Electronic Access to Justice: From Theory to Practice and Back
Les recherches empiriques récentes montrent que les systèmes de justice électronique (e-justice) sont construits par la liaison et le remodelage de composants hétérogènes, de nature tant technologique qu’organisationnelle ou normative.
La nouveauté résulte de la réutilisation, de la copie, de l’adaptation et de la mise ensemble de blocs préexistants. Dans le même temps, de nouveaux acteurs tels que les partenaires technologiques ou les fournisseurs de réseaux ont fait leur apparition.
Les rapports de pouvoir et les cloisonnements organisationnels ont un impact, dans la mesure où le « qui fait quoi » change lorsque les procédures basculent du support papier vers le support numérique ou quand elles changent de support numérique.
Les approches traditionnelles dans le domaine de la gestion de l’innovation et du développement des technologies de l’information et de la communication (TIC) ont de sérieux problèmes pour traiter de cette complexité. D’où la nécessité de faire appel à de nouvelles théories.
A l’aide d’expériences portant sur plusieurs études de cas empiriques, ce texte analyse comment les dynamiques et les ramifications de la justice électronique abordent les multiples facettes de cette complexité. Le projet est double : d’un côté il s’agit de stimuler le discours académique sur un questionnement pertinent qui se développe de plus en plus, et de l’autre côté il s’agit d’enrichir les réflexions des praticiens dans la perspective de rendre plus innovante la justice électronique dans le sens d’un meilleur accès à la justice – et notamment des appels et des pourvois.
Notre texte est étayé sur des cas portant sur des questions spécifiques de l’environnement.
Mots-clés :justice électronique (e-justice), technologies de l'information et de la communication (TIC), accès à la justice
Keywords :E-justice, E-Governance, Information and Communication Technologies (ICT), ICT Development, ICT Implementation, Access to Justice
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- 1 I wish to express my gratitude to Ms. Kaidi Tingas (REC) and Ms. Fe Sanchis-Moreno (UNECE) for a (...)
1The invitation from Regional Environmental Center for Central and Eastern Europe (REC) and United Nations Economic Commission for Europe (UNECE) to a “Workshop on Electronic Information Tools to Support the Implementation of the Aarhus Convention in South-Eastern Europe” held the 25-26 of November 2010 in Skopje provided me with the occasion to start reflecting on the possibilities and challenges ICT support to access to justices poses in the environmental field. This is indeed an interesting topic, but it is also a complex one. It is complex for at least two orders of reasons. Firstly, in relation to the features of access to justices in environmental matters, with its national and transnational, individual and collective implications, and its multilevel regulations.
- 2 See for example F. Contini, G. F. Lanzara (eds) (2009), ICT and Innovation in the Public Sector. E (...)
2Secondly, in relation to the challenges ICT poses. In fact, several recent studies and researches have shown that the development and introduction of ICT in the justice sector is proving more complex than expected, especially when moving outside the traditional borders of the court.2 The justice administrations, and other public and private institutions dealing with access to justice through – or with the support of – electronic means, are discovering that technology is not a neutral device for the improvement of efficiency and the reduction of costs. More, they are learning that technology can not be grafted into well established and normatively regulated procedures without unpredictable consequences.
- 3 Judicial Electronic Data Interchange in Europe (JAI/GR-CV/16/01/IT and 2001/GRP/031), ICT for the (...)
- 4 C. U. Ciborra (2001), “A Critical Review of Literature” in Ciborra et al., From Control to Drift, (...)
- 5 G. F. Lanzara, “Building digital institutions: ICT and the rise of assemblages in government” in (...)
3As field research is showing,3 the development and implementation of an e-justice system entails, by its own nature, the reshaping of “‘institutions’, norms and conventions that provide the ‘often implicit context, for the performance of practices”.4 In a process that Lanzara tries to capture with the concept of assemblage,5 e-justice systems are built linking and reshaping heterogeneous components, building blocks of technological, organizational and normative nature. The new comes from reusing, copying, adapting and hooking together existing components more than developing from scratch. In this process, different uses of the (technical, organizational and normative) components generate more or less visible shifts in their features and meanings; features and meanings that are often invisible and taken for granted by the community of practitioners dealing with them. New actors, such as technological partners and network providers make their appearance. Power and organizational borders alter, as ‘who-does-what’ changes in the translation of procedures from paper to digital and from one form of digital to another. While some of these shifts, alterations and changes are silently absorbed and integrated in the justice socio-technical system (without notice but not without effects), other creates breakdowns and require the actors involved to renegotiate procedures, competences, meanings and possibilities. This, in time, to be successful, requires the capability – or the development of the capability – for the actors to negotiate.
4The paper builds on concrete e-justice cases such as TUOMAS & SANTRA (Finland), MCOL (England and Wales), ERV (Austria), eBarreau (France), that have been selected in relation to two elements: firstly, their capability to represent and clarify aspects of a more general discourse on the dynamics of ICT development, implementation and deployment. Paradoxically, in some cases e-justice instead of disintermediation, easiness of and openness, may even complicate access to justice, while in other cases may reduce it only in relation of specific procedures. Secondly, because, even though developed and implemented to support other areas of the justice service provision, they supply important indications on how it can be possible to support access to justice -and to court- in environmental matters. It is important to stress out that the cases are based on empirical studies of e-justice experiences in which practitioners have discovered how to successfully (or not so successfully) deal with ICT innovation in the justice sector. Experiences have been therefore selected trying to consider those which appeared more suitable to provide useful insight in a sector with different characteristics than those of sectors in which e-justice tools have been typically developed, such as money claim. Which lessons can be useful? Which may not?
- 6 See for example: Milieu Ltd (2007), “Summary Report on the inventory of EU Member States’ measures (...)
5In other words, the paper tries to reflect on which elements emerging from the concrete e-justice experiences so far matured can be not only theoretically relevant, but also useful to improve access to justice in environmental matters, and which may not, given the specific features of this area of justice. This appears to be particularly relevant as, so far, researchers and stakeholders attention on access to justice in environmental matters has mainly been focused on legal norms, effectiveness of administrative and judicial procedures and jurisprudence (including topics such as legal standing, costs and length of the proceedings and effective remedies available)6, and not considering the (possible) role and influence of ICT.
6The result is probably more open-ended than would be required to provide a prescriptive “recipe” describing what to do and presenting the perfect solution. But this is because concrete experiences show us that e-justice systems must be assembled in their place and time, from what is available there and then (in terms of both components and capabilities), and are subject to drifts and derives. What this paper does is presenting some fundamental indications which are emerging and consolidating as a theory for the navigation in a still “new” sea of opportunities but also complexities.
7The rest of the paper is structured as follows: section two introduces the specific elements which characterize access to justice in environmental matters, and taking into consideration such specific context. Particular attention is given to 1) the main elements of access to justice through courts, 2) the potential users and claim holders and 3) the concrete means through which access is provided at present. Section three presents the selected cases exposing their relevance in relation to the issue of electronic access to justice in environmental matters, focusing on ICT tools which allow one and two way communication and interaction between courts, their public and their users. Finally, in section four, conclusions are drawn on the role information technology can play in supporting access to justice through courts in environmental matters.
- 7 R. Bass “Evaluating environmental justice under the national environmental policy act”, Environmen (...)
- 8 Paul Stookes (2007), Environmental Injustice, Institute of Environmental Management & Assessment (...)
8According to Bass, “Environmental justice refers to the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws”7. Stookes argues that “Environmental justice can mean two things; securing access to the courts in order to resolve environmental problems, and that everyone should enjoy a healthy and clean environment regardless of their means, where they live or their background”8.
- 9 P. Sands (1995), Principles of International Environmental Law, Cambridge University Press. ISBN: (...)
9A complex and evolving net of national and international laws, agreements and conventions regulates environmental matters, imposing limits on the right of States, organizations and individuals to carry out, or permitting environmentally damaging activities. Indeed, “as environmental concerns become increasingly central to the [national and] international community, [national and] international legal and institutional arrangements are being called upon to address and deal with ever more complex problems”9.
- 10 M. Montini (2008), “Accesso alla giustizia per i ricorsi ambientali”, in F. Franioni, M. Gestri, N (...)
10At international level, the right to access to justice in environmental matters is recognized and provided for in several instruments both of ‘soft law’, which do not have legally binding force, both of ‘hard law’10. While soft law agreements are for their own nature non-binding, they nevertheless may have a direct influence on the practice of states as in the Rio Declaration on Environment and Development case. Its Principle 10 states that:
- 11 http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163&l=en
“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”11.
- 12 P. Stookes, op.cit.
- 13 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:328:0028:0037:EN:PDF
11Moving to more binding instruments, in the European context, particular relevance in relation to the right to access to justice in environmental matters have the European Convention on Human Rights, the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), EIA Directive 85/337/EEC (as variously amended), IPPC Directive 96/61/EC (as amended by the Access to Information Directive 2003/4/EC and Public Participation Directive 2003/35/EC)12 and Directive 2008/99/EC on the protection of the environment through criminal law13.
- 14 M. Montini (2008), op. cit., p.391-421.
12Even though the European Convention for Human Rights does not explicitly refer to access to justice in environmental matters, has been resorted to in several occasion to protect the interests of individuals which were linked to the protection of the environment, in particular in relation to Art. 8 (right to respect for private and family life), Art. 10 (right to freedom of expression including freedom to hold opinions and to receive and impart information and ideas), and Art. 6 (right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law)14.
- 15 P. Černý “The Aarhus Convention: how are its access to justice provisions being implemented?” Conf (...)
13The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was signed in Aarhus (Denmark) on June 25, 1998 and entered into force on 30 October 2001. Access to justice provisions of the Aarhus Convention refer to three general categories: Art. 9.1 provides for access to judicial review for rights of access to information, Art. 9.2 for access to judicial review for public participation on decision-making procedures, while Art. 9.3 provides for a more “‘real’ or ‘direct’ legal protection of environment by means of law”15:
- 16 Art. 9.3 of the UNECE Convention on Access to Information, Public Participation in Decision-making (...)
“In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”16.
- 17 European Commission (2008), “Access to justice in environmental matters” Luxembourg: Office for Of (...)
14In 2005 the European Union became a Party to the Convention. Furthermore, “all Member States – except Ireland – are also Parties to the Aarhus Convention. With respect to access to justice at Member State level, the Commission adopted, in 2003, a proposal for a Directive on access to justice in environmental matters. The European Parliament delivered its opinion in its first reading on the proposal in March 2004”17.
- 18 P. Bucella (2008), “Introduction” in European Commission, op. cit., p. 4.
15Indeed, “top priority for the [European] Commission is to promote awareness of the access to justice provisions of the [Aarhus] Convention and to formulate EU legislation in this area, as well as to establish solid and efficient access to justice procedures, guaranteeing the procedural rights of civil society”18.
- 19 J. Ebbesson (2002), “Comparative introduction”, in J. Ebbesson (ed.), Access to Justice in Environ (...)
- 20 See for example F. Sanchis-Moreno (2007), Access to justice in Spain under the Aarhus Convention, (...)
16While a framework indeed exists at EU level, it is important to remember that “what is a general principle in one state may be perceived as a specific matter in the next. This reflects the fact that European law – here in particular referring to the laws of the member states of the EU – on access to justice in environmental matters is not much harmonized. In other words, while required by European Community law to establish administrative permit procedures and environmental impact assessment procedures, the member states retain considerable freedom in designing their judicial control of environmental decision-making19. Also, in many countries, the exercise of these rights requires laws and regulations to be enacted not only at national, but also at regional and local level20.
- 21 P. Stookes (2007), op. cit.
- 22 C. Stephens and S. Bullock (2002), “Environmental justice: an issue for the health of the childre (...)
- 23 Ibid..
- 24 E. M. McGurty, “From NIMBY to Civil Rights: The Origins of the Environmental Justice Movement”, En (...)
- 25 Sir Robert Carnwath (1999), “Environmental Litigation – A way through the Maze?”, Journal of Envir (...)
- 26 Indeed, the delay in the justice service provision seriously compromises the efficacy of the lega (...)
17Having a normative framework regulating the environmental matters is not enough. In fact, while “according to the UNEP Judges Guide 2005, almost every national constitution adopted or revised since 1970 provides for some form of substantive environmental right”21, whether or not the rights are breached is indeed open to debate. Without a doubt, “past and recent environmental crises such as Chernobyl, the BSE affair and dioxin contamination have all occurred despite Europe’s well-developed constitutional, environmental and human rights legislative frameworks (Lang, 1999; Ryder, 1999)”22. In other words, the articulation of substantive and procedural environmental rights and duties “within the current legal frameworks proves difficult”23. At the same time, this raises the issue that if justice is not provided by the justice system, more “disruptive collective action” may be activated24. The enforcement of environmental rights and duties through court needs therefore to be addressed. In general, the courts should provide the means to determine the scope of public and private rights and duties and more in environmental maters, and to enforce them, “without crippling expense to those involved”25. These elements call indeed for a speedy dispute resolution, in an area in which justice delay may easily result in great costs and even irreparable damages26.
- 27 D. Reiling (2009), Technology for Justice: How Information Technology can support Judicial Reform (...)
18Indeed, referring to access to justice, “judiciaries and courts in an international perspective poses particular challenges. Legal systems have evolved over time, mostly in their own national political context. They each have their own practices and conceptual frameworks. Their processes and cultures are influenced by their environment and by the issues they have confronted”27. At the same time, judiciaries and courts are more and more facing similar problems and pressures, and the variety of experiences matured in the attempt to solve them provides important indication on how it can be possible to deal with them in other contexts.
- 28 See for example
- 29 D. Reiling (2009), op. cit., p. 26.
- 30 http://www.undp.org/governance/docs/Justice_PN_English.pdf
19Within the justice administration discourse, access to court relates to easiness to find the courthouse and specific offices or courtrooms within it, opening hours, the presence of physical and language barriers, attention of the personnel to the court user needs, availability of forms to be filled28. Access to justice through courts is a much broader concept, which involves more than just court access29. It relates to the problem of allowing the claim-holders to be able to claim their rights in court and receive a judicial decision which is fair and of good quality, within a reasonable time and at a reasonable cost. While alternative actions to the access to court (such as marches, pacific protests, media and political mobilization) are available may result in positive outcomes, they indeed may lead to an erosion of public trust and confidence in the justice system. It is therefore imperative for courts and justice systems to address access to justice in order to improve it. In order to investigate how, it can help to reflect on the barriers that potential and actual court users must confront in order to get access to justice. The United Nations Development Programme (UNDP) practice note on “Access to Justice” identifies a number of barriers to access to justice30. From the user’s perspective, the justice system is frequently weakened by:
Long delays; prohibitive costs of using the system; lack of available and affordable legal representation, that is reliable and has integrity; abuse of authority and powers, resulting in unlawful searches, seizures, detention and imprisonment; and weak enforcement of laws and implementation of orders and decrees.
Severe limitations in existing remedies provided either by law or in practice. Most legal systems fail to provide remedies that are preventive, timely, non-discriminatory, adequate, just and deterrent.
Gender bias and other barriers in the law and legal systems: inadequacies in existing laws effectively fail to protect women, children, poor and other disadvantaged people, including those with disabilities and low levels of literacy.
Lack of de facto protection, especially for women, children, and men in prisons or centres of detention.
Lack of adequate information about what is supposed to exist under the law, what prevails in practice, and limited popular knowledge of rights.
Lack of adequate legal aid systems.
Limited public participation in reform programmes.
Excessive number of laws.
Formalistic and expensive legal procedures (in criminal and civil litigation and in administrative board procedures).
Avoidance of the legal system due to economic reasons, fear, or a sense of futility of purpose.
- 32 See W. L. F. Felstiner, R. L. Abel and A. Sarat “The Emergence and Transformation of Disputes: Nam (...)
- 33 http://home.hccnet.nl/a.d.reiling/html/fsacourts.htm
- 34 D. Reiling (2009), op. cit., p. 84.
- 35 http://home.hccnet.nl/a.d.reiling/html/fsacourts.htm
20Focusing on access to justice in environmental matters, on the role of the courts, and on the potentials of ICT to support and improve it, several areas of action can be recognized that need to be addressed for them to provide an effective public service. An important area is the access to information needed in order to improve the ‘naming, blaming, claiming’ process32, through which an event or situation is identified as a problem which may be justiciable and a request for such solution is made. The cost of bringing a case to court is another important element of the courts’ ability to provide adequate service. The cost is not limited to the court fees, as “most of the cost for taking a case to court is in fees for legal assistance”33. Time to disposition is another important element as “access to justice is obstructed for those who cannot bear the cost of delay”34. Furthermore, “in order to provide access to justice, courts should be reasonably close to the citizens”35.
- 36 D. Reiling (2009), op. cit., p. 116.
21As Dory Reiling pointed out36, from the case perspective, two factors are particularly relevant in relation to the complexity for the court in managing them: the predictability of the outcome and the configuration of the interests of the parties.On the one hand, in cases in which there are clear norms and consistent jurisprudence, the outcome can be quite predictable from the beginning. On the other hand, the presence of unclear or conflicting norms and diverging judicial decisions reduce the predictability of the outcome of the case, increasing the complexity of its management. As parties’ interest configuration is concerned, cases may present zero-sum games, in which one party win and one lose, or win-win situation, in which both parties can win. Crossing the two variable produce a Matrix of judicial role.
23Interesting to note, justice costs and delay may also result in a lose-lose situation providing an incentive to parties to stay out of court or using the threat of resorting to court as a bargaining tool which is totally disconnected from the actual rights and obligations prescribed by the law.
- 38 http://home.hccnet.nl/a.d.reiling/html/fsacourts.htm
- 39 Ibid.
24In general, procedures for resolving a dispute should also “be proportionate to the value, importance and complexity of the dispute”38 and “low value or simple disputes should be assigned to simpler and faster procedures consuming fewer court resources, … where parties can represent themselves.”39 As we will see, it is with cases with lower complexity and with simpler procedures that ICT support perform better.
25Once broadly discussed the normative framework and recognized the need for access to court at a reasonable expense and with a reasonable time to disposition of cases, the first step is to determine who need such access. This is because what reasonable expense and reasonable time to disposition mean, and what kind of help ICT can provide to improve the situation, is indeed strictly related to who need such access.
- 40 C. Stephens and S. Bullock (2002), op. cit.
- 41 D. McLaren and S. Bullock (1999), The geographic relation between household income and pollutingfa (...)
- 42 R. Bass, “Evaluating environmental justice under the national environmental policy act” Environmen (...)
26As Stephens and Bullock state, “There is growing evidence that the most disadvantaged groups suffer from the worst environmental conditions”40. McLaren and Bullock note that, for example, in “England and Wales the poorest families (reporting average household incomes below £5,000) are twice as likely to have a polluting factory close by than those with average household incomes over £60,000”41. On the same line, Bass note how various academic and government studies conducted in the US “revealed that certain types of government and corporate environmental decisions have adversely affected low-income and minority populations to a greater extent than the general population”42 leading.
- 43 M. Day, P. Stookes, C. Hatton and P. Castle et al (2004), Environmental Justice Project - A Repor (...)
27In some EU Countries the issues concerning concrete access to justice through courts seem to be particularly serious. From a research carried out by the Environmental Justice Project (EJP) to review the operation of environmental law in England and Wales, and to identify any inadequacies with regard to access to justice in 2003-2004, resulted that “Ninety seven per cent (97%) of leading practitioners and NGOs questioned in England and Wales believe the civil law system fails to provide environmental justice. The most significant single barrier is perceived to be the application of the current rules on costs, followed by a lack of judicial understanding of, and/or sympathy with, environmental issues, the limited scope of judicial review proceedings and an inability to obtain interim (injunctive) relief”43.
- 44 P. Stookes (2007), op. cit.
- 45 See on this point Sir Robert Carnwath (1999), op. cit.
- 46 P. Stookes (2007), op. cit.
- 47 Ibid.
- 48 R. Carnwath (1999), op. cit.
28If “in terms of access to justice, the key concern is that for many communities and individuals the right of access to the courts is prohibitively expensive”44, legal aid, public funding and pro bono legal assistance offer an attractive solution where they are available.45 At the same time, though they seem to be “rarely available”.46 Also, “the cost of legal proceedings involves not only the cost of employing legal representation but also the risk of paying the other side’s costs if a challenge is ultimately unsuccessful”47. Furthermore, in many cases, “the main problem for the prospective litigant, apart from the amounts involved, is the uncertainty as to the potential extent of the liability. He has no way of knowing, when he embarks on litigation, what his ultimate liability will be”48.
29In many cases potential claimants seek assistance from local environmental action groups in order to gain both information and support.
- 49 European Environment Agency & WHO Regional Office for Europe (2002), op. cit..
30Indeed, environmental associations in many cases play an active role seeking justice directly and in first person going to court. Non-governmental organisations have an important role often allowing the public interest of the issue (opposed to the interest of the individuals), to emerge. It is not a case that the Aarhus Convention “recognises the important role of non-governmental organisations (NGOs) and the value of public awareness for environmental policy-making”49. Even NGOs, though, have limited resources compared to the costs that are sometimes involved in environmental litigation.
- 50 Dory Reiling (2009), op. cit., p. 29-30.
- 51 C. Guarnieri and P. Pederzoli (2001), The Power of Judges, Oxford University Press, Oxford p. 9.
- 52 Dory Reiling (2009), op. cit., p.29-30.
31At the same time, “from the point of view of society, the general effects of the courts’ role in asserting the norms on conflict-free interaction and on resolving disputes by individuals themselves are much more important than the specific effects in cases of disputes resolved by the courts (Galanter 1983a, p. 125; Griffiths p. 129)”50. This is because “Judicial decisions can affect interests far beyond those formally represented in the courtroom in a number of ways… Decisions in cases involving environmental law are one example … In this and other areas large social groups can be affected by judicial decisions, even though they have not been granted a hearing. … In this way, judges cannot help being ‘legislators’, and ‘administrators’ who are forced at times to tackle totally new social problems, relying on vaguely worded legislation”51. Furthermore, legitimated courts provide an “abstract legal protection ... [This protection] is produced by the mere fact that the judiciary exists, and by the fact that it can be accessed in case of need. Effective and efficient concrete legal protection strengthens abstract legal protection. Abstract legal protection is also referred to as ‘the shadow function of the law’ (Galanter 1983a, p. 122)” .52
32There are several means to access to justice in environmental matters including but not limited to administrative and judicial ones. Environmental matters may be related or even cut through civil, administrative, and criminal law domains.
- 53 “Between February and August 2007, Esther Pozo Vera and her team carried out an independent legal (...)
- 54 Ibid.
- 55 Ibid.
33As the Report on the inventory of EU Member States’ measures on access to justice in environmental matters53 pointed out, “the majority of Member States – 20 of them – provide for both administrative and judicial review procedures, despite a wide variation in national systems”54. More in detail, the “study found that various countries grant different degrees of legal standing and possess a wide range of interpretations of legal standing. The broadest allow certain civil society organisations to bring legal proceedings even when they are not an affected party (in Portugal, Greece, France, Italy and Spain), while the narrowest only permit those parties directly affected to take action (in Austria, Belgium, Germany and Malta)”55.
- 56 R. Savoia, “Administrative, Judicial and Other Means for Access to Justice”, in Stec (Ed.), Handb (...)
- 57 Ibid., p. 26.
- 58 Ibid., p. 33.
- 59 Ibid., p. 24.
34As the possibility to appeal to court is concerned, “in many countries it is necessary to exhaust all available administrative review procedures before going to court”56. Also, the “speed at which parties can achieve justice through judicial process remains one of the major obstacles to its use”57. Some countries have special environmental tribunals with jurisdiction over environmental matters such as Sweden58. Many countries have administrative courts, specific administrative institutions or an ombudsman which may often provide a more rapid and cheaper solution. While in general standing in administrative appeal proceedings is limited to individuals who are interested and/or affected, in many countries also interested and/or affected NGOs can do it59. Class actions and action popularis are also available in some countries. ADR, such as arbitration, mediation and conciliation procedures are also possible alternative options.
35Attention so far mainly focused on legal norms, effectiveness of administrative and judicial procedures and jurisprudence. This included elements such as legal standing, costs and length of the proceedings and effective remedies available. There is a gap concerning the experiences and potentials of ICT to support access to justice in environmental matters through courts. The following section addresses the issue of ICT to support access to justice looking at empirical problems and solutions in areas where it has been attempted. In the conclusions these experiences are confronted with the emerging issues of the present section in order to suggest possible solutions or at least possible areas of discussion.
- 60 D. Reiling (2009), op. cit., p. 19.
- 61 Ibid.,p. 17.
- 62 Ibid., p. 18.
36In her study on ICT, and based on her long court experience, Dory Reiling points out that “without an empirical foundation, a foundation grounded in practice, the value of research on courts and judiciaries is limited at best”.60 She goes on stating that “there is, by now, a whole body of practical experience with information technology in the courts, but that it is not easily accessible because it is so dispersed”61 and that “The main challenges are in the use of empirical material and in using, and drawing conclusions from, sources of such wide diversity”62.
- 63 Ibid., p. 19.
37Indeed, these are the challenges but also the strength of the following case studies. The cases and lessons presented in this section are based upon data collected through several researches carried out in the last ten years and in particular: Judicial Electronic Data Interchange in Europe (JAI/GR-CV/16/01/IT and 2001/GRP/031), ICT for the Public Prosecutor's Office (JLS/2005/AGIS/175), The European Arrest Warrant in law and in practice (JLS/2007/JPEN/245), and Building Interoperability for European Civil Proceedings on Line (JLS/2009/JCIV/09-1AG). Data includes institutional and legal framework, systems official documentation, replies to interviews and questionnaires to the various actors involved in the development and current use of the systems, direct observation, statistical data, evaluations on the functioning of the systems, available literature, and any other document related to the systems. The multiplicity of data sources and the long time span during which data have been collected helped to ensure their reliability and move behind the “official truth” of public declarations and official public documents. The researches have resulted in thick descriptions of the developmental history, the architectural configuration, and the functioning of the systems which are here briefly presented. As previously mentioned, cases have been selected in relation to their capability of introduce key issues in order to have a first empirical illustration and to gain a better understanding of such issues. In other terms, “the empirical material I use generally serves to illustrate an argument and make it understandable for the audience. It usually does not serve to test a hypothesis, or to prove that IT”63 development and implementation follows -or must follow- specific ‘laws’.
38The analysis of the ICT potentials to support case management within the court, court hearing and support judges decision making are outside the scope of this paper. Indeed, court hearing technologies, sentencing redaction support system and automated case management systems (CMS) can help to improve court efficiency, reduce delay and costs through office automation. Also, CMS can improve court service provision transparency: indicators can be constructed to measure the state or the variation of relevant factors such as the number of environmental cases filed, time to disposition, turnover ratio, results at first instance and court of appeal level, plaintiff and defendant costs and their repartition. All these elements can contribute to improve access to justice. At the same time, as this area of ICT development and implementation has been better studied in the past years, I decided to limit the scope of the work to the more problematic ICT and infrastructure that breach the traditional organizational and institutional borders of the court, linking it to its actual and potential users and to its constituency, the people in the name of whom justice is provided.
- 64 http://ec.europa.eu/information_society/index_en.htm
39Considering the five-stage maturity model for benchmarking e-government projects in the European Union, section 3.1 Website information provision focuses on stages one to three (i) information, (ii) one-way interaction, (iii) two-way interaction, while the following sections 3.2 focuses on cases involving stages four and five, (iv) transaction, and (v) targetisation/automation64.
- 65 http://ec.europa.eu/information_society/eeurope/i2010/docs/benchmarking/egov_benchmark_2009.pd (...)
- 66 M. Velicogna, and G. Y. Ng, (2006) “Legitimacy and Internet in the judiciary: A Lesson from the It (...)
- 67 Ibid.
40A website can be easily defined as collection of related web pages containing text, images, music and videos which are hosted on one or more web servers accessible through the Internet. While a website can be technically simple to develop and maintain, the justice administrations website experiences have shown many complexities. Indeed, “easy access to information through the Internet on judiciaries and courts’ roles, activities and performance, can have important repercussion on legitimacy”,66 and allows easier “access to information on court activities and case information, but also … [allows] the use of the net to express complaints or to offer suggestions”67. At the same time, often court websites have shown to lack the capability of reaching the users and of being of actual service. More, the result in some cases have been an inconsistent image of the judiciary as single court websites provided a wide range of contents without concern for the website users’ characteristics and information needs or of the image of the court office they were giving.
- 68 R. Mohr (2001) In between Power and Procedure Where the Court Meets the Public Sphere, p. 11. www (...)
41This is a not minor issue if, Mohr points out, court’s “architecture gives us walls and doors, closed and open communication channels. This is the architecture, which mediates between inside and outside, between containment and projection of judicial power, between law and not-law. These boundaries of the law are defined by judges, architects and court managers”68. In the same way, the shapes of the court and its communication channels in the digital medium have the potential of redefining court boundaries, roles and meanings. While well designed court websites may improve access to justice, bad ones risk to may worsen it, resulting in users frustration and in the reduction of court system legitimacy.
42These considerations raise a number of issues, two of which appear particularly relevant: firstly, what should be the content, in terms of data and information, that should be vehiculated through court websites in order to improve access to justice in environmental matters? Secondly, how such provision should be articulated and governed?
- 69 See: M. Velicogna, Courts’ web sites in Italy, Conference of the European Group of Public Adminis (...)
43The study of court websites69 has shown that there are at least four groups of users to whom information provision can be addressed: potential court users, repetitive and one-shot court users and general public.
- 70 Richard E. Susskind (1996), The future of law: facing the challenges of information technology, Ox (...)
- 71 W. L. F. Felstiner, R. L. Abel, A. Sarat, “The Emergence and Transformation of Disputes: Naming, (...)
- 72 Richard E. Susskind (1996), op. cit.
- 73 Dory Reiling (2009), op. cit, p. 206.
- 74 W. L. F. Felstiner, R. L. Abel, A. Sarat, op. cit, p. 631-654.
44It is widely recognized that there are “innumerable situations, in the domestic and working lives of all non-lawyers, in which they need and would benefit from legal guidance (or earlier, more timely, or empowering insight) but obtaining that legal input today seems to be too costly, excessively time consuming, too cumbersome and convoluted, or just plain forbidding”70. In fact, “formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes”71. This latent legal market72 and these unmet legal needs should be addressed not only by conventional legal service providers such as law firms but also by court websites. Access to information provided by an independent and authoritative source as the court “can support fairer administration of justice by providing information for people to act adequately when confronted with problems with a potentially legal solution”73. This is particularly important because “what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions”74. This does not means that people have to be pushed to handle legal matters on their own behalf or that people should be given legal advice by the court. Website can provide information to help people with problems to understand if their problems are justiciable, and if they are decide to settle them and stay out of court or prepare and bring their case to court so their case can be resolved. At the same time, court websites can provide the information needed to seek the support of organizations providing legal support or consult a lawyer in a more timely way, and avoid problems that would be generated by the delay.
- 75 See for example M. Velicogna, F. Contini (2006), The design of e-services for the Justice of the P (...)
- 76 Richard E. Susskind (1996), op. cit.
- 77 D. Reiling (2009), op. cit., p. 198.
45In many cases, people willing to go to court refer to a lawyer or organization providing legal advice for indications on how to proceed. In these cases, information is provided directly by these “information brokers”. The increasing role of self representation and the changes in attitude and expectancies of the people toward public services, though, require that courts move away from their traditional reliance on intermediaries like lawyers. As on-line access to service experiences in other areas are growing (i.e. on-line banking, flight and hotel booking) disintermediation (and re-intermediation i.e. booking.com, …) is more and more expected -and requested- also in the justice service provision. This disintermediation generates the question of how to address the information needs of court’s one-shot users. As field research has shown,75 one-shot users to whom pro se litigation is allowed, typically address the court office looking for information about the opportunity and the procedures to follow in order to take the case to court. While in general they were seeking a personalized “human mediated” response to their specific problem, some of their questions can find a standardized answer through a website. In this perspective, court websites should allow the one-shot user to define his/her problem in juridical and procedural terms, to understand what exactly is at stake legally, emotionally and financially, and provide a cradle-to-grave recipe book76to be followed in order to present the case. The reader should be put in the condition, after each step, to “know what to do next. The reader should also feel confident that the required action will produce the desired result”77.
- 78 Richard E. Susskind (1996), op.cit.
- 79 D. Reiling (2009), op. cit., p. 201.
46As information is addressed to litigants who are not legally trained, what is needed are “punchy, jargon-free, practical pointers rather than detailed legal analysis”78. Of course, there may appear to be a problem as “courts are usually barred from giving legal advice. Legal advice in this context means making a judgment on facts presented, counselling on steps to be taken and taking a measure of responsibility for the result. … [At the same time though, this] is radically different from presenting one’s audience, be they litigants or members of the general public, with facts about the steps needed when taking a case to court, about what result can be expected, and including links to credible resources. These activities are not covered by the rule on legal advice”79.
- 80 Available at http://www.hmcourts-service.gov.uk/news/forms/docs/ex301_0406.pdf
- 81 See for example http://www.courtinfo.ca.gov/selfhelp/family/divorce/
- 82 D. Reiling (2009), op. cit., p. 200.
- 83 The case of MCOL is presented in section 3.3.
- 84 Divórcio na Hora allows on-line divorce “in Portugal, where the procedure is usually lengthy and e (...)
47Experiences of this kind have been developed especially in relation to money claims in order to clarify the most frequently risen questions (see for example the “Making a claim? - Some questions to ask yourself” HCMS lefleat80). Similar experiences have been also developed for divorce cases, with court websites providing information and downloadable pamphlets on specific procedures to follow but also on family law topics such as child custody, visitation, child support, alimony and property division81. In the most useful websites, from the user perspective, information is “geared toward the general, most common picture. If most divorces are non-contested, paper-based procedures with no court hearing, this is what needs to be explained first. Lawyers’ approaches tend to be geared toward exceptions”82. That is a different orientation that is inadequate for providing easy access to the needed information to the bulk of one-shot court users. This information provision, and the capability to understand how to proceed and which can be the consequences, of course become even more important when the procedure can the initiated and carried out on-line (see for example MCOL83 for money claim and Divórcio na Hora84 for divorce).
- 85 Dory Reiling (2009), op. cit , p. 156.
48Even if providing this information may appear as a simple task, it is far from that. The problem is not just related to the update of data as time pass by, but to its consistency with the actual practices of the court. This requires both organizational and attitudinal changes. It requires “a shift toward generating knowledge from the court decisions and practices for the purpose of developing routines and policies. Developing routines and policies must become a standard activity. That is a big change for an organization geared to process individual cases”85.
- 86 Ibid., p. 206.
- 87 Ibid, p. 193.
49At the same time, it is a growingly important part of the court duties as the provision of such information “can compensate, to some extent, for the disadvantage one-shotters experience in litigation, thereby increasing their chance of a fair decision”86. Furthermore, “courts, as a justice institution, should ensure decisions are not made on defaults or lack of knowledge, that decisions are followed because litigants understand how to comply, and people have a right to their day in court”87.
- 88 I.e. walking to the court office and presenting the request of specific information in a codified (...)
50Repetitive users, for their own definition, have frequent interactions with the court office and tend to possess a good knowledge of well-established court procedures and practices. This knowledge allows them to easily access the needed information through traditional means.88 Information needs are directed to main areas: 1) to obtain specific information (or certified information/documents) from the case folder or from the CMS and 2) to identify trends and develop competence in relation to the way that the court and individual judges decide on specific issues. The fact that Repetitiveuser, Court personnel and judges tend to share a specific legal/technical jargon that enabled the repetitive users to decode the “raw” data provided by the court allow an easier development of ICT supported services which include for example the access to the court case management system database as in the Italia Polisweb or French SAGACE, which allows access to a web page displaying all the relevant information concerning the case, such as the identity of litigants and lawyers, the advancement of the case, new documents filed, date of hearing etc.
51If on-line data and information provision to repetitive users becomes sufficiently widespread, it may leads to the development by private software vendors of applications designed to caching such data and make them available in re-elaborated formats to the repetitive user. It is the example of some of the functionalities provided by the LexisNexis PolyOffice Plus for the French lawyers, but also of several other systems. As the Italian experience has shown, though, the development of such systems on the one hand requires the data provider to limit the changes to the data structure, and on the other hand, once implemented and adopted, exercise a pressure against further changes.
- 89 A. Hol and M. Loth (2004), Reshaping Justice, Shaker Publishing B.V., Maastricht.
- 90 M. Velicogna, and G. Y. Ng, (2006), op. cit., p. 373.
- 91 Ibid., p. 375.
52Website can also be a tool for enabling a better access from the general public to the way courts and justice are administered. This is indeed a growing issue as “democratization of modern society brings with it the quest for open and transparent institutions, and therefore citizens want to have a better insight in the way justice is organized and administered”89. Furthermore, “in order to survive in society, an organization must nowadays be closer to a population that demand accountability, not only for irresponsible conduct but also for the level and quality of services provided”90. Court websites, “providing easy access to information on court activities and case information, but also allowing the use of the net to express complaints or to offer suggestions, can be seen as an indirect source of representativeness. The possibility to monitor the result of judicial activity, in the form of decisions and sentences can increase the guarantees for fair trials and equal treatment of the citizens in front of the law”91.
- 92 Ibid., p. 377.
- 93 Ibid., p. 378.
53Early instances of justice administrations web-based information provision in many cases rested upon local entrepreneurship, individual court initiative and specific personnel competences. A clear illustration comes from the Italian experience where, “in the lack of guidance and direction from the top, local entrepreneurship, and individual efforts have played a key role in the proliferation of courts websites through the years. In this unstructured setting, the sporadic introduction of laws and regulations on important issues somewhat related also with courts’ websites has often generated quite disruptive effects on local initiatives”92.The result of these efforts has been the growth of a highly differentiated and chaotic with websites of different courts that “address different categories of “customers”, propose different content, offer different services and allow the exchange of different information. … This proliferation of projects, poses some serious problems of disorientation in the visitor, that may not allow him/her to understand if he/she is visiting an official or not”93.
- 94 D. Reiling (2009), op. cit., p. 201.
- 95 M. Velicogna, and G.Y. Ng, (2006), op. cit., p. 382.
- 96 Ibid., p. 382.
- 97 Ibid., p. 383.
54On the other hand, court websites in the Netherlands are characterized by a highly centralized organization. This is consistent with the idea that when “courts choose to provide information on facts about taking cases to court through a web site for the entire legal system, this information needs to be consistent for the whole of the legal system, usually the country, in question. This means the information from one single source needs to be correct for all courts. This has two implications: (1) the court practices need to be the same, and (2) the information service needs to be vested in a central agency”94. Accordingly, in the Netherlands, “individual court websites are not independent but are all ingrained in one centralized portal”95. All courts present information within an “overall format that covers graphics and contents is ingrained in a template provided by a central bureau for Internet systems and applications for the judicial organization, the BISTRO (Bureau internetsystemen en -toepassingen rechterlijke organisatie) through the use of a content management system (CMS)”96. It is the portal itself that directly provides access to most of the content. “General information such as the description of the justice system, courts and judges, or examples of situations in which the citizens may encounter the courts, are provided directly by the Judiciary website. Furthermore, access to important cases, judgments, and to specific legal information contained in the main court and national registers is directly available through the portal. Court websites have a residual role in the provision of information. Purely local content is delegated to individual court websites and thereafter uploaded and updated at local level. In this regard, courts have some discretion as long as they present certain information, such as general information on accessibility (i.e. phone numbers, locations, press contacts)”97.
55This approach can be particularly valid when attempting to provide information on the possibility to seek justice in environmental matters through court websites, as this effort is confronted by the special difficulties posed by the plurality of jurisdictions and accesses in environmental matters.
56In this section the example moves from the somewhat more consolidated experiences of information provision to the more advanced and isolated e-justice ones. The example chosen are the Finland e-mail and TUOMAS and SANTRA experience, England and Wales Money Claim Online, Austria ERV and ERV-web.
- 98 http://www.rechtsinformatik.ch/CJ-IT-colloquy/reports/finland-e.pdf
57The Finnish experience begun building the e-justice technological and normative infrastructure only after analysing the reality, looking for simplification. In the planning of the new civil procedure in Finland which then came into force in 1992, it was realised that the most numerous cases (about 90%) were simple, undisputed money claim cases98. This highly repetitive bulk of cases could easily be managed and would benefit from the adoption of a case management system and from the development of an electronic filing system. From the normative framework perspective, in order to use an automated tool, there were two obstacles in the legislation: the requirement of an original signature and of the submission of documents in paper format. Both obstacles were overcome changing the procedural rules. Of course, these changes took time and several laws.
- 99 M. Fabri, (2009), E-justice in Finland and in Italy: Enabling versus Constraining Models. ICT and (...)
58The civil procedure was amended in 1993 to allow the electronic lodging and exchange of legal documents. In the new civil procedure the plaintiff in a money claim is not required to submit the written evidence (that is an invoice) to the court as long as it is specified in the written application. Therefore the application could be transmitted to the courts electronically by fax or e-mail, starting a multi-channel system to lodge cases in the courts99.
- 100 K. Kujanen, (2007). The Positive Interplay between Information and Communication Technologies and (...)
59Furthermore, an Act on Electronic Communications in CourtProceedings came into force in 1993 and was amended in 1998. Another Act on Electronic Services and Communication in the Public Sector was issued in 2003100. These two Acts contains some provisions that indeed simplify the development of electronic transactions and in particular: 1) an application for a summons, a response and another comparable document may be delivered to a court by fax or e-mail or by direct computer transfer into the data system of the court (electronic message); 2) the Ministry of Justice may grant a party permission to deliver the information required for an application for a summons by direct computer transfer into the data system of a district court 3) the electronic message is considered to have arrived at the court at the moment when it can be printed by the receiving device or when it has arrived in the court’s data system; 4) the responsibility that the electronic message has been delivered to the court lies with the sender (the same as when normal post is used); 5) the document does not need to be signed, as long as there is sufficient information in the message to enable the court to contact the sender if it doubts the authenticity of the message; 6) the authority notifies the sender of an electronic message on receipt of the message without delay; 7) the acknowledgement can be sent as an automatic reply through the data system or provided in some other way.
- 101 Ibid.
60Already from these few lines it should be evident how the legal framework has been changed in order to simplify the procedure and easy the development and use of ICT applications101.
61Looking at the problem from a data perspective, it was noticed that information systems in banking and commerce contained basically the same information. As a consequence, this information, which was already in electronic form, could be used to aliment the system.
- 102 In addition to typical CMS functions, TUOMAS allows also “judges to access the data contained in (...)
- 103 Aki Hietanen “National Report of Finland” presented at 15th Colloquy on Information Technology an (...)
62The first application to be developed to support the new civil procedure was a case management system called TUOMAS which also integrate a document editor102. “The TUOMAS system, although originally planned for summary civil cases, is at present extensively used for all types of civil cases. In 1993, the system only supported ‘regular’ civil cases. There were only 14 standard court documents integrated to the system. Today there are some 200 (or 400, taking account of both official languages, Finnish and Swedish) different documents integrated to the system. […] enhancements involve divorce, child custody, paternity and adoption cases, where notifications to the Population Register System are now sent electronically and not on paper forms”103..
- 104 Ibid
63An electronic file transfer system, called SANTRA has been developed to directly file data Cases can be also filed by e-mail or fax. SANTRA is used by large case filers (that is debt-collection agencies) and few lawyers. As Aki Hietanen describes, “It was hoped that lawyers would in the new proceedings use the possibilities of these systems to the full, as most of the debt-collecting companies have done already from the beginning. Finnish lawyers, regrettably, have to date used the systems very seldom”104.
- 105 M. Fabri, (2009), op. cit. , 115 -145.
- 106 Aki Hietanen, op. cit.
- 107 M. Fabri, M. (2009), op. cit.
64This situation is indeed related to the fact that in order to send an application through SANTRA, the plaintiff must send the data through a “plaintiff” system complying with technical specifications provided by the Finnish Ministry of Justice105. With an application complying with these technical specifications, the Plaintiffs can use SANTRA to daily transfer “the data on all of their applications to the common ‘mailbox’ of the courts. The data is usually an ASCII file, but other formats are also allowed as long as the file meets certain standards. The SANTRA system then forwards the applications to the individual mailboxes of the courts. The courts, then, up-date their own TUOMAS systems on the basis of data in their mailboxes”106. “In most cases, the original document relating to the application does not need to be sent to the courts”107.
- 108 K. Kujanen and S. Sarvilinna (2001), Approaching Integration: ICT in the Finnish Judicial System. (...)
65If the court has to contact the plaintiff, this can be done using e-mail or fax. The court documents are produced by TUOMAS document editor and sent electronically via SANTRA. TUOMAS and SANTRA can send the summons automatically. The most of the summons are electronically sent to the Finnish Post through an electronic posting service (EPS) and issued by post108.
- 110 M. Fabri (2009), op. cit.
66An important advantage for large case filers in filling a case through SANTRA is that the plaintiffs, in debt-collection cases, receive the decision back in their data system. This implies a reduction in work and in the possibility to immediately use the data to enforce the decision, since the enforcement authorities can make direct use of the data110.
- 111 http://www.hmcourts-service.gov.uk/onlineservices2/mcol_system/intro.htm
- 112 The County Court Bulk Centre (CCBC) has been set up by Her Majesty’s Courts Service to deal with (...)
- 113 http://www.hmcourts-service.gov.uk/cms/13825.htm
67Money Claim On Line (MCOL) is a good illustration of how a dedicated e-justice system can be assembled by building on the existing technologies and organizations and allowing for delocalization. MCOL is an internet based service which “allows certain county court claims to be issued by individuals and organisations over the Internet”111. It was set up in 2001 as part of the County Court Bulk Centre112 to support government policy in making justice affordable and accessible to all. In 2008/09 the MCOL issued 11% of all small claims monetary cases for England and Wales113.
- 114 K. Fraser (2004), Money Claim Online by http://www.venables.co.uk/n0407mcol.htm
- 115 J. Kallinikos (2009), Institutional complexities and functional simplification. The case of Money (...)
- 116 Ibid.
- 117 Ibid.
- 118 Recently, MCOL has become part of the services available from the Government Gateway. The Governme (...)
- 119 http://www.hmcourts-service.gov.uk/onlineservices2/mcol_system/conditions.htm
68An important lesson from MCOL comes from its development. The “development of MCOL was undertaken by Court Service staff in partnership with … [the] IT Provider EDS (under the PFI contract) and EzGov, a firm specialising in web products for government offices”114. The system was not built from the scratch. On the contrary, “MCOL has emerged out of a system of antecedent technologies and institutional initiatives that formed the necessary, as it were, conditions for the development and setting up of the service”115.Indeed, it “was conceived as the front-end of the CCBC system, which formed the administrative-technological backbone (the back-end) of the entire project”116. The front end website was rapidly created thank to already existing EzGov FlexFoundation software libraries. In order to identify the user and allow payments it was also decided to adopt the functionalities inbuilt in FlexFoundation and not to use the still under development Government Gateway components. The choice was particularly ‘light’ for the end-users as credit card was used both as a means of payment and to identify the claimant117. At present, as MCOL has been moved on the e-Government Interoperability Framework platform (e-GIF), in order to begin using the system, the claimant (or defendant) which can be an ordinary person and need not to be assisted by a lawyer, is required to register for an account with the UK Government Gateway118. This can be done also through the registration pages on MCOL. Once the registration process is completed, the user is given a GG User ID and password and a unique MCOL Customer number119. In this way, MCOL can be accessed directly through DirectGov, the government's citizen portal website.
- 120 J. Kallinikos, (2009), op. cit.
- 121 For the full list of criteria see: http://www.hmcourts-
- 122 http://www.hmcourts-service.gov.uk/onlineservices2/claim_process/make_claim.htm
- 123 Dory Reiling (2009), op. cit., p. 129.
69Another element that supported the quick and successful implementation of MCOL was that development took place “against a background of procedural and administrative simplification which shaped the functionalities of the service to a large extent and combined with the installed base to determine the pattern of its implementation. … MCOL has been essentially supported by an elaborate system of offline arrangements that supplements what can be done through the online service, acting at the same time as a mechanism for offloading complexity onto the traditional system and as a buffer to the reintroduction of complexities into MCOL”120. For example, in order to be processed, the claim must meet the MCOL claim criteria121. These criteria are indeed a way to simplify the characteristics of the claims that are processed through MCOL. It is up to the claimant to ensure that such criteria are met. If a claim that does not meet them is filed online, it may be struck out or dismissed and the claimant will not be allowed to take any further action on it. Furthermore, a refund is not granted if the claim does not satisfy the criteria122. Another simplification is related to the jurisdiction as all MCOL claims are issued in the name of Northampton County Court. In other words, there is no “obligatory court competence: The users themselves can decide whether to use the Northampton court or not because the relative competence of courts (where to go to with one’s case) is not obligatory”123.
- 124 Ibid.
70Also, “In England and Wales, no formal summons is needed to start a civil claim. The claimant sends his or her claim to the court, and the court notifies the defender by mail”124. In other countries, such as in the Netherlands or in Italy, a formal summons is required, increasing the complexity of the system.
- 125 K. Fraser (2004), op. cit.
71Thanks to all these procedural simplifications and the effective assemblage of existing technologies, procedures and organizational arrangements, “the project went from defining the user requirement to live running in 17 weeks”125.
72What follows is a description of the MCOL procedure. The focus is on the nature of the solutions that simplify the tasks that can be carried out online, and switch offline when the complexity increases. At the same time it will also provide an idea of the incentives for the users to use the tool properly.
- 126 http://www.hmcourts-service.gov.uk/onlineservices2/claim_process/make_claim.htm
- 127 While initially if it was not possible to set out the claim within the allowed 1080 characters, t (...)
73In order to begin, the claimant needs to possess certain information to proceed with a claim online and in particular126: 1) the name (including title) and date of birth (if known) of the person(s) the claimant wishes to make a claim against; 2) residential address (including post code) of the person(s) if sued as an individual; 3) the exact amount the claimant wish to claim (less than £100.000); 4) the details of the claim in no more than 1080 characters (including spaces)127; 5) the claimant’s credit/debit card details and a valid email address.
- 128 Ibid.
74If the claimant makes any errors in filling the details of the claim he/she may have to pay a further fee at a later stage if they need to be amended. When the claim has been submitted, the claimant receives a claim number, which must be quoted in any future correspondence. The claimant must pay a fee to start a claim. The amount to pay depends on the amount of the claim (including interest) – see table 2.128.
- 129 Ibid.
- 130 Ibid.
75The claimant can then check the status of the claim and, where appropriate, request entry of judgment and enforce a judgment by way of warrant of execution. In an MCOL claim, judgment can be requested in the absence of a response (default judgment) or where the claim is admitted (judgment by admission). The plaintiff does not have to pay a fee to request judgment. The defendant has a period of 14 days after service of the claim on them (or 14 days after service of separate detailed particulars of claim) to respond.Where an acknowledgment of service has been filed this period is extended to 28 days after service129. Defendants can reply to and check the status of their claims online. “To respond to a claim, it must have been issued electronically in the name of Northampton County Court. A login password is provided on the front of the claim form”130.
76If the defendant fails to respond within the time allowed the plaintiff may request a default judgment be entered through MCOL. MCOL only processes default judgment requests at the end of each day. If a response is received from the defendant (acknowledgment of service, defense, part admission) on the same day as a judgment request is made, the defendant's response takes priority, even if it is filed late. If judgment is not requested within 6 months of the period for filing a defense, the claim will automatically be stayed and no further action may be taken on it unless the stay is lifted.
- 131 If the plaintiff receives also the full payment of the claim, you judgment must not be entered an (...)
- 132 Ibid.
77If the plaintiff receives a signed admission from the defendant a judgment by admission can be entered131. The court can ask the plaintiff to submit proof of the admission at any stage. If proof is not provided on request, the claim and judgment are automatically dismissed and proof may be ordered to pay costs132.
- 133 Ibid.
78If the defendant admits only part of the claim, the court sends to the plaintiff a copy of the part admission to decide whether to accept it or not. If the plaintiff accepts, he/she can request a judgment against the defendant. It is not possible to request a judgment online in these circumstances but only filling a paper form. If the plaintiff does not accept the part admission you must advise the court within 14 days. The claim will then be transferred to a local court and no further action can be taken online133.
- 134 Monday to Friday between 09:00 and 17:00.
79If a user or potential user has any problem, a Customer Help Desk based at the Northampton County Court Bulk Centre (CCBC) supports MCOL. The help desk can be contacted during business hours134 by email, phone, fax and post.
- 135 http://www.hmcourts-service.gov.uk/cms/mcol.htm
80As a consequence of the system simplicity from the user perspective and of the incentives, both in terms of monetary costs and in terms of advantages of being able to deal with the case on-line, MCOL is now issuing more claims than any local county court (152,000 in 2007/08)135. While there is limited judicial involvement in money claims, the centralisation of all online claims in a single electronic jurisdiction has resulted in a relief for local court administration and speedy service provision.
Table 2 Source: HM Court Service, Civil and Family Court Fees; High Court and County Court - From September 2010 http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_e.pdf
- 136 Electronic Legal Communications (ELC)
- 137 S. Koch and E. Bernoider (2009), Alligning ICT and legal Frameworks ina Austria’s e-bureaucracy: (...)
- 138 P. Bauer and C. Graf (2003), Judicial Electronic Data Interchange in Austria. Judicial Electronic (...)
81The Austrian e-justice experience is characterized by a slow incremental approach and by the use of carrot and stick to push the use of the system. The experimentation of the possibility to exchange “data relevant to court, parties and their representatives”136through electronic means began in Austria in 1989 with the development of a system called Elektronischer Rechtsverkehr (ERV). The system was developed by the Austrian Federal Ministry of Justice in collaboration with the Bundesrechenzentrum (the Federal Computing Centre) which developed the software, Radio Austria (now Telekom Austria AG) acting as clearing house, and the Bar association. “Interestingly, the costs were mostly borne by Radio Austria […], which refinanced these through the volume of transactions later on”137. Austrian Court Automation began with simplified money claims138.
- 139 Electronic transmission of original documents and attachments to submissions to the courts in ele (...)
- 140 S. Koch and E. Bernoider (2009), op. cit.
82In order to allow the use of technological means in place of the traditional ones for the exchange of data and information139 between lawyers and court a number of legislative changes were required. In particular, the possibility to formally communicate between court and parties was introduced in 1990 with an important change in the Court Organization Statute, including, among other things, the e-filing regulation framework, providing rules for contents, relevant dates and warranty (§ 89a Abs 1& 2, § 89b-e). Within this procedure, the possibility of e-filing legal actions which result in an order of payment was subject to the condition that no objections were made by the other parties involved140.
83After its introduction, the system was gradually extended both in terms of potential users, both in terms of available procedures. At the same time, also technological component has evolved.
- 141 Ibid.
- 142 http://ec.europa.eu/information_society/activities/egovernment/archives/events/2001/projects_sel (...)
- 143 http://www.brz.gv.at/Portal.Node/brz/public/resources/home-en/eLegalRelations.pdf
- 144 http://ec.europa.eu/information_society/activities/egovernment/archives/events/2001/projects_se (...)
- 145 http://de.wikipedia.org/wiki/Elektronischer_Rechtsverkehr
84As users were concerned, ERV was initially open only to lawyers, notaries and the Federal Law Office of the Republic of Austria acting as representative for the regional authorities. Starting from 1994, the system was then gradually opened to other users including public law bodies and certain organizations subject to government supervision such as banks and insurance companies141. The restriction to authorised ERV-users (lawyers, notaries, banks, insurance companies etc.) was finally cancelled in 2000142 so in principle also every citizen can now use the system143. Since 1999 the system has also been opened for the communication from courts to parties144. While initially the reception of the communication from the court was voluntary, since mid-2000 it became compulsory145.
85Also the matters for which electronic communication is available have gradually extended. Initially the system allowed only filing requests for injunction (Mahnklagen). Since 1995, though, ERV can be used for requests for enforcement (Exekutionsanträge), since 1996 for informal motions and complaints in labour court proceedings (formlose Anträge und Klagen in arbeitsgerichtlichen Verfahren) and since 2003 for court complaints (Klagen an Gerichtshöfe). In order to allow data exchange in these new areas, changes were required to several decrees dealing with forms to be used in the judiciary system (ADV-Formverordnung AFV 2002, 3. Formblat-Verordnung Formblatt-V).
- 146 S. Koch, and E. Bernoider (2009), op. cit.
86In order to incentive the use of the system, changes were introduced to the law governing court fees, reducing them in case of e-filing. At the same time, from 1999, all law firms are “required to have the necessary technical facilities to support the system, and, in accordance with the new budget law, their agreement to be able to receive documents from courts is not solicited”146.
- 147 The Simple Object Access Protocol, is a protocol specification for exchanging structured informati (...)
- 148 http://business.telekom.at/produkte/onlinedienste/weberv/recht_grund.php
87From a technological perspective, the ERV was initially developed as a closed system. It was based on a dial-up connection using a modem and a proprietary communications protocol. It is only in 2007 that the system opened and moved on the web with the introduction of webERV. With the new application, data exchange takes place via Web Service - (SOAP147 - / XML) and is not based on the WWW service. Transmissions are encrypted using an SSL protocol. On 31 December 2008, Telekom Austria closed the ERV service and at present the transmission is only through webERV. In order to allow the use of webERV, the regulation on the electronic legal transactions (ERV 2006, BGBl II 481/2005, as currently amended) had to be introduced. The norm provides details both on the technical and security features both on the types of pleadings that can be transmitted through webERV148.
- 149 a list of software vendors and their products is provided at
- 150 S. Koch and E. Bernoider (2009), op. cit.
88Apart from an internet connection and a PC, the use of the system requires customized software149 and an Austrian bank account. Furthermore, each user needs a unique identification code. The code is provided by Bar Association to lawyers, by the Chamber of Notaries to Notaries and by the Ministry of Justice to the other users. 150 Furthermore, with webERV, the user is authenticated with an electronic signature using a digital certificate.
- 151 Ibid.
89The system works as follows: using the customized software, “petitions are transmitted to the sole transmission agency (clearing house) available, Telekom Austria AG, which forwards these once a day at midnight to the Federal Computing Centre (Bundesrechenzentrum – BRZ). The BRZ then forwards the files to the courts, where they are catalogued, printed and given to the judges. An acknowledgment is sent to the petitioner with data including case number, via the same channels”151.
- 152 http://www.brz.gv.at/Portal.Node/brz/public/resources/home-en/eLegalRelations.pdf
90“The claimant (e.g. law firm) can only enter data in defined electronic forms. To fill in these forms special software is needed. The file is then electronically transmitted via secured lines and protected by a password. Upon receipt at the established provider the file is automatically checked. If all the information needed for filing a claim or an application is transferred correctly, a time stamp is applied to the electronic document. The claimant is then informed about the successful filing of the claim/application with a court. During court action the claimant receives automatically information at relevant stages, and also the final notification is delivered electronically”152.
- 153 Bundesrechenzentrum (2010) Use of IT within Austrian Justice
91In 2009 through ERV took place 9,3 millions transmissions, of which 3,4 millions were communications and 4,3 millions were transmissions via the “return traffic stream”. In the same year, most of the summary proceedings (93%) and over two thirds of the applications for enforcement (67%) took place through ERV153.
- 154 Both in terms of functionality, both in terms of emerging tensions.
92The France e-Barreau experience show how in the development of large information infrastructures such as e-justice systems, users and users organizations becomes relevant players and governance mechanisms considering their role must be created in order to successfully assemble the systems. It also shows how ICT development, when looked in its progress, is much less linear that what emerges from ex-post reconstructions. Furthermore, the attempt to translate the paper normative and organizational features into digital required the development of a complex and not always successful154 technological assemblage.
93In French, official electronic communication between courts and lawyers began in 2003 with the deployment of a system called E-Greffe. This electronic communication system was introduced in the Paris tribunal de grande instance. E-Greffe was into service in Paris from 2003 to early 2009.
- 155 M. Velicogna, A. Errera, S. Derlange, « E-Justice in France: the e-Barreau experience », Utrecht L (...)
- 156 “Après avoir rappelé l’expérience d’avocaweb qui, notamment faute d’évolution de France Télécom, n (...)
- 157 EDIAVOCAT is an association created in 1997 to promote the development of the exchange of electro (...)
- 158 See for example, « AvocaWeb fait entrer les tribunaux dans l'ère numérique », Les Echos n° 17980 d (...)
- 159 National Bar Council, « Rapport adopté par l’Assemblée générale le 20 mars 2004 - Rapport sur la m (...)
- 160 Alain Marter, Justice et Telematique, France. Justice and Telematics, Rome, 8 and 9 September, 200 (...)
94Following the initial E-Greffe experience, in 2004, the National Bar Council (CNB) proposed to the Ministry of Justice a nationwide electronic communication project called e-Barreau, to exchange officially judicial data and documents between lawyers and the courts155. This project came after the problematic experience156 of the first lawyers’ virtual private network, AvocaWeb, launched by Ediavocat157 at the end of the 90s. The system was managed by France Télécom. It was conceived as a VPN with secured mail inboxes and other services such as access to the Paris Bar Library158 for lawyers with limited ICT competences. The system though, soon resulted both slow (the system was not compatible with ADSL connection159) and expensive160.
- 161 M. Velicogna, A. Errera, S. Derlange, op. cit., p. 172.
95One of the CNB objectives with e-Barreau was the development of an electronic communication system in compliance “with the rules regarding attorney-client privilege and confidentiality”161. On the other hand, The Ministry of Justice was interested in extending the E-Greffe experience at national level in order to both reduce the court workload, both improve the efficiency of the justice service delivery.
- 162 Ibid., p. 174.
- 163 Ibid.
96On May 4th 2005, the National Bar Council and the Ministry of Justice signed a convention providing a national framework defining the rules to be followed by the official electronic communication between courts and lawyers.The norms covered lawyers access to relevant information available on the court CMS in relation to their cases, two way official communication between court and lawyers and exchange of legally valid documents. Within the framework of the convention, the National Bar Council had to provide lawyers with a solution allowing them to connect to the courts’ registers” .162 Accordingly, the National Bar Council invested on the development of a “lawyers’ e-Barreau package that included broadband internet access (512 Kb to 8 Mb), a secured mail inbox, a digital certificate stored on a USB key, and a digital signature tool”163.
97At the same time, also according to the framework, the Ministry of Justice were to develop a communication add-on to allow access to the Justice VPN (réseau privé virtuel justice) and connect to the court CMS. The experimentation of such add-on began in 2006 in three tribunaux de grande instance.
- 165 M. Velicogna, A. Errera, S. Derlange, op.cit., p. 175.
98While some progresses were being made on both sides (National Bar Council and the Ministry of Justice) these were limited and there was the risk for the system to become stuck in a pilot phase and file to be fully implemented. In particular, due to drawbacks of the National Bar Council ICT choices such as introducing an internet provider monopoly and high fees, and lack of concrete advantages in the use of the lawyers VPN, the number of subscribers between 2005 to 2007 “remained very low”165.
- 166 The new framework agreement “describes the way the different stakeholders were to share responsibi (...)
- 167 M. Velicogna, A. Errera, S. Derlange, op.cit., p. 163-187.
99In 2007 though, a strong impulse to the development of e-Barreau came from the new Ministry of Justice. On the Ministry of Justice side, the deployment of the tribunaux de grande instance add-on was speeded up. A new framework agreement was also signed between the Ministry of Justice and the CNB to reinforce the image of commitment of both institutions and further define roles and organization in the official electronic data exchange166.At the same time, moves were also taken by the National Bar Council in order to reduce the drawbacks of the lawyer’s e-Barreau infrastructure. In particular, with the introduction of a data encryption box, the mandatory internet access subscription was not required anymore produced by another firm to the lawyers E-Barreau package. In addition, the monthly fee was reduced from 55 to 32 Euro and the Paris Bar was allowed to use an ad-hoc solution to access the system which went through the existing E-Greffe167. While this solved some of the problems, allowing a faster diffusion of e-barreau subscription by lawyers and the possibility to reach the needed critical mass of users, it left other problems on the table -such as the critics to the CNB of being not transparent in its ICT choices- and opened up new ones -such as the encryption box monopoly and the Paris Bar exception-.
100These problems in time generated a reaction in the unsatisfied lawyers and some of their local bar association. The situation became critical in Marseille, where the Bar association developed an ad-hoc system that allowed to use a single encryption box for all its lawyers. As the encryption box provider cut the service to the Marseille, a number of litigations have begun.
- 168 Ibid., p. 179.
- 169 Ibid.
101Also, not all technical and normative solutions have been found. The courts are not able to recognize and proof digital signatures. A temporary solution has been provided under Décret n° 2010-434 du 29 avril 2010 which states that till 2014 submission thorough e-Barreau is equivalent to signature. At the same time, the system is not be used to file cases yet168. E-Barreau is mainly to access data of cases already filed. Lawyers can also attach documents to the emails they send, so, for example, a lawyer can sent .doc or digitized .pdf documents. Furthermore, the conventions ratified between the local bars and courts allow sending electronic documents in place of the paper originals. At the same time, if the handwritten signature is mandatory, the signed paper original must to be scanned and then sent as an attachment. The expectation is that e-Barreau should (soon) be upgraded to allow the electronic filing of cases. At present, for the courts “a communication through e-Barreau is equivalent to a paper notification and therefore the TGI sends emails to this effect”169. While this allows the exchange of messages relating for example to the date of a hearing which do not need to be signed, the submission from the court of documents that need a signature still requires to send the original document on paper.
102The short description of the dimensions that characterizes access to justice through courts in environmental matters allowed evidencing some key elements to guide the analysis of ICT experiences and lessons to understand how ICT can support access to justice through courts in environmental matters. As we have seen, environmental matters are characterized by a complex and evolving net of national and international laws, agreements and conventions. It cut through civil, administrative, and criminal law domains, requiring specialized competences both to the parties, both to the judges deciding on often complex, and economically and socially relevant cases. At the same time, access to court seems to be often barred to those (both individual and NGOs) who would need it most. Costs involved, uncertainty of the outcomes, but also pace of litigation, seem to be very important elements.
103The analysis of ICT experiences in the field of access to justice through courts has shown two main areas of possible action: information provision, including stages one to three of the European Union e-government benchmarking maturity level, and on-line justice service provision concerning involving stages four and five.
- 170 W. J. Orlikowski (2006), “Material Knowing: The Scaffolding of Human Knowledgeability”, European (...)
104As information provision is concerned, looking at access to environmental justice through court needs, and court website experiences it emerges that much can be done to improve the situation. While at present many of the indications in relation to justice in environmental matters are provided by international organizations and NGOs, the peeking at 1) information needs, 2) court obligations toward its potential and actual users and toward the general public, and 3) court websites and data provision experiences have shown several steps that can –and need- to be made by the courts. Web service information provision should be developed addressing at least four potential groups of users. These four groups are characterized not only by different information needs, but also by different competences, resources and incentives in acquiring missing competences and resources. At the same time, characteristics of the cases and complexity of the field seems to argue for a strong need of a coordinated information provision effort from the court system. The Dutch approach provides a good example. On the one hand it centralizes common data and information provision, on the other hand it leaves space for local specificity. Furthermore, given that the information service provision is not dependent only on technological features or on data availability, as to say by the “performance of the various material elements”170 but on the actual actions and interaction of the users with the service, they should be part in the design and evaluation. While this point may seems obvious, present and past observation of court websites experiences suggest not to take it for granted.
- 171 O. Hanseth, and M. Aanestad (2003), “Design as Bootstrapping. On the evolution of ICT networks in (...)
- 172 F. Contini, G. F. Lanzara, A. Resca, Building interoperability in European Civil Procedures Onlin (...)
105Looking at on-line justice service provision, concrete ICT technologies to support electronic transactions and case handling experiences have shown to be particularly suitable when addressed to cases that are simple, standardized, and in large quantity. This is particularly evident in the MCOL case, where all the efforts seem having been oriented toward a functional simplification strategy. The result has been a relatively simple technology not just from the developer perspective, but also from the potential user one. This, coupled with the use of limited incentives has allowed reaching a critical mass of users171. The attempt is toward finding a digital solution to issues that referring to the Matrix of judicial roles (see section 2.1) can be defined as provision of titles. On a similar simplification direction, which though has required quite relevant normative change, has been the Finnish case. There, instead of moving outside of the digital competence elements that increased the complexity, the normative landscape has been simplified. Signature and original documents are not required unless problems arise. As a consequence, the complexity of having to deal with them (translating them to digital) is avoided for most of the cases. The SANTRA system, in particular, has also been developed to deal with zero sum, predictable cases for which a ‘title’ is required. Higher complexity from the end user perspective and presence of viable alternatives have resulted in the use of the system mainly by large case filers and few lawyers. As in the MCOL case, if complexity should emerge, it is solved at a later stage through traditional means. Even the ERV case has begun with such simplification. Moving in the Matrix of judicial role from the support of the provision of ‘titles’ (as in the Mahnklagen case) to ‘judgements’ (as in the Klagen an Gerichtshöfe case) required quite a few years. Complexity has been added gradually. Furthermore, it should also be considered that the main target of ERV and WebERV have been a relatively small number of repetitive court users (about 5,000). The French case instead shows how the attempt to translate the full complexity of traditional court procedures to digital in one smooth move, even if appealing, requires capabilities that far exceed those of the typical justice system. This effort shows how, in spite of the attempt made to digitize services and procedures, what takes place is an institutional and organizational reconfiguration.172 The assemblage of components needs to be negotiated with the users, in this case the lawyers, who have interests, needs and believes, but also power. New governance mechanisms need to be developed. Furthermore, technological and normative complexities keep emerging as choices and changes are made. The experience is that of a conundrum of unforeseen drifts, derives and consequences. Solving a problem here generates a new, unexpected, problem over there. The result in the end is a somewhat working configuration which has lost some of the initially strictly uphold features. At the same time, National Bar Association and Ministry of Justice keep struggling to develop all the expected functionalities that some time in the future should, in theory, allow to deal with cases in all areas of the judicial role matrix.
- 173 http://home.hccnet.nl/a.d.reiling/html/fsacourts.htm
106Taking in consideration these elements emerging from the e-justice experience, and looking at the features of environmental cases and at the justice service provision in environmental matters, it is quite clear that ICT can not provide, at least in the short period, a solution to for all situations. Complexity and conflictuality of cases seems to be often quite high. The functional simplification approach could nevertheless result viable for a sufficiently high number of cases in relation to a portion of the procedure. E-filing could be allowed for example in order to speed up the procedure to have interim injunctions to prevent environmental damage in the lag of a court judgement on the case. Or the on-line dispute resolution could be allowed for “fast track” cases, keeping the possibility to revert to paper if the complexity rises, as in the MCOL experience. The fast track could provide a preliminary decision reducing the problem of potential liability of interim injunction measures that require the applicant to reimburse any commercial loss in the event of losing the challenge. Furthermore, “A forum for provisional judgment [as the one which could be provided on-line] can prevent the need for full proceedings which take more time”173.
- 174 Coalition for Access to Justice for the Environment (2004) Access to environmental justice
- 175 Ibid.
107Another lesson that can be draw is the possibility of centralization for the on-line justice services provision in environmental matters following the MCOL example with the CCBC and Northampton. The specialization and better coordination which may derive from having a centralization for the on-line justice services provision could also reduce risks of “exposure and uncertainty; i.e. the risk of paying the legal costs of the other party/parties combined with the fact that it is impossible to know at the outset of a legal challenge how much those costs might be”174 supporting an increase of judges expertise and the consistency of court decisions. This could be particularly important in situations such as the UK one where “A number of practitioners found a lack of comprehension of or sympathy with key principles of environmental law such as sustainable development and the precautionary principle as well as the relationship between EC and domestic law”175. In such instances, an increased specialization of judges would indeed improve court users and general public satisfaction with the courts’ understanding of environmental issues.
108On-line access court can also be designed with the idea of providing an aggregation tool for diffused access to court needs, for cases that typically fall within the Class actions and action popularis scopes.
- 176 Dory Reiling (2009), op. cit., p. 130.
109At the same time, providing on-line access may allow to move away form some of the binding which shape off-line access which derives from the characteristics of physical objects, technological systems, spatial context, institutional rules that do not need to be translated into digital. It is the example of the physical location for MCOL or the signature of documents in Finland. This may indeed open new opportunities and encourage access to court to “users who might have shied away from manual methods, thus introducing a new market”176. While there is much potential, as the e-Barreau experience with the digital signature shows, which can be elements can be made away of in spite of the difficulties of translating them to justice may change from country to country.
110Actual experiences of on-line access to court provide also indication on how to conceptualize the development of e-justice systems. They show that e-justice systems development mainly consists in choosing and picking up existing pieces (technological, but also normative and organizational), and putting them together, making small changes here and there, building new bits only where nothing can be found. It consists in find the technological, organizational and normative fitting of existing components. Coping with this situation requires a shift of the attention from blue print technology-driven innovation to design as enquire of the existing and components assemblage experimentation
111Not only the performance, but also the existence itself of the system depends on technological, normative, organizational features which evolve over time. But even more that with the court websites information provisions, the actual performance of the system also depends on the court user characteristics and predisposition toward the system. The e-Barreau experience shows it clearly. The conflictuality raised by the technological components and technological partner choices, the struggle to make the system acceptable by the users, the long succession of technological and normative changes which are only partially related to the functioning of the system and more have to do with the willingness and incentives for the users to actually use it.
- 177 M. Velicogna (2010), “ICTs in the justice sector”, in R. Coman and C. Dallara (eds.), Handbook of (...)
112And this leads us to the last issue that emerge as particularly relevant in the perspective of attempting to improve access to justice through court in environmental matters developing and implementing e-justice systems: the governance. Again, as the e-Barreau experience shows more clearly than other cases, the material normative and institutional assemblage of an e-justice system requires the active collaboration of a wide range of actors as courts, judges, administrative personnel, public prosecutors lawyers, ICT providers. In the environmental area should also include relevant NGOs. Accordingly, governance mechanisms should follow “logics of inclusion, mediation and negotiation”177. And this is particularly relevant because experience has shown that the grater the system complexity and relevance in terms of interests and given for granted believes on ‘how things should be done’ are affected, the more solutions cannot be projected, designed, engineered if they are to be used and not actively resisted. Viable solutions are to be found as the result of collective actions and cooperation.
1 I wish to express my gratitude to Ms. Kaidi Tingas (REC) and Ms. Fe Sanchis-Moreno (UNECE) for allowing me to discover a relevant subject and a stimulating research area which I had not previously considered. A special thanks goes to Davide Carnevali (IRSIG-CNR) for his support. The opinions expressed on this article are those of the author and do not necessarily reflect the positions of the Institutions and of the people above acknowledged.
2 See for example F. Contini, G. F. Lanzara (eds) (2009), ICT and Innovation in the Public Sector. EuropeanPerspectives in the making of e-government, Palgrave, London; A. Cerrillo and P. Fabra (eds) (2009), Information and Communication Technologies in the Court System, IGI Global, Hershey PA, USA; M. Velicogna, (2008), Use of information and communication technologies (ICT) in European judicial systems – CEPEJ Studies No. 7; M. Fabri (ed), (2007), Information and Communication Technologies for the Public Prosecutor’s Office, Clueb, Bologna.
3 Judicial Electronic Data Interchange in Europe (JAI/GR-CV/16/01/IT and 2001/GRP/031), ICT for the Public Prosecutor's Office (JLS/2005/AGIS/175), The European Arrest Warrant in law and in practice (JLS/2007/JPEN/245), and Building Interoperability for European Civil Proceedings on Line (JLS/2009/JCIV/09-1AG).
4 C. U. Ciborra (2001), “A Critical Review of Literature” in Ciborra et al., From Control to Drift, Oxford University Press, p. 23.
5 G. F. Lanzara, “Building digital institutions: ICT and the rise of assemblages in government” in F. Contini, G. F. Lanzara (eds) (2009), ICT and Innovation in the Public Sector. European Perspectives in the making of e-government, Palgrave, London.
6 See for example: Milieu Ltd (2007), “Summary Report on the inventory of EU Member States’ measures on access to justice in environmental matters under contract to the European Commission”, DG Environment (Study Contract No 07-010401/2006/450607/MAR/A1)
Stec, S. (2003), Handbook on Access to Justice under the Aarhus Convention, Regional Environmental Center for Central and Eastern Europe ISBN: 963 9424 28 5.
7 R. Bass “Evaluating environmental justice under the national environmental policy act”, Environmental Impact Assessment Review, Volume 18, Issue 1, January 1998, p. 83-92.
8 Paul Stookes (2007), Environmental Injustice, Institute of Environmental Management & Assessment http://www.iema.net/stream.php/download/conferences/iema2007/presentations/Keynote%20Paul%20Stookes.pdf
9 P. Sands (1995), Principles of International Environmental Law, Cambridge University Press. ISBN: 0521817943.
10 M. Montini (2008), “Accesso alla giustizia per i ricorsi ambientali”, in F. Franioni, M. Gestri, N. Ronzitti and T. Scovazzi (eds), Accesso alla giustizia dell’individuo nel diritto internazionale edell’Unione Europea, Giuffrè Editore, p. 391-421.
12 P. Stookes, op.cit.
14 M. Montini (2008), op. cit., p.391-421.
15 P. Černý “The Aarhus Convention: how are its access to justice provisions being implemented?” Conference on Access to Justice in Environmental Matters Brussels, 2nd June 2008, morning session.
16 Art. 9.3 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.
17 European Commission (2008), “Access to justice in environmental matters” Luxembourg: Office for Official Publications of the European Communities ISBN 978-92-79-10400-8 DOI 10.2779/8587.
18 P. Bucella (2008), “Introduction” in European Commission, op. cit., p. 4.
19 J. Ebbesson (2002), “Comparative introduction”, in J. Ebbesson (ed.), Access to Justice in Environmental Matters in the EU, Kluver Law International, p. 1-47.
20 See for example F. Sanchis-Moreno (2007), Access to justice in Spain under the Aarhus Convention, Asociacion para la Justicia Ambiental.
21 P. Stookes (2007), op. cit.
22 C. Stephens and S. Bullock (2002), “Environmental justice: an issue for the health of the children of Europe and the world”, in European Environment Agency & WHO Regional Office for Europe, Children’s health and environment: A review of evidence, Environmental issue report No 29, p. 190-198.
24 E. M. McGurty, “From NIMBY to Civil Rights: The Origins of the Environmental Justice Movement”, Environmental History Vol. 2, No. 3 (Jul., 1997), p. 301-323.
25 Sir Robert Carnwath (1999), “Environmental Litigation – A way through the Maze?”, Journal of Environmental Law Vol 11 No. 1.
26 Indeed, the delay in the justice service provision seriously compromises the efficacy of the legal system in effectively preventing or remedying harms to be done in environmental matters. See for example the RSPB Vs Lappel Bank case where “RSPB cited Lappel Bank in Kent, which resulted in a landmark legal victory for nature conservation, but during which an important part of the Medway Estuary and Marshes was turned into a car park” (Coalition for Access to Justice for the Environment (2004) Access to environmental justice) see also
27 D. Reiling (2009), Technology for Justice: How Information Technology can support Judicial Reform, Leiden University Press
29 D. Reiling (2009), op. cit., p. 26.
32 See W. L. F. Felstiner, R. L. Abel and A. Sarat “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …” Law & Society Review Vol. 15, No. 3/4, Special Issue on Dispute Processing and Civil Litigation (1980 - 1981), p. 631-654. The authors refer to “the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming)”.
34 D. Reiling (2009), op. cit., p. 84.
36 D. Reiling (2009), op. cit., p. 116.
40 C. Stephens and S. Bullock (2002), op. cit.
41 D. McLaren and S. Bullock (1999), The geographic relation between household income and pollutingfactories, Friends of the Earth, London.
42 R. Bass, “Evaluating environmental justice under the national environmental policy act” Environmental Impact Assessment Review Volume 18, Issue 1, January 1998, Pages 83-92 “This finding was especially evident for locally unpopular land uses such as toxic waste sites and landfills. For example, a study conducted in the greater Los Angeles area demonstrated that a disproportionally high number of toxic waste sites were situated in low-income and minority neighborhoods (Szasz et al. 1993). Similar findings have been confirmed by dozens of studies throughout the nation (. In: Bullard, R. D. Editor, (1994), Unequal Protection Environmental Justice and Communities of Color, Random House, Inc, New York Bullard 1994; Hofrichter 1993; Schwab 1995)” (ibidem).
43 M. Day, P. Stookes, C. Hatton and P. Castle et al (2004), Environmental Justice Project - A Report bytheEnvironmental Justice project, http://www.unece.org/env/pp/compliance/C2008-23/Amicus%20brief/AnnexCEJP.pdf
44 P. Stookes (2007), op. cit.
45 See on this point Sir Robert Carnwath (1999), op. cit.
46 P. Stookes (2007), op. cit.
48 R. Carnwath (1999), op. cit.
49 European Environment Agency & WHO Regional Office for Europe (2002), op. cit..
50 Dory Reiling (2009), op. cit., p. 29-30.
51 C. Guarnieri and P. Pederzoli (2001), The Power of Judges, Oxford University Press, Oxford p. 9.
52 Dory Reiling (2009), op. cit., p.29-30.
53 “Between February and August 2007, Esther Pozo Vera and her team carried out an independent legal study, on behalf of Milieu Ltd, on the implementation in the EU – with the exception of Romania and Bulgaria – of Article 9(3) of the Aarhus Convention which pertains to access to justice. The evaluation was based on four elements – legal standing, the effectiveness of remedies, the cost and length of procedures and transparency” Esther Pozo Vera, p. 5.
56 R. Savoia, “Administrative, Judicial and Other Means for Access to Justice”, in Stec (Ed.), Handbook on Access to Justice Under the Aarhus Convention, Tallinn, Estonia, p. 24.
57 Ibid., p. 26.
58 Ibid., p. 33.
59 Ibid., p. 24.
60 D. Reiling (2009), op. cit., p. 19.
61 Ibid.,p. 17.
62 Ibid., p. 18.
63 Ibid., p. 19.
66 M. Velicogna, and G. Y. Ng, (2006) “Legitimacy and Internet in the judiciary: A Lesson from the Italian Courts' Websites Experience”, in International Journal of law and information technology, Volume 14 Issue 3, 2006, p. 387.
69 See: M. Velicogna, Courts’ web sites in Italy, Conference of the European Group of Public Administration (EGPA) August-September 2005, Bern, Switzerland; M. Velicogna & G.Y Ng, op.cit, p. 370-389.
70 Richard E. Susskind (1996), The future of law: facing the challenges of information technology, Oxford University Press, New York, p. XLVIII.
71 W. L. F. Felstiner, R. L. Abel, A. Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…” Law & Society Review, Vol. 15, No. 3/4, Special Issue on Dispute Processing and Civil Litigation (1980 - 1981), p. 631-654.
72 Richard E. Susskind (1996), op. cit.
73 Dory Reiling (2009), op. cit, p. 206.
74 W. L. F. Felstiner, R. L. Abel, A. Sarat, op. cit, p. 631-654.
75 See for example M. Velicogna, F. Contini (2006), The design of e-services for the Justice of the Peace Office in Bologna, Report IRSIG-CNR, Bologna.
76 Richard E. Susskind (1996), op. cit.
77 D. Reiling (2009), op. cit., p. 198.
78 Richard E. Susskind (1996), op.cit.
79 D. Reiling (2009), op. cit., p. 201.
80 Available at http://www.hmcourts-service.gov.uk/news/forms/docs/ex301_0406.pdf
81 See for example http://www.courtinfo.ca.gov/selfhelp/family/divorce/
82 D. Reiling (2009), op. cit., p. 200.
83 The case of MCOL is presented in section 3.3.
84 Divórcio na Hora allows on-line divorce “in Portugal, where the procedure is usually lengthy and expensive. A two-page form can now be downloaded from the net and emailed to the authorities. Papers confirming a marriage has been dissolved can be available within an hour” (T. Worden “Outrage at web divorces”,The Observer, Sunday 4 May 2008). For more details see: http://direitonahora.com/divorcio/
85 Dory Reiling (2009), op. cit , p. 156.
86 Ibid., p. 206.
87 Ibid, p. 193.
88 I.e. walking to the court office and presenting the request of specific information in a codified way.
89 A. Hol and M. Loth (2004), Reshaping Justice, Shaker Publishing B.V., Maastricht.
90 M. Velicogna, and G. Y. Ng, (2006), op. cit., p. 373.
91 Ibid., p. 375.
92 Ibid., p. 377.
93 Ibid., p. 378.
94 D. Reiling (2009), op. cit., p. 201.
95 M. Velicogna, and G.Y. Ng, (2006), op. cit., p. 382.
96 Ibid., p. 382.
97 Ibid., p. 383.
99 M. Fabri, (2009), E-justice in Finland and in Italy: Enabling versus Constraining Models. ICT and Innovation in the Public Sector European Perspectives in the making of e-government,. F. Contini and G. F. Lanzara, Basingstoke, Palgrave: 115 -145.
100 K. Kujanen, (2007). The Positive Interplay between Information and Communication Technologies and the Finnish Public Prosecutor’s Offices. Information and Communication Technology for the Public Prosecutor’s Offices. M. Fabri. Bologna, Clueb.
102 In addition to typical CMS functions, TUOMAS allows also “judges to access the data contained in the electronic documents the courts receive to produce decisions. The TUOMAS database and the document editors are integrated”. M. Velicogna, (2007), “Justice Systems and ICT: What Can Be Learned from Europe?”, Utrecht Law Review, Vol. 3, No. 1, p. 129-147, June 2007.
103 Aki Hietanen “National Report of Finland” presented at 15th Colloquy on Information Technology and Law in Europe “E-Justice: Interoperability of Systems” Macolin (Switzerland), 3 – 5 April 2002 available at http://www.rechtsinformatik.ch/CJ-IT-colloquy/reports/finland-e.pdf
105 M. Fabri, (2009), op. cit. , 115 -145.
106 Aki Hietanen, op. cit.
107 M. Fabri, M. (2009), op. cit.
108 K. Kujanen and S. Sarvilinna (2001), Approaching Integration: ICT in the Finnish Judicial System. Justice and Technology in Europe: How ICT is Changing Judicial Business, M. Fabri and F. Contini. The Hague, The Netherlands, Kluwer Law International.
110 M. Fabri (2009), op. cit.
112 The County Court Bulk Centre (CCBC) has been set up by Her Majesty’s Courts Service to deal with straightforward debt collection work which, in the main, is undefended. Working in partnership with local courts, the CCBC not only removes this mainly administrative and procedural work from local courts thus freeing staff time for other areas of work, it also provides its users with a faster, guaranteed service. To further incentive the use of the system, there are discounts on the standard county court fees if CCBC is used (http://www.hmcourts-service.gov.uk/cms/ccbc.htm). In 2008/09 the CCBC issued 57% of all small claims monetary cases for England and Wales (http://www.hmcourts-service.gov.uk/cms/13825.htm).
114 K. Fraser (2004), Money Claim Online by http://www.venables.co.uk/n0407mcol.htm
115 J. Kallinikos (2009), Institutional complexities and functional simplification. The case of Money Claims Online. ICT and innovation in the public sector. European studies in the making of e-government, F. Contini and G. F. Lanzara. Basingstoke (UK), Palgrave Macmillan.
118 Recently, MCOL has become part of the services available from the Government Gateway. The Government Gateway is a centralised registration service in the UK. By registering with the Gateway the user is able to sign up for many of the Government’s internet services (the Gateway has over 100 enabled services from over 50 government offices). As a result of this integration, all existing MCOL users are required to re-register to continue to use the MCOL service. Some online services are activated immediately. Others can only start to be used once the Government Gateway has sent the user an ‘Activation PIN’ -personal identification number- through the post. If the service the user wants to use requires an Activation PIN he or she gets an email from the Government Gateway when enrolling, telling him or her they’re sending one with the next seven days, and instructions on what to do. The user needs a separate Activation PIN for each service that requires a PIN. Once activated the service the user can dispose of the PIN as he or she won’t need it again) (www.direct.gov.uk/en/Diol1/DoItOnline/Doitonlinemotoring/DG_10035603).
120 J. Kallinikos, (2009), op. cit.
121 For the full list of criteria see: http://www.hmcourts-
123 Dory Reiling (2009), op. cit., p. 129.
125 K. Fraser (2004), op. cit.
127 While initially if it was not possible to set out the claim within the allowed 1080 characters, the claimant had to proceed off-line, at present, if it is not possible, the claimant must provide a brief summary of the claim within the particulars section and state that detailed particulars of claim will follow. The claimant is then required to serve the detailed particulars on the defendant within 14 days of service of the claim form
131 If the plaintiff receives also the full payment of the claim, you judgment must not be entered and the court should be advised that the case is concluded. If defendant asks for time to pay, and it is up to the plaintiff to decide whether to accept proposal. If accepted, the plaintiff may request judgment be entered by admission online through MCOL. Else, the plaintiff should complete a judgment request form explaining the reasons of refusal and send it to the court with a copy of the defendant's admission form. The court then determines the rate of payment and sends an order to both parties. If the defendant has not made a proposal for payment on the admission form, the plaintiff may specify how you wish the payments to be made and the court will enter judgment accordingly. Ibid.
134 Monday to Friday between 09:00 and 17:00.
136 Electronic Legal Communications (ELC)
137 S. Koch and E. Bernoider (2009), Alligning ICT and legal Frameworks ina Austria’s e-bureaucracy: from mainframe to the Internet. ICT and innovation in the public sector, C. Francesco and L. Giovan Francesco. Basingstoke, Palgrave.
138 P. Bauer and C. Graf (2003), Judicial Electronic Data Interchange in Austria. Judicial Electronic Data Interchange in Europe, M. Fabri and F. Contini, Bologna, Lo Scarabeo: 103-123.
139 Electronic transmission of original documents and attachments to submissions to the courts in electronic legal communication was not possible http://www.epractice.eu/files/documents/cases/1449-1179822942.pdf.In fact, only from “January 1st 2007 the electronic signature of justice has been applied in practice. Since then the electronic signature of justice confirmes the authenticity of commercial register excerpts and documents stored in the electronic archives of land and commercial register” ibidem.
140 S. Koch and E. Bernoider (2009), op. cit.
146 S. Koch, and E. Bernoider (2009), op. cit.
147 The Simple Object Access Protocol, is a protocol specification for exchanging structured information in the implementation of Web Services.
149 a list of software vendors and their products is provided at
150 S. Koch and E. Bernoider (2009), op. cit.
153 Bundesrechenzentrum (2010) Use of IT within Austrian Justice
154 Both in terms of functionality, both in terms of emerging tensions.
155 M. Velicogna, A. Errera, S. Derlange, « E-Justice in France: the e-Barreau experience », Utrecht Law Review, Volume 7, Issue 1 (January) 2011, p. 163-187.
156 “Après avoir rappelé l’expérience d’avocaweb qui, notamment faute d’évolution de France Télécom, n’a pas tenu ses promesses, il a exposé en quoi consistait le RPVA” Le Bulletin du Barreau de Paris, N°26 18 -25 juillet 2006
http://www.avocatparis.org/bulletin_barreau/archives/2006/Nr_26_2006.pdf see also http://cosal.net/imp.php?page=archives/actu&id=1757
157 EDIAVOCAT is an association created in 1997 to promote the development of the exchange of electronic documents, and support ICT implementation and coordination for the legal the profession. This association includes the Bar at the Court of Appeal of Paris, the Conference of Bar Presidents, the ANAAFA, the UNCA, and all lawyers interested in the problem related to the dematerialization of documents. National Bar Council, “Rapport adopté par l’Assemblée générale le 20 mars 2004 - Rapport sur la messagerie et l’accès Internet sécurisé pour les avocats”. http://archives.cnb.avocat.fr/PDF/2004-03-20_Rapportmessagerie.pdf
158 See for example, « AvocaWeb fait entrer les tribunaux dans l'ère numérique », Les Echos n° 17980 du 08 Septembre 1999 page 56 ; http://archives.lesechos.fr/archives/1999/LesEchos/17980-135-ECH.htm
159 National Bar Council, « Rapport adopté par l’Assemblée générale le 20 mars 2004 - Rapport sur la messagerie et l’accès Internet sécurisé pour les avocats » ; http://archives.cnb.avocat.fr/PDF/2004-03-20_Rapportmessagerie.pdf
160 Alain Marter, Justice et Telematique, France. Justice and Telematics, Rome, 8 and 9 September, 2003 http://marter-avocats.com/publications/justice_telematique.doc
161 M. Velicogna, A. Errera, S. Derlange, op. cit., p. 172.
162 Ibid., p. 174.
165 M. Velicogna, A. Errera, S. Derlange, op.cit., p. 175.
166 The new framework agreement “describes the way the different stakeholders were to share responsibilities, with the Ministry of Justice and the CNB setting the guidelines, and the courts and the local bars being required to sign agreements before implementing official electronic communication at the local level” (Velicogna, Errera, Derlange, 2011a).
167 M. Velicogna, A. Errera, S. Derlange, op.cit., p. 163-187.
168 Ibid., p. 179.
170 W. J. Orlikowski (2006), “Material Knowing: The Scaffolding of Human Knowledgeability”, European Journal of Information Systems, 15(5) Material Knowledge, p. 463.
171 O. Hanseth, and M. Aanestad (2003), “Design as Bootstrapping. On the evolution of ICT networks in health care”, Methods of Information inMedicine 42(4).
172 F. Contini, G. F. Lanzara, A. Resca, Building interoperability in European Civil Procedures Online:firstoutlineof the research method, First draft, Bologna, November 2nd 2010.
174 Coalition for Access to Justice for the Environment (2004) Access to environmental justice
176 Dory Reiling (2009), op. cit., p. 130.
177 M. Velicogna (2010), “ICTs in the justice sector”, in R. Coman and C. Dallara (eds.), Handbook of judicial politics, Institutul European, Iasi, Romania, p. 195-236.Haut de page
Table des illustrations
|Légende||Image 1 Source: UNDP practice note on “Access to Justice”31|
|Légende||Image 2 Source: European Commission Directorate General for Information Society and Media, eGovernment Benchmark Survey 2009 - Smarter, Faster, Better eGovernment - 8th Benchmark Measurement65|
|Légende||Image 3 Source: Kari Kujanen (2003) E-services in Finland109|
|Légende||Image 4 MCOL components|
|Légende||Image 5: ERV architecture|
|Légende||Image 6 E-Barreau architecture - Source: National Bar Council164|
Pour citer cet article
Marco Velicogna, « Electronic Access to Justice: From Theory to Practice and Back », Droit et cultures [En ligne], 61 | 2011-1, mis en ligne le 18 octobre 2011, consulté le 28 avril 2017. URL : http://droitcultures.revues.org/2447Haut de page
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