Did you know that ?
In France, since 2005, all lawyers have the obligation to communicate with courts via an electronic device named RPVA. In civil matters, the obligation to use the RPVA key is the only way in order to communicate digitally with the courts, unlike criminal law which preserves communication through paper documents.
But the summary judge of the Council of State considers that the use of videoconferencing, without the agreement of the defendant, authorized by the ruling of November 18, 2020, during the indictment of the Advocate General and the pleadings of the lawyers, seriously and manifestly unlawful interference with the rights of the defense and the right to a fair trial.So fair or not fair ?
It’s changing
Nowadays, the European Commission may say that the use of electronic communication is mandatory between lawyers and courts in Europe.
As France is one the first countries in Europe which has adopted electronic judicial communication, it can be interesting to see how it works and how it could evolve.
How does RPVA Paris work?
To use the RPVA, the lawyer must first register on the e-bar platform and request a secure electronic key.This key, called « RPVA key » is chargeable and nominative. Once connected to the RPVA Paris network, the lawyer will be able to interact with the various jurisdictions (judicial court, court of appeal, commercial court), follow the procedings and avoid travel. The consultation of cases and the register of hearings will also be facilitated.
Thanks to the RPVA, the lawyer is able to make, on the basis of the e-bar platform, a certain number of actions useful for the management of his files: start an action, send documents, exchange via the messaging space, close a file, manage his agenda…
What are the objectives of the e-bar and the RPVA?
The RPVA is a private network reserved for legal, criminal and administrative litigation professionals. It was in 2004 that the National Bar Council (CNB) voted for the creation of a private and secure computer network for the profession.
The objective was to meet the needs of lawyers in the context of the technological transition which was impacting the profession and renewing their professional practices (in particular to follow their procedures online).
To meet these objectives, a professional intranet was therefore created to set up this virtual private network for lawyers (RPVA) via the development of the e-bar
platform.
I-The problem of having an unique electronic communication between lawyers and courts
The use of digital communication is valuable, yet it has its limitations and challenges.
A- Inconvenients
Although the use of digital communication is beneficial, it has a drawback such as : Many problems were faced especially during the period of lockdown due to the pandamic. For example, the French State Council has rendered a judgment on the access to justice and digitalization about the consultation after the curfew : https://www.conseil-etat.fr/actualites/actualites/le-conseil-d-etat-juge-que-se-rendre-chez-son-avocat-doit-etre-possible-meme-apres-18h-malgre-le-couvre-feu
In addition, certificates were mandatory for lawyers business trip, their professional card was not enough : https://www.village-justice.com/articles/les-avocats-doivent-ils-remplir-une-attestation-deplacement,37237.html
So the Ministry of Justice should help lawyers more. In this hope, the French Bar has decided to prevent some problems but not all unfortunately.
B- Advantages and solutions
Even though the RPVA key allows the possibility to do e-acts and to sign it with an electronic signature,the communication with juridictions can be hard sometimes. In fact, while creating a digital way to communication with jurisdiction, the Bars had to face digital problems and had created solutions when bugs appear. Thus the solutions that exist for the French lawyers are:
The French law specify that the following articles are applied in case of bugs. (Article 850 alinea 2 and 831 of Code of Civil Procedure). According to the following articles, when an act cannot be transmitted electronically for a cause unrelated to the person performing it, it is drawn up on paper and submitted to the registry according to the terms of article 769 fo the Code of Civil Procedure or is sent to it by registered letter with request acknowledgment of receipt. If the document is a request or a declaration of appeal, it is delivered or addressed to the registry in as many copies as there are addressees, plus two.But when bugs happen, lawyer can also emphasize a denial of justice.
In fact, a lawyer can be charged when its not possible to represent the clients within the allowed time deadline. This is the reason why the French Bar allows fairness and the right to be represented by a colleague according to the judgment of 2016, in that matter.
Moreover, in case of bug, pre-trial juge usually accepts screenshot from lawyers, which is good to know. Besides, E-barreau acknowledgment system proving that a bug took place. In addition,meteo.avocat.fr is the site of the CNB that lists all the bugs with thejurisdictions.Finally, the solutions are not harmonized and not easy to access. So far the lawyers are not well informed of the solutions that they have in case of bugs and this is the reason why we have decided to post it.
II-The systems that exsist in other European countries
Czech Republic:
A centralized system with a data box https://www.datoveschranky.info/
Due to information technology, data boxes are fundamentally changing the delivery method (receipt and deposit) of official documents. With the help of data boxes
it is possible to send documents in electronic form to public authorities and also to receive them in this way. This mode of communication – via data boxes – replaces the traditional method of delivery in paper form, because the law on data boxes equalizes the paper and electronic versions of the document sent. Data boxes are set up automatically by the public authorities and certain groups of legal and entrepreneurial natural persons, all others at their request.
The goal of data boxes is efficient – i.e. faster, cheaper and more reliable public administration, which will be felt positively by every citizen.
Italy:
In Italy,Article 16 bis, paragraph 4, of Law Decree 179/2012, clarifies that the President of the Court may authorize non-telematic filing when there are technical problems and when there is an urgency that cannot be postponed.Malfunctioning is certified by the Ministry’s technical structure. Alternatively, it is possible to apply for remission in time.
Belguim : The force majeure clause is not that simple. The Article 5 of the applicable law states that in the event of a malfunction of the e-Box network,a system failure is notified to the sender. The recording of times when system errors prevent sending and receiving serves as proof of these errors and can be invoked as proof of force majeure. http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2016061603&table_name=loi
In conclusion digital communication with courts is good but the system can be improved and must be improved. This is why technical services and lawyers must work together.
