The Challenge of Information Society: Application of Advanced Technologies in Civil Litigation and other Procedures
National Report of Finland:
Relator: LL.D Sakari Laukkanen<1>
A. Brief Introduction to Civil Litigation in Finland
The courts in Finland can be divided into general courts for civil and criminal cases and administrative courts for administrative matters. There also are special courts, such as the Land Courts and Water Courts. The general courts include the courts of first instance, the District Courts, (68) the Courts of Appeal (6) and the Supreme Court.
The Finnish legal system is based on the Scandinavian and European tradition. The proceedings in the general courts were based on the 1734 trial act which had been partly amended, especially during this century. During the past ten years the general courts and the proceedings in civil and criminal cases have been fundamentally amended. In this reform technology and the use of electronic data processing (EDP) has played an important part.
The reform of the lower courts and proceedings in civil cases entered into force on 1. December 1993. A new data system supporting the new court procedure was implemented simultaneously. This has been a principle that has been followed in the 1990´s. The procedure in civil cases has two phases, the preliminary hearing of the case and the main (oral) hearing. The preliminary hearing mainly is a written one, and only if the defendant contests the plaintiffs´ demands an oral one is arranged.
Every civil case starts the same way: the plain-tiff applies for a summons. An application is a written document which can be either a short one or an extensive one. A short one can be used if the plaintiff regards the matter to be undisputed. The civil case started with a short application will constitute a summary procedure. In the short application the plaintiff states the demand (the sum of money, interest, expenses) and the grounds for it. It is not required, that the plaintiff gives the court the invoice or other documents as long as they are specified in the application.
If the court issues a summons it asks the defendant to reply in a given time. If the defendant does not reply the court rules in favour of the plaintiff. On the other hand if the defendant replies and gives the court legitimate reason not to rule in the plaintiff´s favour, the court will set an oral preliminary hearing.
The oral preliminary hearing is chaired by one judge. The judge should prepare the case for the main hearing, but also try to mediate between the parties and if they agree, even make a draft of an agreement. If the parties accept, the judge also can decide the matter after the preliminary hearing in so called immediate main hearing. The main hearing in front of three judges, or a judge and three lay judges takes place if the preliminary hearing does not end in an agreement and parties do not accept an immediate main hearing. Only about 1 - 3 % of the civil cases are tried in this separate main hearing.
As the new procedure was planned it was realized that most cases would be simple, undisputed debt-recovery cases. If the application was contested the procedure could continue in an oral preliminary hearing. A separate procedure for debt-recovery cases would not be needed. It was also obvious that even cases started with an extensive application would in most cases not be contested, if the application was well justified and the evidence submitted al-ready in the application for the summons. Therefore all civil cases could start the same way and most of them (about 90 %) could be decided in a written preliminary hearing. As the decision given by the court after the written preliminary hearing would in most cases be based on the fact that the defendant does not contest it, the decision could be done - when the application was a short one (summary -> summary proceedings) - by the clerks of the court and a judge would not be needed.
I. Completely Digitized Procedures: Electronic Case Files
Completely digitized proceedings do not exist in Finland yet. Anyway, the summary proceeding already is an almost completely automated procedure. Most cases in the summary proceedings concern requirements to pay debts. Debt-collection agencies may ask for a permission of the Ministry of Justice to be allowed to send applications for summons electronically to courts. In these cases courts serve the summons on defendants by e-mail. This means that the Ministry of Justice has made an agreement with the Finnish Post and the courts can use the electronic postal service of the Post. A summons goes electronically from the court to some post office near the defendants home, where a paper copy of the summons is printed and delivered to the defendant by post. In most cases defendants do not answer, which means that they do not object to the writ of summons. Even in these cases the court has to write the decision (order to pay a debt) on paper as the plaintiff needs it for the execution, but the debt-collection agencies receive information on the decision electronically, too.
As you can see, this Finnish system in summary proceedings is in some parts very similar to Electronic Case Files plans in the USA. Document preparations and filing can be made electronically (See Preliminary Examination of Goals, Issues, and the Road Ahead, below). The service is electronic. The court receives documents electronically. Even steps 4 to 7 are electronic. The circulation (change) of the documents is in most cases manual if the defendant objects to the writ of summons, but it does not have to be. If the defendant has a computer with an e-mail capacity, he can answer by e-mail. Quality control as well as access to records, information and documents at chambers and court offices can be managed electronically with the court case management system (TUOMAS). Only the judgments and other court actions have to be on paper. There is no such discovery in Finland as there is in the USA, but the material concerning norms - like precedents, statutes - can be used electronically.
The long-range plans for completely digitized procedures has been drawn up by the strategy-working group at the Ministry of Justice. These plans aim at building a "virtual court" in a computer net, where the parties, witnesses and judges can participate in an oral, centralized and immediate proceeding. Technically it already is possible to send pictures and sounds electronically. The Ministry of Justice has also equipped some courtrooms for testing the transfer of voice and images from the witnesses´ and parties´ desks directly to a computer. Other sources needed in decision-making like norms and documents are available by computer even now.
II. Use of Advanced Technologies in Parts of Proceedings Following the Path of Common Litigation
1. Initiating the Proceedings
a) In Finland there is an act concerning the use of electronic communication and application of advanced technologies in courts (L sähköisen viestinnän ja automaattisen tietojenkäsittelyn käyttämisestä yleisissä tuomioistuimissa 28.6.1993/594).<2> It allows everybody to send a writ of summons (application for summons), an answer and further documents and statements to a court by facsimile, e-mail or by transferring the data of a document into a court's EDP-system (electronic message). For this last method the plaintiff needs the permission mentioned above to be allowed to send applications for summons to a court.
The use of facsimile is very common in Finland. In nearly every case some files are sent to a court by facsimile. Normal e-mail (X.400) still is a rather rare way to communicate. It depends mostly on the old-fashioned e-mail tools (programs) in the court computers. District Courts (first instance) are going to get new computers next year because of a new case-managing program for criminal cases. The courts are going to get Internet connexions and new e-mail tools, too. The operating system is going to change from OS II to Windows NT.<3>
b) As explained earlier the second EDP-connexion (electronic message) between plaintiffs and courts is very commonly used in the summary proceedings. In Finland debt-collecting is concentrated to few companies owned by banks and businesses. They all use EDP-systems in billing and debt-collection. As in most similar systems in commerce, the information and the data in their systems is basically the same as the data required in short applications -- and therefore should also be used in the court case management system. In planning the procedure and the case management system to sup-port the procedure these facts were observed. The acts on the procedure were also adjusted to the use of information techno-logy.<4>
The Ministry of Justice operates an electronic "inter-judiciary" mailing-system called SANTRA in which every court has an address, called a "mailbox". The plaintiffs - the largest debt-collection agencies and law offices - get an own "mailbox" in the system, too.<5> There are only 15 companies, which use this SANTRA-connexion, but in fact more than 50 000 cases were sent to courts via this connexion in 1997. In all there were about 120 000 summary cases in Finland in 1997, so the courts handled over 40 % of the summary cases through this EDP-system.
c) In Finnish law there is no legal provision for electronic filing via ftp or disk. In practice some plaintiffs leave their applications for summons as a disk, too. The judge can copy the writ of summons directly from the disk to the case management system TUOMAS, and use it later in the proceedings and when writing a judgment. But in these cases the official version of the writ of summons is the one on paper.
The act mentioned above includes a regulation on how the authenticity and genuineness of an e-mail or facsimile message can be secured. In all electronic documents it must be mentioned how the court or a judge can contact the sender if there is reason to suspect the authenticity or genuineness of a document (s. 6).
In a procedure the time-limits are important. In this act it is regulated that the message has arrived to the court, when it is in the receiving computer or facsimile and the court can print it out. If there are problems in finding out this time, the time when the document was sent is the determining factor (s. 3).
2. File Management and Case Management
a) The act mentioned made it possible to use EDP extensively in the written preliminary hearing. These two systems developed, the TUOMAS-case management system and the SANTRA-electronic transfer system, are compatible. The documents or files needed for summons to be sent electronically via Santra (see above I.) are produ-ced by the Tuomas-system which is integrated to the WordPerfect-word processing system. Sending the files to the Post is automated in the Tuomas- and Santra-systems. The Tuomas-system will track the deadlines the defendants have for con-testing. If the time has passed the Tuomas-system (and WP) will help to produce the decision of the court, which will be based on the data in the application and summons. In the debt-collecting cases the plaintiff using Santra will also get the data of the decision back to its data-systems via Santra.
In many cases the court will have to contact the plaintiff. This may be done by electronic mail or facsimile, if the plaintiff has given the court an electronic mail address as the address where messages should be sent. Although mainly planned to be of help in summary civil cases, the Tuomas-system is at present extensively used for all types of civil cases. In 1993 the system only supported normal civil cases. There were only 14 standard court documents integrated to the system. Today there are about 200 (or 400, if both official languages are counted) different documents integrated to the system.
b) In the later phases of the proceedings, in set-ting the hearing and summoning the parties to the hearing, the electronic mail and the calender systems may be used. Judges also reserve courtrooms via this calendar system which is integrated with the courts e-mail system. It was hoped that in the new proceedings the lawyers would use the possibilities of these systems to the full. To this day Finnish lawyers unfortunately have used the systems very seldom. One reason for this is the old-fashioned e-mail program of the District Courts.
c) The Tuomas-system stores cases, too. All judges in a court can open the file of a case with a personal computer. In this new procedure for civil cases the co-operation between the judge and the proceedings secretary is very important. The secretary writes and sends the summons and even writes the transcripts and summaries of the hearings. The judge can use this material via Tuomas when writing of a judgment.
3. Delivering the Initiation Document (Service)
See above under I.,II.1.,II.2.
4. Preparation of the Hearing
See above 2.b).
The oral preliminary hearing is recorded. In many cases the judge sums up of the case. The Tuomas-system stores and tracks all the docu-ments of a case, and if the document has been posted electronical-ly it can be used for later documents.
The main hearing also is an oral and recorded. There is a transcript of the hearing, but it does not include every word said in the hearing. The transcript is more like the minutes of the proceedings telling what has happened in the hearing. If one wants to know what a witness has said, one listens to the tape. The decision is written but the judge can use the texts of the application and the summing-up when writing the decision, if the Tuomas-system was used to store them.
5. Hearing and Evidence
It is not possible to hear a person without the physical presence of the persons involved. In the new 1993 act on the procedure in civil cases the principles of oral and immediate (direct) proceedings are codified in such way that it is impossible to arrange hearings using telephone or video conference techniques. As mentioned on above (A.I.), there are some long-range plans to develop a "virtual court". These problems with the principles have to be solved before the plans for a "virtual court" can come true.
In Finnish law there is no clear definition on the nature of the documents that can be used as evidence in legal proceedings. Presenting evidence through documents is free. Chapter 17, section 11 of the Procedural Code, however, does forbid the use of a written personal testimony without particular reasons. Individual witnesses should be heard orally in the direct proceedings. Generally all documents that contain significant information can be used as evidence. The evidentiary value of written evidence is defined by the free evaluation of evidence. This free theory of evidence also means that the use of video films, tapes, microfilms, telegrams, etc. as evidence is possible. The problems relating to their use as evidence have not even been discussed within the Finnish judicial system. Their use is self-evident.
6. Legal Information (Information on Legal Authorities)
a) The Finnish Ministry of Justice is responsible for the FINLEX legal data bank. At the moment the FINLEX system consists of two parts, the original FINLEX with a user fee and the new FINLEX Legislation Data which is free of charge. The initial part of FINLEX was established in 1980, and the first database was opened already in 1973 (Supreme Administrative Court). The FINLEX database service has been available on the Internet and the WWW since May 1996. Nowadays FINLEX consists of approx. 40 databases.
The basic parts of FINLEX are legislation, case law, literature and material of the European Union.
Case law includes:
EU section includes:
For the use of FINLEX a user-id is required. The use of FINLEX does not cost the courts anything. For other users the tariffs are based on the number of search commands and on the number of documents viewed on-line. The tariffs are 0,4 ECU/search, 0,5 - 0,8 ECU per document. The retrieval system for the traditional FINLEX is called MINTTU and a special WWW interface has been prepared for MINTTU. The traditional FINLEX can be found on the Internet, the address is http://www.tt-tietopalvelut.fi/facta/kuvaus.htm.
b) The new FINLEX Legislation Data Bank (Valtion säädöstietopankki/Statens författningsdata) is a public system available free of charge on the Internet, address http://finlex.om.fi. The Legislation Data Bank was opened in October 1997 and currently it consists of three databases.
c) Later the Legislation Data Bank will be complemented with the following databases:
The preparation of the new Legislation Data Bank was started in 1996. A working group carried out a study on the duty of the government to disseminate legislative materials electronically. The report was published in March 1996, and in the end of 1996 a European call for tenders was published in the Official Journal of the European Communities (S series).
The prime contractor for the new data bank is Edita, a Finnish company specialized in electronic publishing. Edita (previously Government Printing Centre) also prints the official Statute Book of Finland.
The new Legislation Data System of the Finnish Ministry of Justice is using SGML as a standard for structured documents and DynaWeb and Solid SQL Servers as the retrieval systems in the WWW service. The data system is free of charge for all users and the system will be complete in the second half of 1999.
d) There is even much more legal information available for judges via computer. These databases are operated by Parliament, the Ministry of Finance, Data Protection Ombudsman and Supreme Administrative Court. Finnish firms also produce and disseminate legal databases on CD-ROM and on the Internet. The most important firms are Kauppakaari Ltd - Finnish Lawyers' Publishing Corp. and Edita.
The Law Info Service ("Laki-info") of Kauppakaari has been available on the Internet since 1997. Kauppakaari is the company publishing the book the Laws of Finland ("Suomen Laki - Finlands Lag") and the legislative materials being published on paper are also published digitally on CD-ROM and on the Internet. The service consists of three sections: The Laws of Finland, Laws of the European Union, and Current information on legislation and case law. The Internet service of Kauppakaari can be found in the address http://www.kauppakaari.fi/
The information service of Edita has been available on the Internet since 1995. Edita is the company publishing the Statute Book of Finland. The Internet service of Edita consists of the following material: 1. government bills in full text since 1994 (free of charge), 2. taxation info with legislation and case law (includes acts, decrees, international taxation treaties, Finnish court cases and EU directives on taxation - licence fee for single user: ECU 130), 3. info on forestry and agriculture with legislation and case law (includes acts, decrees and EU directives), 4. company legislation (CD-ROM), 5. legislation on construction and real estates (CD-ROM). The Internet service of Edita can be found in the Internet address http://www.edita.fi/laki
e) When legislative texts and other public data are distributed by an undertaking (private or partnership) in an electronic network open to the public on the Internet, those undertakings need not pay any compensation to the State in return. The private or public undertakings operating electronic networks charge the end users on the basis of annual contracts. The users sign a contract with the undertakings for access to the information in their databases. Billing is generally based on the number of end users, with different pricing for a single user, two to five users, five to 15 users, 16 to 50 users, etc.
7. Final Decision
See above about TUOMAS. Judges write their decisions with WordPerfect which is connected to TUOMAS. Most of the judges write their decisions themselves. They can ask the typing personnel to help them, but nowadays a computer is a daily tool for a judge in a District Court.
As mentioned, in the debt-collecting-cases the plaintiff using Santra will also get the data of the decision back to its data-systems via Santra. A copy of the decision is still posted to the plaintiff and still is needed for the execution. The distraint law is to be amended in the near future, and then an electronic document will be considered.
There are some calculation programs in the courts, too. Excel is widely used, I suppose, but it is not part of the case management system. The 1993 Acts on Business Reorganization and Debt Arrangement of Private Persons created new forms of procedure, in which many kinds of calculations are necessary. For these procedures private firms have developed special programs and some courts have bought these programs.
Final decisions are not generally accessible via the Internet. The publishing of decisions in electronic form has not been discussed. The precedents of the Supreme Court and Supreme Administrative Court are in electronic form in FINLEX anyway.
8. Complex Litigation Proceedings
There are no rules governing complex litigation in Finland. There are plans to create a class-action system, but these plans have not yet been realized. The new forms of procedure mentioned above in matters of insolvency have some similarities with complex litigation like the reorganization program as a final decision.
Today Courts of Appeal use different kinds of data systems. They work with the Finnish word processing program TEKO, which is not very compatible. The Supreme Court works in a Windows 3.1 surrounding with Word Perfect 5.1 as the word processing program. Judges of Courts of Appeal have the same online access to legal information as the judges of District Courts (FINLEX and so on), but old-fashioned computers are the reason why the use of these information sources is not so easy as in the District Courts. The same infrastructure plans explained in footnote 2 concerns the Courts of Appeal, too. This means that in few years all courts in Finland are going to have the same equipment, programs and information resources.
It has been planned that a separate layer would be built to integrate the old systems with the new ones. The new Internet/Intranet technology seems to be that layer. The new case management system will use the possibilities offered by that technology. It has been planned that the documents (texts, pictures etc.) will be stored in the system in HTML-format. The access to the information both in the new system and the old ones, e.g. the legal data bank, will be based on Internet technology used in a closed network (Intranet). Word processors or spreadsheet can be used, but the document would be stored in HTML-format, which would mean that the users can choose the tools they want to use and that the documents stored will be in one standard format.
B. Other Judicial Proceedings (Non-contentious Matters)
Electronic Record and Register
Using technology to help the work of the courts dates back to the 1980´s in Finland. The Finnish legal data bank Finlex was introduced in the beginning of the 80's. The Court Decision System and the Real Estate System were implemented in some courts in 1986 at the same time as some courts started to use the first case management systems.
I. Real Estate Information System (REIS)
The REIS consists of the following three main components:
The system is essentially connected with the databases of the municipalities, especially the real estate and planning components.
The development of the REIS project is the responsibility of the National Board of Survey, the Ministry of Justice, the Ministry of Environment and the municipalities. The public information on real estates and rights is processed and registered mainly by two official sectors in Finland: survey authorities and judicial authorities. A formal process exists for purchasing a piece of land. The stages of purchasing are also used as data sources of authorities operations and are roughly described as follows.
The REIS database includes
The Country Survey Office has the primary Real Estate Register in its HP-computer. It sends the revised data to the information database once or twice a week. Similarly the municipal authorities send their revised data once a week. The local courts update the ownership data and mortgages in real time. This data is linked to the same real estate units as in the information database. Plans are supposed to be updated by batch method with partial copies from the registers of the municipalities.
It is possible to get up-to-date information from the database through terminal queries. The query application serves displays as well as printers. One can use a terminal with a straight connection to the general communication network or one's own computer equipment. One is also able to use the REIS with a micro and telephone connection. Telecommunication services are also provided by the Municipal Data Centre in cooperation with the SCC. The on-line information delivery reaches the survey, judicial and other authorities and their customers as well as the brokers, bank managers and private enterprises.
II. The Fines Collection System
The Fines Collection System handles both the fines sentenced in the normal court procedure and the summary penal order procedure. Data on the decisions is transferred in computer language to the enforcement authorities, the Central Motor-Vehicle Register and the Central Statistical Office. Data on the decision is stored in the Courts Decision Register. Payment data is obtained from the Postal Savings Bank in computer language. This enables the linkage of the decision data and the related payment data as well as the follow-up of the case. The Bureau of Data Management in the Ministry of Justice sends out a computer-prepared payment reminder to a person who has not paid a fine. If the fine remains unpaid after the the payment reminder, the system produces a writ of execution which is sent to the execution office.
III. The Criminal Records and the Court Decision System
The Ministry of Justice is responsible for updating and managing of the Criminal Records. The Court Decision System and the Criminal Records use the same database. The Court Decisions System is not to be mixed with TUOMAS, i.e. the case management program. The Court Decision System is older than TUOMAS and is used in criminal cases. The information from this system is used by distraint officers, the Prison Department in the Ministry of Justice and prisons, the Criminal Records Office, the Motor Vehicle Register Centre, the Population Register Centre, social authorities, the authorities responsible for overseeing legality (the Chancellor of Justice, the Parliamentary Ombudsman), etc.
The new Code of Criminal Procedure entered into force on 1. October 1997. A new case management system - SAKARI - has been planned for the new criminal procedure. In criminal cases the case management is more complex as it involves the police, prosecutor and the courts. The case management system will cover the work-flow of the prosecutor and the court, and have links to the system the police uses. In the next phase it also will cover the Court Decision System and the authorities linked to it. The new system will have the same case management features as the Tuomas-system in civil cases, but more emphasis has been put on managing the information in a case (contrary to managing cases in the court).
<1> I give my special thanks for the material for this report to Justice of the Court of Appeal Kari Kujanen, who is now working at the Ministry of Justice and responsible for Electronic Data Processing development in Finnish courts.
<2> The act states (free translation):
1 §: An application, answer or other such document, which according to law can be sent to the general courts by mail, can be sent to a court by means of facsimile, e-mail or using an EDP-system to transmit the information to the courts EDP-system (electronic message).
The Ministry of Justice can give the applicant a permission to transmit the information of the application to the court's EDP-system
3 §: The electronic message has arrived to the court at the time it can be printed with the receiving device or when it has arrived to the court's EDP-system. In case this time cannot be established the message is presumed to have arrived at the time when it has been sent, if that time can be reliably established
4 §: The responsibility that the electronic message has been delivered to the court is on the sender (as is the case with normal post)
6 §: The document does not have to be signed as long as there is sufficient information on the message to enable the court to contact the sender if it doubts the originality of the message
Of the use of EDP in the courts the act states:
7 §: The court has to take a hard copy of the message, if it is necessary according to the rules and regulations concerning the archives of the courts
8 §: The court can send a notification to a party in a case by sending an electronic message to the address given by the party
The court does not have to sign the summons (it can be done by word processing)
<3> The elements of a strategic plan drafted by the Ministry of Justice are:
<4> The main obstacles in the legislation were the requirements of signature and original paper documents.
<5> The plaintiffs using the Santra-system daily transfer the data of all their applications to the "mailbox" of all the courts in Finland. The data usually is an AS-CII-file, but other forms also are possible as long as the file meets certain standards. The Santra-system then distributes the applications to the "mailboxes" of the courts. The court updates their Tuomas-system from their "mailbox".
Bei Fragen und Unklarheiten wenden Sie sich bitte an: [Prof. Dr. Helmut Rüßmann].