Σάββατο, 10 Ιανουαρίου 2009

ITALIAN CIVIL ELECTRONIC TRIAL

Ligheia Nicolosi
Erasmus Student,
Faculty of Law
Aristotle University
animah_84@yahoo.it

ITALIAN CIVIL ELECTRONIC TRIAL


1. Introduction

The PCT Project (Processo Civile Telematico) introducing the Electronic Civil Trial, is a project which has been developed by the Italian Ministry of Justice. It is one of the most important Italian e-government projects and aims at increasing the availability of an online services, building a two-way data and document interchange and application interoperability, implementing a high-security PKI architecture and adopting a state-of-the-art technical standards, according to recent available Italian laws.

The PCT project is concerning the information management of the entire civil trial. This ambitious target has been outlined by the DPR 123/2001 (Decree of The President of the Republic n.123 of 2001) and is further defined by other decrees: DM 24th May 2001 containing Regole procedurali relative alla tenuta dei registri informatizzati dell’amministrazione della giustizia (Decree of the Ministry of Justice containing Procedural rules regarding the maintenance of the electronic records of the Administration of Justice), the DM 15th December 2005 containing Norme sulla strutturazione dei modelli DTD relativa all’uso di strumenti informationi e telematici nel processo civile (Decree of the Ministry of Justice containing Norms on the structuring of the DTD models regarding the use of informations and telematics implements in the civil trial ) and the DM 17th July 2008 containing Regole tecnico-operative per l’uso di strumenti informationi e telematici nel processo civile (Decree of the Ministry of Justice containing Technical-operational rules for the use of information and telematic implements in the civil trial ), which abolished the previous DM 14th October 2004, n. 187 on the same matter.

We can place the PCT Project at the end of a long path of studies and juridical information applications, which started in the late ‘60. At the end of 1973, the Italian Supreme Court presented a system of global juridical informations: Italgiure, created by its Centro Elettronico di Documentazione (CED: Electronic Centre of Documentation). Italgiure was a wide data bank containing juridical and jurisprudential information, which was possible to consult through a complex language of automatic enquiry, i.e. the Find. This has been the birth of that area of studies and research, which was later called juridical informations, encompassing all the computers applications to law.

Three precincts will gradually be developed during the following years, at least: a documentary-informative one, a managerial-conductive one and a logical-decisional one. Nowadays, documentary informations means electronic storage of juridical data and documents; managerial informations means electronic management of the offices’ flows work and telematic production and transmission of trial’s acts and documents; meta-documentary informations means automation of the reasoning and the juridical decision.

The PCT is set inside this wide panorama of technological applications, aiming to automatise the entire procedure of the civil trial. The base of this specific target is to render electronic almost the entire jurisdictional activity; therefore we should properly speak about an electronic jurisdiction instead of an electronic trial. The term jurisdiction can be accepted into three meanings: as office, as procedure or as decision. The first term refers to the whole judiciary offices; the second to the whole acts of the trial; the third to the juridical operations that leads to the judicial decision. These three meanings correspond to three moments of the jurisdictional activity: the bureaucratic moment which is field of interest for the juridical informations and for a part of the managerial informations; the strictly procedural moment, specifically concerning the trial, which is typical field of interest for managerial informations; and, last, the typical juridical moment of the decision, exclusively matter of the meta-documentary informations. Therefore, the informations jurisdiction and electronic trial must reckon the whole juridical informations.

It is important to note that PCT is not a new type of trial: the legislator didn‘t aim to provide a new case device, new rules to regulate the civil trial differently from the norms contained in the Civil Procedure Code. The project consists, instead, in the implementation of a complex of electronic applications in order to give access to the SICI (Civil Information System) via web, either for the bestow of acts and for the consultation of the state of the trials and of the electronic dossier; moreover, is contemplated the electronic transmission of communications, of notifications and of copies of acts, from the judiciary offices to the parties. In particular, the implementation of the project aims to:

- Allow the consultation by distance of the Chancery’s records and of the documents contained in the electronic dossier;
- Allow the request by distance of copies of documents;
- Allow the electronic transmission of documents by the attorneys and the auxiliaries of the judge, and their automatic acquisition in the record and in the dossier;
- Allow the electronic sending of the advices regarding the trial acts that have been done;
- Allow the electronic registration and transcription of the judiciary acts;
- Reduce the time of the trial by the management of this last and of the office in general;
- Reduce the time necessary to the transfer of the acts either from an office to another and between offices and external entities, and moreover the introduction of the electronic dossier reducing the time inside the same office;
- Proceed to rationalization of the duties of the parties.
At the end, the PCT Project aims to fastening and reducing the costs of the civil trial through the usage of the information technology.

2. Definitions

Article 1 DPR 123/2001 includes the following definitions:
- Electronic document: the electronic representation of the content of acts, facts or data that are relevant from a juridical point of view;
- Copy of the electronic document: the reproduction of the electronic document implemented on any kind of electronic support, which is easy to be carried;
- Document of evidence: the act which has, according to the Italian civil code and the Italian civil procedure code, evidential effectiveness;
- Digital signature: the advanced electronic signature, based on a qualified certificate, released by an accredited certificate and bred through a device for creating secure signature;
- Dominio Giustizia: Justice Domain; the whole hardware and software resources, through which the Administration of Justice deal electronically and telematically any kind of activity, of data, of service, of communication and of procedure;
- Sistema Informationo Civile ( SICI ): Electronic Civil System; the subset of the resources of the Justice Domain, through which the Administration of Justice deals the civil trial;
- Manager of the system of the transportation of the information: the person who is entitled for the telematic transmission of acts, data, documents implemented through electronic devices;
- Electronic address: the address of the electronic mail that, according to art.1 lett. L DPR 513/97, is the identifier of a physical or logical resource which is able to receive and record electronic documents;
- Ricevuta di consegna: Receipt of delivery; the message bred and sent automatically to the addresser by the manager of the system of transport of the information of the recipient when the sent message is available to the recipient himself in his e-mail box;
- Certificator of the digital signature: the entity defined by art. 8, 9, 17 DPR 513/97 that is a private or public entity, registered in a public record, which can be examined electronically, arranged retained and updated by the Authority for the Informations inside the public administration.

Under DPR 17th July 2008, the following definitions apply:
- Central Manager: the technical-organizational body which, among Justice Domain, provides services of access to the Civil Information System ( SICI: Sistema Informationo Civile ) and the services of telematic transmission of the case electronic documents between the SICI and the qualified persons;
- Local Manager: the information system which provides the services of access to the individual judiciary office or to the UNEP ( Ufficio Notifiche Esecuzioni e Protesti = Office Notifications Executions and Protests ), and the services of telematic transmission of the case electronic document between the central manager and the individual judiciary office or the UNEP;
- Certification of the attorney: the statement to the attorney of the enrolment in the roll, in the special roll, in the qualified apprentices’ record or of the ownership of the qualification that legitimates the exercise of the defence and the absence of impending causes to the performance of the defensive activity;
- Access Point: the technical-organizational body which provides to the qualified persons, out of the SICI, the services of connection to the central manager and of telematic transmission of the electronic document regarding the trial, and the certified e-mail box;
- Authentication: operation on web for the identification of the cryptographic device, containing the certificate of authentication;
- Electronic dossier: electronic version of the office dossier, containing the trial acts as electronic documents, or the electronic copies of the acts thereof, whether they’ve been bestowed through papery device;
- Qualified persons: any person who’s qualified to make use of the services of consulting information and of transmission of electronic documents regarding the trial. In particular, we define:
- External private qualified persons: the defensive advocates of the private parties, the attorneys registered in the special directories, the professionals and the auxiliaries of the judge;
- External public qualified persons: the attorneys, the State’s attorneys and the other employees of the public administrations;
- External qualified persons: the external private qualified persons and the external public qualified persons;
- Internal qualified persons: the magistrates, the judiciary offices’ personnel and of the UNEP;
- Casella di posta elettronica certificata per il processo telematico ( CPECPT ): Certified e-mail box for the electronic trial; electronic address, for the electronic trial, of the qualified persons.

Other definitions:
- Smart card: it allows to identify a user and allows a user to put digital signatures on electronic documents. It contains a certificate signed by a certification authority which aims to identify a user inside the web applications, moreover it contains a certificate to use digital signature with legal effect.
- SSL3: Secure Socket Layer version 3; it’s a protocol planed by Netscape Communications Corporation in order to implement encrypted communications on internet
- XML: eXtensible Markup Language; it’s a meta-language created and managed by World Wide Web Consortium ( W3C ). XML is a meta-language used to create other languages, which are worth to describe structured documents; XML uses markers ( Tags ) in order to give a meaning to the text. The vantage of all this is that it is possible to define the tags according to one’s own needing;
- PDF: Portable Document Format; it’s a file format based on the language of description of page developed by Adobe System in order to represent the documents regardless of the hardware and software used to create or to view them. A PDF file can describe a document containing text and/or images with any type of resolution; it’s an open format, which means that anyone can create applications which read and write in PDF without paying the royalties to Adobe System. A PDF file doesn’t contain any specific information about the hardware, software and operating system used: this allows to reproduce the exact original document, regardless to the device used to read it.
- Ordine degli Avvocati: Law Society; The Law Society originates from the Medieval corporations. Nowadays is a public law entity ( public corporation = ente di diritto pubblico ), self-regulated, that sets the modalities and the contents for the exams and the consequent admission to the forensic profession. In order to obtain the professional abilitation and to register in the Italian bar, first is necessary a university degree in law, then a two years period of practice in a law firm, finally the graduate must pass the State exam ( esame di Stato ). The candidates who have passed the above-mentioned exam are then admitted to the Bar and obtain the abilitation as solicitors. The Law Society is an indipendent body which aims to protect both citizens and solicitors regarding their professional performances that are not always assessable according to strictly normative standards because due to their peculiar intellectual nature (intellectual performances ). The law society has the duty to ensure the quality of the performances of its members and to justify the fees required by the members from the citizens. The Law Society and the Bars are governed by specific regulations in which are specified fields, limits, rights and duties of the profession.
- Consigli dell’Ordine degli Avvocati: Bar Counsels and Commettees; they are detachments of the Law Society and are spread in the chief towns of provinces or of regions. They held the rolls of the attorneys, the register of the apprentices and regulate the practise of the profession inside the area of their own detachment.
- Consiglio Nazionale Forense: Forensic National Counsel; it is the unitarian representative body of the Italian advocacy and is instituted and regulated by RDL 27th November 1933, n. 1578 n. 1933 ( Royal Law Decree ), RD 22nd January 1934, n. 37 ( Royal Decree ). It’s a public corporation and is settled in Rome, inside the Ministry of Justice. The Counsel has the following functions: judges over the appeals against the disciplinary decisions taken by the territorial Bar Counsels and Committees; it stores up the rolls and electoral claims; it keeps the roll of the attorneys enabled to the patronage before the superior magistracies; it performs an advisory function for the projects of law and of regulation regarding the forensic profession; it provides its opinion on the dissolution of the Counsels and Committees of the Law Society; it designates the attorneys forming the commissions of the exam for enabling to forensic profession; it approves the programs for the schools of forensic training; and edits the professional fees.


3. Procedural details

i. Brief presentation of the architecture of the System

It is possible to classify the electronic trial’s flows on the basis of the following typology:
A) Dispatches of documents and messages
B) Consultations.

These two typologies differ, as they use a different protocol of transport on the route between the Point of Access and the Central Manager. In particular, for dispatching documents and messages, an asynchronous mechanism is used, based on the SMTP protocol, whereas for the consultation a synchronous mechanism, based on HTTPS, is used.

The external qualified persons must be provided of cryptographic tokens ( typically smart cards ), containing:
- The certificate for the digital signature, released by an accredited certificatory, in order to guarantee that those determined credentials refer to a physical person who’s identity is guaranteed by the whole processes of identification implemented by the certificator itself;
- The certificate of authentication, for the connection to the Access Point, released by a certification authority recognized by the Access Point.
Therefore, it is possible that just one cryptographic token containing both certificates or different smart cards are used. Moreover, the external qualified person must be provided with a certificate of cryptography which is necessary to decrypt the encrypted acts.

Therefore, practically, the attorneys must operate on clients provided with a device for reading the smart card and, when they connect to the Access Point, for bestowing or consulting, they must digit their pin number and present their credentials in order to be authenticated by the system. This way, they create a secure channel based on SSL3 protocol.

Moreover, the judiciary offices are provided with keys and certificates in order to allow the bestowed acts to be decrypted on the attorney’s client with the public certificate of the judiciary office, and only to allow the latter to decrypt and read the acts themselves.

ii. Main system’s flows

A) Flow of allowance and management of the users

The management of the users regarding the qualified persons to operate in the civil electronic trial is ruled by art. 14, 15 and 16 DPR 17th July 2008.

The Bar Counsels and Committees and the Forensic National Counsel must send to the Central Manager an electronic copy of the roll, signed with digital signature in order to allow the Central Manager to implement the certification of the attorneys, and, moreover, to fill the General Record of Electronic Addresses.

The representative of the Bar (or one of his delegates) has the duty to digitally sign the electronic roll and to send it to the Central Manager through the certified electronic mail box.

The Bar must provide the Ministry of Justice (Electronic Trial Office) data referring to the persons who are qualified to sign the roll, or the data of the Representative of the Bar and, eventually, of his delegate.

B) Flow regarding the creation of a attorney’s username

The attorney goes to its own Bar and request a certificate of his registration into the roll. Then, after receiving the certificate, he gives to the chosen Access Point a written request of registration with the certificate and the public key of his own certificate of encryption.

The Access Point breeds the electronic address of the attorney and verifies that he does not already have one in the General Record of the Addresses. Then the Access Point sends to the Central Manager a request for enabling the attorney, in XML format, containing: fiscal code, electronic address, Bar, code of the Point of Access, public key of the certificate of encryption and personal data of the attorney. The Central Manager implements the formal controls on the message:
- in case of mistake, it will send a notification of exception to the Access Point and the flow will be interrupted
- if case of positive result, it will send a temporal statement.
The Central manager verifies the content of the request (merito = merit, that is the substance of the request):
- if it’s not already in the General Record of the Addresses, the Central Manager verifies the presence of the user inside the database of the roll in order to enroll and qualify him
- if he’s not in the General Record of the Addresses, then the user is enrolled in it but the registration is suspended till his Bar will send his data.
In case of negative result of the controls, the Central Manager sends to the Access Point a message containing the explanation of the problem; if the result is positive, then it sends to the Access Point a XML file containing the addresses of the persons enrolled.

The Access Point receives the XML file and updates the Local Record of the Addresses, and enables the attorney the next day. Finally, the Central Manager sends the data regarding the attorneys to each competent Bar, to their certified e-mail boxes.

C) Implementation and bestowing of the act of the party or of the auxiliary of the judge

An act is an electronic document in PDF format. On the other hand, the profile’s information that are necessary to the Chancery in order to define the content in which to set it, are contained in a XML file. The electronic act and its attachments must be assembled in an “envelop” in MIME format containing:

1) The information regarding the person who’s performing the bestow
2) The acts and its attachments encrypted for the judiciary office and the technical information necessary to encrypt ( key of session, reference of meaning )

The DPF file must be digitally signed using a digital certificate released by an accredited Certification Authority. However, the digital signature on the attachment is optional. Once an envelop is prepared, it is sent through the “bestow of the act” function provided by the Access Point.

D) Web consultation (Polis Web)
Web consultation concerns the access to information contained in the management system of records and in the electronic dossier. The procedure is the following:
- The external qualified person presents to Polis Web, set in Access Point, a request of consultation
- The Access Point authenticates the user and forwards the request to the judiciary office, through the Central Manager
- A determined subsystem, inside the judiciary office, provides the information resulted from the inquiry of the specific system of record and of the management system of the specific dossier, and forwards the information to the Access Point through the Central Manager
- Finally, Polis Web presents the information to the external qualified user.

iii. Procedure of electronic trial
At the beginning, the attorney must be provided with all the necessary hardware and software devices and in particular with the following:
- Hardware: smart card lector for the digital signature
- Software: antivirus and a program, provided by the Ministry of Justice, in order to breed the document in XML format

Therefore, the attorney will be able to send acts and documents to the judiciary offices, to consult the records and the dossiers, to request copies and receive communications from the Chancery and the notifications from the other parties of the trial.

So, the attorney completes the case document, and then signs it with his digital signature; finally, he sends it to the Access Point of the system of the electronic trial. In the Access Point is set the certified e-mail box of the attorney, which is the effective electronic domicile of the attorney. An advice of receiving is sent to the user and this is the evidence that the notification has been done, whether the message has been effectively read or not: this is based on the only presumption that the message has reached the effective availability of the recipient, therefore he’s able to have knowledge of the information contained in the message.
When the Access Point receives the document from the attorney, it inquiries the Attorneys’ Certification Point in order to verify that the sender possesses the quality of person who’s legitimate to practice the forensic activity. Then, the Access Point forwards the document to Central Manager that is the gate to Justice Domain and is the place where the document is dispatched (inside the information system of the Ministry of Justice) to the specific office. The Central Manager sends a delivery receipt to the attorney in order to inform him that the document (envelop) has been received. Hereon the Ministry if Justice is entitled of the duty to forward the document from the accessing gate of its Domain to the specific Chancery that is competent to deal the electronic case document.

The Central Manager put a temporal mark on the received envelops in order to ensure that the date and time of the receipt of the document are indisputable and valid, even against third parties; and it gives back a copy to the sender. Then, the Central Manager forwards the document to the Local Manager that coincides with the specific Chancery which comprehends the office of the judge who’s competent to hear the case.

The Local Manager (Chancery) verifies whether the document is strictly regarding the trial ( e.g. a memory of a party ) or is just a request of access. After stating the difference, the Local Manager gives its answer to the request: if it’s a strictly case document that must be put in the electronic dossier of the trial, it verifies the authenticity and the integrity of the document itself, and the respect for the applying technical rules.

As a final act, the Local Manager gives back to the sender a communication regarding the availability of the received acts and that its been put inside the electronic dossier.

4. Conclusion

The Electronic Trial represents an alternative provided to the parties, to the judge and to the chancery, of creating, communicating and notifying the procedural acts through electronic documents. The rules contained in the DPR 123/2001 and in the DM 17th July 2008, inspired by the general principle of the freedom of forms stated by art. 121 c. p. c. ( Italian civil procedure code ), allows to create an information system of the judiciary activity alternative to the papery one used today: after the L. 15th March 1997, n. 59 (law) and of the DPR 513/97, the electronic document signed with digital signature has acquired the same effectiveness of evidence of the private script ex art. 2702 c. c. (Italian civil code), consequently today the transmission of the document with electronic devices can be considered valid and effective under law’s effects.

A basic principle of the Italian legal system is the principle of procedural economy, which is stated by art. 111 comma 2 Constitution; it descends from the European Convention on human rights, art. 6, and refers to the attempt of rationalizing the trial, both civil and penal.
The institution of the Electronic Trial aims to “ slimmer “ the singles bureaucratic, laborious and expensive steps of the trial; it should provide several benefits to the world of the civil justice, in particular:
- Improvement in the management of the civil trial through the riddance of the so called tempi di attraversamento ( phases of traversing ), which are the periods necessary for transferring the acts from one office to another or from offices to external entities; this allows to reduce the length of the trial at least of 6 months; moreover, it also reduces the phases within the same office;
- Speeding up of the cases at least of the 20%;
- Recovering of the 30-40% of efficiency of the Chancery’s services;
- Requalification and rationalization of the usage of the personnel, as an indirect consequence of the reduction of the sportily activity and of mere data transcription in the records;
- Rationalization and speeding up of the notification’s times, with an average reduction of 10 days per notification;
- Improvement of the finding and usage of all the events and acts regarding a case, with indirect benefits for the trial which can be evaluated in a reduction of about 5 months of its length;
- Simplification in the organization of the archives and reduction in the costs of conservation of the papery material;
- Spreading of the knowledge of the giurisprudenza di merito ( jurisprudence of asset ) and chance of comparing the decisions regarding the recoverability of the damages, with the consequent reduction or elimination of the so called cause esplorative ( explorative cases );
- Increasing of the cooperation between judiciary offices and external actors.

The Electronic Trial is introduced as a novel practice of wide breath and range which, starting from the implementation of the information and telematic technologies to the civil justice world, allows to radically reconfigure the modalities through which the processes are treated. According to this point of view, far beyond the technical settlements, the Civil Electronic Trial provides an answer to the biggest problem of the crisis of the civil justice in Italy: the enormous length of the trials.

The Legge Costituzionale n. 2/1999 (Constitutional Law) introduced a new comma 2 into the art.111 of the Italian Constitution, in which is stated that the law ensures the reasonable length of the trial, but this provision remained “dead letter”. The European Court of Justice of the Human Rights continues to pronounce hundreds of sentences, every year, against the Italian State due to the infringement of the principle of the reasonable length of the trial. Indeed, certainty and respect for the rules, timeliness and transparency in the management of the conflicts are fundamental and essential conditions for the proper functioning of a legal system and for the maintenance of a civil cohabitation.

The so called Legge Pinto (Pinto Law) has been introduced in 2001 in order to avoid the appeals to the Strasbourg Court, ensuring a form of “ internal ” recoverability of the damages derived from excessive length of the trials, but it didn’t obtain appreciable results also due to the lack of financial funds, therefore the censures against Italy keep to be numerous.

Today, the Electronic Trial is used only in the Tribunal of Milan: the On-line Sentences service allows to the attorneys registered in the Roll of Milan to be immediately informed by e-mail of the published sentences of the civil sections of the Tribunal of Milan, sentences for which they resulted to be defenders. Moreover, the service allows consulting and downloading by internet the text of the sentences thereof. Therefore, just a very small part of the system is working. The expectation has been last for 8 years and still the system is not developed, so there’s a feeling of disillusion among all the operators of the civil justice sector toward the Electronic Trial. The hope, after the publication of the DM 17th July 2008, is that system would be soon fully and efficiently operative in every Italian tribunal; and a wish for the future: to extend the Electronic Trial to every trial, especially to the penal trial which usually lasts at least 9 years.

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