Implementing E-Justice on a National Scale: Coping with Balkanization and Socio-Economical Divergence

Implementing E-Justice on a National Scale: Coping with Balkanization and Socio-Economical Divergence

Dionysios Politis, et al

IGI Global

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Implementing E-Justice on a National Scale: Coping with Balkanization and Socio-Economical Divergence Dionysios Politis, Aristotle University of Thessaloniki, Greece George Donos, Ministry of Justice, Greece George Christou, Ministry of Justice, Greece Panagiotis Giannakopoulos, Ministry of Justice, Greece Aggeliki Papapanagiotou-Leza, Administrative Court of First Instance, Piraeus, Greece

Executive summary The world of justice is undergoing drastic changes that commenced about a decade ago. Trends in an effort for enterprise like management, along with the advent of information and communication technologies, have culminated in a strong imperative for technological and organizational reforms. However, justice is not simply another sector for e-government implementations. Justice is an autonomous function of democratic regimes that not only interprets laws but also poses restrictions and preconditions on how electronic systems are implemented with concern for the protection of constitutional and civil rights. Multiple types of relationships have been developed between politicians, administrators, technological infrastructure providers, and businesses, converting the roadmap for e-justice implementation from a mere quantified investment on content and organization to a complex strategy involving broader social and economical modeling techniques. Using case studies in three Balkan countries this research illustrates the problems in applying e-justice on a national scale. Keywords:

court computerization; information society; enterprise justice; transparency

ORGANIZATIONAL BACKGROUND As realized in most democratic regimes, there are three government functions: legislative, executive, and judicial. This ancient doctrine, which can be traced back to Aristotle, the Greek philosopher (Leyden, 1985), was perhaps most thoroughly explained by the French jurist Charles

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de Montesquieu, who based his analysis on the British constitution of the early 18th century (Montesquieu, 1748). According to the doctrine in its basic form, these three functions should be vested in distinct bodies so that excessive power is not concentrated in the hands of one body. This concept of the doctrine has, however, been re-interpreted to mean that it is not necessary for distinct bodies to hold each power, but what it is required is a “check and balance” system operating between them. Generally, we can say that violation of this principle (among the three mentioned powers) includes serious dangers for devaluating democracy (Kymlicka, 2001). In practice, justice refers to the system used by governments to maintain social control, prevent crime, enforce laws, and administer justice itself. The judicial system encapsulates (Janosik, 1987): • • •

The mechanisms that regulate individual and group behavior, leading to law enforcement according to the legislative framework Associations, like the judiciary, the bar, and the involved general public, that are the active actors initiating transactions with the system Procedures, like corrections and probation, that are directly involved in the apprehension, prosecution, defense, sentencing, incarceration, and supervision of those suspected of or charged with administrative, civil, or criminal offenses.

The introduction of information technology (IT) in the judicial sector in the mid-80s did not lead only to extensive court computerization, but also generated hopes for reforms that could reshape a very conservative part of democratic regimes. It even raised expectations for an enterprise-like conception of justice, relieving economically a sector where heavy government spending is recorded (Schneider, 2002). At the turn of the millennium the term IT was broadened to include electronic communication yielding the abbreviation ICT (information and communication technology). Although the term IT is still preferred in industry, the term ICT more adequately describes what is going on with e-justice, accentuating the hidden e-business dimension of justice. E-justice is the space where the most advanced information technologies in the world make the administration of justice better, faster, and less expensive for citizens and institutions. Its aim is to strengthen the legal system and law enforcement (Politis & Papasteriadou, 2003). E-justice perceived as the electronic delivery of government services is a subset of e- government; in simple terms it means that the justice sector is using ICT for communication between judicial organs and those seeking justice as well as for the exchange of information among the judicial organs themselves. Governments are increasingly using wide area networks, the Internet, and mobile computing in their daily interactions with citizens and businesses. E-government applications are improving interactions with businesses by centralizing information sources into topical gateways. For citizens, they are attempting to make transactions, such as renewing licenses and certifications, paying taxes, and applying for benefits, less time consuming and easier to carry out. The benefits of e-government include less corruption, increased transparency, greater convenience, and cost reductions (Weerakody et al., 2007). However, more and more decision makers are considering e-justice as something more than another e-government application. Within this framework, the Council1 Working Party on Legal Data Processing discussed the possibility of starting work at European level in the field of e-justice. Nevertheless, it is to be noted that ICT platforms in use have not been designed to function in other member states, whereas national or international law allows such cooperation.

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Also, it should be noted that EU is not the European parallel of United States. The United States has a uniform legal substrate where federal laws apply to; also one language is used for all official transactions. On the contrary, EU is a cluster of tightly affiliated states that have their own legal sovereignties and their own official languages2. EU as an entity even lacks a constitution, and the legal homogenization is performed by harmonizing to member-state level the directives, decisions and regulations of the EU institutions. There are countries, like Australia and Singapore, that have implemented e-justice to all its extent; in other regions, like Ottawa in Canada, a clear enterprise dimension is promoted measured by the return on investment (ROI). As Markakis (2005) points out, some of the most salient experiences have occurred in United States (e.g., Arizona State Court, U.S. Federal Courts), Spain (e.g., Pais Vasco) and Canada (e.g., Ontario and Quebec). In Europe, a recent study carried out by the European IT Academy of Law3 in Merzig, Germany, shows that all EU Member States make use of IT as an aid in their judicial system. One of the most efficient models, based on cost benefit analysis, is the one developed by the Austrian Federal Ministry of Justice which makes use of infrastructure of the Federal Computing

Figure 1.Participation and presentation of electronic format evidence in a hi-tech American courtroom

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Centre for all Electronic Legal Communications (Schneider, 1997). Other EU member states, like Finland, Sweden, Germany, France and Portugal have also developed effective computerization techniques and applications that lead the road for e-justice. The United States remains the pioneer in the advent of high technology in courtrooms. Futuristic methodologies, like “virtual trials” first appeared there. Considering that a virtual trial is a trial in which all the participants and all “information”, (i.e., evidence, opening statements, closing arguments, expert witnessing, and, in jury trials, instructions) are conveyed in real-time electronically to each other as appropriate, a virtual trial, and the virtual courtroom necessary to support it, are still somewhere in the future. Yet, if by “virtual” it is meant that significant portions of the evidence is conveyed electronically, such trials and courtrooms4 , as seen in Figure 1, are in fact already a reality (Lederer, 2004).

SETTING THE STAGE The Independence of the Judiciary Many people may have the impression that implementing e-justice on a national scale is something like applying a tax computerization project throughout the tax bureaus of sovereignty. Nothing like this can be asserted whatsoever. According to the constitutions of the targeted countries, the judicial branch, composed of the courts, the prosecutors’ offices and the investigation authorities is independent from the executive branch. Therefore, strategic decisions on IT matters are more or less biased by the judicial circles and lobbies and have to comply with their way of thinking. There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other factors influence their decisions, especially when they face organized crime or black economy transactions (Politis, 2005). Institutional independence could guarantee the proper implementation of an e-justice system in full scale. E-justice itself then, could reinforce and safeguard decisional independence by monitoring in depth the quality of delivered justice.

Balkans and Balkanization Balkanization is a geopolitical term originally used to describe the process of fragmentation or division of a region into smaller regions that are often hostile or non-cooperative with each other (Webster online dictionary). The term has arisen from the conflicts in the 20th century Balkans, when in 1912–13, two short wars, fought for the possession of the European territories of the Ottoman Empire, elapsed mainly between the national entities and the counties of the Balkan Peninsula, in the south eastern part of Europe. The wars heightened tensions in the Balkans and helped spark World War I. After a series of recent wars (in former Yugoslavia between 1989-2000) that have attracted international interest and participation, the Balkan states increased from six to 115, having included the youngest European state, the Republic of Montenegro, with a mere population of 650.000. The official languages used are now 10! Amidst this “quicksand” like environment, the stability of the judicial sector is a cohesive force that may enhance integrity, safety and reinforce budgetary input stabilizing the flow of foreign investment in a region characterized more or less by:

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• • • • • •

Corruption and criminality, Unprotected property rights, Inconsistent economic policies, Low levels of tax collection, Flourishing black economies, Population movement through legal or illegal immigration.

Linguistic Diversity and Intra-Justice Communication The aim of European e-justice work is to establish a decentralized system in which national systems will operate more or less separately from each other. This approach allows a great deal of flexibility but requires careful implementation. It would be conceivable to follow a decentralized approach, operating by way of a network of portals. However, the interconnection of e-justice portals has to overcome another major obstacle that the American counterpart systems do not have to cope with: the linguistic diversity. As mentioned, in the Balkans and the EU there are many official languages using three different alphabets: Latin, Greek, and Cyrillic. So, IT systems may be language independent and fault tolerant. It is not that clear, though, if the judicial sector with its subtleties can really function in parallel in one country with two or more official languages.

National Scale: The Coordinates of Uniform Implementation

Usually the image we have for an independent state refers to countries with sufficient resources in terms of population, skilled labor, industrial output (even in the lightweight field of tourism), capital, and so forth. The constituents of national scale that are of interest for our survey are: •

The size of Implementation

E-Justice is implemented in courts of law. For Bulgaria, a country of about eight million people, organized on a regional level, the size of the judiciary is as follows: 112 regional courts (courts of first instance), 28 district courts (courts of both first instance and second instance; the Sofia City Court, the capital’s court, is a district court), five courts of appeal located in major cities, the Supreme Court of Cassation (civil and criminal appeal) and administration, five military courts and one military appeal court. Judges are appointed by the 25-member Supreme Judicial Council (SJC) and, after serving for three years, may not be removed except under limited, specified circumstances. The difficulty and rarity of replacing judges, virtually regardless of performance, often has been cited as a hindrance to effective law enforcement. The size of courts varies from small regional courts in small towns, consisting of a judge and few clerks up to courts in the capital with considerable number of employees and resources. For instance, in 2002, the Sofia City Court had 128 judges and 79 administrative and clerical personnel. In terms of size, Bulgaria is of primary interest, since it has the right size to monitor e-justice implementations; being neither too big nor too small and it converges from bellow to the average size of an EU member state. For FYROM, with a total population of 2.2 millions, the judiciary functioned into 27 courts of original jurisdiction, three appellate and one supreme court, with a total number of 665 judges in 2004. The capital’s first instance courts were about half in size of the Sofia City Court. Copyright © 2008, IGI Global Copying or distributing in print or electronic forms without written permission of IGI Global is prohibited

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Both countries offer a unique chance, to attempt implementation of an e-justice system in a national scale, an issue out of question for many other countries under structural quiescence, where many factors preempt emphatic reforms and shaking social initiatives. In general, the degree of difficulty in implementing e-justice across the board for a state, is proportional to the size of the country (Donos, 2003). •

National Cohesion and Linguistic Uniformity

Factors that preempt national scale implementations are under-financing, multi-ethnic and of a deliberate spread culture of intolerance. If within a country recognized minorities exist having their own languages recognized as official languages, then the issue of working languages within the courts of law may crop up, perplexing e-justice functionality. •

The Potential and the Political Vision for Reforms

E-Justice effective foresight requires existence of a clear political will and support, working societal infrastructure—accompanied by modernization of public administration, bar associations, legitimate and responsible businesses. It also requires a reasonable level of trust between different sectors, including the government and the judiciary, education and business, overall “positive-sum game” mentality and people with identified future in this area. Lack of vision or even conflicting visions could practically stop a large e-reform initiative.

Socio-Economic Divergence Class, race, ethnicity, history, religion, heritage, and other factors could lead to groups of people being disenfranchised. Also, in many countries having minorities, there is pressure to provide content in more than one language or dialect. E-government must also address the needs of those who are illiterate. In the Balkans illiteracy used to be a result of exclusion and not poverty for instance (Diakoftakis, 2002). Therefore, the digital divide is the gap between people who have access to the Internet, even limited, and those who do not. Those without access or essential computer skills, cannot access information that can provide economic opportunities, and cannot share in the benefits of e-justice (Snyder, 2005). The factors that influence the roadmap to advanced e-governance and e-justice schemes are presented in Figure 2. There are two issues of special concern tied to the digital divide in the Balkans: E-literacy— ensuring e-government programs help to create opportunities by educating those who have not used, do not have access to, or feel uncomfortable with technology (Powell & Snellman, 2004). Accessibility—making e-services available to the communities that face exclusion for political or social reasons (OECD, 2000).

Legal Databases and Case Law Management Legal databases are systems that offer the full text retrieval of various primary and secondary legal materials, as well as some non-legal materials, including general news and information resources (Politis & Papasteriadou, 2003). While their primary source of information is legislation, the derived in courts case law constitutes the majority of lemmas reposed in a legal databank. Good case law management is fundamental to an effective and efficient court system. Case management systems were the pioneer applications rolled out in the initial phase of e-justice implementations.

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Figure 2. Primary and secondary factors influencing the roadmap to successful e-Governance and e-justice • Sovereignty • Internal Policy • Security

Delivery of public services

Governance

Social Cohesion

Economy

• Inclusion • Values based society • Knowledge management

Development and prosperity

Case law is usually published in digests or summaries, or in full text electronic repositories. Digests summarize the law as it has been established by the courts, and refer to primary sources, such as law reports. Digests are usually organized by subject and arranged alphabetically with headings of varying specificity. Digests are an effective tool for ascertaining the state of the law quickly and benefit from the editorial expertise of legal publishers. Legislation databases generally provide the complete text of statutes and regulations applicable to a particular jurisdiction. Also, they cross references to a variety of subject-oriented legal databases which include legislation relevant to the area of law being treated. This is usually the case of public and private international law.

CASE DESCRIPTION AND PROBLEM FORMULATION The authors of this article, that were called to provide know-how on reforming in technical terms the judicial sector of Bulgaria and FYROM, were actively involved in the computerization built up of major courts of law in Athens and Piraeus. Although these entities served very well as a working model suitable to export, it was obvious that these courts represented “isolated islands of technology” (Peristera & Tarabanis, 2000), since the judicial sector in Greece was characterized by fragmented, overlapping in function and content, and unrelated ICT modules. Therefore, the implementation from scratch, if possible of a single for the whole country, bottom to top ICT architecture was a challenge to them and an opportunity not easily met.

Case Study 1: A Big First Instance Court X in Greece

The bigger court of law in Greece and one of the biggest in Europe, it represents a busy first instance court, typical for most European Capitals. Court X comprises of more than 400 judges and prosecutors and about 780 clerical and support personnel. The number of cases put on trial are well beyond 500,000 per year, including car accidents and other relevant cases. In the

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prosecutor’s office, which is housed within the court, every year a few hundreds of thousands indictment are brought for examination. The average weekly caseload is: • • • •

24 single judge regular session tribunals 37 tribunals on special processes 20 tribunals on car crash cases and transportation matters 66 three-judges panel tribunals

It has been recorded that the officially scheduled dockets are so crowded that many times include more than 60 cases per hearing. The current, high rate of applications is overwhelming the system as it currently operates. The development of software for such a court of justice ranges from customized applications and in-house support for small scale computerization schemes that keep track of the judge’s calendar and court records, up to large scale, cross-court internetworked pieces of software monitoring all aspects of court computerization like evidence book, decision delivery date book, summons, petitions, entries of court hearing outcomes, filling of appeals, and so forth. to all types of decisions issued by a lower or an appellate court6. The judicial system has been highly criticized due to certain known levels of corruption, for various interventions, or because of the ability of some officials to change judgments in court cases. Therefore, the electronic management system assures that as a litigant, a citizen is ascertained that his file will be taken up automatically by an earmarked judge of a given court, assured that it will not disappear nor will it be kept in a drawer for months on end. Because that is part of what corruption is about: trials that fail to deliver thorough judgments in the proper time, allowing one party to gain more time for its own benefit. Even “minor” aspects of an IT system, like producing pseudo random numbers that assign judges to cases, in a lottery style procedure, are very important for the public image of the judiciary and the transparency of the sector. Also, the legal community expects the informatics directorate of the court maintain a credible IT system providing and disseminating reliable data on legal issues in a quick and efficient manner, constantly enriched and updated. It is obvious that it’s not the system’s inability to disseminate 500,000 cases per year, but our human inability to handle let say 1,000 similar cases with the targeted litigation. Therefore, the Bar Association X, affiliated with court X, on its own initiative has developed a legal information database addressed to its members. The outcomes of these court transactions, and especially court decisions, are filtered, processed for personal data protection reasons, classified and recorded accordingly. In terms of volume of information, the legal data bank in 2003 contained: • • • • • •

The Greek legislation since 1835 More than 68,000 court decisions in full text 60,000 relevant court decisions All opinions of the State Law Council All decisions of the Council of State since 1992 European Community law and harmonization laws

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• • •

More than 120,000 legal provisions 30,000 bibliographic references Legal document samples

The architecture of the legal databank is depicted in Figure 3. Taking into account the immense size of court X, it is obvious that court computerization and e-justice applications were not all introduced simultaneously in a big-bang style; they were built-in modularly and gradually for over a decade.

Case Study 2: Prototypal Court Computerization in Bulgaria from Scratch Under the PHARE Institution Building project BG99/IB/JH/04 an EU funded initiative commenced for court computerization in Bulgaria the years 2000-2002. The Greek experts had in mind that since their model was functioning well in some of Europe’s busiest courts. Then, it could serve as a good starting point for establishing court computerization in Bulgaria. Especially attractive seemed to be the prospect to build up legal databanks as hubs of information that would not only provide case law in electronic format to judges, but would also serve as a monitoring mechanism for evaluating judicial reforms. However, although there were reported some efforts for the creation of niche e-justice applications, like the fabulous Varna District court (Zdravkova, 2002), it was obvious that the Bulgarian authorities were more interested in altering the working conditions of the court personnel (including both judges and support staff) so that handwriting, typing machines or other stenographic devices should be completely expelled. Under the limited budget of the project (in the range of 1 M€) about nine courts of various sizes and ranks throughout the country participated in this pilot phase (courts Y1, Y2, …, Y9). Although the Greek experts insisted that a central database monitoring court transactions was a key element in putting the foundations for a more transparent court administration, it became obvious that local judicial lobbies were more eager to

Internal Athens Bar Association Users

Access from the Courts

External Users

Figure 3. General architecture of the system, αfter Garofallidis & Gaki (2005)

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have as many more computers as possible to deliver basic electronic services. It is true that the same time a USAID7 court modernization project was running, engaging about 21 courts and promoting IBM oriented software suites as a lightweight solution to court computerization and office automation (American Bar Association, 2004). Therefore, having in mind that an EU budgetary input of about nine M€ would follow-up, the pilot phase concentrated on setting up a framework for request for proposals (RFPs) according to the EU acquis rather than on implementing specific commercial software. The RFPs should include at least the following:

• • • • • • •

Definition of the system operations within the context of the legal framework,

• •

Cost benefit analysis to minimize operational costs,

• •

Specialized full team support by the company that undertakes the bid,

•

Requirements for security and integrity in every layer (hardware, system software, applications) and periodical upgrading of security plan and equipment.

User needs specifications, Reorganization of procedures in order to avoid repetition on operations, Functional and efficient graphical user interfaces (GUIs) for the users, Full coverage on the objectives, the main and future needs of the courts, Full documentation requirements for better maintenance and software changes, Uniform, mainstream and technologically “well used” hardware and system software requirements (including RDBMS), description of training requirements for all the staff and for the outside chain users (other organizations that access the archives, citizens petitioners etc.), MTBF, MTBR8 in order to achieve productive operation for all systems and good response time,

Having done all these, they collaborated with the Ministry of Justice and the Ministry of Finance in proclaiming the first pan-European bid tender for court computerization, published in EU’s official gazette.

Case Study 3: A National Scale E-Justice Implementation

A variant of Case Study 2 scenario was repeated under the PHARE 2000 project EUROPEAID/112994/D/SV/MK “Public Administration Reform—Judicial Administration” in FYROM. The project aimed to improve the rule of law by contributing to the computerization of the judicial system in a national scale. The major difference, however, with the previous case study was, due to the much smaller size of the country, the implementation of a court computerization scheme to the 27 regional and district courts basic and three appellate courts could be achieved. Indeed, for the first time a Balkan country had fully applied court computerization throughout its sovereignty. Although some courts were lagging in having computers for all judges or the clerks, it was obvious that it was a matter of time before this situation would be remedied. The implementer of the project was Intracom SA along with Gnomon Informatics, having as consultants the Centre of International and European Economic Law in Thessaloniki. The implemented software used a two-tier architecture, typical for client-server applications. Infor-

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mation exchange between courts was limited, but there was potential for more data exchange, at least from an ICT point of view. Again, USAID as a donor scheme had already provided many computers and servers for the judiciary. The new software was installed on them as well. The major focus of the experts was on how well and how quickly the courts of law could adopt the new working practices (some clerks had never before used a computer). Also, training was offered while implementing the system in each court. The experts noticed that that a “big bang” approach needs careful attention to phased implementation as the diagram in Figure 4 demonstrates. It was easy to create a national scale court computerization scheme. It was difficult for the people within the judiciary to reform their working habits in such a short time.

CURRENT CHALLENGES/PROBLEMS FACING THE ORGANIZATIONS Do we have E-Justice Implementations after all? In Greece, Bulgaria, and FYROM tens of thousands of kilometers of fiber optics or copper cables have been wired around the courts of law comprising network hubs, thousands of computers were deployed in the various registers and offices of the judiciary, hundreds of various software modules were distributed, and tens of major client-server software applications were installed. The latter was the most promising part of the whole case evolution: after many round table discussions and plenary sessions in council meetings and congresses, after various political interventions and palinodes, tenders were published in the official EU gazette, amounting for some M€. All plausible measures where taken by the local administrators and their EU expert associates to ignite impeccable procedures and demonstrate revolutionary pilot implementations that could breeze with enthusiasm the full national scale implementation. In practice, the following were realized:

Figure 4. Size of court vs Workload size of court vs Workload

Log Scale

Degree of difficulty XL

court size

L

OK

M

S

Not OK VS t is not neces sary to apply IT in very sm all Courts

Workload

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•

The degree of implementation

The Balkan countries through the assistance of international donors and EU funds attempted to change drastically and rapidly the judiciary environment by means of technology. As it was described earlier, the first step was the acquisition of hardware and the most common office software applications. In Bulgaria it has been reported that already 90 percent of courts, ranging from the Supreme Court to regional courts, are adequately equipped with personal computers (American Bar Association, 2004) The second step promoted, with mixed results, the development of automated case management systems of different design philosophies that did not interconnect, and the availability of some basic e-services such as e-mails, access to the Web and to local electronic archives of information, case law and legislation. The most impressive deployment thus far has been reported in FYROM, where, due to the small size of the country (only 25,000 km2), there has been installed by 2005 a client-server system servicing many aspects of case filling, recording, registering and monitoring, starting from the prosecutors office and ending to the Supreme Court. In all cases however, the physical facilities of the courts were upgraded. In some cases, even new furniture was purchased along with the hardware. Also, the administration of the courts was obviously improving by using extensive computerization and withdrawing dockets and other obsolete media. At a first glance, the reformation of the judiciary had commenced. •

The IT architectural design

The architectural design is crucial for the organizational perspective of the deployment. The USAID computerization scheme, the forerunner, followed a bottom-up approach, implementing a well-received global platform that would relief and monitor document flow in a commercial style computerized enterprise. In specific, it promoted an all inclusive IBM built generic model software. This design is a well-tested player for case filling and management, case distribution, record keeping, archiving and court-fee collection. The EU based initiatives on the contrary, having run with hysteresis to USAID donation, insisted in applying a more in depth analysis scheme that was based on a centralized database style administration, resembling current structured ERP9-like features. The advantages of the first scheme are flexibility, low-cost, and easy implementation, as long as appropriate controls are placed on the selection of the local integrator. The advantages of the second scheme are in depth analysis, rigid control of procedures and monitoring of court activities. All the previously mentioned, which were implemented more or lees, even if providing to magistrates, lawyers, and the public possibilities for downloading and filling forms from the court’s Web site do not constitute but a small step in the long journey towards e-justice. Either way, both architectures will end soon their lifecycle leaving room for renewed efforts and learned lessons for advanced, newer generation tools, like three-tier thin-Internet clients that would replace the two-tier client-server model. Prerequisites for such an alteration are the existence of a proper telecommunications infrastructure, budgetary allocations reserved on a continuous base for telecommunication costs, and increased electronic and physical security measures, implemented and updated in frequent intervals. In the EU sphere of influence, the Council of Europe has issued Recommendation 2001/210 to member states concerning the design and re-design of court systems and legal information

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systems in a cost-effective manner and Recommendation 2001/311 on the delivery of court and other legal services to the citizens through the use of new technologies. In practice this means that the systems to come should include appropriate technologies addressing areas like: • • • • • •

Court management, Statistical systems, Recording of witness testimony in multimedia format (not only text), Equipment for the presentation of evidence, Systems for jury and judges selection, and Court reporting.

Unfortunately, in this first generation of e-justice implementations in the Balkans, these criteria were only sporadically met, in niche applications and not throughout the country. •

Connectivity and data interchange

As it was mentioned earlier, the majority of the systems of the member countries did not ensure compliance with specific standards even in the early past. To ensure compatibility between different technical procedures throughout the EU at this point only the communications protocols and data formats should be standardized at EU level. The best way this can be implemented is through Web interfaces. These interfaces are described using extensible markup language (XML) and are consequently independent of the specific implementation of the software components. Web services can therefore include access to a wide range of the implemented systems and thus make different judicial applications accessible, at least in part, throughout the EU e-justice portals. These Justice XMLs (JXMLs) should therefore be finalized and be extensively used to transfer structured data. Further, portable document format (PDF) and open document format (ODF), which is an international standard ISO/IEC 26300, should be adopted in order to make judicial applications independent of individual providers. The judicial application should be available to as wide number of people as possible, including people with various disabilities, therefore graphical user interfaces must be WAI-compliant (Web accessibility initiative). If judicial applications are to be made available thought the EU, this must be on multilanguage–international basis. Multi language–international basis means that programs should be written so that they can easily be adapted to other languages and national standards. In order to achieve the above requirements, the following characteristics should be taken into account at the design stage of justice applications in the future: • • •

Executable programs and user interfaces should be separate from each other. Text data should be held in external databases and dynamically loaded. National standards (day/month/time, decimal point indication, currency symbols, character sets, etc.) should be supported.

It was unfortunate that during pre-accession trajectory to the EU of Bulgaria JXMLs were not standardized and no uniform set of rules were enforced in the way information is entered/ structured/searched. The content of ICT systems is dependant upon the national language character set and search capabilities of computer systems are equipped to handle searches in national languages.

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Data Protection and Security, In House Development and Outsourcing Unfortunately, the majority of the technical personnel believed that authentication by username and password sufficed in order to access the court records electronically. The feeling of false safety is based on the fact that up to now no “enumeration” or “brute force” attacks are recorded on legal IT systems. That may be true since the majority of judicial IT systems do not contain data of particular interest to professional computer intruders or have not disseminated court records via the Web. In any case, the data handled by ICT systems within the judiciary should guarantee the citizen’s protection against the selection, the elaboration and the use of his personal data, especially through electronic means. Since leakages from penal records or details from court findings and litigation may tatter human dignity, it is obvious that e-justice applications should be developed in-house as possible. Short time contracts and outsourcing may be convenient and productive, but may lurk in uncontrolled flow of court files. It is a common secret that personal data are transferred, sold, or elsewhere marketed. A proposed solution is the application of the public key infrastructure (PKI12). PKI is a technical feature introducing advanced encryption technologies within intra-justice communications. In the Balkans, it was somewhat applied in Greece, for use with the Athens 2004 Olympic Games security scheme. It is currently expensive and is considered excessive for the remote management of the courts’ electronic transactions. However, such an infrastructure may guarantee the validity of the encoding techniques and the trustworthiness of the corresponding authority and the interoperability of the encryption system used with other systems. PKI is something more than having a secure e-commerce transaction where credit card charges are involved for instance; justice transactions have by far more complex implications than identity theft and unjustified charges. Under this prism many think that justice should never be on the “cutting edge” of technology for dignity and due process are too important to jeopardize through potential systems failure or malfunction. The authors estimate that PKI, although existent, will take some time before being adopted in real e-justice transactions.

Human Resources

The implementation of IT reforms should also organize IT staff as a unified entity. Jobs are hard to find in the Balkans and within the monitored countries unemployment has skyrocketed (37.4 percent in FYROM in 2003). Under this prism it is better to motivate-educate-train, if applicable, than to dismiss. •

Training and continuous learning

Poor working environment and unprofessionally tenured clerks may be revitalized by training and instruction. A good opportunity to receive training is while implementing computerization. Seminars on computer applications and accessing customized court-related software have been offered with good results, especially in FYROM (American Bar Association, 2005). Also, many clerks took the initiative to attend courses on the use of computers funded by their family budget in order to retain their competence at work. With the aim of making the reforms feasible, it is essential to recruit skilled personnel, suitable for the task, or, if possible, to reallocate and train the existing working potential. Since computerization would be applied for the first time in the judicial sector, the former solution would be more productive in terms of efficiency while the

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latter would be more acceptable socially, since it would not be accompanied by massive losses of working positions. Overall, the young and middle-aged judges, clerks and administrative personnel have reshaped amazingly well. However, older employees could not easily integrate to the new environment. Although having the status of a civil servant and tenure, in some countries like Romania and Bulgaria job reductions were reported. •

Lack of knowledge of senior policy-makers and judges

As already explained, the outsourcing of IT activities is cheaper, faster, and more reliable. However, it is essential for the courts of law to employ highly specialized experts or to have judges with adequate insight and knowledge so to secure the investment of the implemented software products. More specific they should: • • •

Minimize the usage cost of the systems, eliminate or avoid “hostage situations,” establish contractors performance measurement.

In practice, for the first generation of IT implementations within the judiciary, in most cases the authors found that the companies awarded the contract were not thoroughly monitored for possible violations of personal data manipulations, due to the heat to provide in time a well functioning piece of software. Also, for various reasons, “after delivery support services” were neglected. •

Strategic use of Information Technology (IT)

In the monitored countries e-justice was a high priority, although it was the first time that a judicial reform was synchronous with extensive ICT resource utilization and planning from scratch, a difficult operational situation. Moreover, social divergence was recorded and is estimated that no more than 25-30 percent of the general public can benefit from current e-justice applications. It is very positive, though, that the infrastructure is there, waiting for the general public to catch-up. That will happen, as we estimate, very soon, when a widespread ICT infrastructure will exist in affordable prices and the majority of the people involved in court proceedings are familiar with the offered resources.

Sustainability of the E-Justice Investments Money is getting tighter. There is a so-called “crisis of public expenditure” in Western societies, which has put an end to the previously—assumed constant—growth of EU funds and public expenditure levels that were supported by local currencies and state controlled central banks. The euphoria of inbound funding was succeeded by skepticism. In order to sustain sufficient budgetary input one solution could be to increase case filling fees along with an increase of the fees paid by the party that lost the case. The few judiciaries in EU that have obtained good results with IT have focused on the cost/efficiency delivery of services. The evolutionary path of IT implementation that will lead to e-services is a non linear progression of dynamic complexity and dilem-

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mas. The message, however, is clear: IT investments will be sustained mainly out of the judicial sector budget of the involved countries (American Bar Association, 2004).

Transparency and Reliability of the Judiciary In addition to what is referred as prerequisite for the function of justice as a public service, that is, transparency, equality, continuity and objectivity, states should make the official texts of laws, regulations, relevant international agreements binding on them, and important court decisions available to the public in readily accessible form electronically. The information should, ideally, be available at all times. All legislation, including regulations, case-law and parliamentary materials should be accessible to all. Effective and transparent performance of the judiciary constitutes an essential element of a successful anti-corruption strategy. Establishing a balance between the twin necessities of judicial independence and accountability is a challenge achievable only with the active participation of interested parties inside and outside of the judiciary. Transparency is more than an obligation to respect and enforce the rights of all persons involved in litigation; it is a necessity for enforcing objectivity. Means to eliminate authoritarianism, a characteristic of the previous forms of government, is the introduction of technologies that facilitate publicity and cross-checking. It has been found that major court decisions one way or the other, either by the judiciary it self or by third parties, are electronically promoted (in CD-ROM format or via Internet access) to the legal community. The filtering and grouping of legal data is a responsibility of the company that promotes the legal database. To give an idea of what this means: the annual output of court of the Sofia City Court in Bulgaria, may be about 120,000 cases, while in Athens, Greece, the first instance court delivers more 500,000 cases (see Case Study 1). In general, the provision of information on court operations, processes, and procedures to the general public has been achieved to a sufficient extent. However, the expectations for the introduction of metrics that could define a quality of service (QoS) for justice delivery miserably failed. It is true that even the most advanced states have not yet dared to introduce such concepts, along with their statistical interpretation. However, it was a unique opportunity for the Balkan states under the pretext of ICT refurbishment to gain leadership instead of following panting and exhausted the avante guard, for the very reason that they had the opportunity to build from scratch, and budgetary input was guaranteed. Unofficial reports coming from a Balkan country that from the cases tried at first instance the 30 percent is appealed against at an appellate court, and there 50 percent of the judgments are reversed, demonstrates that there is no statistical reliability on the quality of the judgment. It is obvious that the judicial sector (and not its ICT infrastructure) suffer from lack of transparency and predictability in court decisions!

REFERENCES American Bar Association, & Central European and Eurasian Law Initiative. (2004). Judicial Reform Index for Bulgaria (Vol. II). USA. American Bar Association, & Central European and Eurasian Law Initiative. (2005). Judicial Reform Index for Macedonia (Vol. II). USA. Diakoftakis, G. (2002). E x p a n d i n g c o n c e p t u a l b o u n d a r i e s . T h e h i g h c o m m i s s i o n e r o n n a t i o n a l m i n o r i t i e s a n d t h e p ro t e c t i o n o f m i n o r i t y r i g h t s i n t h e O S C E . Athens-Komotini: Ant. N. Sakkoulas.

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Donos, G. (2003). Organization and project management of new technologies. In D. Politis & N. Papasteriadou (Eds.), Recent advances on court computerisation and legal databases—first steps towards e-justice. Athens: Ant. N. Sakkoulas. Garofalidis, D. & Gaki, B. (2005, January 25-26). The Legal Database of the Athens Bar Association. CDROM Proceedings of the Symposium E-Justice: Social and Economic Aspects, Skopje, FYROM. Janosik, R.J. (1987). Encyclopedia of the American judicial system: studies of the principal institutions and processes of law. New York: Scribner. Kymlicka, W. (2001). Politics in the vernacular: Nationalism, multiculturalism and citizenship. Oxford University Press. Lederer, F. (2004, Winter). The courtroom 21 project: Creating the courtroom of the twenty-first Century, 43 A.B.A. Judges’ J. Leyden, W. (1985). Aristotle on equality and justice: His political argument. New York: St. Martin’s Press. Markakis, D. (2005, 25-26 January). Judicial reform strategy and IT challenges—the ICIS project experience. CD-ROM Proceedings of the Symposium E-Justice: Social and Economic Aspects, Skopje, FYROM. OECD (2000). Knowledge management in the learning society— education and skills. P a r i s , F r a n c e : O rg a n i s a t i o n f o r E c o n o m i c C o - o p e r a t i o n a n d D e v e l o p m e n t p u b l i c a tions. Montesquieu, C. (Charles de Secondat, Baron de la Brède et de Montesquieu- 2002). The spirit of laws. Amherst, New York: Prometheus Books. Original text in French, published in 1748. Peristera, V., & Tarabanis, K. (2000). Towards an enterprise architecture for public administration using a top-down approach. European Journal of Information Systems, 9, 252-260. Politis, D., & Papasteriadou, N. (2003). (Eds.) Recent advances on court computerisation and legal databases—first steps towards e-justice. Athens: Ant. N. Sakkoulas. Politis, D. (2005, January 25-26). The Social and Economic Dimensions of e-justice Implementation. CDROM Proceedings of the Symposium E-Justice: Social and Economic Aspects, Skopje, FYROM. Powell, W., & Snellman, K. (2004). The knowledge economy. Annual Review of Sociology, 30, 199-220. Schneider, M. (1997). The enterprise justice in figures (Period 1987-1997), Austrian Federal Ministry of Justice. Schneider, M. (2002). The enterprise justice in figures (Period 1998-2002), Austrian Federal Ministry of Justice. Snyder, F. (2005). Enlargement and the New Europe after 2004/L’élargissement et la nouvelle Europe après 2004. Travaux Du Ceric, Collection dirigée par Jacques Bourrinet, Bruylant, Bruxelles. Weerakkody, V., Janssen, M., & Hjort-Madsen, K. (2007). Integration and enterprise architecture challenges in e-government: A european perspective. International Journal of Cases in electronic Commerce, 3(2), 13-35. Webster online dictionary. URL: http://www m-w.com Zdravkova, D. (2002). National report on Bulgaria, 15th Colloquy on information technology and law in Europe, Macolin (Switzerland), 3-5 April 2002.

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Endnotes 1



Informal Justice and Home Affairs EU Council meeting, Dresden, Germany 14-16 January 2007.



From 1.1.2007 the working languages of the 27 EU member states are becoming 23, adding to the existing 20 Irish and Bulgarian, Romanian for the two newcomers. Other official languages for regions of the EU that do not constitute member-states, like Catalan, but are spoken by millions of people, more people than those who speak for example Irish, have not yet acquired the status of an official EU language.

2

3



Europäische EDV-Akademie des Rechts. http://www.eear.eu

4

Like in “Courtroom 21,” the most technologically advanced courtroom in the United States, located in the McGlothlin Courtroom of the College of William and Mary. This pilot initiative is affiliated with the Court Technology Laboratory of the National Centre for State Courts and was inaugurated in 1993.

5

Greece, Turkey in Europe, Albania, Bulgaria, Slovenia, Serbia, Montenegro, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia (FYROM), Romania, Croatia. Questionable is whether the world renowned issue of Kosovo may create as a new country another offspring of former Yugoslavia.





6



In CRM style software. CRM is the acronym for customer relationship management.

7

USAID is U.S. foreign assistance to developing countries, furthering America’s foreign policy interests in expanding democracy and free market economy. USAID also monitors progress in economic and democratic reforms, macroeconomic performance, and social conditions as well.

8

Mean time between failure (MTBF) and mean time between repair (MTBR): metrics related to the effective maintenance of a project.

9

Acronym for enterprise resource planning, a business management system that integrates all facets of the business, including planning, manufacturing, sales, and marketing.





10



Recommendation Rec(2001)2 of the Committee of Ministers to member states concerning the design and re-design of court systems and legal information systems in a cost effective manner. Council of Europe, Committee of Ministers, 28 February 2001, 743rd meeting of the Ministers’ Deputies.

11



Recommendation Rec(2001)3 of the Committee of Ministers to member states on the delivery of court and other legal services to the citizen through the use of new technologies. Council of Europe, Committee of Ministers, 28 February 2001, 743rd meeting of the Ministers’ Deputies.

12



Public key infrastructure (PKI) enables users of a basically insecure public networks such as the Internet to securely and privately exchange data, speeding up and simplifying delivery of electronic processes and services that historically have been paper based. These electronic solutions depend on data integrity and authenticity. Both can be accomplished by binding a unique digital signature to an individual and ensuring that the digital signature cannot be forged. The individual can then digitally sign data and the recipient can verify the originator of the data and that the data has not been modified without the originator’s knowledge. In addition, the PKI can provide encryption capabilities to ensure privacy.

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Journal of Cases on Information Technology, 10(2), 41-59, April-June 2008 59

Dionysios Politis is currently a lecturer in the Department of Informatics, Aristotle University of Thessaloniki. He has earned his BS in physics (1987), MSc in radio engineering and electronics (1990), and PhD in computer science (1998) from the same University. He is a holder of a graduate diploma in computing studies (1991) from RMIT University as a scholar of the Australian Government. He has been a collaborator of the Centre of International and European Economic Law (1992-2002) and has participated in various computer law projects, mainly focusing on the pre-accession route of South Eastern European countries (Bulgaria, Romania, Former Yugoslav Republic of Macedonia) and Cyprus to EU integration. George Donos is an electrical and computer engineer with M.S.E.E.–I.A.S.T.D.-P.E. from the New Jersey Institute of Technology and the George Washington University. Currently he works as a technical expert for the Hellenic Ministry of Justice. He has participated in many pre-accession projects in Bulgaria, Romania, Slovenia and the Former Yugoslav Republic of Macedonia. He has monitored many computer law projects in Greece. He has also participated in the working group responsible for the interconnection of different registers containing personal information in order to verify possible connection for criminal activities in Greece or abroad – this was done prior to granting access to various Olympic facilities or resources during the Athens 2004 Olympics. George Christou was born in Athens in 1962. Having studied different subjects from process control to computer science in Greek and British Universities, he was appointed IS manager for the Greek Ministry of Justice in 1993. His professional responsibilities include the determination of information policy procedures, the design and implementation of computerization projects for judicial services which run up to 9 M€ per annum. He has participated in the EU funded projects PHARE Institution Building BG99/IB/JH/04 in Bulgaria and EUROPEAID/112994/D/SV/MK in the Former Yugoslav Republic of Macedonia. Panagiotis Giannakopoulos is a lawyer of the Athens Bar Association. He has graduated from the law school of the University of Athens, Greece, and he has received a graduate diploma in International Administrative Law from the Université de Paris 1, Panthéon-Sorbonne in France. He is a technical expert for legal matters in the Hellenic Ministry of Justice. He has served as pre-accession administrator (PA) in Bulgaria for the PHARE Institution Building BG99/IB/JH/04 project and as group leader in Bosnia-Herzegovina and in Kosovo for EU funded activities. Aggeliki Papapanagiotou – Leza has studied law in Athens, in the law school of the University of Athens. She holds a graduate diploma in international administrative law from the University of Cambridge, UK. She has committed her PhD in the Law School of the University of Thrace, Greece. Currently she serves as tribunal president at the Administrative Court of First Instance, in Piraeus, Greece.

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