Law Report: The Telematic Process in Italy
- Pubblicato su NYSBA International Law Practicum - Autumn 2014, Vol. 27, No.2
- Autori: Donato Silvano Lorusso
- Altro, Information Tecnnology
The Civil Telematic Process ("PCT") is a project initiated by the Ministry of Justice that is aimed at improving the quality of judicial services in the civil law sector. This new technological architecture is enabled through the online remote execution of operations (such as document filing, transmission of communications and notifications, consultation of the proceedings status using the registry held by the chancery, consultation of the files and case law), which previously were only available by physically visiting the Court chancery.
As of 31 July 2014, over 1,046,665 court decisions were issued digitally (i.e., written by the judges directly using their telematic control panel), 570,185 deposits were digitally performed, and over 11,863,243 communications and notifications were carried out online by the chanceries. The cost savings amounted to 41.5 million Eums.
The telematic process regulation comes at the final stage of the long and gradual computerization of justice administration procedure, carried out in Italy in order to rationalize the management of civil mistrial proceedings, with an aim to drastically reduce proceeding times.
II. Historical Background
The first steps to digitalization date back to 1997, when, implementing Law No. 59 of 15 March 1997, Presidential Decree No. 513 of 10 November 1997, the criteria and means for the composition, storing and transmission of documents through electronic supports were adopted. The law provides for digital signature regular tion, defined as the result of a computerized procedure (the so-called "validation"), based on a system of coupled asymmetric keys, allowing the signer and the recipient to show and verify the source and integrity of a document or a set of documents.
The excessive length of trials was the impetus for the adoption of an organic regulation of the telematics proceeding. Presidential Decree No. 12 of 2001 regulates the use of informatic and telematic support in civil and administrative proceedings and in the trials before the Court of Auditors. This regulation identifies the fundamental instruments involved in the telematics proceedings. In addition to informatics document and digital signature, the Decree regulates the "justice domain": a "set of hardware and software resources, through which the judicial administration electronically manages all sorts of activities, data, services, communications and procedures" and the "civil computer system," a subset of the justice domain resources, used to treat the civil proceeding. According to the Decree, all acts and measures adopted in the trial can be performed by means of electronic documents signed with the digital signature. The set of technical and operative rules for the management of the civil information system, for access of the parties and for the filing of documents, is delegated to a subsequent regulation jointly adopted by the Ministry of Justice and the Authority for Informatics in Public Administration.
Pursuant to the above disposition, the Minister of Justice, after the first set of technical rules adopted in 2004 and the subsequent version approved by the Decree of 17 July 2008, issued Decree No. 44 of 21 February 2011 ("Regulation concerning technical rules for the adoption of information technology in civil and criminal process"). The need for the latest set of rules arose after the adoption of Law Decree No. 193/2009, which, besides extending the legislation on telematic proceeding to criminal trials, affirmed that all digital communications and notifications pertaining to civil proceedings must be performed through certified e-mail.
The key nature of the issue can be confirmed by look-ing at the frequency and number of the legislative interventions. On 14 March 2011, the Government proposed the Extraordinary Plan for the Computerization of Justice, to be enacted in an eighteen-month period. This plan fell within the wider E-Government Plan 2012, which sees informatics transformation of the judicial system as one of the main goals of the Government. Furthermore, in 2012 Law Decree No. 179 was adopted, integrating the judicial regulation of telematics notifications both in the civil and criminal sector and modifying the Italian bankruptcy law in order to make the use of certified e-mail possible in all stages of the insolvency procedures.
Finally, as already mentioned, Stability Law for the year 2013 (Law No. 228/2012) definitively decreed that electronic filing was compulsory: starting on 30 June 2014 the electronic deposit of all judicial acts and documents became compulsory in civil trials. The above regulation does not eliminate the general rule stating that, in case of information system malfunctioning, the judge can allow the deposit of the paper version of the document or order the deposit of a paper copy of the document (for specific reasons).
The Stability Law goes beyond the mere listing of the acts to be filed on electronic support; it indicates also the formalities to be followed in the deposit in order to be in compliance with the legislation and regulations pertaining to the signing, transmitting and reception of electronic documents. Given the complexity of the subject, a brief analysis of the fundamental instruments constituting the telematic civil proceeding is appropriate.
A. Electronic Document
The code for digital administration (Legislative Decree No. 82 of 3 July 2005) defines the electronic document as "the digital representation of any act, fact or data legally relevant." The generic electronic document (as well as the document signed with a simple electronic signature) is regu-lated by Articles 20 and 21 of the above mentioned code. According to the law, electronic document formation, the retention on digital support, and the transmission by means of telematic instruments are valid and relevant to the extent of the law.
The most problematic issues pertaining to the electronic document are its suitability to satisfy the requirements of written form and its evidentiary value. The law explicitly solves both problems by stating that the judge is free to evaluate the validity of the electronic document, taking into account the support characteristics in terms of quality, safeness, integrity and immutability.
B. Digital Signature
The generic electronic document is considered equal to the document signed with an electronic signature. That is, the set of electronic data used as means of digital identification (for example, the signature inserted at the bottom of a text document or attached as a portable document format).
However, the relevance is different when the electronic document is signed using an advanced electronic signature (electronic signature that allows the identification of the signing party and guarantees the unique connection between document and subscriber), a qualified signature (advanced signature based on a qualified certificate and implemented through a safe device for signature creation), or a digital signature, that is, the qualified signature based on a system of cryptographic keys (a public one and a private one linked between themselves) allowing the subscriber through the private key and the recipient through the public one, respectively, to signify and verify the origin and integrity of an electronic document or set of documents.
The documents compiled as above explained are considered Mechanical Reproductions pursuant to Article 2712 of the Italian Civil Code and are explicitly recognized as private writing. The electronic document subscribed with an advanced or certified electronic signature or with a digital signature have the effectiveness ensured by Article 2702 of the Civil Code, according to which "the private writing gives full proof, until a false complaint is filed." The solution provided by the law is a judicial fiction, whose reason lies in the will to avoid the integration of all the relevant dispositions of the civil code.
C. Justice Domain
As mentioned above, the justice domain is the set of hardware and software resources through which the judicial administration digitally manages all kinds of activity, data, service, communication and procedure. The systems of the domain are structured according to the Code for digital administration, to the Code for the protection of personal data and particularly to the provisions regarding safety of the data.
Among the resources pertaining to the justice domain, one must recall certified e-mail. That is, the e-mail service that gives back to the sender a short receipt attesting the fulfilled delivery for every electronic document made available to the recipient, thus certifying date and time of the dispatch. In the telematic civil process, the certified e-mail is the favored instrument used to perform notifications. Effectively, Law No. 2 of 28 January 2009 calls for the compulsory adoption of a certified e-mail address for every lawyer affiliated to bar associations, and sanctioning the Associations that do not make public all the lawyers' e-mail addresses on their websites. Moreover, all public administrations must communicate to the DigitPA (national organ for the computerization of public service) using their certified email; finally, starting on 30 June 2012, all companies were obliged to equip themselves with a certified address.
Another innovative resource is the Digital Dossier, which collects all acts, documents, attachments, certified e-mail receipts and procedure data created by anyone, or the telematic copy of the same when filed in paper format. The system managing the digital dossier is the part of the document system held by the Ministry of Justice dedicated to the storage and retrieval of all electronic documents. The keeping and preserving of the digital dossier is equivalent to the holding of the paper dossier by the chancery, and includes the duty of storing the original documents on paper support, as stated in the Code for the digital administration and in the judicial legislation.
D. Civil Computer
System The civil computer system ("SICI") is the subset of the justice domain through which the administration manages the civil proceedings.
In particular, the system must guarantee: (i) individualization of the judicial office and of the subject; (ii) performing the allowed activities (consultation, insertion, modification or communication of acts or data); the fulfilled receipt of a communication; and (iii )the automatic legitimation for the access granted to lawyers and public officials.
The main resources pertaining to the SICI are: (i) the local manager; (ii) the management system of judicial record, (iii) the judge's console; (iv) the digital document registry held by the chancery (the so called repository), and (v) the access points for the qualified external users.
The telematic civil proceeding has the potential to revolutionize the Italian judicial system in terms of a reasonable decrease in the length of the proceedings and rationalization of access to resources. It represents a great advantage for all the professionals taking part in the trial. First of all, it will allow lawyers to save time and resources now necessary to personally perform the activities in the chancery. Furthermore, it will guarantee the judges and chancery employees a consistent simplification in the managements of the files.
The news pertaining to the computerization of the civil trial represents an important signal that Italy gives to foreign nations, who are generally skeptical when dealing with the Italian judicial system. The simplification will effectively benefit the international operators, who will be able to count on a system of judicial access that is more timely and efficient.
Telematic Civil Proceeding: project enacted by the Ministry of Justice to improve the quality of judicial services, through complete computerization of the civil trial.
Electronic Document: electronic representation of acts, facts or legally relevant data.
Electronic Signature: set of electronic data (in DOC, PDF and similar formats) used as signature of an electronic document.
Advanced Electronic Signature: electronic signature that allows the identification and unique connection of the subscriber to the document.
Qualified Electronic Signature: advanced electronic signature realized by means of a safe device for the creation of signatures.
Digital Signature: validation mechanism that allows verifying with certainty the origin and integrity of an electronic document.
Justice Domain: set of resources through which the judicial administration digitally manages every activity and procedure.
Certified E-mail: e-mail service certifying date and time of the dispatch of communications, by giving back to the sender receipts of fulfilled delivery.
Digital Dossier: instrument collecting all the acts, documents and data of the proceeding and the digital copies of documents deposit on paper support.
Civil Computer System: subset of the judicial domain dedicated to the electronic management of the civil trial.