Herausforderung Informationsgesellschaft:
Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren

Gefördert mit EU - Mitteln aus dem GROTIUS Programm

INFORMATICS IN THE JUDICIARY OF THE PROVINCE OF BUENOS AIRES

BY PELAYO ARIEL LABRADA AND TORIBIO ENRIQUE SOSA

SUMMARY

In Argentina, data information (legislation and jurisprudence) is fully covered through online and offline systems. Management information is having an uneven development; however, it has caused the disappearance of seventy or eighty per cent of typewriters. The electronic records have not eliminated paper: they coexist.

The legal rules which recognize the validity of electronic records are only exceptions so far.

There are some advanced experiences, such as sentences in CD-ROM with the utilization of multimedia resources. (see 3.4)

1. PANORAMA OF THE JUDICIAL AND LEGAL ORGANIZATION IN ARGENTINA

The Republic of Argentina has an area of 3.761.274 square kilometers and it has a population of 32.547.560 inhabitants (census 1991). It is a federal republic. It is known that the federal form of state implies a distribution of the power between the central state and the regional states.

Throughout our national territory two justice administrations coexist: the federal administration and the regional or provincial administration. The competence of the federal judiciary is determined according to subject, place and people.

The authors of this report belong to the regional courts of the province of Buenos Aires. This is the most important province in Argentina because of its area (307.571 square kilometers), population (12.582.231 inhabitants according to data from 1991) and economic activity. The reporters of this paper are judges in the civil and commercial courts of first instance (Dr. Labrada in the city of Pergamino and Dr. Sosa in the city of Trenque Lauquen); therefore, their proints of view and reflections are primarily based in the information experience they have had in the province of Buenos Aires.

The characteristics of the use of information in the courts of this province, still developing, are as follows:

1. The technological leap: the steps that have been marking out the technological changes have not been taken. The mechanical typewriter did not make way for the electrical typewriter, the electronic typewriter, the text processor and finally the P.C. In Argentina we were stagnated, and suddenly we shifted from the mechanical typewriter to the personal computer.
2. Personal initiative: Since 1988, in the province of Buenos Aires, there have been isolated and disconnected attempts to apply advanced technologies in the courts, but they have lacked coordination or centralized direction from the Supreme Court. When the license of the program was hired by the Supreme Court of Justice of the province of Buenos Aires, in 1993, a management Program, called Lex Doctor, was chosen. It was implemented initially in only one court in a peripheral small city of the province, of scarcely 30.000 inhabitants: Trenque Lauquen.
   From there, it spread to all the courts of the province, located in much more important cities. Currently it is the standard program.
3. The technological gap: items 1 and 2 explain the technological (and efficiency) gap existing between the courts which have had access to new technology and the courts which have not. Even among the former, there is a significant difference according to the training their members have had, and the availability of means to get equipment and programs.
4. Private economic contribution: Although the Supreme Court of the province of Buenos Aires has allotted resources to the acquisition of computers, specially since 1993, judges, employees and intermediate institutions (Colleges of Lawyers and of Magistrates) have made and continue making contributions for the purchase of hardware and software.

Next, pertaining the questionnaire suggested by professors Helmut Ruessmann and Wouter de Vos, we put forward our report.

2. COMPLETELY DIGITIZED PROCEEDINGS

Not for the present.

There are not any, or at least they are not known. Notwithstanding, there are some judges and lawyers attentive to the modernization of justice, who find the digitization of proceedings interesting, as a step to take in the near future.

3. APPLICATION OF ADVANCED TECHNOLOGY IN PARTS OF THE CIVIL PROCEEDINGS

3.1. INITIATION OF THE PROCEEDINGS

It is not.

Such plans do not exist, or at least they are not known.

We consider that until a national law is approved which allows and regulates the use of the electronic document and the digital signature, the need to use paper and to write and sign in ink is an unavoidable legal obstacle. (art. 1012 Civil Code, art. 118 Code of Civil and Commercial Procedure of the province of Buenos Aires - henceforth CCCP-)

In Argentina, there exists a Civil Code – on the one hand – and a Commercial Code – on the other hand –; however, in the late 80’s, a project of Civil and Commercial Legislative Unification was made, which did not become a law. In article 978 it dealt with electronic documents, framing them in the category of "particular instruments".

Nevertheless, the electronic document has been adopted by the Public Administration of the Nation. Article 30 of the Law 24.624 disposed the substitution of art. 49 of the Law 11672 (Budget Permanent Complementary Law, see collated text according to decree 792/96 in National Official Bulletin dated 22-7-96), and it stated that regarding financial, commercial and administrative documentation of personnel and control, the National Public Administration will be able to carry out both its writing in first generation over an electronic format or indelible optic and also its reproduction in electronic format or indelible optic of the first generation originals performed in any other way, destroying the latter (that is to say, keeping only the electronic document), giving the electronic document total probatory value in terms of article 995 and concordant articles of the Civil Code (see journal Foja Cero, September 1996).

More recently, on April 16 , 1998, the National Executive signed the decree 427 which settles the basis for the incorporation of the electronic document in the management of the National Public Administration through the use of a technology that assures its authenticity and no alteration: the digital signature, based on the asymmetric cryptography or public key.

3.2. LEGAL MANAGEMENT

The legal management is also performed electronically, but not only electronically. A management software is used, not made but hired by the judiciary of the province of Buenos Aires (named Lex Doctor, belonging to a local company called Sistemas Juridicos S.R.L) which allows to create text files that are recorded on the hard disc according to the judicial process and to its date, but they are printed in paper and signed by the judge.

The Lex Doctor Software allows to regulate different levels of users from inside or outside the jurisdictional institution, with different quality and quantity of attributions and with access keys for each user.

Thus, for instance, it is possible to make the projects of judicial resolutions internally in such a way that attorneys, parties, and the public cannot have access to them.

Once the resolution project is printed in paper, - attorneys, parties and the public have not had access to it yet -, the judge decides whether to sign it or not as it is, being empowered to alter it. Once the project is signed, with or without alterations, it obviously becomes a judicial resolution; to register this transformation electronically, the only necessary step is to pass the file in front of a bar code reader. When the resolution project has become a judicial resolution and it has been electronically registered, it is available to attorneys, parties and the public.

In brief to assure the correspondence between the electronic document and the document printed in paper, the software Lex Doctor allows the following steps:

1. electronic drafting of the resolution project.
2. printing the resolution project in paper.
3. Signing of the resolution project.
4. turning the resolution project into a judicial resolution, by means of bar codes – printed in the title pages of all the files – and laser readers of bar codes.

3.3. DELIVERING OF THE DOCUMENT.

The judicial resolutions as a rule are automatically delivered on Tuesdays and Fridays or the following working day (art.133 of CCCP). This kind of delivering supposes that the addressee of the resolution should consult the proceedings during those days.

As an exception, the proceedings must be notified by a document called "cédula" in Spanish, a summons issued by a judge and written in paper, handled personally by a judicial officer: the notifying officer.

The delivering through a "cédula" is performed according to the resolution expressly mentioned by the law, for instance, the resolutions enumerated in art. 135 of the CCCP, which include the transference of the claim and the definite sentence.

When a person’s address is unknown, or a person’s existence is uncertain, a "cédula" cannot be sent; then the notification should be performed by means of edicts or through the radio (art. 145 to 148 CCCP). This is not very frequent. The resolution that is commonly notified in this way is precisely the claim transfer (art. 341 CCCP).

Resuming our main subject, no electronic media are used to deliver resolutions. In fact, their use is not regulated by legal rules. But if the parties consented expressly or tacitly to its utilization , the use of e-mail or the electronic file transfer from the court could not be objected , applying the same principles: it would be an irregular mechanism, but being its objective fulfilled , it would not give place to nullities.

Furthermore, the use of e-mail or electronic file transfer from the court should be disposed through a resolution. When the electronic delivery was performed, it could state for the record in the file. Thus, the "electronic delivering" would have three steps:

1. The resolution that initiates it (it would be better if it had the previous consent of the parties) should be appealed to avoid its operability? Efficiency?
2. The electronic delivering of the information.
3. The record of such sending: if attested by an authorized public official (for example, the secretary of the court) would have the probatory value of a public document (art. 979 chapter 2993 and concordant ones of the Civil Code).

3.4 HEARING AND EVIDENCE

They are not forbidden. Applying the rules of legal nullities, if the method of "virtual immediacy" were accepted by the parties, they could be carried out within the frame of the legal rules in force in civil proceedings. However, this procedure would be impossible in penal proceedings with the present legislation.

Article 126 of the CCCP (that came into force on February 1, 1969) states that " at the request of the parties, to their cost, and without any appeal, a shorthand version of the events can be taken or its registration performed by any other technical means, provided that it is requested in anticipation. The judge will officially appoint the stenographers or he will take the necessary measures to assure the authenticity of the register and its documentation. The parties will be allowed to ask for a carbon copy of the document, which will be signed by all the persons in attendance and the secretary."

Thus the CCCP, in article 126, allows the registration of the hearings by any technical means.

It is widely known that the I.T. (information technology) is a technical means. Informática?

The multimedia are an application of modern information that allow the gathering of text, image and sound at the same time, letting us keep the legal proceedings in an indelible and reliable way, and also retrieve the stored information in a practical way and with the handling power the new technology of the end of this century offers.

It is possible to film the hearing, digitise the filming and record it in a CD or a DVD.

On March 10, 1998 in the case "Degiovanangelo Hermanos SRL vs Los Glovo Agropecuario SA on accounts receivable in pesos/cobro de pesos", record of proceeding # 26679, the first multimedia sentence we have ever heard about in the province Buenos Aires was brought forth. The sentence was written with the word text processor (of Microsoft). Icons were included in its development (considerandos? ¿legal reasons? clauses?) and access to the filming of every declaration was possible with a simple double click of the mouse on the corresponding icon. It was not necessary to write the declarations, neither when they were received during the hearing, nor during the sentence. Window 95 ( of Microsoft) was required.

3.5. LEGAL INFORMATION

Argentine judges are well supplied of legal information through electronic media, be it online or offline. For a better ordering, we will deal with each of them separately.

a. "Online" information

The Sistema Argentino de Informática Jurídica (SAIJ) has used online information since 1981. It was, chronologically, the first legal online databank in the Spanish speaking world. By March 10^th,1998, it included:

All this is within reach of judges, attorneys and the public, who upon payment of the corresponding fees, can consult the files via telecommunication and the Internet. This service is offered permanently during the twenty-four hours of the day, and every day of the year.

The S.A.I.J. is an official institution dependant on the Ministry of Justice of the Argentine Nation, which has had a hard time facing the deficiency of communications, as the telephone network had outdated technology. It has been only ten years since we had ARPAC (a net that transmits data), but it never supplied the necessities of our country : it had nodes only in some main cities. The inhabitants of the rest of the country were obliged to communicate through analogical lines up to some of those nodes, with the problems it implied .

Since late 1975 we have been able to enter S.A.I.J. through the Internet.

The fact that the telephone service is not always the best, the same as the quality of the Internet suppliers, has caused professionals to prefer offline consultation so far. Thus, up to now, it does not exist an application according to the extent of S.A.I.J.. As mere reference, it is estimated that in the city of Buenos Aires (federal capital of Argentina) there are 30.000 lawyers of whom only 600 are subscribed to the system, and although we take into account that each subscription can be used by 2, 5, 10, 20, or 50 lawyers belonging to the same office, the proportion is still far from what its creators’ efforts deserve.

Anyway, it is foreseeable that the online system will finally get control, as this is a universal tendency. It will also take advantage of the improvements of the Internet (and the announced Internet 2). Besides, we have to consider that in Argentina it is estimated the existence of 200.000 users of the web of webs (early 1998). For a country of about thirty-five millions inhabitants, it is clear this is not a massive means of communication. And, although we do not have statistics, it can be estimated, without much effort, that it has not become popular among law professionals, either, at least up to the moment of writing these lines.

With less information, there are two other databanks which operate in judicial departments of the province of Buenos Aires: S.I.J.J. and SERLET, located respectively in the city of Junin and in San Isidro, a suburb near the capital city. They spread the regional jurisprudence. Its importance does not lie in the number of bytes contained in its files, but in the fact that it was created as the initiative of groups of lawyers of their respective areas, who have willingly made big efforts for its development.

Also, systems of remote consult have been organized by initiative of some courts. Since 1998, a B.B.S. [Bulletin Board System] has been operating regularly in the city of Trenque Lauquen [province of Buenos Aires]. This is a telecommunication system by which the attorneys who have a personal computer, modem, telephone line and the pertaining key to access [two], can be connected from their offices with the Civil and Commercial Court Number 2 off work time, and in this way consult and copy the judicial resolutions related to their files.

b. "Offline" information

Regarding offline information, for the last five or six years, there has been a strong competition among some traditional publishing companies: La Ley, Jurisprudencia Argentina and El Derecho, all of them devoted to legislative and jurisprudencial texts printed in paper. This has resulted in the existance in the market of CD-ROM, periodically updated, thus satisfying the lawyers’ needs, provided that they do not claim verdicts or laws pronounced in the recent months.

A new company: Sistemas Jurídicos SRL, has been added to the ones above. Since it appeared, it has spread its product exclusively in electronic format. This company, along with the management program Lex Doctor, spread their database "LD-Texts", which contains national legislation and jurisprudence, and legislation and jurisprudence from some provinces of our country.

As far as it is concerned, the Supreme Court of the province of Buenos Aires periodically publishes a jurisprudencial repertoire in CD-ROM, of free distribution for judges [and very cheap for lawyers: $5 each update]. The March l998 issue contains 68.535 jurisprudential summaries, and 6.848 complete verdicts. Its weakness is the updating of the information because several months usually pass by between one edition and the next.

3.6. FINAL DECISION

To write the sentences, Argentine judges have commercial text processing, spreadsheet and database programs.

About 1988, the first personal computers were introduced in the judicial institutions of the province of Buenos Aires, and with them, the word processing programs. It was the first and more tempting usefulness of this equipment for tribunicial use. The number of machines has been increasing slowly; we owe a certain number to the initiative of some judges who also took charge of its cost, and others were provided by funds from the judiciary budget. Nowadays it is difficult to find a judge who does not have a P.C. at his disposal.

There is no difficulty in using standard programs for arithmetic operations, an scientific programs with the help of experts; but special circumstances in our country have made it necessary to develop programs to manage complex calculations in order to solve the problem of updating values.

The Argentine Republic suffered monetary depreciation for more than forty years. In those days prices rose constantly: in some periods, from one year to another; in other periods from one month to the next, and there were also critical moments when prices rose during the same day.

The National Institute of Statistics and Census determines monthly inflation indices according to different approaches: consumer`s prices, wholesale prices, not agronomical wholesale prices, construction industry prices, etc.. However, the approximate estimates for their application to a specific case are not easy, and most sentences had to finish with the consequent monetary adjustment to recover the balance of value.

That daily need made Dr. Adolfo A. Bravo, Civil Secretary of the Supreme Court of the province of Buenos Aires, create a program he called "Exes", by means of which results can be rapidly obtained from the application of the inflationary updating index that the judge may choose for the specific case. "Exes" program also improves the judicial task of regulating the lawyers’ professional fees: indicating regulatory base, type of process, performed legal stages - etapas procesales transitadas, quality of winner or defeated of the attorney’s client and character of the attorney’s performance (apoderado o patrocinante). The program rapidly shows on different screens possible figures, among which the judge can choose, appraising the quality of the work done and other subjective aspects, such as equity, to decide on the final figure between those extremes the machine suggested him.

This program "Exes", born in the heart of the Supreme Court of Justice of the province of Buenos Aires, can be regarded as decisional information.

There also exist integrated systems, such as the LEX DOCTOR program – made by Sistemas Juridicos SRL and hired by the Supreme Court of Justice of the province of Buenos Aires, which processes texts - with spelling corrector – calculates payouts - (including updating due to monetary depreciation and interests), has an agenda and resident calculator, has a database to consult legislation and jurisprudence, of its own and of other courts (LD Text base) etc.

Yes, the use of the programs commented above has granted, as logical corollary, access for every judge to the electronic files of his opinions, which, generally, he himself has been forming.

But this use depends on the personal initiative of each judge and on his own information knowledge. There are some judges who keep their sentences in order and use searching programs to track down their own precedents, and there are also some others who have produced their own database.

Anyway, we have to point out that there are still some judges who do not use computers.

Are the judges forced to rely on administrative personnel if they want to review a decision not yet rendered.

With the LEX DOCTOR system, it has already been explained that the judge can introduce the changes he considers necessary to a decision not yet rendered, as well as instruct his assistants to make such changes. Nevertheless, the elaboration process will not come attorneys parties and the public.

See 3.3. above.

It is possible, but not usual. At the moment of making this report, the first web page is being made in the Supreme Court of Justice of the province of Buenos Aires.

In principle, there is no legal obstacle, because in our law the principle of the publicity of legal processes rules, except in special cases; therefore, the new technology does not damage that rule; on the contrary, it enhances the field of its effective force.

According to the republican form of government, the legal principle of publicity, and the constitutional right to information, while there do not exist decorum reasons or of any other kind , the seriousness of which may prevent the publicity of the sentence mentioned, so much the less a fortiori with regard to the remaining activity, providences and proceedings that precede it (art.1,5 and 75 chapter 22 National Constitution ; art.14 chapter 1 of the International Agreement of Civil and Political Rights, New York, 1966; art. 19 Universal Declaration of Human Rights, V.N., 1948; art. 13 ap.1 San Jose de Costa Rica Pact; arts.1 and 12 chapter 4 Constitution province of Buenos Aires; art. 125 chapter 1 and 164 2^nd- paragraph CCCP).

From a more sociological point of view it does not seem reasonable to restrict the communicative access to the information contained in the files more than what is allowed for the personal and direct consultation of proceedings at the entrance desk; if the lawyer normally has access to all the cases when he goes personally to the entrance desk and asks for them, why do we have to refuse to give him the information when he uses another mechanism to have access to the same information?

Only if the case is for some reason reserved (e.g. when a caution measure has been taken, until its execution?, art. 197 last paragraph CCCP)

On the contrary, the information container in the legal files is easily accessible for the attorney (who are "the persons introduced in the circles where the kind of information in question is used", art. chapter "a" law 24766, called "confidentiality law" since the courts do not usually take particularly restrictive measures for consultation at entrance desks.

Except for reserved cases, I insist. (art. 1 chapter "c" law 24766).

Anyway, if some restrictions were desirable the computing programmes available allow us to keep in absolute secret the reserved cases or resolutions, as the access to them can be restricted by means of passwords, and the privacy of the information can even be assured by concealing programmes in such a way that only the addressee can make it out.

3.7. APPEAL

The question is not regulated by the regional legal rules. But under the same conditions the electronic document can be used in the first instance (conditions that include the parties consent and the necessary technology) it might as well be used by the subsequent instances (e.g. digitized filming recorded in CD).

4) FINAL REFLECTIONS

In the same way as since the middle of the nineteenth century in Germany (Windscheid – Muther polemic about action-1856/1857-, and Von Bulow’s work "Theory of dilatory exceptions and legal budgets"-1868-), and at the beginning of the current century in Italy (introduction to Chiovenda in Bologna on Febrary 3 1903 about the subject "Action in the Right System", the pure proceeding started to be overcome, and the birth of the modern legal science took place. It is at this time, the end of the century, when conditions meet to attend the birth of legal efficiency, that is, the incarnation or materialization- thanks to the symbiosis of legal right, related social sciences and technology- of the principles and concepts so finely developed for years but very few times molded in the indocile reality.

This challenge requires to reconsider with serenity but with audacity, in accordance with the current state of affairs, the procedures, the court office and the attorney office.

Keeping in mind that the purpose of the judicial service must be the possible maximum effectiveness to solve conflicts (as to time, cost and quality) perhaps it is time to think over, thoroughly, the way to build the process and to organize the judicial office and the legal studio.

We belong to a generation involved in a technological change that can only be compared to the beginning of the Modern Age, when the printing and the paper appeared in Europe. We have had moments of bewilderment, but we have left them behind, and now they are just a collection of anecdotes.

Chronologically, multimedia appeared for military use, then in the financial activity, after that in medicine, the editorial work and finally in law.

Technology can cooperate with the introduction of work systems which will cause not few principles or legal subjects to be reviewed.

There are technological uses whose rapid improvement, cheapening and consequent spreading can have an impact on the effectiveness of the judicial system as it is known now. Such as multimedia, telecommunication and videoconference.

Our traditional lack of vocation for technology (St. Just Street is broader and deeper than the ocean) has made us arrive in one of the last positions.

But in world history, a difference of one decade does not mean anything.

This congress will show that we are advancing steadily towards an unavoidable and from every point of view beneficial updating.

The service of justice does not have to abstain from the elements that engineering offers us.

And if the beginning of the Modern Age was signed by the irruption of paper which multiplied the human possibilities, we can say that this end of the millennium brings the overcoming of the paper and the consecration of electronic reports as a new means that catapults us, with the possibility of providing a faster and more efficient service, in accordance with the men and women of our time.

Bei Fragen und Unklarheiten wenden Sie sich bitte an: [Prof. Dr. Helmut Rüßmann].
Stand: 10. March 2000.