Switzerland subject to European electronic communication rules

You might question, Switzerland not being a EU member, why discuss European Institutions in the context of electronic communication in justice.

Switzerland is since 1963 (!) a member of the Council of Europe (COE).

The COE considers in its explanatory memorandum on access and non discrimination in the context of human rights of internet users (point 9, or in the full document point 39) that:

The principle of non-discrimination should apply to user interactions with public authorities, Internet service providers, content access providers and other companies, users, or other groups of users.

We've seen in yesterday's post how Switzerland gets spanked by the COE for the violation of access to justice, discrimination, language and even racism.

the right for the use of email in dealings with authorities

We actually need to go back to 1999, yes, 1999, almost quarter of a century ago, to the Universal Community Service – Concerning New Communication and Information Services:

2.1c the opportunity to pursue administrative processes and actions between individuals and these public authorities such as the processing of individual requests and the issuing of public acts

Email was already referred as a New Communication and Information Services, and people already had, and still have, the right to deal with their authorities by email.

the COE European Commission for the Efficiency of Justice

The Committee of Ministers of the COE set up on 18 September 2002, thats more then 20 years back, the European Commission for the Efficiency of Justice (CEPEJ) with Resolution Res(2002).

Switzerland as a member of the COE is a member of the CEPEJ.

The CEPEJ exists for:

the Rule of Law and Fundamental Rights in Europe, on the basis of the European Convention on Human Rights, and especially its Articles 5 (Right to liberty and security), 6 (Right to a fair trial), 13 (Right to an effective remedy), 14 (Prohibition of discrimination).

the CEPEJ on electronic communication in justice

Fast forward to 2018, the CEPEJ launched a consultation with the COE members about the status of electronic communication in their justice systems.

In Switzerland's answer to the CEPEJ, Switzerland claimed in the year 2018 between 50 and 99% of its justice system was available through electronic means. Switzerland responded in its answer to the CEPEJ that for civil and criminal cases:

  1. Legal aid can be requested electronically and the granting of legal aid is done electronically
  2. The submission of a case can be done electronically
  3. Simultaneous submission of cases or formalisation in paper form is no longer mandatory
  4. The stages prior to a court hearing, with a view to mediation or conciliation, can be done electronically
  5. All phases preparatory to a hearing, such as schedule of hearings and/or appeals management, can be done electronically
  6. Communication between court and parties can be done electronically, regardless of representation by a lawyer or not
  7. Evidence can be transmitted electronically and is automatically admissible in court
  8. Transmission of court decisions can be done electronically, provided the person has given explicit consent thereto.

On the basis of the COE country answers, the CEPEJ adopted a communication on behalf of its members on December 2nd 2020, confirming it would be “Making the digital channel the default option in EU cross-border judicial cooperation”.

Require Member States by default to use digital channels for cross-border communication and data exchanges between competent national authorities; Require Member States to accept electronic communication for cross-border procedures involving citizens and businesses, without ruling out the use of paper; Guarantee that the solutions and principles set out in the eIDAS Regulation are referenced and used, in particular: – the principle that electronic document shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form; – electronic identification and signatures/seals should become acceptable for the digital transmission of judicial documents and their appropriate assurance levels agreed.

As a result, on December 1st 2021 Europe adopted the Proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the judicial cooperation.

Switzerland, as member of the COE and CEPEJ, participated in the whole process.

Regulation on the digitalisation of judicial cooperation and access to justice

The regulation proposal and its explanatory memorandum adopted by the European Commission says:

Fundamental rights:

The possibility for individuals and legal entities to file claims and to digitally communicate with the courts and competent authorities, as well as the possibility to participate in oral hearings through videoconferencing or other distance communication technology will ensure improved access to justice in cross-border procedures, once they are digitalised. To respect the needs of disadvantaged groups and vulnerable people, the paper-based communication will be maintained as an option.

Article 1.2(b): the regulation applies to

electronic communication between natural or legal persons and competent authorities

Article 2: Definition of electronic communication and electronic document

(2) “electronic communication” means digital exchange of information over the internet or another electronic communication network (3) “electronic document” means a document transmitted as part of electronic communication, including scanned paper documents

Article 5:

requires Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons. It provides for some of the digital communication channels, notably the European electronic access point and existing national IT portals, where developed by the Member States for the purposes of participating in judicial procedures.

Article 6:

requires competent authorities to accept electronic communication from natural and legal persons, making electronic submissions equivalent to the paper ones

Article 10:

requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form.

Article 20: > electronic means of communication provided for in Article 5, or by any other means of communication, such as fax or e-mail ...

How does this relate to Switzerland's obligations?

For the avoidance of any doubt of Switzerland's obligations, we need to revisit the post on Vienna Convention on the law of Treaties, particularly in its article 18 and 14.1.d.

The VCLT states even if a convention is not yet finished, and/or not yet into force, participating in its drafting is enough for it to have its effect:

a country is legally bound by its intention alone The intention of the State to sign the treaty subject to ratification appears from ... expressed during the negotiation.

Switzerland's “intention” finds its origin in its participation to the COE as a member, to the CEPEJ as a member, and negotiation to the drafting of the adopted proposal. If it had no intention to become a part of this international instrument, it would/should not have taken part in its preparatory work, drafting and negotiation.

As such, as member of the COE and member of the CEPEJ Switzerland is subject to the by CEPEJ in 2020 adopted communication. And as Switzerland participated as member of the COE and CEPEJ to the by the European Commission in 2021 adopted regulation proposal it is also subject to it.

As always, there is more on the subject ... To be continued ...

Tags: #Rights #Accesstojustice

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