The rapid technological revolution has allowed us to hold at the palm of our hand a device, embodying a phone, computer, camera, store, bank, tourist agency, and map of the world, the New York stock exchange and what not.
Digital technologies will take an even greater place in our lives – from social needs, to shopping and money management, communication with the state and business-making. That is why the question at hand about the so called e-justice is not “whether it will happen” rather than “when it will happen”.
When interacting with the court and administration we are often left with the impression that technological progress has not been implemented there as decisively as in other fields of our lives. Multiplication of hundreds of pages on every case, court certificates for acquiring other certificates, summoning sides of the proceeding – all of this is a burden to average citizens who seldom have contact with the administration or court. The same goes for the merchants whose activity directly depends on the efficiency of these establishments. The need for modernization is apparent and by the looks of things the first big step in this direction will be the initiated significant change in our youngest procedural act – the Administrative Procedure Code (APC).
What does the APC regulate?
This code arranges the relations between citizens and the administrative authorities of almost any nature – it regulates the procedures of issuing personal documents as well as granting of pensions, issuing building permits, or license for performing a certain type of commercial activity and so forth. All of these are widely included in the civil and commercial turnover, therefore they affect many citizens and companies.
An attempt for modernization
At the end of June a draft law amending the APC was passed at first reading. The main line in the proposed changes is the introduction of electronic communication between the participants in the process as well as between the different administrative authorities and courts, and the establishments with citizens and commercial companies.
This way, for example, it is expected that all kinds of applications, requests, claims and intimations which are addressed to the administrative authorities, courts, persons and organizations that carry out public functions and services will be submitted electronically – with an electronic signature and e-mail. Furthermore, all citizens participating in any form of administrative proceedings will have to indicate their own e-mail address, phone number or fax, with which it is technically possible for them to receive messages and be informed of any act. As of now this notification can be done only through notices on paper, handed by a process-server in the appropriate order.
And while it is anticipated that citizens will submit these data only if they have the necessary means of communication, all other participants in the process, including attorneys, will be obliged to submit e-mail addresses through which the official correspondence will be conducted, including the procedures on summoning, handing messages and so forth.
The possibility for notifying through the phone is arranged. When handing of papers is necessary, the term of obtaining those from the office of the authority or the court sets in motion once the addressee receives a call.
The suggestions intend a radical change in the way administrative transcripts and administrative cases proceed because we will be regularly notified for any important circumstances in a faster and more accessible manner – by e-mail, SMS or fax. The new regulation predicts advantages as well as risks or at least ambiguities.
Where are the pitfalls?
The exact moment in which it is considered that the notice has reached its addressee stands out as the main issue in the suggested changes. In the passed bill it is provided that the sent message is considered as handed from the moment when the addressee receives an e-mail, respectively the text was delivered, regardless if the addressee has read it. Despite the undoubtable advantages of this proposal regarding the significantly easier way of notifying the parties, the possibility to consider ourselves as informed about a fact which objectively has not reached our knowledge raises some serious concerns.
Let us imagine the following situation – we have chosen an exotic destination for our summer holiday where the signal and mobile internet are a luxury. We spend seven or ten days there, during which we have no access to our mobile phone and e-mail or because of some objective reason the text or electronic letter has not reached us. They, however, have been reported as successfully delivered and as far as the proceedings’ leading authority is concerned we have been duly notified. The day after we come home from vacation we find out about the received notification which has an already expired seven-day period for carrying out a certain instruction. We will bear all the adverse consequences – including termination of the claim file, the case and so on.
However the problem with the receivers’ unscrupulousness still remains. In other words – how will the possibility of the addressees receiving e-mails and texts but not opening the notifications and afterwards claiming that they have not been duly informed about them – how will this be counteracted? According to the present regulation the process-server is obliged to look for the person on his address at least a few times and between certain intervals of time after which, if he does not find the person, he sticks a notification. A parallel to this must be looked for regarding the electronic notification – for example, multiple messaging.
However, the question remains in case of bad faith of the recipients. In other words, how to counter the possibility that recipients receive e-mails and SMSs but do not open the messages themselves and subsequently claim that they were not regularly notified of them. Under the current arrangements, the summons officer is obliged to look for the person at his address at least several times during a certain period of time, and then, if he continues not to find him, to stick a notification on him. In the case of electronic notification, such a parallel would probably have to be sought with repeated messaging.
The discussions between the first and second reading show that an explicit decision has not been made about how exactly the electronic handing will be conducted. The topic requires in-depth discussions since the new regulation will affect a significant amount of citizens and merchants whose rights have to be protected and guaranteed.
Will we spare ourselves the round trips to the administrative authorities?
Have you ever submitted a document in an administrative authority but then on the counter they tell you that you have to submit an additional document which is issued by another administrative authority or…by this one itself? Have you ever inquired a court certificate so you could inquire another certificate but from a different court or the administration?
The bill intends a general change in the communication between the participants in the proceedings as it introduces the obligation of administrative authorities, courts, persons and organizations that carry out public functions and services to exchange ex officio or electronically any relevant to the proceeding information. This would make it easier for citizens and the business, it would save time and costs, the procedure would be faster and it even could be a prerequisite for the numerical contraction of the administration.
Electronic check-ups on cases and transcriptions
Among the proposed innovations is the creation of electronic transcription files and cases, to which the parties will have remote computer access. The so called “check-ups on the spot” could be left in history, because every interested party will be able to look through the documents via an electronic signature, to get acquainted with them, to store them for their own usage. This facilitation should not come at the cost of information security – only participant sides in the process should have access.
Beta version or release?*
It looks like the government will have enough time to prepare for the changes. If they are decisively adopted in the next few months, they will come into force no sooner than the beginning of 2019. A faster and more modernized justice is what we all want, but it should not come at the cost of our procedural rights and our personal space. The gradual introduction of e-justice should be welcomed, but the introduction of the new rules requires the necessary attention and depth so that it could be of use to the citizens.
* Beta version is the status of a software. This is a version which is not final and stable. It often has bugs and the aim is to find and fix them before the official release of the product. Release is the edition ready for commissioning.
This article is published in investor.bg under the title “Are the new amendments in the Administrative Procedure Code a step towards e-justice?“.
Author: Simeon Hinkov, Attorney-at-law