[1]

Introducing the concept of E-justice in Europe:

How adding an E becomes a modern challenge for
Greece and the EU

By

NAPOLEON XANTHOULIS
















Napoleon Emm. Xanthoulis has worked at the cabinet of European
Commissioner for the Environment as well as the Centre of Governmental
Policy at Panteion University of Social & Political Sciences in Athens Greece- and
holds an MA on National and European Administration.
Currently, he is a trainee at Pappas & Associates, Attorneys At Law in
Brussels and LLB student at the University College London's (UCL) Law
Faculty. Since 2010, Napoleon is the vice-president of the UCL Student Human
Rights Programme and member of the editorial boards of the academic publications
UCL Jurisprudence Review and UCL Human Rights Review.
He has published several articles on law and policy of the EU and on
administrative reform and European Governance. He can be reached at
napoleon.xanthoulis.09@ucl.ac.uk or xanthoulis_n@yahoo.com
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Following the recently developed ideas of e-governance and e-democracy, it appears
inevitable that eventually the concept of e-justice will rise as well. Adding an E in front of these
concepts introduces the use of information and communication technologies (ICT) to certain fields.
If this is the case, we have to ask: Which field or fields does e-justice apply to? The obvious
answer would be the field of justice. But this area requires further definition. E-justice could refer
to 3 separate areas: a) Crime prevention (e.g. electronic criminal records), b) administration of
justice (e.g. judicial proceedings) and c) law enforcement (e.g. electronic surveillance of convicts).
This article shall show that in the European sphere the concept of e-justice has been mainly
developed in justice administration, with a number of exceptions. To define e-justice, we must
first agree on how to define justice; or at least what we should call justice in order to apply such
policy -e-justice.

In the European sphere, e-justice is a policy aiming to improve and modernize the delivery
of justice in two categories of litigations. On the one hand, there are litigations completed internally
in the national judicial orders
1
and on the other, cross-border litigations. Today, its is estimated that
more than 10 million people are involved in cross-border litigations in Europe.

At this point to understand the need to introduce the concept of e-justice it might be useful,
to give some evidence from within EU Member-States' judicial systems
2
. That judicial
administration services, as well as judges and prosecutors in all of the EU member-states are using

1
Detailed information on national data is described in: Velicogna M. (2007), Use of Information and
Communication technology in European Judicial systems, CEPEJ Study N 7 (Strasbourg).
http://www.ccbe.org/fileadmin/user_upload/NTCdocument/Etudes7TIC_enpdf1_124686624
2.pdf. More illustrative figures can also be found in Council of Europe, CEPEJ Report on European Judicial Systems
Efficiency and quality of justice, Edition 2008(data 2006), pp. 84 et seq.
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&Instr
anetImage=1041073&SecMode=1&DocId=1314568&Usage=2

2
For more information on features see the Report by the Council Working Party on Legal Data Processing (E-
Justice) No. 10393/07 JURINFO 21 of June 5
th
2007.
http://register.consilium.europa.eu/pdf/en/07/st10/st10393.en07.pdf


[3]

PCs, internet and e-mail communication is already a step in the right direction. In addition, almost
all member-states manage registers electronically. However, only half of the EU member-states
have technical standards for electronic communication and have implemented full electronic access
to case files. Moreover, the use of electronic methods of communication, (such as teleconference),
in court proceedings is very limited and where it is adopted the rate is consistently lower than 10%.
The figures simply show that Member-states have a long way to go.

The following are a few examples of measures that constitute the core elements of a modern
e-justice policy: the electronic process of procedures, the digitalization of document exchange
between citizens and judicial administration, the electronic monitoring and access to the progress
of cases, to archives and registries, as well as the use of teleconference in judicial proceedings.

The benefits of reforming judicial systems in this direction can be identified at different
levels, from citizens involved in a court procedure, to lawyers, judges, prosecutors and finally court
civil servants
3
. The most important of these benefits is time saving. Indeed, for a number of
procedures physical interaction between a civil servant and a citizen is not needed. Similarly,
documents can be exchanged outside regular office hours through electronic mails. Additionally,
disabled persons are ensured better access to court proceedings. Also, reduced stationary
consumption and fuel consumption to and from courts promotes environmental protection. Finally,
these reforms contribute to the speedy the delivery of judgments and judicial proceedings in
general.

1. The Policy

Two debated methodologies can serve to introduce elements of e-justice. Policies could be
formed following a so-called gradual approach. This means dealing with problems as they arise.
Alternatively, e-justice could be implemented as a result of broader strategic planning, that aims to
reform substantial elements within the EU and national judicial orders.

Initially, e-justice, as an EU policy, gained specific significance primarily as a tool under the
Justice and Home Affairs policy, targeted at unifying records, and accessing information in criminal
law cases. (Although, today it is generally accepted that e-justice should be implemented

3
see also Politis D., Pasteriadou N., (eds), Recent advances in court computerisation and legal databases : first
steps towards e-Justice, Centre for International and European Economic Law, Ant. N. Sakkoulas, Athens, 2003


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horizontally in all possible areas). Secondly, it developed as a tool to improve the effectiveness of
the EU's judicial system through measures such as online access to case-law, or introduction of
electronic procedures such as submitting applications to the court through online procedures.
However, in the present framework, e-justice has gained a much broader value. Its mission goes
beyond the application of a number of selective measures. The increasingly integrated internal
market and the growing mobility within Europe has hugely increased the number of cross-border
litigations and produced further challenges regarding language diversity, distance and non-
familiarity with different national legal systems
4
.

The first systematic appearance of the term e-justice at EU-level, was identified in 2007, in
a number of Councils working documents, even though some initiatives had already appeared since
2003. The Commission Communication entitled Towards a European e-Justice Strategy
5
,
published in May 2008, is considered as a milestone in acknowledging the concept of e-justice. As
the first solid attempt to introduce the concept of e-justice it was a response to the need to improve
justice, cooperation between legal authorities and the effectiveness of the justice system itself. One
of this document's very successful observations was that e-justice is a specific field under the more
general umbrella of e-government, -as mentioned above-, the latter being understood as the
application of Information and Communication Technologies (ICT) to all administrative procedures.

It appears that the member states agreed that the implementation of e-justice requires a
systematic and coordinated planning strategy and not fragmented state interventions
6
. In March
2009, the Council adopted a more detailed multi-annual action plan
7
on what we shall call from
now on: European E-Justice. The objectives are: a) improved access to information in the field of
justice, both for European and member-state legislation and case law, b) the dematerialisation of
cross-border judicial and extrajudicial proceedings through electronic means of communication, c)

4
See also European Parliament response on the Commissions action plan for European e-justice of December
18
th
2008 (A6-0467/2008)
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-
0637&language=EN#BKMD-34

5
COM(2008) 329 final
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0329:FIN:EN:PDF

6
Christos A. Kliosis, Introduction to the concept of e-justice, Dikaiorama, Vol. 21
http://www.dikaiorama.gr/show_afieromata.asp?ids=75

7
OJ 2009/C 75/01 of 31.3.2009
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:075:0001:0012:EN:PDF

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simplifying and encouraging communication between judicial authorities and Member States and d)
the establishment of a European e-Justice Portal, which will provide access to the entire European
e-Justice system, (i.e. to European and national information websites and/or services). This last
ambitious goal -delayed for an indeterminate period of time, beyond its 2010 deadline,
8
- is planned
to allow interchange of cross-border data and documents and inter-operability between internal and
external users of the Member-States' courts.
9
It would be very interesting to see how translation,
private data, access verification, e-signature and other obstacles will be tackled.

One important issue, yet to be addressed by the Commission, is upon which legal bases the
EU will establish its competence to implement policy measures on e-justice. The existing published
EU documents (communications, recommendations and action plans) do not include any reference
to this matter, since they do not have any binding legal effect. This leads us to investigate whether
legitimate arguments can be found in articles that are used in closely related policies (e.g. e-
government, cooperation in administrative affairs etc). More specifically, art. 26 TFEU (ex. art. 14
EC) provides that the Union shall adopt measures with the aim of establishing or ensuring the
functioning of the internal market. In addition, art. 170 TFEU (ex. art. 154 EC) can also be used to
apply measures on realising communication and information networks connecting national judicial
services and providing information on national legislation through the European e-justice portal.
Finally, art. 74 TFEU (ex. art. 66 EC) grants the Commission power to adopt measures to ensure
administrative cooperation between the relevant departments of the Member States. Except for the
oft-cited art.26 TFEU, the aforementioned articles are theoretically insufficient to grant the
commission the required competences allowing it to pass binding legislation. However, at the
moment, EU actions do not extend outside the framework of guidelines, communications or action
plans and focus almost entirely on to cross-border litigations.

Despite the ambitious targets set by the EU, in practice, the implementation of e-justice, in
national judicial proceedings, depends primarily on the member states' goodwill. At national level
numerous projects are helping connect litigants proceed with their cases more effectively and link

8
See the Councils press release No. 10630/10 Presse 161 of Councils meeting of 3-4 June 2010
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/114900.pdf

9
For a short presentation of the EU-justice portal goal see
http://www.euregov.eu/workshop/presentations/02.pdf .
For the technical aspect of the EU e-Justice portal see the EC document of February 4
th
2009
http://www.ccbe.org/fileadmin/user_upload/document/E-
Justice_Portal/05_03_2009/English/EN_Portal_Description_of_Services.pdf

[6]

them with the courts. These projects aim to provide information on judicial proceedings, legislation
and cases through the use of online computing systems, and introduce fully electronic court
procedures and electronic recording of hearings.

Several active organisations are concomitantly establishing significant projects to promote
the exchange of legal information across Europe (e.g. Association of Councils of State
10
, the
common portal of the EU Supreme Courts' national case law
11
and the recent Effectius
12

initiative). In 2010, EU funding research projects will offer grants of a total of 5.000.000 to
support the extended use of electronic tools in justice systems.

2. E-justice and human rights

A few years ago, the idea of introducing e-justice to member-states could only take the form
of a recommendation or a policy guideline. Neither of these has any binding effect. However, a
recent judgment of the European Court of Human Rights (ECHR) found that a state may, under
specific conditions, be found liable if it fails to introduce measures of e-justice.

The ECHR ruled against Slovakia for failing to create the appropriate infrastructure
regarding the submission of applications through electronic procedures, even though the national
Code of Civil procedure provided it since 2002.
13
In this decision it was held that, if submitting an
application electronically is necessary due to objective circumstances, a limitation imposed by the
state may violate article 6(1) ECHR
14
, meaning the fundamental right of access to justice and the
right to fair trial
15
. The state's behavior was found to be a disproportionate limitation on the
applicants right to present his case to a court in an effective manner.
16
It is my opinion that such a

10
www.juradmin.eu

11
www.network-presidents.eu

12
www.effectius.com

13
Article, Kostsas Ap. Koutsoulelos, Crimeand punishment, Dikaiorama, Vol. 21
http://www.dikaiorama.gr/show_afieromata.asp?ids=74

14
Art. 6(1) In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.

15
ECHR decision, ibid., para. 52

16
Ibid. 55
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case constitutes a showcase for the interpretation of article 6(1) ECHR. Combining the court's
obligation to receive applications through electronic means (e.g. DVD) with the fundamental right
of access to justice could be used as a Trojan horse by other lawyers associations in the Council
of Europe's member-states to force governments toward further reforming the framework of e-
justice.
17

As a result of the coming into force of the Lisbon treaty, the EU Charter of Fundamental
Rights has binding legal effect equal to that of the treaties. If the EU courts were willing to follow
the above ECHR jurisprudence, then EU institutions could be held liable for failing to provide the
necessary technological infrastructure for judicial procedures. As such, member states would be
violating the rights of access to justice and fair trial, which are protected under article 47(2-3) of the
Charter of Fundamental Rights of the EU
18
.

3. Introducing e-justice in the Greek Judicial system

When a citizen enters a courtroom in Greece, they are not surprised if the judge appears, at
first glance, absent. Indeed, the members of the court often sit behind huge piles of papers: the case-
files of todays hearings -mostly-! For transactions between public entities and citizens as well as
for internal civil service procedures in Greece, paper has a symbolic power and customary legal
role. In such an administrative environment it might seem impossible to introduce elements of e-
justice.

In a recent reply
19
to a parliamentary question, the Greek Minister of Justice, clarified that
69.000.000.00 have been set aside for the introduction of new computer systems in departments
under his jurisdiction for the period from 2007 to 2013. This policy's aim is to gather more funds
from EU sources since there are still fundamental obstacles within the Greek judicial system. For
example, citizens in Greece are still obliged to pay a fee in order to gain access to the printed
official journal. (There is no direct public access to a digital version). That a citizen can have free


17
Case of Lawyer Partners A.S. v. Slovakia No.471/16.06.2009


18
Art. 47(2) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and
represented. Art. 47(3) Legal aid shall be made available to those who lack sufficient resources in so far as such aid
is necessary to ensure effective access to justice.

19
Ministry of Justice - Office for Transparency and Human Rights, Document No. 109/23.12.2009
http://www.lawyersvoice.gr/media/apantisi_ypourgou.pdf

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access to the legislation of another state, but not to his own, is highly paradoxical. This is true
nowhere else in the EU. France, Germany and the United Kingdom offer their citizens free access to
all their national legislation and jurisprudence
20
. Nevertheless, there are a few examples of best
practice in some European countries. The most recent one is Croatia, which managed to introduce a
variety of modern reforms on e-justice as key priority elements.
21


There are a few signs indicating that the Greek legal culture has entered the path toward
modernization. In 2008, the Greek Parliament passed Law No. 3659/2008
22
on Improving and
speeding up the proceedings in the ordinary administrative courts, and other regulations.
According to article 42(1) The court decisions and orders, the reports, the applications and any
other document which is addressed to the courts or published by them, can be sent and transferred
through the use of electronic means. In similar ways it is possible to pay the court fees and any
other fees. Furthermore, paragraph 2 provides the use of teleconference in certain cases since
it is permitted to question witnesses, experts and parties, without their physical presence in the
court room...with simultaneous transmission of image and sound inside the court room. Finally,
paragraph 4 promotes keeping electronic records of the court's work, subject to the verification that
the existence of the proper technical infrastructure permits it. Although this law has been in force
for two years, no further administrative act has been passed to specify and implement the detailed
measures of these provisions. Following the previously presented ECHR judgment, the Greek state
could be found liable for failing to implement measures that should be provided by legislation.

These kinds of legal provisions should, without doubt, be welcomed as a first step in the
correct direction. However, e-justice should be part of a general, systematic strategic planning,
organized at governmental and addressed at national level. Individual initiatives, even of the best
intentions, would not be sufficient to implement such a policy. Implementing e-justice, would need
careful legal reforms. A more organized plan should include amendments to certain specific laws,
such as the codes of judicial procedures and the introduction of either ministerial decisions or
presidential orders. Such legal acts could provide the necessary legal bases upon which more
detailed and specialized administrative procedures could be introduced. In addition to these

20
Article, Dimitri Peirouni , Concerning e-justice, Ta Argolika, Thursday July 16th 2009, p.12

21
The official e-Croatia program http://www.e-hrvatska.hr/sdu/en/e-hrv.html


22
() OJ No. A 77/7 May 2008



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measures, selective steps should be taken to ensure the protection of digitalized private data and
address issues related to their access and their use by public officials. Finally, it should not be
forgotten that e-justice is an interdisciplinary policy area and that its effective planning and
implementation would require the cooperation of experts from many different subjects: lawyers,
political scientists, economists, accountants and computer engineers.

Recently, a group of young lawyers promoted, through a number of actions, the inclusions
of elements of e-justice within the judicial system. Their proposal includes e-processing of all
applications submitted to the judicial and administrative services, the introduction of e-certificates
provided by courts secretaries, land registries and other services as well as e-access and (remote?)
control of the archives. Clerks and paralegals -among other judicial employees- would be promoted
from paper-filled storeroom guards to effective electronic systems managers. Moreover, time and
space would be saved, further reducing the parties' entering judicial procedures private and public
expenses. Finally, the digitalization of documents would contribute to reducing transportation of
citizens, which often can be difficult and expensive, especially in remote areas. Also the amount of
paper used will be cut. As such, e-justice can be seen as an eco-friendly public policy
23
. To achieve
these goals in the Greek judicial system, two initial actions could be suggested: (a) To uncover and
evaluate the effectiveness of e-justice policies in EU members states and select specific models that
can be used in accordance with the overall European e-justice action plan and (b) specify, according
to the special needs in Greece, which primary documents can be digitalized and what procedures
that can be electronically processed.

4. Conclusions

Justice is primarily a matter of national concern and also a value the EU stands for. E-justice
is a vital policy and an equally crucial tool to modernize and improve the delivery of justice across
Europe, whether at national, supranational or cross-border level. Today, effective justice cannot be
discussed without considering e-justice. E-justice no longer constitutes a privileged policy only
found in certain western-European states. On the contrary, it has gained legally enforceable status,
the absence of which leads to violation of fundamental human rights.


23
Article, Ioanna Fotiadi Promoting e-justice in Greece, Kathimerini, 10/06/2009
http://wwk.kathimerini.gr/kath/edition/2009/10-06-2009.pdf


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E-justice activities offer an ambitious perception of the concept of justice in Europe. Today,
citizens, businesses, the judicial estate, courts and other authorities are not simply recipients of legal
information. E-Justice should allow them to engage with one another directly. Moreover, there is a
broad consensus that e-justice matters are not confined to certain legal fields. E-Justice can affect
many areas of civil, criminal and administrative law. Therefore, it has an even more crucial
horizontal relevance in the context of European cross-border proceedings.

Overall, e-justice should not constitute just a painkiller for the already exhausting daily
judicial procedures, but an effective tool towards safeguarding fundamental human rights: a duty
that should be shared by each member-state as well as the EU.