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Does E-Government and E-Justice start?

14.04.2020

In the past days, during the State of Emergency, the European Parliament, the Government, the Supreme Judicial Council, and even some municipal councils have been able to organize and hold the so-called "Remote sessions".

On 06.04.2020 significant changes in the Measures and Actions in the State of Emergency Act were adopted, announced by the Decision of the Parliament on 13.03.2020 ("the Act"). Among them is the new long-awaited by the business Art. 6a, which provides possibility to different bodies of both the judiciary and the executive authority, as well as the bodies of the local government, and in particular the municipal councils, to hold their sessions from a distance.
 
The new regulation aims to formally attach all public structures to the practically imposed means of operations in the social relations. It is logical that since in practice a large part of the business has been able to quickly switch to on-line mode, state structures should follow suit  in order to achieve a synergy of the turnover.
 
Public authorities’ sessions 
Decisions that public authorities will be able to take remotely must comply with the specific legal provisions and requirements. In addition to the mandatory quorum and a personal vote, in many cases, stakeholders will have to be able to participate. Otherwise, on a general basis the adopted decisions will be unlawful due to non-compliance with procedural rules and requirements.
In order to cover as much as possible life's hypotheses, the legislator also provided the possibility of taking absentia decisions. However, this possibility is not new and should not be interpreted as an alternative for public authorities to resolve issues during the State of Emergency. That is, any non-presence decision must comply with all substantive rules and procedures laid down by law or regulation, in order to be legally valid and produce its legal effects. Otherwise, the act will be unlawful on a general basis. 
 
Court hearings
Paragraph 2 of Art. 6a regulates the possibility of holding remote court hearings and meetings of the Commission for Protection of Competition, and imposes obligations on the relevant administrative heads of the authorities in this regard. It seems that the most difficult task will be for the courts to organize and supervise remote hearings in strict compliance with the rights of the parties, as well as the principles of litigation. The conditions in which the hearings are going to be held must provide the parties equal opportunity to present or become aware of the facts of the case, to guarantee their adversarial nature, and to provide equal opportunities for reaction during the distance hearings. This means that the court must ensure the necessary technical resources and / or software for direct and virtual involvement of the parties, as well as any other assistance if necessary. Although the law does not explicitly state this, remote hearings should normally reflect what is happening in the courtroom and the responsibility for their technical implementation should rest with the administrative heads of the courts. The same requirements must be observed by the Commission for Protection of Competition.
Immediately before the legislature accepted the possibility of remote holding of hearings in judicial and administrative proceedings, the SJC Judge’s College adopted a decision of 07.04.2020, according to which the documents initiating court proceedings could be opened in court cases. The College has accepted that in newly initiated cases the possible actions for rescheduling and scheduling should be taken in compliance with the restrictions under items 10, 11, 12, 13 of the decision of the Judges College under Protocol No. 9 / 15.03.2020.
 
One of the points of the SJC's decision is: "The ruling in closed session to be taken remotely and if that is impossible it has to be done in the timetable of the panel on duty." However, this decision does not mean that the Judge’s College instructs courts to hold remote hearings. The term used is a "closed session", which is by definition ruling without the participation of the parties, not a "closed in camera hearing", which limits only the principle of publicity of the hearings, but with the participation of the parties. Therefore, the Judge’s College indicated to the magistrates, when possible, to rule on the requests of the parties to the cases remotely, i.e. outside the courthouse, so as not to delay adjudication on urgent matters.
 
The legal provision in Art. 6a, Para. 2 establishes a possibility and does not oblige the courts to hold distance hearings, and its wording is rather optional. Furthermore, given the conservative nature of the courts, it is unlikely for all judges to take the opportunity and ensure the practical application of distance hearings. This is because the technical capabilities are not the same everywhere, but also because the participation of the parties should be ensured, which is not possible in every case. Nonetheless, the provision is positive and sets the stage for the future development of the litigation through the application of electronic measures. The SJC should create the necessary organizational conditions to ensure distance hearings.
 
The successful introduction of the teleworking through the digitization of the government, municipalities, courts, CPC and other bodies is a good basis for the introduction of a comprehensive e-government and the possibility of e-justice in certain cases in and after the State of Emergency.
For other current topics related to the legislation stipulating legal relations in the State of Emergency, you can find information on our website: www.penkov-markov.eu. Of course, you can contact us for further information and cooperation also at lawyers@penkov-markov.eu. 
The above provides general information related to the adoption of the Measures and Actions in the State of Emergency Act, whereas it is not exhaustive, but rather serves as a guide for interpreting the news as of 13th April 2020. 
The team of Penkov, Markov & Partners

[1] 10. Access to the court buildings of citizens, parties to cases, experts, translators, attorneys and all other persons, except for the summoned and scheduled cases under items 1, 2 and 3, shall be forbidden.
11. OBLIGES the administrative heads to set up an organization to ensure the work of the courts by approving the duty schedules of judges, bailiffs, registrars and court clerks.
12. The access of magistrates, bailiffs, registrars and court clerks to court buildings is forbidden, except for those engaged on duty in accordance with the work schedule prepared by the administrative heads of the judicial authorities.
13. INSTRUCTS the judges that they should work remotely on the cases announced for resolution, with the administrative heads having to set up an appropriate organization for this. The drafted acts are transmitted and the results on them are entered in the public judicial books after the State of Emergency ceases.