Interview and introduction by Argyri Panezi

Courtroom digitization has been at the forefront of institutional debates around the world due to the impact of Covid-19 on the traditional in-person functioning of the judiciary. Within Europe, the European Union and the Council of Europe lead the way for the continent. Our research project analyzes the Spanish e-Justice system, particularly focusing on developments throughout the pandemic. We define e-Justice as the use of new technologies for conducting internal and external court proceedings, and to improve judicial administration.

Spain holds a moderately high position in rankings that look at ICT systems in the European judiciary. However, efficiency and interoperability issues are obstacles to Spain’s way up the rankings. Through interviews and surveys with judges and court staff members (including IT staff working within Spanish courts), this research project aims to compare the realities and expectations that stakeholders have when it comes to the various developments within the system. We also use primary and secondary sources to compare Spain with other EU Member States.

The interview below features a judge discussing the Supreme Court of Spain (Tribunal Supremo) and drawing from experiences in his own chamber, which is responsible for administrative law cases.

Interviewer: Which e-justice tools and platforms are available to you? Have you been using them?

Judge: LexNet¹ in principle is compulsory nowadays. Communications between the parties and the court must be done through LexNet unless there is some justified reason not to do that. LexNet is compulsory, but it is not particularly important; it can be important on specific occasions — but in the daily life of the judges of the Supreme Court it is [just] something that exists. [Also] Minerva [and] Portafirmas electrónico. In my chamber, the third chamber, it has been introduced relatively recently, I think in November or in December (2020), because there was a delay in the introduction of the electronic signatures for judgements and other judicial decisions within this chamber. Basically the introduction of a new system of appeals, so we had to make it work. And two reforms at the same time was not a good idea.

Cargador de expedientes electronicos administrativos,² yes, but I don’t use it personally because it is my personal secretary that uses that. [I also have used] Sede Judicial Electrónica.³

Interviewer: What is your experience as a judge collaborating with the IT team implementing the changes and new tools? What is your overall assessment of the technological changes implemented?

Judge: Concerning specifically these electronic justice innovations in my chamber, personally, I think that they are positive, so my assessment is positive. Sometimes it’s difficult to introduce these things because, well, many people are…I would not say concerned, but reluctant to [accept] changes, simply because when one is used to doing things in a certain way…well, why change? Having said that, the truth is that it has not been particularly difficult to introduce these innovations.

Now, the Ministry of Justice for justified reasons is particularly aware of the problems of safety — not to be hacked by external forces. So, that means that our devices are good but sometimes they are very slow. And they are very slow because of filters.⁴ Because at least in the Supreme Court, the filters sometimes can be a bit annoying. But it’s the price, probably, we have to pay for safety, for the safety of our data and our communications.

Interviewer: I was wondering whether your experience during the few months that you were using the electronic system before the lockdown was different after the lockdown. Your court also had a particular role during the pandemic. What was your personal experience during that time?

Judge: During the lockdown last spring, like everybody else, we were not prepared for that. And we had at that time a device for online conferences among us, but we hadn’t used it; so, we had to start learning on the spot. The system that we use is the official one, provided by the Ministry of Justice, which is CISCO Webex, I think. The system is good, but again, filters.

The problem is that our filters are really important, so quite frequently there can be some interruptions or problems with the communication. Theoretically we could have used other systems, Zoom for instance. The problem is that in my personal case and, I think, that most of my colleagues in the different panels of my chamber, [we] used CISCO Webex because it is the official device, and in case there is any problem, the problem goes to the [person who is] responsible for the system. Whereas if you don’t use the official device for online conferences, well, in that case the responsibility to some extent could be yours.

In my case I had to work practically every day with online conferences because one of the panels of my chamber was competent for the challenging of the Council of Ministers’ measures concerning the state of alarm.⁵ So, we had, most weeks in April, May, June, we had two, three, four conferences per day in that panel through that CISCO device. So, we got used to it, and it worked. Having said that, I think that for [in-person] deliberations of a judicial body, the online conferences are not the best solution. One can use them if it is absolutely necessary, as it was last spring, but if one can avoid them it is better, because discussing with your brethren behind closed doors, it is… well, you lose something of the richness of the judicial debate when you do it online.

Interviewer: Could you rank the following problems in the Spanish e-justice system in terms of how urgent you think it is to address them: 1. Interoperability of electronic systems; 2. Length of proceedings; 3. The existing backlog.

Judge: Interoperability of electronic systems: I think it is not a real problem for the Supreme Court, but as far as I know it is a problem elsewhere because different autonomous regions use different systems, and in its turn the Ministry of Justice [uses] another one.

So, in some regions the system is run by the Ministry of Justice, in others by the autonomous government, and the autonomous governments and the Ministry of Justice have never reached an agreement to have a unified system. I am told but I don’t have direct experience, that the barriers to interoperability are a problem.

Long proceedings: I don’t know; I don’t have the impression that e-justice is necessarily a factor in the length of proceedings. Let me say two things: administrative justice in Spain is mostly conducted in writing, so there are hearings, but most cases are decided without a hearing, except in lower courts. But in the Supreme Court we had hearings, some hearings, one week per month for certain cases, [but] with the pandemic they have been suspended and we are deciding practically all cases simply in writing.

One thing, however, where the system does not work properly — but it is not a defect of the electronic devices, it is a defect of administrative bodies: the so-called Expediente Administrativo, the file of the case before it arrives at the court, the administrative file of the case leading to the administrative decision, or contract, or regulation that is challenged. The administrative file quite often is not really an e-file, but it is a scanned version of a paper file. So, that sometimes is a problem. Because it is not the same to work with a file that has originally been produced as an e-file and to work with a paper file that has been scanned. In the Supreme Court, again, that sometimes is a problem, but it is not as serious as in cases before lower admin courts, because most cases we decide are appeals against judgments of a lower court, so the administrative file can be important sometimes but usually it is not the crucial element for the decision. Whereas for the lower courts it’s not like that, because they have to decide the case in the first instance and, consequently, the administrative file is very relevant.

Backlog: In my experience, I think [technology] simplifies the running of the cases but, and in any event we can do without paper, it’s already extremely important for many reasons. But in terms of time, I am not sure I could say that we are saving time.

Interviewer: Have you ever received ICT training for the use of the electronic systems available to the court?

Judge: It depends on what you mean by training. First, [at] the Supreme Court, we have some privileges. Among them [is] that each judge has a personal secretary. So, [the secretary] receives a real training in the sense you mention. Apart from that, this official I mentioned before [is] responsible for the computing systems in our court, when important innovations are introduced. For instance, the electronic signature: recently, she has organized some meetings of one hour or so in small groups to explain how the device works. So we have received training in that sense. And– again–fortunately, whenever any of us has a difficulty, a problem with any of these electronic devices you can simply ring up the computer service, and someone goes to your office and solves the problem.

Interviewer: Have you ever participated in the decision-making processes for the ICT needs of your court?

Judge: Well, yes to some extent, I did participate. Yes, because the Supreme Court, like the other courts, we have what we call a Sala de Gobierno. The Sala del Gobierno is a body within the court which is responsible for the administrative aspects of the running of the court.

I was a member of the Sala del Gobierno, and at that time the Sala del Gobierno had to adopt the agenda for the zero-paper program. So, in that sense, yes, I took part in the decisions, but my participation was absolutely secondary. It was really a collective decision. And it was a decision in agreement with the Ministry of Justice.

Interviewer: Please rank these general challenges of electronic justice systems based on importance (1 being the most important): robust functioning of the electronic infrastructure; system security; data protection; usability; transparency; administrative costs; training costs (including time).

Judge: I suppose all of them are important. Data protection in the sense of the legal regime, the legal regulation of it, it is in the law. There are no special rules for data protection concerning [electronic] judicial documents, it’s the same no matter if it’s in paper or in electronic form. System security, yes. I think, in my personal view, the insistence of the Ministry of Justice of having all these safeguards and filters is absolutely justified because the problem is not so much data protection as not having leaks, and you know, hacking.

Transparency: my answer is similar to the one for data protection. Because judgments are public. It is the Constitution that says that they are public. So, they may be consulted through “Cendoj” which is a body depending on the Consejo General del Poder Judicial, it is the Centro de Documentación Judicial (Cendoj). The website of the Cendoj is public. If you need any judgment, you ask the Cendoj.

Judgements are anonymized concerning individuals, so people protected by data protection legislation. So, the version that Cendoj gives to the public is anonymized concerning the names of private individuals — again not corporations, [but] people protected by data protection regulation. And, again, legislation concerning publicity of any other acts and decisions of the courts are different from judgements, including file archives and so on. The law is clear and does not differentiate between paper and electronic.

Interviewer: Among your peers is there enthusiasm about the changes? Is e-justice a topic that judges discuss much today?

Judge: Not very much. I would say that there are some colleagues who are enthusiastic, others are really reluctant, but I would say that most of my colleagues including myself, well, how to put it…it’s the time we live in — it is what it requires, so we simply accept it and use it. I would say that most of us are not either enthusiastic or critical, we simply use [e-justice tools] in the same way we use cell phones, personal computers and tablets, and all those things. El signo de los tiempos.

The interview was conducted on February 19, 2021 for the purposes of the research project “Justice Digitized” led by Argyri Panezi (Assistant Professor at IE Law School) and a team of research scholars and research assistants. More details about the project are available at our website: http://justicedigitized.com.

This interview was conducted by Argyri Panezi and Adriana Rodriguez Rivera, at the time research assistant at IE Law School. The questionnaire used for this interview was created Argyri Panezi and Adriana Rodriguez Rivera with significant contributions from Sonsoles Arias-Guedón, Assistant Professor at IE Law School, Francisco de Elizalde, Associate Professor and Chair of Legal Studies at IE Law School, Konstantina Valogianni, Assistant Professor in Information Systems at IE Business School, Kiron Ravindran, Assistant Professor in Information Systems at IE Business School, and Natasha Krause, research assistant at IE Law School.

This interview was commissioned and edited by Shazeda Ahmed.

Footnotes

[1] According to article 13 of the Royal Decree 1065/2015 “LexNET system is a means of secure transmission of information that through the use of cryptographic techniques guarantees the presentation of writings and documents and the reception of acts of communication, their dates of issue, availability and reception or access to the content of the same.” LexNET is available at: https://lexnetjusticia.gob.es The possibility to use “technical, electronic and computerized means” for the functions of Spanish Courts and Tribunals was first mentioned in Organic Law 16/1994, of November 8 (Ley Orgánica 16/1994, de 8 de noviembre). After that, Royal Decree 84/2007, of January 26, is considered a milestone on the implementation of e-justice tools in Spanish justice administration, with the introduction of LexNET, a telecommunications computer system that allows for the “the presentation of briefs and documents, the transfer of copies and the performance of acts of procedural communication by telematic means.” (See Royal Decree 1065/2015 of November 27 “on electronic communications in the Administration of Justice in the territorial scope of the Ministry of Justice and by which the LexNET system is regulated.” (Real Decreto 1065/2015, de 27 de noviembre, sobre comunicaciones electrónicas en la Administración de Justicia en el ámbito territorial del Ministerio de Justicia y por el que se regula el sistema LexNET.)

[2] Referral of administrative cases among the national, autonomous or local judicial administrations for their integration into the procedural management system (Sistema de Gestión Procesal Minerva-NOJ).

[3] Electronic courthouse, defined in Art. 9 of Law 18/2011 (Ley 18/2011) as “the electronic address available to citizens through telecommunications networks whose ownership, management and administration corresponds to each of the competent administrations in matters of justice” (“La sede judicial electrónica es aquella dirección electrónica disponible para los ciudadanos a través de redes de telecomunicaciones cuya titularidad, gestión y administración corresponde a cada una de las Administraciones competentes en materia de justicia.”)

[4] Here the Judge refers to security filters/settings which, according to their experience, ensures the security of the platforms used but at the same time slows down those platforms.

[5] At the beginning of the Covid-19 outbreak, the Spanish authorities declared a state of alarm(“estado de alarma”) according to Article 116(2) of the Spanish Constitution. This first state of alarm, starting March 14, 2020, and lasting for 15 days (see Real Decreto 463/2020) was challenged before the Constitutional Court of Spain, which eventually ruled that the state of alarm was partially nullified for unconstitutionality (Pleno. Judgment 148/2021, of 14 July 2021, BOE núm. 182, of 31 July 2021). Article 116 of the Spanish Constitution states: 1. An organic law shall regulate the states of alarm, emergency and siege (martial law) and the corresponding competences and limitations. 2. A state of alarm shall be declared by the Government, by means of a decree decided upon by the Council of Ministers, for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately for this purpose. Without their authorisation the said period may not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply. One of the following conditions must take place for a state of alarm to be declared: catastrophes, disasters or public misfortunes, such as earthquakes, floods, urban or forest fires and major accidents; health crises, such as epidemics and situations of serious contamination; the paralyzation of essential public services for the community; or situations of shortages of essential products. (Organic Law 4/1981, Article 4 (Ley Orgánica 4/1981, de 1 de junio, de los estados de alarma, excepción y sitio)).