Remigijus Jokubauskas and Marek Świerczyński present the Guidelines for Online Dispute Resolution Mechanisms in civil and administrative court proceedings.
Limitations in direct human communication, provoked by the COVID-19 pandemic, have forced the implementation of new forms of communication in civil and administrative proceedings. Some countries are more experienced in this field. For example, in Lithuania online filing, online payment of court fees and digital case materials with online access are available in all civil and administrative cases thanks to the centralised e-justice system LITEKO. In Poland only recently and directly connected to the pandemic constraints, a new law on videoconferencing in civil and administrative proceedings has been adopted by the Government.
To ensure that disputes are resolved fairly, the Council of Europe European Committee on Legal Co-operation (CDCJ) developed an appropriate and practical international regulation in the form of guidelines in line with the judicial guarantees enshrined in the European Convention on Human Rights. The Guidelines on online dispute resolution mechanisms in civil and administrative court proceedings were adopted by the Committee of Ministers on 16 June 2021. They use the term of Online dispute resolution (ODR) that refers to any online information technology (IT) used by a court to resolve or assist in resolving a dispute.
2. Aim of the guidelines
The legislators and courts from the member states are encouraged to use the baseline measures contained in the ODR guidelines allowing them to ensure that implemented digital techniques do not undermine human dignity, human rights and fundamental freedoms. The guidelines aim to ensure that the new techniques are compatible with the European Convention on Human Rights without compromising the benefits, in particular where the costs and speed of dispute resolution are concerned.
The guidelines are a “soft” law instrument, they are not only a declaration of principles but aim to give practical advice and guidance. They address, in particular, the key principles of a fair trial and effective remedy, as interpreted by the European Court of Human Rights in its case-law. For example, with respect to the principles of equality of arms, the guidelines state that proceedings should ensure an independent and impartial adjudicative process. It is even more important for digital courts as they may entail a process where the adjudicator is not physically present which may give rise to credibility issues.
Guidelines no 40. Judges, legal practitioners and all those involved in court proceedings should be made aware of the benefits and value of ODR mechanisms and their compliance with the European Convention on Human Rights as well as with other relevant laws.
One may expect that the ODR techniques implemented in the country in line with the guidelines might not be challenged from the perspective of human rights under the European Convention of Human Rights. No less important is that the guidelines follow good practices and lessons based on collaborative work and experience of members states that are more experienced in using ODR. Both the successes and failures of particular ODR implementation were taken into consideration during the preparatory work.
3. Fundamental principles
The guidelines include a list of instructions for member states, the four most important key principles are reproduced below:
- Member states should seek to ensure trust and confidence in ODR,
- ODR should not create substantial barriers for access to justice,
- Procedural rules which apply to court proceedings in general should also apply to court proceedings involving ODR, unless the specific nature of a particular ODR mechanism requires otherwise,
- Parties to proceedings involving ODR should be identified using secure mechanisms.
In practice the main problem is related to legal ignorance and lack of information on effective ODR techniques. A transparent explanation of their design and use is needed for the public and may enhance the use of ODR mechanisms in practice. ODR is to be fast, uncomplicated, inexpensive and effective. Cost reduction, speed of solutions, no need for direct meeting of parties are undeniable advantages of this mechanism. Such simple messages are needed to create public trust and confidence in ODR. ODR mechanisms will then actually provide an important alternative to protracted court proceedings and judgments of dubious quality.
Consultative Council of European Judges – Opinion No. 14 (2011): The introduction of IT in courts in Europe should not compromise the human and symbolic faces of justice. (…) Justice is and should remain humane as it deals primarily with people and their disputes.
The member states should explain to the public that use of ODR is not meant to fully replace the existing in-court proceedings but rather to supplement them and enhance access to justice. ODR needs to be seen as an ancillary aid to judicial decision-making, and to facilitate the judge’s work, not as a constraint. ODR has also to be adapted to the needs of judges and other users, and it should never infringe guarantees and procedural rights such as that of a fair hearing before a judge.
Another lesson from the pandemic crisis is that cybersecurity is important in the current court practice. Cyber threats are and will be a real danger for justice systems. High risks exist that court documents and evidence can be subject to manipulation and attack. A breach in security could result in forgery, or the disclosure of confidential information. Therefore, courts must consider mechanisms for enhancing data security. It is crucial that an appropriate level of cybersecurity in the ODR systems and their integrity are ensured by the member states. Indeed, a whole section and even an appendix with a checklist addressing cybersecurity issues was added.
The implementation of the guidelines in Council of Europe member states is crucial as the digitalisation of courts is now of particular importance for the proper access to justice (for example, see the CEPEJ Guidelines on videoconferencing in judicial proceedings). However, wide use of digital courts also has the potential to restrict access to justice by setting up technological barriers to all those who do not have the capacity to use technology. Moreover, attention needs to be given to issues of authentication of data and identification of the parties to the legal dispute, digital divide, cybersecurity and personal data protection. All these aspects are detailed in the explanatory memorandum to the ODR guidelines which offer options and solutions to member states and courts.
Disclaimer: the opinions expressed in this article are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe.