entry into force of the JA the plenum of the Supreme Judicial Council defines the acts under art. 360o, para. 3 (“the acts that reveals secret protected by law and their reasoning, and other acts defined by the plenum of the Supreme Judicial Council are not subject to declaration in the register the”).
All cases filed in paper form within three years from the entry into force of this Act shall be completed following the previous order; 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 regulations 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.
The plenum of the Supreme Judicial Council should ensure the interoperability for the exchange of electronic files, documents and other information between the information systems used by the judicial authorities within two years from the entry into force of the JA.
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Thus, the e-Justice went beyond being a strategic document and found a place in the current legislation and in the meantime its financing was endured.
The question is no longer if or when ... this time we are going to ask - are the strength and the will be enough to implement what has been started with the legislative changes described above?
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